IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
No. 739 of 1990
(9026486)

BETWEEN:

(tho93009)

TREVOR WILLIAM FLACK
First Plaintiff
AND:

NARWUNJUKE PASTORAL COMPANY PTY LTD
Second Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA
Defendant

CORAM:	THOMAS J

REASONS FOR JUDGMENT
(Delivered 26 March 1993)

This was an application by the plaintiff to extend the limitation period prescribed by the Limitation  Act,  in respect of an action brought by the plaintiff against the defendant claiming damages for negligence and breach of the Trade Practices Act.

The application was opposed by the defendant and hearing of the application proceeded over five days from 22-28 October 1992.

On 27 November 1992 I delivered written reasons for decision granting the plaintiff's application for an extension of time.

The plaintiff now seeks an order pursuant to Order 63.04(1) of  the  Supreme  Court  Rules  that  the  defendant pay the plaintiff's costs on the hearing of the

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application for extension of time. The plaintiff seeks a further order pursuant to rule 63.04  that the plaintiff be entitled to proceed to taxation of these costs forthwith and not have to wait until the conclusion  of the proceedings.

The	relevant	provisions	of	Order	63.04	to	this matter are as follows:

"63,04
PAYMENT

TIME	FOR	ORDER	FOR	COSTS,	TAXATION	AND

The Court may exercise its power and discretion as to costs at any stage of a proceeding or after the conclusion of the proceeding.

Subject to this rule, the costs a party is required to pay under these Rules or an order of the Court shall be paid immediately,
Subject to subrule (4), where -

the Court makes an interlocutory order for costs; or

costs are payable by virtue of these Rules without an order for costs,

those costs shall not be taxed until the conclusion of the proceedings to which they relate.

If it appears to the Court when making an interlocutory order for costs or at a later time that all or a part of the costs ought to be taxed at an earlier stage, it may order accordingly."

This matter was referred to by the parties during the hearing as an interlocutory application. However, both parties are in agreement that it was not an interlocutory application within the accepted meaning of those words but rather a preliminary hearing confined to one of the issues in dispute. Accordingly, both parties are in agreement that Order 63.18 which states:

116 3.18	INTERLOCUTORY APPLICATION
Each party shall bear his own costs of an interlocutory or other application in a proceeding,

whether made on or without notice, unless the Court otherwise orders."

is not applicable in respect of this matter. I  agree  with their submissions on that point and for that reason do not apply Order 63.18 to the question of costs in this matter.

Both parties had agreed that it would be appropriate to ask the court to hear and determine the issue in respect of the plaintiff I s application  for an extension of time to extend the limitation period prescribed  by the
Limitation	Act prior to the hearing of the other issues
between the parties.

Counsel for the plaintiff has indicated the  plaintiff is preparing his claim and it may be some  months before the matter is ready to proceed to  hearing on the other issues.

An order pursuant to Order 63.04 is within the discretion of the court.  Normally this discretion would be exercised by making an order that costs follow the event. In this matter both parties agreed to deal with only one of the issues between them. This procedure was  no doubt eminently sensible because it saved both parties from the time and expense of preparing for a hearing on all of the issues when the matter may have been  ultimately and finally concluded at least by a judge at first instance if the application for extension of time was refused.

Counsel for the plaintiff argues that in addition to making an order for costs in favour of the plaintiff  there should be a further order that costs be taxed prior to the conclusion of the proceedings because:

this is a discrete issue which proceeded on its own;

this is a substantial case involving lengthy preparation and is unlikely to be heard before the end of the year; and

the plaintiff should not have to bear the costs for a long period of time.

I do not accept the plaintiff's argument. The defendant, in opposing the application for an extension of time, relied upon the statutory bar to the action which existed unless and until an extension was granted. It was one of the issues in the dispute between the parties which was resolved as a preliminary point. That is not a reason for the plaintiff to be awarded an order for costs. Sola Optical Australia Pty Ltd v Mills (1987)
46 SASR 364 per King CJ at pp. 372 and 373.

The fact that one of the issues between the parties is resolved as a preliminary point should not alter the position of costs between the parties so that it may ultimately result in an award of costs different from the one which would be made if all of the issues had been tried together. Such a possibility would have the effect of discouraging parties in actions such as this from taking the very sensible approach of having certain matters dealt with as preliminary points before the commencement of the trial of the substantive action.

Accordingly, the order I make is that costs should be costs in the cause.

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