Burns v Corbett [2018] NSWSC 1347

Burns v Corbett [2018] NSWSC 1347

Although the defendant was overall successful after the Court of Appeal and High Court held that NCAT had no power to exercise federal diversity jurisdiction, the defendant did not raise that critical point at the outset and gave no explanation for failing to attend for cross-examination, leaving the plaintiff with a strong presumptive claim for wasted costs. Balancing the defendant's overall success against the plaintiff's wasted costs position, practical justice required that no costs order be made and each party bear his or her own costs.

Jurisdiction
Australia
Judgment Date
04 September 2018
Procedural Posture
Costs Decision in Contempt Proceedings Arising From Enforcement of NCAT Orders Under the Anti Discrimination Act 1977 (nsw) / After the Parties' Motions Were Dismissed by Consent Following the Court of Appeal and High Court Decisions on Ncat's Federal Diversity Jurisdiction; Determination of Costs on Written Submissions
Outcome
No order as to costs; each party to bear his or her own costs of the proceedings in the Common Law Division.
Legal Topics
['costs Discretion' 'costs Following the Event' 'public Interest Costs Exception' 'wasted Costs' 'federal Diversity Jurisdiction' "suitors' Fund Act Certificate"]
['costs' 'civil Procedure' 'anti Discrimination' 'jurisdiction'] ['costs Discretion' 'costs Following the Event' 'public Interest Costs Exception' 'wasted Costs' 'federal Diversity Jurisdiction' "suitors' Fund Act Certificate"]

Case Brief

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Procedural Posture

Costs Decision in Contempt Proceedings Arising From Enforcement of NCAT Orders Under the Anti Discrimination Act 1977 (nsw) / After the Parties' Motions Were Dismissed by Consent Following the Court of Appeal and High Court Decisions on Ncat's Federal Diversity Jurisdiction; Determination of Costs on Written Submissions

Legal Issues

  1. 1 ['Whether the defendant, as the overall successful party, should receive costs of the Common Law Division proceedings.' "Whether the plaintiff's complaint was brought in the public interest so as to justify departure from the usual costs order." "Whether the defendant's failure to raise the federal diversity jurisdiction argument earlier caused delay or unnecessary costs." "Whether, if costs were ordered against the plaintiff, the proceedings were an appeal for the purposes of the Suitors' Fund Act 1951 (NSW)."]

Ratio Decidendi

Although the defendant was overall successful after the Court of Appeal and High Court held that NCAT had no power to exercise federal diversity jurisdiction, the defendant did not raise that critical point at the outset and gave no explanation for failing to attend for cross-examination, leaving the plaintiff with a strong presumptive claim for wasted costs. Balancing the defendant's overall success against the plaintiff's wasted costs position, practical justice required that no costs order be made and each party bear his or her own costs.

Court Disposition

No order as to costs; each party to bear his or her own costs of the proceedings in the Common Law Division.

Orders

  • ['No order as to costs to the intent that each party will bear his or her own costs of the proceedings in the Common Law division.']