Baulch v Lyndoch Warrnambool Inc (No 2)

[2010] VSCA 53

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs following order for new trial
4. › Usual rule that costs abide result of new trial
5. › Exception where conduct of party's counsel necessitated new trial
6. › Whether respondent should pay costs of first trial
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Whether indemnity costs warranted on appeal
5. › No criticism of conduct of appeal
1. Practice and Procedure
2. › Costs
3. › Statutory restrictions on costs
4. › Accident Compensation Act 1985 (Vic), s 134AB(28)
5. › Whether restriction applies where new trial ordered
6. › Whether any of the four specified outcomes had arisen

Quick Take

Section 134AB(28) of the Accident Compensation Act 1985 (Vic) does not restrict the Court of Appeal's power to award costs of a first trial where a new trial has been ordered, because the order for a new trial does not constitute any of the four outcomes specified in paragraphs (a) to (d) of the subsection. Where a new trial is necessitated entirely by the conduct of the respondent's counsel at the first trial, the usual rule that costs abide the result of the new trial will not apply, and the respondent will be ordered to pay the costs of the first trial.