Mahaffy v Eather t/as Bellevue Pastoral Company

Judgment 1REIN J: On 14 February 2013 I allowed Mr Mahaffy's appeal from a decision handed down against him in the Local Court of Wee Waa on 28 October 2009. My reasons for judgment were handed down on that day: see Mahaffy v Eather t/as Bellevue Pastoral Company [2013] NSWSC 132. 2At the time of the judgment, Ms Gordon, counsel for the defendants, indicated that her clients opposed an order that they pay all of Mr Mahaffy's costs. Mr Mahaffy indicated that he would be seeking an order that the defendants pay his costs on an indemnity basis. I pointed out to Mr Mahaffy that as he had acted for himself he would not have any legal costs other than the filing fee but Mr Mahaffy contended that he is entitled to his costs of transport and accommodation and that there are cases which support his claim to such expenses. 3It was agreed that I should determine the costs issues on the papers and I made orders for the service of affidavits by the parties and submissions in the following terms: (1)Direct the defendants' counsel to provide written submissions on costs by 15 February 2013. (2)Direct the plaintiff to provide written submissions in reply to the defendants' submissions and to provide the plaintiff's own submissions on costs by 8 March 2013. (3)Direct the defendants' counsel to provide any affidavits that the defendants seeks to rely on by 15 March 2013. (4)Direct the plaintiff to respond to the affidavit provided by the defendants and to provide any affidavit in response by the 22 March 2013. (5)Direct the defendants to respond to the plaintiff's further affidavit by 25 March 2013. (6)Direct the parties to provide all documents set out in paragraph 6 to 10 above to his Honour's Associate by 28 March 2013. 4The defendants provided submissions on 18 February 2013, i.e. 3 days late. By email to my Associate, Mr Mahaffy queried whether I would have regard to those submissions. He was informed that I would have regard to them but that the time for his submissions in reply would be extended to the 11 March 2013. 5No submissions have been received from Mr Mahaffy. As of 4 April 2013, the defendants' solicitors advised my Associate via email that the plaintiff has not served or filed or served any submissions or affidavits in compliance with the orders. Further, my Associate was informed today by Mr Russell Booby, the solicitor for the defendants, that there has been no submissions or affidavits served on the defendants since that earlier email. 6Ms Gordon accepts that a successful party is entitled to his costs even if there is a reason for departing from that position and she notes that the Court has "a very broad discretion to award costs" pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and rule 42.1 of the Civil Procedure Rules 2005 (NSW) and may order the successful party to pay some of the costs of the unsuccessful party. 7Ms Gordon asserts that Mr Mahaffy was successful only on the basis of an amendment to his summons that Mr Mahaffy was allowed to make on 30 November 2012. Ms Gordon refers to Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 and Stuart-Smith LJ's statement of principle at [154]: [a]s a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. a principle approved and applied in NSW: see Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318 at [8]-[9] per Studdert J, Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 at [13] per Bergin J. 8Ms Gordon also submits that a court can have regard to the fact a party, although successful on one basis has failed on many others, making it reasonable to require the successful party to bear the expenses of litigation relating to that portion upon which he or she failed: see Waters v P C Henderson (Australia) Pty Ltd (1994) 254 ALR 328 and Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 per Toohey J. Ms Gordon claims that Mr Mahaffy failed on all of the grounds in his original summons and amended summons and that this is a case in which it is reasonable and appropriate to make the order sought by the defendants either on the first basis or the second basis. 9In relation to the late amendment point, it is it is true that Mr Mahaffy by his summons and amended summons did not adequately identify the grounds upon which he ultimately succeeded but his written submissions did so (see paras 94-99 of Mr Mahaffy's submissions) and those contentions were closely connected with the questions of fact which Mr Mahaffy raised in his appeal, and whether the Magistrate erred in applying basic principles of contract law. The late amendment which was permitted was not so much to permit some new matter, not previously canvassed, to be agitated but to require the amended summons to reflect the effective point that emerged from Mr Mahaffy's written submissions. It was necessary to canvass all of the material considered by the Local Court, including the oral evidence, to form a view on the point on which Mr Mahaffy ultimately succeeded. I do not think that the late amendment substantially altered the case which the defendants were required to meet and I am not satisfied that had Mr Mahaffy advanced his case solely on the basis on which he was successful that there would have been any significant difference in what the Court would have been required to consider. It is not suggested that the defendants would have conceded that there should be a new trial had the case been properly articulated, indeed they continued to resist his appeal (as they were entitled to do) once the amendment was foreshadowed. 10In relation to the specific issues point, it has been said that the Court should not too readily exclude from the successful parties an order for costs relating to a specific issue: see Cretazzo v Lombardi (1975) 13 SASR 4, 16 per Jacobs J and James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32], see Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373. 11It should be noted that whilst there is a discretion available to order that a successful party pay any part or even all of the unsuccessful party's costs, it is a more onerous outcome than an order depriving a successful party of some (or all) of his or her costs. Hughes v Western Australian Cricket Association is an example of the second category as the order made was one reducing the amount of costs payable to the successful party. To require the successful party to pay any of the unsuccessful party's costs requires "compelling circumstances": see Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 at 156 per Kaye J with whom McGarvie J concurred and see the reference to "exceptional circumstances": pp 154-156. The type of cases in which such orders have been made are, for example where the defendant held back information which the plaintiff did not know or misconduct of some kind which has lengthened the proceedings, are discussed in Verna Trading Pty Ltd v New India Assurance Co Ltd, and see also Dal Pont, The Law of Costs, 2nd ed, 2009, LexisNexis, [8.48]. This case does not fall into any of the types of cases discussed and there are no compelling or exceptional circumstances which could justify the order sought. 12As Mr Mahaffy has not incurred any costs of representation, any costs order in his favour is extremely limited. The High Court of Australia in Cachia v Hanes (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374; [1994] HCA 14 found that a successful litigant in person was not entitled to costs for travelling expenses or loss of time in preparing the case since "costs" referred to in the rules means the costs of professional legal services. 13Were it necessary to consider whether Mr Mahaffy should have his costs reduced by reason of failure on separate issues, I do not think that there a sufficient separation of issues (except for the very minor issue of quantum meruit on which hardly any time at all was spent) of the type that is seen in cases such as Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 to permit the conclusion that any of Mr Mahaffy's costs (were he to have any) should be reduced.