The matter of John Larter (Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023)) returned to the Civil and Administrative Tribunal to determine the question of costs – Larter v Paramedicine Council of New South Wales (No 3) (Costs) [2023] NSWCATOD 105 (19 July 2023).

John Larter (Photo Credit: ABC News (Online) https://www.abc.net.au/news/2021-11-10/paramedic-john-larter-has-covid-vaccine-case-dismissed/100608970)

In NCAT Larter had sought orders to the effect that the decision to suspend his registration was improper. He hoped to have the suspension and any record of it removed. He was unsuccessful in that application.  By the time of the hearing his suspension had been lifted but there were conditions on his registration. He sought to have those conditions removed and on that application he was successful.

The normal rule is that the loser has to pay the winners legal costs.  But what happens when you ‘lose some’ and ‘win some’?  With respect to the appeal against the suspension, Larter was ordered to pay the Council’s costs in the normal way.  With respect to the appeal against the imposition of conditions, the Council was ordered to pay ½ of Larter’s costs.   This was because, even though he won the point, he raised many legal arguments that were (at [49](3)-(4)):

… described as having “no substance”; “no application to the present appeals”; “no basis”; and being “misconceived and lacking in substance”.

In fact, a number of those grounds could be said to be, using the language of Justice Leeming in Jan, as close to unarguable…

In fact (at [49](5)) the Tribunal determined that the grounds that did succeed were not clearly raised by Larter (or more accurately, his lawyers) but were identified by the Tribunal itself.  At [49](6) Senior Member Dixon said

In my view, had the Appellant’s case been confined to that issue, and not all the unsuccessful grounds, the hearing would have been considerably shortened and would have been dealt with much more cost-effectively.

Conclusion

The way Larter’s appeal was run unnecessarily extended the time and cost of the proceedings and this was ‘strongly against recovery of the full costs of the appeals’ hence the order that Larter was to recover only ½ of his eligible costs for only one part of the appeal.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.