Turkmani v Visvalingam

Commonwealth of Australia v Gretton [2008] NSWCA 117 James v Surf Road Nominees (No 2) [2005] NSWCA 296 CASES CITED: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453 Rockdale City Council v Micro Developments Pty Limited [2008] NSWCA 128 Turkmani v Visvalingam [2009] NSWCA 211

Ahmad TURKMANI (appellant) Marie Pryanthi VISVALINGHAM (first respondent) PARTIES: Stephen VISVALINGHAM by his next friend Marie Visvalingham (second respondent) Shanara VISVALINGHAM by her next friend Marie Visvalingham (third respondent) Anika VISVALINGHAM by her next friend Marie Visvalingham (fourth respondent)

COUNSEL: S G CAMPBELL SC (appellant) P G MAHONY SC/ S E McCARTHY (respondents)

SOLICITORS: Moray & Agnew (appellant) McLachlan Chilton (respondents)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40382/08

BEAZLEY JA HODGSON JA McCOLL JA

7 SEPTEMBER 2009 Ahmad TURKMANI v Marie Priyanthi VISVALINGAM and Ors (No. 2) Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: The principal judgment in this matter was given on 27 July 2009: [2009] NSWCA 211. The following orders were made: (1) Appeal allowed in part. (2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008. (3) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible. 3 The parties have consented to a further order, to the effect that the costs order below should be changed to an order that the appellant pay the respondents' costs of the proceedings on the ordinary basis. 4 In addition, the respondents have applied for a variation of the costs order in the Court of Appeal. 5 Two grounds are relied on. 6 First, it is put that the grounds of appeal and the written and oral submissions were mainly concerned with challenging the finding of liability, on which the respondents succeeded; and very little of the appeal case concerned the apportionment for contributory negligence, the only issue on which the appellant succeeded. 7 Second, evidence has been led of the appellant's inefficient prosecution of the appeal, and reference made to the inclusion in the blue books of irrelevant material and to the generally unsatisfactory state of the blue books. 8 In relation to the first ground, it was put for the respondents that this was an appeal that the appellant substantially lost and the respondents substantially won; and the result would be reflected by an order that the respondents pay 20 per cent of the appellant's costs of the appeal and the appellant pay 80 per cent of the respondents' costs of the appeal. 9 The applicable principles were stated as follows in the joint judgment of Beazley, Tobias and McColl JJA in James v Surf Road Nominees (No 2) [2005] NSWCA 296 at [31]-[33]: [31] Costs orders in the Supreme Court are governed by the provisions of s 76 of the Supreme Court Act 1997 and the Supreme Court Rules. Section 76 provides, relevantly that subject to the Act and the Rules, costs shall be in the discretion of the Court: s 76(1)(A). Part 52A r 11 acts as a limited proscription of the Court's discretion conferred by s 76. Part 52A r 11 provides that, subject to Pt 52A, the Court shall order that costs follow the event "except where it appears to the Court that some other order should be made as to the whole or any part of the costs".

[32] The effect of Pt 52A r 11 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved. This was the subject of comment in Waters v P C Henderson (Aust) Pty Ltd (unreported CA(NSW) Kirby P, Mahoney and Priestley JJA, 6 July 1994) where Mahoney JA said: Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

[33] Similarly, Toohey J made the following observations in Hughes v Western Australian Cricket Association (1986) ATPR 40-748: 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. (references omitted) 10 Those paragraphs were quoted with approval in Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453 at [17]: and there are similar statements of principle in Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [63]-[65] and Rockdale City Council v Micro Developments Pty Limited [2008] NSWCA 128 at [115]. 11 In the present case, in my opinion, the issues of liability and apportionment for contributory negligence were not clearly severable: all the arguments relied on by the appellant with a view to negativing liability had, to a greater or lesser extent, some bearing on the Court's overall assessment of the respective degrees of fault of the appellant and the deceased. 12 The principles stated in the cases have an alternative basis for departure from the usual order as to costs, namely where the successful party fails on a "clearly dominant issue". That seems to suggest that if an issue can be identified that was clearly dominant, on which the successful party failed, the usual order may be departed from even though that issue was not clearly severable. Here, the respondents argued to the effect that the issue of liability was clearly dominant. 13 The question of whether a departure from the ordinary rule might be justified on this basis should, in my opinion, be approached having regard to the idea of fairness underlying the making of costs orders, which I expressed as follows in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: [121] In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach. 14 The determination of the Court of Appeal was that the appellant should be liable to pay about half a million dollars, rather than about one million dollars as decided by the primary judge. In order to achieve that result, the appellant had to bring the appeal proceedings, and the result constituted very significant success in the appeal proceedings, albeit not the complete success sought by the appellant. 15 It seems to me that the only basis on which it would be appropriate to depart from the general rule that costs follow the event, by reason of the circumstance that the appellant lost on what might be regarded as the dominant issue, is if a judgment is made that, had that issue been excluded, then, although the dominant issue was not clearly severable, the costs incurred on the appeal would be likely to have been substantially less, perhaps because there was less at stake. However, in my opinion, the appellant's considerable success on contributory negligence did require close attention to the degree to which the appellant was shown to be at fault, and it is difficult to identify any aspect of the submissions that did not to some extent bear on that question. 16 On the whole, I do not think the first ground relied on does justify departure from the ordinary rule. 17 As regards the second ground, in my opinion a case is made out to the effect that costs were added to on both sides by reason of inefficient conduct of the appeal. The appellant suggests that this be dealt with by allowing costs in the appellant's favour in relation to the preparation of the appeal books only in respect of two of the three blue books, and excluding costs of the correction of the blue books. 18 In my opinion, this would not sufficiently reflect the effect on costs disclosed in the affidavit. The inefficient conduct in respect of the preparation of the blue books and the red book led to costs being incurred by the respondents as well as by the appellant, and even the blue books as ultimately produced for the appeal were unsatisfactory, particularly in relation to the diagrams included in them. 19 I would propose that the costs of appeal awarded to the appellant exclude all costs of preparation of the blue books and the red book. 20 As regards the costs of this application, it has had limited success, and the need for some alteration in relation to the preparation of appeal books was conceded. In my opinion, there should be no order as to the costs of the application. 21 For those reasons, I would propose the following orders in addition to the three orders previously made: (4) Costs of the appellant of the appeal payable pursuant to order (3) not to include the costs of preparation of the blue books and the red book, or the costs of this application. (5) The costs order below varied to an order that the appellant pay the respondents' costs of the proceedings on the ordinary basis. 22 McCOLL JA: I agree with Hodgson JA. **********

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