JUDGMENTS AND ORDERS — amending, varying and setting aside — Court of Appeal — application to reopen and vary orders under UCPR r 36.16(3A) — whether judgment affected by misapprehensions — whether misapprehension on part of Court warrants orders being varied — no basis for reopening — application dismissed
COSTS — gross sum costs order — where applicant opposes gross sum costs order — where applicant seeks to adduce evidence beyond scope of Court of Appeal proceedings — application to subpoena witnesses refused — gross sum costs order appropriate in the circumstances
Quick Take
1Under UCPR r 36.16(3A), even where the Court accepts it proceeded under a misapprehension (here, not addressing a Part 15 LEPRA safeguards argument), the power to vary orders remains discretionary and may be declined where the stakes are especially small and considerations of finality are overwhelming.
2The distinction between a court acting on a misapprehension of fact or law and a court reaching a conclusion the applicant considers mistaken is critical to r 36.16(3A) applications; disagreement with the court's reasoning or outcome does not engage the reopening jurisdiction.
3On an application for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), evidence going to the substantive merits of the underlying dispute or to events leading to the commencement of proceedings is of limited if any relevance; the court's focus is on the costs incurred in the proceedings for which the costs order was made.
