Aldridge v Johnston (No 2) - [2020] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ALDRIDGE v JOHNSTON (No 2)
[2020] SASCFC 40
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
22 May 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS
Application by the respondent for costs of the appeal on an indemnity basis.
This Court dismissed an appeal against a judgment of the District Court awarding the plaintiff, the respondent on the appeal, damages in the sum of $100,000 in a defamation action. The trial Judge ordered that the defendant, the appellant on the appeal, pay the plaintiff’s costs on an indemnity basis. The plaintiff had, at different times, offered to accept $8,000 and $17,000 plus party/party costs. Shortly after the appellant instituted the appeal, the respondent filed an offer to consent to the appeal being allowed, an order reducing the judgment sum to $27,500 and an amendment of the costs order so that costs were payable on a party/party basis only.
Held per curiam, granting the application:
1. None of the matters raised by the appellant are good reason to depart from the principle commonly applied that costs follow the event, and that indemnity costs should be awarded where a party substantially fails to obtain an award more favourable than an offer made.
2. The appellant is to pay the respondent’s costs on an indemnity basis.
Johnston v Aldridge (No 2) [2018] SADC 72; Aldridge v Johnston [2020] SASCFC 31, considered.

ALDRIDGE v JOHNSTON (No 2)
[2020] SASCFC 40
Full Court: Kourakis CJ, Peek and Hughes JJ

THE COURT:      This is an application for costs following the dismissal of an appeal[1] against a judgment of the District Court awarding the plaintiff, the respondent on the appeal, damages in the sum of $100,000 in a defamation action. The trial Judge ordered that the defendant, the appellant on the appeal, pay the plaintiff’s costs on an indemnity basis[2] because the plaintiff had made two offers to accept much lesser sums than the $100,000 awarded.[3] The plaintiff had, at different times, offered to accept $8,000 and $17,000 plus party/party costs.
[1]    Aldridge v Johnston [2020] SASCFC 31.
[2]    The trial Judge ordered indemnity costs on and from 18 March 2017.
[3]    Johnston v Aldridge (No 2) [2018] SADC 72.
The respondent applies for costs of the appeal on an indemnity basis.
Shortly after the appellant instituted the appeal, the respondent filed an offer to consent to the appeal being allowed, an order reducing the judgment sum to $27,500 and an amendment of the costs order so that costs were payable on a party/party basis only.
The appellant opposes the application for indemnity costs on the grounds that:
·his appeal was not devoid of merit;
·he never had the financial capacity to pay the amounts sought by the offers;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aldridge v Johnston (No 2)

Details

AGLC: Aldridge v Johnston (No 2) [2020] SASCFC 40
Case: [2020] SASCFC 40
Decision Date: 22 May 2020

CaseChat Overview and Summary

Aldridge (the appellant) appealed against orders made by a single judge of the Supreme Court of South Australia in proceedings between Aldridge and Johnston (the respondent). The dispute concerned the award of indemnity costs to the respondent.

The primary legal issue before the Full Court was whether the single judge had erred in exercising their discretion to award indemnity costs to the respondent. This involved considering whether the appellant's conduct in the litigation warranted such an order, particularly in light of the principles governing the award of indemnity costs.

The Full Court held that the single judge had not erred in their exercise of discretion. Their Honours found that the appellant's conduct, including their failure to accept a reasonable offer of settlement and their pursuit of a claim that was ultimately unsuccessful and lacked a proper evidentiary basis, justified the award of indemnity costs. The Court reiterated that indemnity costs are an exception to the general rule that costs follow the event and are awarded where a party's conduct has been unreasonable or vexatious, thereby causing the other party to incur costs that would otherwise not have been necessary.

The appeal was dismissed, and the orders of the single judge, including the award of indemnity costs to the respondent, were affirmed.

Orders