| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ABREU -v- THOMAS PEACOCK & SONS PTY LTD [No 3] [2012] WADC 31 (S) CORAM : KEEN DCJ HEARD : DECIDED ON THE PAPERS DELIVERED : 2 MARCH 2012 SUPPLEMENTARY
DECISION : 3 APRIL 2012 FILE NO/S : CIV 2455 of 2009 BETWEEN : OSWALD BRUCE ABREU Plaintiff
AND
THOMAS PEACOCK & SONS PTY LTD
Defendant
Catchwords: Costs - Preliminary issues Legislation: Nil Result: Costs awarded to plaintiff
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Representation: Counsel:
Plaintiff : Mr T Lampropoulos SC
Defendant : Mr G Hancy
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Cretazzo v Lombardi (1975) 13 SASR 4
Frigger v Professional Services of Australia Pty Ltd [No2] [2011] WASCA 103 (S)
Keet v Ward [2011] WASCA 139
Minniti v Motor Vehicle Industry Board [2011] WASCA 275 (S)
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1 KEEN DCJ: On 2 February 2012 I delivered judgment on a preliminary issue that had arisen in this matter. The principal issue was whether the provisions of the Workers Compensation and Injury Management Act1983 ousted the provisions of the Limitation Act2005.
2 My answer to that preliminary question was in the affirmative. Nevertheless, a number of subsidiary issues fell to be determined in the event that my judgment as to that preliminary issue was incorrect. On each of those subsidiary issues that remained necessary to answer I found against the plaintiff. 3 It is not necessary for me to go into the reasons behind those findings as they are fully dealt with in Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31. 4 It is sufficient for me to note that the subsidiary issues related to such questions as to when the cause of action accrued, which raised issues as to when the plaintiff became aware that he had sustained a 'not insignificant personal injury'; whether there was a confirmation so as to exclude time before the act of confirmation; whether the court should extend time under the Limitation Act for the issue of proceedings under s 39(3). 5 Issues as to costs have now arisen and upon which I have received written submissions from both parties who agreed that I should deal with this issue on the papers before me.
Plaintiff's submissions 6 The general rule is that the successful party to any action or matter will recover his costs and the plaintiff was, in reality, the successful party in relation to the trial of the preliminary issues. 7 In respect of those issues upon which the plaintiff was not successful costs were not unnecessarily or unreasonably incurred by the plaintiff. 8 The limitation issue was raised by the defendant as an affirmative defence upon which it carried the onus of proof. The issues upon which the plaintiff was unsuccessful were issues that would fall away upon the plaintiff being successful on the main issue. However it was appropriate to deal with those further issues in all the circumstances. 9 In the circumstances, the plaintiff argues that costs should follow the event. (Page 4)
Defendant's submissions 10 The defendant argues that of the six issues raised at the trial of the preliminary issue the defendant was successful on all save for the principal issue. 11 Only a minimal amount of time was spent at the trial in addressing that issue upon which the plaintiff succeeded. All witnesses and evidence that was led at the trial related to the issues upon which the plaintiff was unsuccessful. 12 The defendant submits that although the plaintiff was generally successful he failed on the other issues and increased the costs. Whilst the plaintiff may have the costs on the primary issue the court should make an adjustment to take account of the fact that the plaintiff only succeeded on that issue and failed on the remaining issues.
Analyses and legal position 13 Whilst the court has a general discretion on costs, generally speaking the court will order that the successful party to any action or matter shall recover his costs (O 66 r 1(1) Rules of the Supreme Court 1971). However, that rule is ameliorated if the court is of the opinion that the conduct of a party has resulted in costs being unnecessarily or unreasonably incurred. If that is the case, the court may deprive the party of his costs, wholly or in part, or may order him to pay the costs of the unsuccessful party, either wholly or in part (O 66 r 1(2)). 14 Order 66 r 1(3) provides: Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues. 15 In Keet v Ward [2011] WASCA 139 [17], the court noted that notwithstanding that order courts were generally reluctant to apportion costs on the basis of success or failure on particular issues arising during the course of the trial quoting Cretazzo v Lombardi (1975) 13 SASR 4. 16 In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7], the Court Of Appeal stated: [T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discreet and severable issues upon which the (Page 5)
generally successful party has failed, and which have added to the costs of the proceedings in a significant and readily discernible way. In a case in which the generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply. 17 In Minniti v Motor Vehicle Industry Board [2011] WASCA 275 (S) the Court of Appeal noted the oft quoted proposition that success in proceedings must be determined by consideration of who in 'reality' was the successful party in the litigation. It noted that in Frigger v Professional Services of Australia Pty Ltd [No2] [2011] WASCA 103 (S) the Court of Appeal had focused on the 'primary objective' of the appellants in order to decide whether they had been successful and ordered that costs should 'follows success on the primary issue'. 18 There can be no doubt, and I accept the defendant's argument, that the bulk of time spent on the hearing of the preliminary issues was in relation to the subsidiary issues. These are issues that only have consequence in the event that the defendant was successful on the preliminary issue, which it was not. 19 These subsidiary issues were added to the preliminary issue with the consent of the defendant. As expressed by the plaintiff, in his submissions, it would have been inappropriate and wasteful not to have addressed all of the limitation issues in the trial of the preliminary issue given that the principal issue was one of some novelty. 20 It is also significant that the issues raised before the court arose by reason of the defendant pleading that the writ of summons in the action was issued outside the time set out in the Limitation Act and the plaintiff was not entitled to commence or maintain the action. Accordingly, it can be said that the preliminary issues arose fairly and squarely by reason of the defendant setting up this defence upon which it carried the onus of proof. 21 The reality is that the plaintiff was the successful party. Success in this sense must be measured by the outcome of the primary issue. But for the raising of that preliminary issue the subsidiary issues would never have arisen. 22 In my view those subsidiary issues are directly linked to the pleading of the defendant and, in the main, are the natural consequence or were (Page 6)
likely to be expected to arise from such a pleading. That being so, whilst the plaintiff lost on those subsidiary issues, it cannot be said that the plaintiff acted in such a way that costs were unnecessarily or unreasonably incurred. Of those subsidiary issues there was only one where it might be said that it was doubtful whether it was arguable or sustainable and that was as to whether there had been a confirmation. That issue occupied very little time in the context of the hearing as a whole.
Conclusion 23 In all the circumstances I am satisfied that the plaintiff should have the costs of the preliminary issues and the order will be that the defendant do pay the plaintiff's costs of the preliminary issues heard on 30 January 2012 in any event.
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