Amaca Pty Ltd v Moss
[2007] WASCA 162 (S)
•2 AUGUST 2007
AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 162 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:5/2007 | 28 FEBRUARY & 1 MARCH 2007 | |
| Coram: | MARTIN CJ STEYTLER P McLURE JA | 2/08/07 | |
| 21/02/08 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent pay the appellant's cost of the trial and appeal, to be taxed | ||
| B | |||
| PDF Version |
| Parties: | AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512) DENNIS WALTER JOHN MOSS |
Catchwords: | Costs Whether the issues on appeal justify departure from the general rule that the successful party should recover its costs Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 |
Case References: | Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (S) CORAM : MARTIN CJ
- STEYTLER P
McLURE JA
DECISION : 22 FEBRUARY 2008 FILE NO/S : CACV 5 of 2007 BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
- Appellant
AND
DENNIS WALTER JOHN MOSS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311
File No : CIV 1089 of 2006
(Page 2)
Catchwords:
Costs - Whether the issues on appeal justify departure from the general rule that the successful party should recover its costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Result:
Respondent pay the appellant's cost of the trial and appeal, to be taxed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Jarman McKenna
Respondent : Slater & Gordon
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301
(Page 3)
1 JUDGMENT OF THE COURT: By orders made on 2 August 2007, the Court allowed this appeal, set aside the judgment of the trial judge and instead ordered that the respondent's action against the appellant be dismissed. Directions were made for the exchange of written submissions in relation to the costs of the trial and the appeal. These reasons are concerned only with those costs issues.
2 The appellant submits that the general rule, reflected in O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) is that 'the Court will generally order that the successful party to an action or matter recover his costs' (O 66 r 1). It submits that in this case, there is no basis for departing from that general rule.
3 The respondent acknowledges the existence of the general rule, but relies upon the modification to that general rule established by practice and authority, and expressly recognised in O 66 r 1(3), which 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.
4 The respondent submits that the issues that arose at trial, and on appeal, can be segregated into four substantive and discrete areas, namely:
(a) foreseeability;
(b) duty of care;
(c) breach;
(d) causation.
5 The respondent points out that on the decision of the majority in this Court, it was successful in all of those issues other than breach and causation. The respondent submits that, as a result of its success on two out of the four issues identified, the appropriate orders to be made in respect of costs are:
(a) that each party bear their own costs of the trial and the appeal; or in the alternative
(b) that the respondent pay 25% of the appellant's costs of the trial and the appeal.
6 The power to depart from the general rule to the effect that costs follows the event and to instead adjust the costs order to be made by reference to the failure of the generally successful party on specific and
(Page 4)
- particular issues within the litigation, is recognised by practice, authority and the express provisions of O 66 r 1(3). However, its application depends upon the identification of discrete and severable issues, the litigation of which has increased the costs of conducting the proceedings. Established practice in this State, and the authorities, suggest that the exercise of this power should be approached broadly, and as a matter of impression, and without an attempt at 'mathematical precision' which is likely to prove illusory - see, for example J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301.
7 Accordingly, the 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 discrete and severable issues upon which the generally successful party has failed, and which have added to the cost 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.
8 Applying those principles to the circumstances of this case, it is undoubtedly the case that the four issues identified by the respondents arose for determination both at trial and on appeal. However, the factual and evidentiary substratum to each of those issues was substantially common to all issues, and was largely addressed by each of the experts who were called by each of the parties. At the heart of each of the issues was the question of the extent to which the inhalation of respirable asbestos fibre in the course of what were characterised as 'home handyman activities' performed infrequently on materials containing asbestos fibre, caused or contributed to the risk of each of the respondents contracting mesothelioma. That issue, and particularly the state of knowledge in relation to that issue, bore directly upon the issues of foreseeability, and duty of care, and also upon the question of whether the appellant was in breach of the duty of care which the majority found it owed to each respondent. The issue was central to the question of causation. So, although this is a case in which the legal consequences of the basic factual and evidentiary substratum had to be enunciated in the resolution of different questions, it was also one in which there was some overlap between the basic factual and evidentiary substratum in respect of each of those questions.
(Page 5)
9 Applying those considerations to the issue of the costs of the trial, because the major part of the time spent at trial was concerned with evidence which spanned all four identified issues, and because it seems to us that it was reasonable for the appellant to put the respondent to the proof of all of the issues necessary to establish their cause of action, there should be no departure from the general rule, and the respondent should be ordered to pay the appellant's costs of the trial to be taxed.
10 In relation to the costs of the appeal, unlike the case of Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109, which was heard simultaneously with this appeal, the appellant succeeded on the question of causation. The argument directed specifically to the issues of foreseeability and duty of care, upon which the respondent succeeded, was not severable and discrete from the issues upon which the respondent failed, and did not substantially increase the cost of conducting the appeal. Accordingly, the general rule should be applied, and the respondent ordered to pay the appellant's costs of the appeal to be taxed.
11 So the orders of the Court will be that the respondent pay the appellant's costs of the trial and the appeal, to be taxed.
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