Dye v Commonwealth Bank of Australia & Anor [2012] NSWCA 220

Dye v Commonwealth Bank of Australia & Anor [2012] NSWCA 220

Leave to appeal was refused because the applicant did not demonstrate error in the discretionary costs orders. The defamation claims could have been brought in the Federal Court's accrued jurisdiction because they shared a common substratum of facts with the federal sexual harassment and discrimination claims. The Supreme Court had power under s 98 of the Civil Procedure Act 2005 to make a gross-sum wasted costs order, and the unchallenged evidence supported findings of substantial duplicated and wasted costs in discovery, subpoenas and proofing witnesses. The argument that the Bank shared responsibility was not put to the primary judge, and no basis was shown to disturb the ordinary...

Jurisdiction
Australia
Judgment Date
26 July 2012
Procedural Posture
Application for Leave to Appeal Against Costs Orders / Court of Appeal Application for Extension of Time and Leave to Appeal
Outcome
Time to seek leave to appeal extended; application for leave to appeal dismissed; applicant ordered to pay the Bank's costs of the application for leave to appeal.
Legal Topics
['leave to Appeal From Costs Orders' 'wasted Costs Order' 'costs of Stay Application' 'jurisdiction of Courts (cross Vesting) Act 1987 S 13(a)' 'judicial Review Under Supreme Court Act 1970 S 69' 'federal Court Accrued Jurisdiction']
['practice and Procedure' 'costs' 'jurisdiction' 'cross Vesting'] ['leave to Appeal From Costs Orders' 'wasted Costs Order' 'costs of Stay Application' 'jurisdiction of Courts (cross Vesting) Act 1987 S 13(a)' 'judicial Review Under Supreme Court Act 1970 S 69' 'federal Court Accrued Jurisdiction']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Costs Orders / Court of Appeal Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether s 13(a) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 deprived the Court of jurisdiction to entertain an application for leave to appeal from costs orders made in connection with transfer proceedings.' "Whether the applicant could have brought the defamation claims in the Federal Court as part of the same matter in that Court's accrued jurisdiction." 'Whether the Supreme Court had power to make the wasted costs order when transferring the defamation proceedings.' 'Whether there was sufficient evidence to quantify wasted costs at $250,000.' 'Whether the Bank shared responsibility for wasted costs because it could have sought transfer or used the same solicitors in both proceedings.' "Whether there was any basis to interfere with the order that the applicant pay the Bank's costs of the unsuccessful stay application."]

Ratio Decidendi

Leave to appeal was refused because the applicant did not demonstrate error in the discretionary costs orders. The defamation claims could have been brought in the Federal Court's accrued jurisdiction because they shared a common substratum of facts with the federal sexual harassment and discrimination claims. The Supreme Court had power under s 98 of the Civil Procedure Act 2005 to make a gross-sum wasted costs order, and the unchallenged evidence supported findings of substantial duplicated and wasted costs in discovery, subpoenas and proofing witnesses. The argument that the Bank shared responsibility was not put to the primary judge, and no basis was shown to disturb the ordinary...

Court Disposition

Time to seek leave to appeal extended; application for leave to appeal dismissed; applicant ordered to pay the Bank's costs of the application for leave to appeal.

Orders

  • ['Extend the time for the applicant to seek leave to appeal to 25 January 2011.' "The application for leave to appeal against the orders made on 21 October 2010 that the applicant pay the Bank's costs of the defamation proceedings which have been wasted in the sum of $250,000 and the Bank's costs of the stay...