Christopher Cleveland v Paspaley Pearling P/L [1999] NTSC 71

PARTIES:	CHRISTOPHER CLEVELAND

	v

	PASPALEY PEARLING PTY LTD

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY   EXERCISING TERRITORY JURISDICTION

FILE NO:	9613369 (LA 17 of 1997)

DELIVERED:	19 July 1999

HEARING DATES:	16 July 1999

JUDGMENT OF:	KEARNEY J

REPRESENTATION:

Counsel:
	Appellant:	M.J.McK. Grove
	Respondent:	E.G. Elrington

Solicitors:
	Appellant:	Ward Keller
	Respondent:	Cridlands

Judgment category classification:	B
Judgment ID Number:	kea99013
Number of pages:	3

Kea99013

IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Christopher Cleveland v Paspaley Pearling P/L [1999] NTSC 71
No. 9613369 (LA 17 of 1997)

	BETWEEN:

	CHRISTOPHER CLEVELAND
	Appellant

	AND:

	PASPALEY PEARLING PTY LTD
	Respondent

CORAM:	KEARNEY J

RULING ON COSTS

(Delivered 19 July 1999)

[1]	On 7 July 1999 I allowed this appeal, for reasons then published, on the ground that in the course of the hearing there had been a material denial of natural justice.  I said that I would hear the parties on the appropriate orders which should flow from this disposition of the appeal. On 16 July I heard the parties on that aspect.  On the application of the appellant, the respondent not objecting, I ordered that the orders made by the Work Health Court on 29 August 1998 (other than its declaration that the appellant suffered an injury in the course of his employment with the respondent, and its order that the respondent pay the appellant’s medical expenses) be quashed and set aside; and that there be a re-hearing of the appellant’s claim for compensation, other than in relation to the subject matters of those two orders.
[2]	The parties were in dispute on the question of costs.  Mr Grove of counsel for the appellant submitted that costs should follow the event; the successful appellant should have the costs both of his appeal and of the hearing in the Work Health Court.  I was informed that the question of costs had not been agitated before that Court, that issue having been overtaken by the institution of the appeal against the orders of 29 August 1998.  Mr Grove referred to McMorrow v Airesearch Mapping Pty Limited (unreported), Court of Appeal (NT), 7 March 1997), where an appeal was allowed, and a new hearing before the Work Health Court was ordered; the Court ordered that the costs of the first hearing before the Work Health Court follow the event of the second hearing before that Court.  Mr Grove submitted that the present case was distinguishable from McMorrow (supra) because in that case the learned Magistrate had erred in law by failing to consider future probabilities, whereas in the present appeal the error in law flowed from his Worship’s denial of natural justice.  I do not consider that that factor renders McMorrow (supra) distinguishable, on the question of the costs order which should be made.
[3]	Mr Elrington of counsel for the respondent submitted that while the respondent had failed in the appeal to this Court, it had not occasioned the ground of appeal which succeeded. I accept that. The error by way of a denial of natural justice arose from a combination of what was said during the closing address of the worker’s counsel, read with his Worship’s reasons for judgment of 29 August 1998. On a re-hearing, it is entirely possible that the respondent would again be successful.  Mr Elrington submitted that the appropriate order was ‘no order as to costs’; failing that, he submitted that while the successful applicant should have his costs of the appeal, the costs of the hearing before the Work Health Court should abide the outcome of the second hearing.
[4]	I now rule on the outstanding question of costs.  Although the award of costs is discretionary, in general a successful party should have its costs.  Applying this general principle, I consider that the appellant should have his costs of the appeal.  The respondent must pay those costs; there is no Suitors’ Fund legislation in the Territory such as exists everywhere else in Australia (except South Australia), which might provide a costs indemnity to a respondent unsuccessful in an appeal on a question of law.  As to the costs of the Work Health Court proceedings, I consider that the approach thereto adopted in McMorrow (supra) is appropriate in the present circumstances; accordingly, the costs of those proceedings before his Worship should follow the event of the re-hearing before that Court.
[5]	Orders accordingly.
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