Background
In the principal judgment, the Court ordered that a medical assessment certificate issued by an Appeal Panel of the Personal Injury Commission be remitted to the President of the Commission for determination according to law. It also ordered Mullungeen Pty Ltd, the first defendant, to pay Stefan Ivanovic’s costs, while allowing the parties to seek an alternative costs order.
Mullungeen contended that Ivanovic should recover only 30% of his costs. It said he had effectively advanced three challenges to the assessment and succeeded on only one, which had occupied little of his written submissions. Ivanovic opposed the proposed reduction, submitting that costs should follow the event and that the successful issue could have been conceded, avoiding the hearing.
The Court’s Holding
Elkaim AJ declined to alter the original costs order. Although Ivanovic succeeded on only one issue, he had obtained the substantive relief sought: remittal of the matter for determination according to law.
The Court held that a proportionate or issue-based reduction was not warranted in the circumstances. Mullungeen had not conceded the successful issue; the hearing lasted only about two and a half hours; and, although the issues were distinct, they were intertwined by their factual background. The Court therefore left in place the order that Mullungeen pay Ivanovic’s costs.
Key Takeaways
- A party that succeeds in obtaining remittal on judicial review may receive its full costs even if it fails on other grounds.
- The proportion of submissions devoted to a successful issue is not, by itself, a persuasive basis for reducing costs.
- Short hearings and factually intertwined issues may weigh against issue-based costs apportionment.
Why It Matters
The decision illustrates the broad discretion governing costs in NSW judicial-review proceedings. A mixed result does not necessarily justify a percentage reduction where the successful ground delivers the practical outcome of the case.
It also cautions against post-hearing costs disputes that require artificial allocation of preparation and hearing time among related issues.