Getex Pty Limited v Reed Business Information Pty Limited and ors

The submissions of the second defendant 7Counsel for the second defendant took no issue with the making of orders (ii), (iii) and (iv) in the terms proposed by the plaintiff as set out in [3] above. 8As to the order proposed in (i), it was submitted by the second defendant that the appropriate order was that the second defendant pay the plaintiff's costs of the appeal, provided that such amount was not more than 50% of the plaintiff's assessed costs and did not exceed a sum of $10,000.00. 9In support of this submission, counsel pointed out (inter alia) that the monetary value of the amounts in issue on the appeal was substantially less than 50% of the total claim which had been brought by the plaintiff in the Local Court. He also submitted that in all of the circumstances, the second defendant was "more aggrieved than the Plaintiff" as a consequence of the inadequacy of the Magistrate's reasons, and that in these circumstances I should ensure that there was proportionality between the amount in dispute and the costs ordered. 10As to the order proposed in (v), counsel for the second defendant submitted that I should order that the plaintiff pay the second defendant's costs of the proceedings in the court below. 11In support of this submission counsel relied on the fact that I had found that the Magistrate's discretion in originally ordering that the plaintiff pay the second defendant's costs had not miscarried. He also pointed to the fact that there had been no appeal brought by the plaintiff in respect of the Magistrate's decision to reject what was said to be the most significant of the plaintiff's claims, both in terms of quantum, as well as in terms of the time which was taken in litigating it before the Magistrate. Counsel also relied upon the fact that even if the plaintiff were to succeed in the entirety of the claims which were the subject of the appeal, the end result would be recovery of less than 50% of the total claim. 12In the alternative, it was submitted that I should make orders requiring the plaintiff to pay the costs of the second defendant in the Local Court proceedings which were referable to those aspects of the claim on which the plaintiff did not succeed. It was further submitted that in that event, the costs in respect of those issues which were the subject of the appeal should follow the ultimate outcome as determined by the Magistrate. CONSIDERATION AND CONCLUSION 13In my view, order (i) should be made in the terms proposed by counsel for the plaintiff. 14It may well be that the amounts which were the subject of the appeal represented a relatively small proportion of the total amount which was in issue before the Magistrate. The more relevant consideration however, is that the plaintiff succeeded in establishing that the Magistrate's reasons were inadequate in respect of each and every one of the claims which were the subject of the appeal. In that sense, the plaintiff's appeal succeeded in its entirety. There is no reason in these circumstances why costs should not follow the event. 15In terms of order (v), the general rule is that where a new trial is ordered, the costs of the first trial will follow the event of the new trial. In Brittain v Commonwealth (No. 2) [2004] NSWCA 427 Tobias JA (commencing at [21]) made reference to a series of authorities governing the application of the general rule before observing (at [30]): "The logic of the general rule is manifest. While the Court has a plenary discretion concerning costs ..... the ordinary principle is that costs follow the event. Where a new trial is ordered the parties' rights have not been finally determined. The identity of the successful party has not been established. The general rule is clearly intended to ensure that the ultimate costs order reflects the ordinary principle when the parties' rights are finally determined. Departures from the general rule are intended to deal with situations where its application would lead to injustice". 16In Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15 Campbell JA noted (at [54]) the correctness of the proposition that when a new trial is ordered, the costs of the first trial are often ordered to follow the event in the new trial. However, like Tobias JA in Brittain (supra) his Honour acknowledged that departures from that general rule may be justified in an individual case. In that regard, he said (at [54]): "That there is this frequently observed practice does not, of course, detract from the obligation of the Court to exercise its discretion concerning costs in each case individually, any by reference to the facts of that case". 17In Brownlie v Overend [1979] VR 283 the full court of the Supreme Court of Victoria departed from the application of the general rule in circumstances where a plaintiff who had succeeded at the first trial in an amount less than that of a bond lodged by the defendant with the court obtained an order for a new trial, on the basis that the trial judge wrongly rejected evidence. The Court (Young CJ, Starke and Fullagher JJ), having made reference to the general rule as expressed in Stewart v McKinley (1885) 11 VLR 802 and Jones v Richards (1899) 15 TLR 398, concluded that there should be a departure from that rule, and that the costs of the first trial should be at the discretion of the judge presiding over the second trial. Their Honours said (at 288): "In these circumstances, and bearing in mind the manifold possibilities which the further conduct of the action may involve, it is impossible to be confident that the usual order that the costs of the first trial follow the event of the second trial, might not work an injustice. Whilst we should not fetter in any way the discretion of the judge who presides over the second trial, he will no doubt bear in mind the general rule to which we have referred and the other relevant matters referred to in this judgment". 18In the present case, the plaintiff's challenges on appeal were limited to three aspects of its overall claim. The plaintiff took no issue with other aspects of its claim in respect of which it had been unsuccessful. The precise extent to which the plaintiff may ultimately succeed in terms of its overall claim, which would be a factor relevant to the exercise of any discretion to award costs, is not presently known. For these reasons, I am not persuaded that the order sought by the plaintiff should be made. In my view, the circumstances to which I have referred justify a departure from the general rule. 19Similarly, I am not persuaded that the orders sought by the second defendant in this regard are appropriate. The various matters relied upon by the second defendant are, in my view, more appropriately considered and weighed by the Magistrate in the exercise of her discretion, at a time when the respective positions of the parties have been determined to finality. ORDERS 20I therefore make the following orders: (i)the second defendant is to pay the plaintiff's costs of the appeal, as agreed or assessed; (ii)the second defendant, if qualified, is to be granted a certificate pursuant to the Suitors Fund Act 1951 in respect of the costs in (i) above; (iii)the plaintiff is to pay the second defendant's costs of the cross-appeal, as agreed or assessed; (iv)the plaintiff, upon satisfactory proof that it has a paid up share capital of less than $200,000.00, is to be granted a certificate pursuant to the Suitors Fund Act 1951, in respect of the costs in (iii) above; (v)the costs of the entirety of the proceedings in the Local Court are to be at the discretion of the Magistrate.

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