Morrison v Joy Manufacturing Co Pty Ltd (No 2) [2004] NSWIRComm 224

Morrison v Joy Manufacturing Co Pty Ltd (No 2) [2004] NSWIRComm 224

Although Pt 51 r 25 of the Supreme Court Rules did not apply directly, the respondent had an obligation to raise any competency objection in a timely and procedurally appropriate way. Because the respondent delayed for months before properly raising the issue on which it succeeded, it should not receive its costs of the appeal. Since the appellant incurred unnecessary costs before the competency issue was placed before the Court, but was ultimately unsuccessful in the proceedings, the appropriate order was that the appellant recover costs of the appeal only until 23 June 2003 and the costs of the motion.

Jurisdiction
Australia
Judgment Date
12 August 2004
Procedural Posture
Costs Application in Appeal Proceedings / After Appeal Dismissed as Incompetent
Outcome
Respondent denied costs of the appeal; appellant awarded costs of the appeal until 23 June 2003 and costs of the motion.
Legal Topics
['competency of Appeal' 'delay in Raising Competency Objection' 'discretionary Costs Orders' 'industrial Relations Commission Procedure']
['industrial Relations' 'costs' 'practice and Procedure' 'occupational Health and Safety'] ['competency of Appeal' 'delay in Raising Competency Objection' 'discretionary Costs Orders' 'industrial Relations Commission Procedure']

Case Brief

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Procedural Posture

Costs Application in Appeal Proceedings / After Appeal Dismissed as Incompetent

Legal Issues

  1. 1 ['Whether the respondent should receive its costs after the appeal was dismissed as incompetent despite delay in raising the competency issue.' 'Whether the appellant should receive costs incurred before the respondent raised the competency issue and costs of the costs motion.' 'Whether Pt 51 r 25 of the Supreme Court Rules applied through r 89(5) of the Industrial Relations Commission Rules.']

Ratio Decidendi

Although Pt 51 r 25 of the Supreme Court Rules did not apply directly, the respondent had an obligation to raise any competency objection in a timely and procedurally appropriate way. Because the respondent delayed for months before properly raising the issue on which it succeeded, it should not receive its costs of the appeal. Since the appellant incurred unnecessary costs before the competency issue was placed before the Court, but was ultimately unsuccessful in the proceedings, the appropriate order was that the appellant recover costs of the appeal only until 23 June 2003 and the costs of the motion.

Court Disposition

Respondent denied costs of the appeal; appellant awarded costs of the appeal until 23 June 2003 and costs of the motion.

Orders

  • ['The respondent should not have its costs of the appeal.' 'The appellant should have his costs of the appeal until 23 June 2003.' 'The appellant should have the costs of the motion.']