United GlobalCom, Inc and ors v McRann (No. 2) [2004] NSWIRComm 16

United GlobalCom, Inc and ors v McRann (No. 2) [2004] NSWIRComm 16

Although the appellants' procedural steps in Colorado were open to them and not of themselves unreasonable, the interests of justice required the appellants to pay the respondent's costs of the appeal forthwith because they had failed before Peterson J and on appeal, the estoppel aspect of the appeal was not entirely meritorious, earlier expert evidence and advice indicated dismissal on issue estoppel in interlocutory proceedings was unlikely, the appeal caused delay and expense to the respondent, the proceedings had been commenced in May 2001, and final disposal would take a considerable period.

Jurisdiction
Australia
Judgment Date
12 February 2004
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Judgment; Application for Costs to Be Paid Forthwith / After Leave to Appeal Refused and Appeal Dismissed; Determination of Respondent's Application Under R 203(2) of the Industrial Relations Commission Rules 1996
Outcome
Respondent's application granted in part; appellants ordered to pay the respondent's costs of the appeal forthwith.
Legal Topics
['section 106 Industrial Relations Act 1996 Claims' 'interlocutory Appeal' 'costs Payable Forthwith' 'jurisdictional Objections' 'issue Estoppel']
['industrial Relations' 'civil Procedure' 'costs'] ['section 106 Industrial Relations Act 1996 Claims' 'interlocutory Appeal' 'costs Payable Forthwith' 'jurisdictional Objections' 'issue Estoppel']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Judgment; Application for Costs to Be Paid Forthwith / After Leave to Appeal Refused and Appeal Dismissed; Determination of Respondent's Application Under R 203(2) of the Industrial Relations Commission Rules 1996

Legal Issues

  1. 1 ["Whether the respondent's costs of the appeal and proceedings at first instance should be paid forthwith notwithstanding that the substantive proceedings were not concluded." 'Whether the demands of justice justified departure from the ordinary practice that interlocutory costs are payable at the conclusion of proceedings.' 'Whether factors such as delay, expense, discrete issues, and alleged unreasonable conduct supported an order for costs payable forthwith.']

Ratio Decidendi

Although the appellants' procedural steps in Colorado were open to them and not of themselves unreasonable, the interests of justice required the appellants to pay the respondent's costs of the appeal forthwith because they had failed before Peterson J and on appeal, the estoppel aspect of the appeal was not entirely meritorious, earlier expert evidence and advice indicated dismissal on issue estoppel in interlocutory proceedings was unlikely, the appeal caused delay and expense to the respondent, the proceedings had been commenced in May 2001, and final disposal would take a considerable period.

Court Disposition

Respondent's application granted in part; appellants ordered to pay the respondent's costs of the appeal forthwith.

Orders

  • ["The appellants shall forthwith pay the respondent's costs of the appeal as agreed or, failing agreement, as assessed."]