Howard v Telstra Corporation Ltd

[2003] NSWCA 188

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › General rule — costs follow the event
4. › Departure from general rule
5. › Whether failure to call witnesses at arbitration justified depriving successful plaintiff of costs of trial
6. › Whether costs order was perverse, unreasonable and plainly unjust
7. › District Court Rules Pt 39A r 9
1. Practice and Procedure
2. › Costs
3. › District Court arbitrations
4. › Duty to put best foot forward
5. › Failure to call available witnesses at arbitration
6. › Whether deliberate forensic decision to withhold evidence
7. › Whether mere failure to call witnesses justifies adverse costs order against successful party
8. › Arbitration (Civil Actions) Act 1983 (NSW), s 18(3)
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary costs order
4. › Whether trial judge's order was unreasonable or plainly unjust
5. › House v The King principles

Quick Take

The mere failure to call witnesses at a District Court arbitration who are later called at the trial, absent a deliberate forensic decision to withhold evidence, cannot justify a costs order that deprives a successful plaintiff of the costs of any hearing and requires the plaintiff to pay the costs of both the arbitration and the trial. Such an order is perverse. While cost penalties may follow from a failure to put one's best foot forward at arbitration, the costs order must ultimately be fair and just in all the circumstances.