PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT –
DISCRETION TO AWARD
COSTS – where claim unsuccessful but some issues decided in favour of
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT –DISCRETION TO AWARDCOSTS – where claim unsuccessful but some issues decided in favour oflosing party – whether opento perform mathematical apportionment
Judgment (23 paragraphs)
[1]
Bartley Cohen for the first, second and third defendants
[2]
[1] Judgment in this matter was delivered on 28 May 2021. [1]
[2] The plaintiff's claim was dismissed, although on the way to that conclusion I found in his favour on certain issues.[2] I also foreshadowed the need for submissions as to the relevance of those findings to the question of costs.
[3] Two sets of submissions were received from each party.
[4] In those submissions there was broad consensus that the applicable legal principles were those discussed in cases such as C_aloundra City Council v Minister for Natural Resources,[3]_ Hughes v Western Australia Cricket Association (Inc.),[4]Ritter v Godfrey[5]Forster v Farquar,[6]Cretazzo v Lombardi,[7]Neumann Contractors Pty Ltd v Peet Beachton Syndicate Limited (No 2),[8]Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd[9]Speets Investment Pty Ltd v Bencol Pty Ltd (No 2),[10]Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd,[11]Oshlack v Richmond River Council,[12]Hamcor Pty Ltd v Marsh Pty Ltd,[13]Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd,[14]Theis v TCN Channel Nine Pty Ltd (No 5),[15]Interchase Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd(No 3),[16]Nine Network Australia Pty Ltd & Ors v Wagner & Ors[17]and Todrell Pty Ltd v Finch (No. 2).[18]
[5] There was, predictably, disagreement about the way in which those principles should be applied.
[6] The plaintiff pointed to the findings made against the defendants and to the fact the defendants could and, in some respects, should have done some things differently. Particular reference was made to the fact that the defendants had pressed and then abandoned a number of defences. Initially the plaintiff insisted that, as a result, the third defendant should pay 25% of the plaintiff's costs of the proceeding on the indemnity basis, the first and second defendants pay 25% of the plaintiff's costs of the proceeding on the standard basis and that the plaintiff pay 71% of the defendants' costs on the standard basis.
[7] In supplementary submissions, the plaintiff allowed that there was no basis upon which the third defendant should be required to pay his costs on the indemnity basis, but maintained they should still be paid (implicitly, in the same percentages as first claimed) by the third defendant on the standard basis.
[8] The defendants counter that any order that required them to pay any part of the plaintiff's costs of his "unsuccessful, overreaching, claim" was not justified. It is submitted, and I agree, that such an order should not be made merely on the basis of success on a particular issue or issues. The defendants invoke the observation made by Brereton J in Waterman v Gerling Australia Insurance Co Pty Ltd (No 2):[19]
[3]
The starting point is that the plaintiff, having been successful, is entitled to his costs. It is for the defendants to establish a basis for departing from that rule. A successful plaintiff who has failed on certain issues may be deprived of costs on those issues, or even ordered to pay the defendant's costs of them [Hughes v Western Australia Cricket Assn Inc[20]]. But this course, while open, is one on which the court embarks with hesitancy....
[4]
[9] I am more than hesitant. Whilst the defendants' conduct of the proceedings was in some respects wanting, and whilst discrete issues were resolved in the plaintiff's favour, he was not successful in any part of his claim. I do not see this as a case in which it would be appropriate for a successful defendant to pay even part of the costs of a plaintiff who has, functionally, lost his case in its entirety. Whether or not the defendants should receive an unmoderated costs order in their favour is another issue.
[10] In calculating the extent to which that order should be moderated, the plaintiff points to the impact of the defendants' decision to take points decided against them. He then urges a rather mathematical approach. He first identified the issues decided against the defendants. He then performed a calculation which yields percentage figures that correspond to the number of pages in the trial transcript occupied by those issues. It was in this way that a figure such as the aforementioned "71%" was calibrated.
[11] In the circumstances, the approach is flawed. One easy way to demonstrate this is to focus on that part of the trial which was occupied by evidence addressed to the issue of quantum. I have already acknowledged the way in which this aspect of the trial was litigated[21] , but it is self-evident that the exercise was efficient only because of the vast amount of work (on both sides, and as between the parties) that must have been invested in preparation for the process. It is not possible to evaluate that work by reference to the transcript.
[12] Further, the fact that this entire dimension of proceedings is not reflected in the transcript necessarily distorts the value of any "percentage" of the pages attributable to the balance of the trial.
[13] There are flaws also in the defendants' approach. They argue that they were "entitled to raise (their) earthworks at every reasonable point along the path of assault,"[22] but I have already determined that, at least at one point along that path, it was not reasonable for them to do so.[23] The defendants in fact allow that, for such reason, they should recover only 80% of their costs.
[14] They submit that there should be no further discount applied to their costs entitlement by reason of the fact that I found, contrary to their submission, that the 2005 consultancy agreement to be a variation rather than a replacement.[24] This is because the question was "a reasonable issue to have been raised by the defendants."[25] That is true, but I also made specific reference[26] to the fact that this was something that might bear on the question of costs. It was a discrete point on which the plaintiff had complete success. It should affect the disposition of this issue.
[15] The defendants also criticise the plaintiffs for putting into evidence a 250-page chronology with links to several thousand "relevant documents." Most of this is said to have been irrelevant to the issues which had to be determined, or relevant only to issues resolved in favour of the defendants. It is open for the defendants to challenge this aspect of the plaintiff's forensic technique, but I am not convinced that their criticism has much relevance to the issue now being considered.
[16] Further, the defendants insist that the fact that they pursued a number of defences which were ultimately abandoned is no basis for a further discount. However, this aspect of their behaviour must have had an impact on costs - it may defy easy quantification, but this does not mean it should be ignored.
[17] In the result, the plaintiff's unrealistic and flawed approach to the issues has confined the usefulness of his submission as to the amount by which the costs order (that will be made against him) should be reduced; the defendants' concession that there be only a 20% reduction is affected by their assertions that material considerations should be ignored, and does not go far enough.
[18] An assessment of this kind cannot, as demonstrated above, be conducted on a mathematical basis and may be made even in a way that is "rough." In the circumstances, however, the way in which the issues were resolved does lend itself to apportionment in proportions that are discernible enough.
[19] The relevant discretion should be exercised in a way that sees the plaintiff pay 70% of the defendants' costs of the proceeding on a standard basis.