(h) the appellant's witnesses were serving police officers, former police officers and a chemist.
12 The respondent submitted he, being innocent of any criminal activity, was detained at gunpoint, physically restrained, detained, searched, handcuffed, transported to the police station and taken into custody for some 6½ hours. He had been successful in the Local Court where the magistrate, in dismissing the goods in custody charge against him, stated that the actions of the police were illegal. The appellant's notice of grounds of defence filed on 15 February 2005 was essentially formal and did not plead the substance of the appellant's defence. It was not until the first day of the trial that the appellant obtained leave to file an amended notice of grounds of defence, particularising in some detail the essence of its defence. The appellant's evidence was adduced to establish lawful justification for the police actions. The evidence given during the trial concerning the background to and the arrest and initial detention of the respondent was inextricably linked to the evidence concerning his transport to and imprisonment at Parramatta Police Station. The trial judge took all relevant matters into account when awarding costs. There is no error of principle such as to justify any intervention by this Court.
13 The relevant statutory provisions are s 98(1) of the Civil Procedure Act, 2005 and r 42.1 of the Uniform Civil Procedure Rules, 2005.
14 Section 98(1) provides relevantly:
"(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and…
(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or…"
15 Rule 42.1 provides:
"Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."
16 "The commencing position is that costs follow the event so that a successful party is entitled to [the] costs" of the proceedings - Yazgi v Permanent Custodians Ltd (No. 2) [2007] NSWCA 306 at [24] - unless there is some competing fact which requires special consideration - Waters v PC Henderson (Australia) Pty Ltd (unreported, NSWCA, 6 July 1994).
17 When there are multiple issues litigated, the court may, in the exercise of its discretion, order that a successful party have part only of its costs. However, it does not necessarily follow that that is the appropriate order - Yazgi at [24].
18 Whether an order contrary to the general rule that costs follow the event should be made will depend upon the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed.
19 As the exercise of that power is discretionary, an appeal will succeed only if it is shown that the exercise of discretion miscarried, in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505.
20 In House v The King it was held:
"It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
21 As observed by this court in Waters, in determining appeals as to costs the court will not interfere unless there is a clear error of principle warranting intervention.
22 In the present case, his Honour referred in his costs judgment to the discretion conferred upon him by s 98 and the principle in Waters. No misdirection in law is apparent on the face of the judgment.
23 His Honour set out in his costs judgment the essence of the appellant's argument. It is not apparent on the face of that judgment that in so doing his Honour overlooked or mistook any relevant consideration or allowed irrelevant material to affect him.
24 The appellant ultimately submitted that his Honour's exercise of discretion was so unreasonable as to bespeak error of principle, albeit that error was not capable of being identified.
25 I do not agree. His Honour found a verdict for the respondent. The respondent, as the successful party, was entitled to his costs of the proceedings in the absence of special considerations. His Honour held there were no special considerations. As he observed:
"While the [respondent's] claim was divided up into separate divisible parts and dealt with separately by me in my judgment, those divisible parts were to a large extent a matter of convenience because the [respondent's] claim arose out of a series of events that occurred over a very short period of time leading up to his spending some 6 hours plus in the Parramatta lock-up…This was a case in which the [respondent's] claim arose out of a series of incidents involving the [appellant] on the one night. In those circumstances, it seems to me, notwithstanding that the [respondent] was not successful in relation to some of the claims he brought against the police, he should have his costs."
26 It was not contested that the claims made were appropriately brought as the respondent was prima facie entitled to succeed on them subject to the appellant establishing a defence of lawful justification. Moreover, there was no evidence that the respondent had unnecessarily prolonged the trial or that the litigation was conducted in such a manner that costs would inevitably far exceed the damages recoverable. The respondent would have recovered substantial damages if wholly successful. In these circumstances, it was open to his Honour to exercise his discretion in the manner in which he did. The exercise of his discretion was not such as to bespeak error. Accordingly, the first ground of appeal fails.