Did her Honour err in making the costs order?
21 The appellant accepted the broad statutory discretion which resides in the Court in making a costs order. However, he submitted that that discretion is not unqualified and it must be exercised judicially in accordance with established principle and factors directly connected with the litigation. In particular, it was submitted that the discretion cannot be exercised capriciously and that costs are not imposed by way of "punishment": see Oshlack v Richmond River Council (1998) 193 CLR 72 at 96; [1998] HCA 11 at [65].
22 In Oshlack, in a passage upon which the appellant particularly relies in this case, McHugh J, at [67], pointed out that costs are not awarded to punish an unsuccessful party. Rather, the primary purpose of an award of costs was to indemnify the successful party. That statement was made in circumstances where the Court was dealing with concluded litigation. However, the underlying principle remains valid for all costs orders.
23 The appellant submitted that the amended defence did not necessitate an adjournment and the adjournment of the matter was effectively forced upon the parties. Senior counsel submitted to this Court that the parties had agreed that the hearing could be concluded within four days, even if the amendment was allowed. It followed, on this submission, that in making a costs order against the appellant, her Honour's discretion miscarried, because the costs order was based upon a wrong factual basis, namely, that the matter could not be heard within the allotted time, when in fact it could.
24 This submission does not accurately record her Honour's explanation of the situation she considered had arisen. During the course of discussion between counsel and her Honour, her Honour said that if the amendment was allowed, then, as it had been indicated that there would be five extra witnesses, she considered that a realistic assessment of the hearing was probably five days. Counsel for the appellant agreed, as did senior counsel for the respondent. By that time, much of the first day allocated for the hearing had been lost. Her Honour considered that if she allowed the amendment and commenced the hearing, it was likely that the matter would have to go over part heard into the following year as she had no available time until then. She had indicated anyway that the practice in the Court was not to permit matters to become part heard.
25 The appellant also argued that her Honour's approach was inconsistent, as she had said that she could have completed the matter, if it only had four days in it, by using the three days of the allocated hearing time remaining and then using portion of two days in the following week when she could get time away from her jury trial. This submission appears to have been made on the basis that, even with the amendment, the matter would only take four days, so that the adjournment was, in effect, one forced on the parties to suit her Honour. I have already rejected the argument that the matter remained a four day matter if the amendment was allowed.
26 For the reasons I have given, I do not think it is correct to say that the adjournment was made because of the exigencies of her Honour's hearing obligations. Rather, those exigencies arose because the application for the amendment had been made and took most of the first day to sort out. An examination of the transcript reveals that there was no error in the manner in which her Honour dealt with the application for adjournment.
27 That then leaves the question whether her Honour applied a wrong principle in the exercise of her discretion to order costs against the appellant. This argument principally focussed upon her Honour's use of language which indicated that there was some "punitive aspect" in the costs order that she was proposing. Whilst her Honour's language to which I have referred above was unfortunate, in my opinion, it meant no more than an indication by her Honour that if a late application for amendment was made, there would be costs consequences. It would be fair to say, to coin another expression, that her Honour was 'shaking her finger at an errant schoolchild'.
28 The proof of the underlying approach of her Honour in making the costs order is to be found in the order actually made. It was not "punitive" in its terms. It was a typical order made by a court when one party makes an application such as was made here and which had a consequence such as flowed here, namely, the need for an adjournment because the time in which the case was to be heard was extended by reason of the amendment.
29 In my opinion, no error has been shown in the order for costs which was made. Her Honour's comments, about which complaint is made, do not raise any question of principle, although as I have already noted, they do not appropriately reflect the principles upon which a court determines whether a costs order should or should not be made and what such order should be. However, in circumstances where no error has been shown in the orders which were made, I consider that her Honour's statements should be seen as no more than 'throw-away comments' made during the course of an application which was clearly going to cause hearing and/or listing difficulties. In those circumstances, I am of the opinion that leave should be refused on this aspect also.
30 Accordingly, the order I propose is that the Summons for Leave to Appeal be dismissed with costs.
31 HODGSON JA: I agree with Beazley JA.
32 BASTEN JA: I agree with Beazley JA.
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