Procedure – costs – where, prior to the appeal,
Appellants made numerous attempts at agitating application to have
the matter heard and determined by the ADR Registrar –
whether the application had been dismissed – whether
discretion should be exercised for costs order – conduct of
Appellants in persisting with application.
Facts: This matter concerned an application for
costs, following the decision of His Honour Judge Searles,
dismissing the appeal and reserving costs on the basis that the
parties provide written submissions to the Court.
The Council sought costs incurred in responding to the
Appellants' attempts to re-agitate an application to have the
appeal heard by the ADR Registrar. The Council did not seek costs
for resisting the appeal.
Council argued the Court should exercise its discretion under s
457 and award costs in its favour on the grounds that the Council
was put to unnecessary and considerable effort and expense in
responding to the Appellants' requests to have the appeal heard
by the ADR Registrar. The Appellants persisted, despite the
decision by His Honour Judge Everson to dismiss the Appellants'
application, to agitate for the appeal being heard and determined
by the ADR Registrar.
The Appellants argued that s 457 should not be applied because
His Honour Judge Everson did not specifically dismiss the ADR
application, and they were therefore entitled to re-agitate the
The Appellants also argued that given the power under s 491B to
refer matters to the ADR Registrar is in its infancy, it would be
inappropriate for the Appellants to pay the Council's cost
where the boundaries of the provision is yet to be tested.
Decision: The Court held, in making orders in
favour of the Council:
The Appellants should have appreciated that their application
did not have reasonable prospects of success following the decision
of His Honour Judge Everson to dismiss the application.
The Appellants' repeated attempts to have the matter heard
and determined by the ADR Registrar constituted unreasonable
conduct in the proceedings.
It was appropriate in the circumstances to exercise the
Court's discretion under section 457.
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