Ashton v Pratt (Costs)

[2012] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation:	Ashton v Pratt (Costs) [2012] NSWSC 19
Hearing dates:	1 March 2012
Decision date:	01 March 2012
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	No variation of provisional costs orders. Issues left to Assessor
Catchwords:	COSTS - particular components - whether should be excluded from general costs order - whether matter for Court or Assessor
Category:	Costs
Parties:	Madison Ashton (plaintiff) Jeanne Pratt (defendant)
Representation:	Counsel: Mr R K Newton (plaintiff) Mr M S Henry (defendant) Solicitors: David Legal (plaintiff) Arnold Bloch Leibler (defendant)
File Number(s):	2010/56518

Judgment (ex tempore)

1. HIS HONOUR: Following a four day trial in September 2011, I gave judgment on 16 January 2012 in the substantive proceedings, concluding that there should be judgment for the defendant with costs. At that time counsel for the plaintiff indicated that there may be questions which the plaintiff wished to agitate in respect of costs, and I granted leave for the matter to be re-listed for that purpose. It is on that basis that the matter returns before me today.

1. As I have made clear on other occasions in such circumstances, where at the conclusion of proceedings a costs order is made without argument, effectively on a prima facie basis, if the matter is further argued I approach it afresh, untrammelled by the original costs order, which is regarded as provisional.

1. The plaintiff does not dispute that there should generally be an order to the effect that the plaintiff pay the defendant's costs, but submits that that order should be qualified, and that the appropriate order is as follows:

Plaintiff to pay the defendant's costs as assessed or agreed excluding:

(a) the fees and disbursements referable to the appearance or attendance at trial of Clelland SC and a second partner from the defendant's solicitors;

(b) the preparation of the unread affidavit sworn by Tony Gray including the costs of interviewing Mr Gray, the drafting of his affidavit, the settling of his afffidavit and the collation of annexures or exhibit to same; and

(c) the disbursements associated with the attendance of Mr Tony Gray at the trial;

(d) the amount of those costs of the plaintiff as assessed or agreed, wasted as a result of preparing an affidavit in reply to the affidavit of Tony Gray and in preparing for his cross examination.

1. In support of that contention, the plaintiff submits as follows:

In the present proceedings there were a number of unnecessary or unreasonable costs incurred by the defendant, or costs wasted as a result of the way in which the case was run by the defendant, viz:

(a) There was no need for the defendant to engage the services of two senior counsel. The services of Richter QC and Mr Henry should have been sufficient. With no disrespect, Clelland SC played very little role in the hearing and his presence should not have been required. This was a short trial and revolved around narrow factual issues.

(b) There was no need for a partner from each of the Melbourne and Sydney offices of the defendant's solicitors to be in attendance at the trial.

(c) Substantial time and resources were obviously deployed by the defendant in drafting and collating the affidavit of Tony Gray of 21 March 2011 which was not read. The affidavit was not necessary.

(d) Substantial time and resources were deployed by the plaintiff in preparing her affidavit of 5 April 2011 in reply to Mr Gray's affidavit and in preparation for his anticipated cross examination. This caused the plaintiff to waste costs.

(e) Mr Gray was in attendance throughout the trial, but was never called to give evidence. This was not necessary.

1. Generally speaking, the issues raised by those submissions are issues which in former days would have been resolved by a taxing officer, and nowadays by a costs assessor. For example, at least in this state (although a different practice has prevailed in Victoria) it has never been the practice for the court to "certify for senior counsel", and it has conventionally been for a taxing officer or assessor to decide whether the retention of senior counsel, or multiple counsel, was justified. A similar observation can be made in respect of the attendance to instruct at the trial of partners from the Melbourne and Sydney office of the defendant's solicitor.

1. I am the first to acknowledge that it is often desirable, in the interests of facilitating the costs assessor's task, for the court to give guidance to a costs assessor and reduce the issues which the costs assessor is left to determine.

1. At first sight there may be merit in the plaintiff's argument that the engagement of three counsel and two partners at the trial was excessive but in the absence of evidence of the type that could be put before a costs assessor I am really not in the position to know whether or not that was the case.

1. So far as concerns the preparation of Mr Gray's affidavit, the preparation of a response to it and the attendance of Mr Gray at the trial, those issues arise in circumstances where at the conclusion of the plaintiff's case a forensic judgment was made not to read Mr Gray's affidavit. While the court knows that the affidavit was not read, it does not know and probably should not know the full reasoning process that underlay that decision. There are some things that may, after the event, be made known to a costs assessor, that are best not told to the presiding judge. Information and evidence relating to forensic decisions made during the course of the trial typically fall in that category.

1. It is also important to bear in mind, so far as that forensic decision not to read Mr Gray's affidavit and therefore not to call him is concerned, that parties should not be discouraged from making responsible forensic decisions, that reduce issues and save court time, by the fear that doing so will result in their being deprived of costs. This type of problem not uncommonly arises where issues may be abandoned at a relatively late stage, or where a defendant elects to make an application for a non-suit or not to go into evidence, having formed an assessment of the relative strength of the plaintiff's case at its closure.

1. All those matters would have to be considered by a costs assessor in ruling on these issues. Quintessentially they are tasks of the costs assessor, and I do not think the issues are in this case so clear-cut that I could responsibly or justly pre-empt the costs assessor's consideration of them.

1. Of course, in declining to vary the costs order in the manner proposed by the plaintiff I am not for a moment holding that the costs or categories of costs to which the plaintiff takes objection should be allowed on assessment. That is entirely a matter for the costs assessor, and remains entirely open to the costs assessor to determine, one way or the other.

1. That said, I decline to vary the costs order made on 16 January 2012. The order remains, judgment for the defendant with costs.

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