Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 4) - [2010] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ALSTOM POWER LTD v YOKOGAWA AUSTRALIA PTY LTD & ANOR (NO 4)
[2010] SASC 109
Judgment of The Honourable Justice Bleby
22 April 2010
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS - ADJOURNMENT AND AMENDMENT
Adjournment of trial - adjournment a result of senior counsel for defendants being unable to continue - plaintiff sought costs thrown away as result of adjournment - whether defendants "in default" - whether in granting adjournment Court granted an indulgence - consideration of complexity of issues requiring senior counsel - adjournment and circumstances surrounding it an incident of litigation - plaintiff's application refused.
Supreme Court Civil Rules 2006 (SA) r 8(2), r 263; Supreme Court Rules 1987 (SA) r 101.02, referred to.

ALSTOM POWER LTD v YOKOGAWA AUSTRALIA PTY LTD & ANOR (NO 4)
[2010] SASC 109
Civil

BLEBY J: This trial was originally set down to commence on 8 December 2009 for a period of three months excluding the month of January 2010. It did not commence on that date, and all that could be achieved before Christmas 2009 was a brief opening by both parties as a preliminary to a view of the Port Augusta Power Station, the subject of the action. There were further delays during the month of February for a variety of reasons.
On 1 March 2010, on the application of the defendants, I adjourned the trial. At that stage a resumption date could not be fixed. The resumption of the trial is now fixed for the first week in August 2010. The plaintiff now applies for costs of the adjournment thrown away. The defendants’ primary submission is that costs of the adjournment should be reserved. Alternatively, if the application is decided now, the plaintiff’s application should be refused. I can see no point in further reserving the costs of the adjournment. I therefore proceed to decide the plaintiff’s application.
The reason for the adjournment was that senior counsel for the defendants was unable to continue in the case on medical advice for a period of at least eight weeks. Because of other adjournments which had occurred in December and February and because of other commitments within the Court, the trial had to be adjourned, as it now transpires, to the first week of August.
As a result of pre-trial directions given well before the trial began, the evidence-in-chief of all witnesses had been reduced to a series of written statements. I had also directed, with the agreement of counsel, that after the plaintiff’s first witness, Mr Hodge, the defendants should call their first witness, Mr Ironside. That contributed to some of the delays in the trial to enable counsel for the plaintiff to prepare for the cross-examination of Mr Ironside which, because of the written statements of evidence, would follow almost immediately after the cross-examination of Mr Hodge.
In the case of Mr Hodge’s statements there were a number of objections to portions of the statements. They were all resolved after some argument. As a result of that some additional evidence-in-chief was led from Mr Hodge. He had just begun being cross-examined by senior counsel for the defendants when the adjournment occurred. It was likely that Mr Hodge would be cross-examined for many days. Because of earlier delays in the hearing, it was unlikely, in the allocated time then remaining for the hearing of the trial even without the indisposition of counsel, that the trial would have been able to proceed much beyond the hearing of evidence from Messrs Hodge and Ironside before having to be adjourned for some time in any event.
Counsel for the plaintiff accepted without reservation that some adjournment was necessary because of the inability of senior counsel for the defence to continue. However, the plaintiff was anxious that cross-examination of Mr Hodge continue after a reasonable opportunity for junior counsel to prepare for the resumption of the cross-examination.
In granting the adjournment I said:
… On reflection I think it's a case which undoubtedly warrants two counsel. It is an extremely complex case and I think most likely it would justify at least senior counsel as well. While I appreciate that in some cases it would be appropriate for the junior to step up I think it's probably asking too much of a junior in a case like this just to suddenly assume the role and come up to speed by himself; and to get somebody else in at this stage is going to take a considerable amount of time.
I expressed the view that, if time were granted for someone else to be briefed, I doubted that Mr Hodge’s evidence would be completed in the time available, and that Mr Ironside’s evidence would almost certainly not be completed. I made the observation that Messrs Hodge and Ironside were probably the two most significant witnesses in the case, and that it was desirable, as had already been agreed, that they proceed consecutively.
Whether there was an adjournment to enable junior counsel to take up the cross-examination of Mr Hodge or whether there was a longer adjournment to enable senior counsel for the defendants to return or other counsel to be briefed, it was then unlikely that the evidence of the these two witnesses would have been completed within the time allocated for the trial, and there would then have to have been a substantial adjournment in any event, resulting in the case having to be prepared for trial again, possibly as to the further cross-examination of Mr Hodge and almost certainly for the further cross‑examination of Mr Ironside.
Rule 263 of the Supreme Court Civil Rules 2006 applies to this action notwithstanding that the Supreme Court Rules 1987 continue to apply to the action.[1] That rule provides that, as a general rule, costs follow the event, but that that rule is subject to specific rules to the contrary and also to a number of listed recognised exceptions, including:
(d)the costs of an adjournment arising from a party’s default are to be awarded against the party in default;
[1] This is by virtue of r 8(2) of the Supreme Court Civil Rules 2006. In any event, the same principles applied under r 101.02 of the Supreme Court Rules 1987.
In this case there was no default by the defendants. The adjournment was caused by one of the many exigencies which may afflict the smooth running of a trial and by virtue of my concern that it would be unreasonable to expect the cross-examination of Mr Hodge to continue with one counsel unassisted by a second counsel. The nature and complexity of the case is such that a number of weeks would have to have been allowed in order for that process to take place.
Mr Harris QC, senior counsel for the plaintiff, sought to rely on the principle expressed by Professor G E Dal Pont in the Law of Costs[2] to the effect that a party who seeks a dispensation, indulgence or favour of the Court is, as a general rule, ordered to pay the other party’s costs of the application. As I understood the argument, the indulgence or dispensation sought was an indulgence to enable senior counsel for the defendants to recover or to enable alternative counsel to be briefed and not to require the cross-examination of Mr Hodge to proceed with only one counsel.
[2] (2^nd ed, 2009), [14.34].
The principle expressed by Professor Dal Pont applies only to the costs of an application. The costs being sought by the plaintiff are the costs thrown away, which may be quite substantial, as a result of the adjournment. I consider that it has little application to this type of part-heard case. In any event, I do not consider that I was granting an indulgence to the defendants. I was merely endeavouring to ensure that, in the unfortunate circumstances which had happened, the defendants would not be unduly prejudiced in the conduct of their case. If the indulgence granted to the defendants were a result of the defendants’ default then the case might well be different.
In all the circumstances I refuse the plaintiff’s application. The costs of the adjournment incurred by both sides, unfortunate as that may be, are a regrettable but necessary incident of this trial.