ROWAN v CORNWALL & ORS [2002] SASC 234 | Case summary

Supreme Court of SA|2002-07-12|Before: Debelle J

For the reasons expressed in Rowan v Cornwall (No 5) [2002] SASC 160, the plaintiff was forced to reside in Melbourne. She has had to incur considerable expense in travelling to and from Melbourne during the trial and at other stages before and after the trial. She had claimed the cost of airfares as damages. In Rowan v Cornwall (No 5) I held that she was entitled to be reimbursed for that cost, not as damages but as the costs of the action. Some defendants submitted that the plaintiff was not entitled to be reimbursed for any costs incurred by reason of the fact that she had come to Adelaide from another State. I disagree. In the particular circumstances of this case, the plaintiff has had no alternative but to incur these airfares and other costs because she resides in Melbourne. If she is not entitled to be reimbursed for them as costs, she is entitled to recover them as damages. In other words, the conduct of the defendants who failed has caused the plaintiff to change her place of residence to Victoria. Those defendants cannot, therefore, now assert that she is not entitled to recover costs incurred by reason of the fact that she had to prosecute this action in South Australia. Those defendants are, therefore, liable to reimburse her for all costs reasonably incurred in coming to Adelaide to prosecute this action, either as costs or as damages. I think the proper basis is as costs. As was noted in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 414, an award of costs is intended to reimburse the litigant for costs actually incurred. The cost of airfares is a cost incurred in the conduct of this litigation: see also Harbin v Gordon To the extent that the plaintiff may have incurred costs in obtaining accommodation in Adelaide, she is entitled to be reimbursed for that also.

The plaintiff also sought to recover costs for clerical assistance. It was obvious that during the trial the plaintiff was receiving considerable clerical assistance from a number of people including her niece, her friends and former colleagues at the Christies Beach Women's Shelter, Ms McSkimming and Ms Lachlan. The greater part of that assistance was rendered by her niece. It is not clear whether the plaintiff has incurred any actual expense for the assistance rendered by these people. It appears that the assistance was given voluntarily. There is no reasonable basis for allowing the plaintiff to recover costs for this assistance. I do not think that there is any basis for allowing costs on the basis of the principles expressed in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. Just as a plaintiff is not entitled to be compensated for her time in preparing and conducting her case: Cachia v Hanes (supra), so too a plaintiff is not entitled for the cost of clerical assistance voluntarily provided by friends or relatives. However, if the plaintiff has incurred clerical costs in having material typed or copied by a person or an organisation such as a secretarial agency or the like, she is entitled to recover that out of pocket expense.

The ABC and TVB submit that they took a lesser part in this trial and so should be liable for a lesser portion of the costs recovered by the plaintiff. It is appropriate to view the defendants as four groups or sets, the State defendants, the Commonwealth defendants, the ABC, and TVB. I am satisfied that TVB should pay a smaller portion of the plaintiff's costs than the other defendants. It took a minimal part in this trial. The issues against it were fairly narrowly confined. However, I do not think there is any reasonable basis for ordering that the ABC bear a lesser portion than the other defendants, particularly as the ABC relied on the defence of justification and so had to be present for the greater part of this trial. Furthermore, as the plaintiff is not recovering legal fees for almost the whole of this lengthy trial, the costs of the trial are relatively small. There is no reason why the ABC should not share the costs equally with the defendants other than TVB. For all of these reasons, I will, in a moment, order that the defendants other than Network Ten (Adelaide) Pty Ltd bear 85 per cent of the plaintiff's costs which each group of defendants shall bear in equal shares. The defendant Network Ten (Adelaide) Pty Ltd shall pay 15 per cent of the plaintiff's costs.

For all of these reasons, there will be orders as follows:

1 That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $259,606.10 damages.

2 That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $175,000.00 interest on the amount of $259,606.10 referred to in paragraph 1 of this order.

3 That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $55,819.00 damages.

4 That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $70,235.00 interest on the amount of $55,819.00 referred to in paragraph 3 of this order.

5 That the first defendant pay the sum of $25,000.00 damages to the plaintiff.

6 That the plaintiff's action against the sixth and eleventh defendants stand dismissed.

7 Subject to paragraphs 8 and 9 of this order, that the defendants other than the sixth and eleventh pay the plaintiff the whole of her party and party costs of this action to 29 June 2000 and 95 per cent of those costs thereafter.

8 That the defendants other than Network Ten (Adelaide) Pty Ltd shall pay 85 per cent of the plaintiff's costs which they shall bear in equal shares.

9 That the defendant Network Ten (Adelaide) Pty Ltd shall pay 15 per cent of the plaintiff's costs.

10 That the plaintiff's costs shall include her reasonable out of pocket expenses for travel and accommodation for the purpose of conducting this litigation.

11 That the plaintiff shall pay as the costs of the defendant Sumner an amount equal to counsel fees for two days for Ms Panagiotidis.

12 That the plaintiff shall pay as the costs of the defendant Ryan an amount equal to counsel fees for two days for Mr Stanley and the defendant Ryan's reasonable costs of travelling and accommodation to give evidence.

13 That in those instances where an order has been made "Costs reserved" the order shall be deemed to be costs in the cause.

Supreme Court Act 1935

Judgment No. [2002] SASC 234

The same defendants are jointly and severally liable for interest on that award. Applying the principles expressed in MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 and Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 380, the rate of interest on that part of the award which represents loss to reputation will be four per cent. The balance of the award represents expenses incurred by the plaintiff in consequence of the loss and damage she suffered. She is entitled to a commercial rate of interest on that part of her loss. Interest rates over that period have fluctuated. An average of the rates is approximately 10 per cent per annum. I adopt that rate for those losses.

The plaintiff has succeeded and, subject to the observations in the succeeding paragraphs, is entitled to her costs. She seeks an award of costs on an indemnity basis. I will not recite all of the grounds on which she relies. It is sufficient to state that there is no ground which justifies an order for indemnity costs. She does not fall within any of the grounds identified in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225. Instead, she is entitled to an order for party and party costs.

ROWAN v CORNWALL & ORS

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