Bob Gilbert Motors P/L v SA Telecasters Ltd No. DCCIV-98-84 Judgment No. D54

Bob Gilbert Motors Pty Ltd and Robert John Gilbert v South Australian Telecasters Ltd
[1999] SADC D54

Judge Sulan
Civil

On the 16th March 1999 I gave judgment in this matter. I found that both plaintiffs had been defamed and I awarded nominal damages of $1 to the first named plaintiff and damages including interest to the second plaintiff, Robert John Gilbert, in the amount of $139,927.80. The plaintiffs seek costs to be paid by the defendant on an indemnity basis. In the alternative, they seek costs payable on a solicitor and client scale.
Section 42 of the District Court Act 1991 provides that subject to subsection 42(2) and the rules, costs in civil proceedings will be in the discretion of the Court. Subsection (2) has no relevance to the application. Rule 101.01 gives the Court an overriding discretion to award costs. Generally costs will follow the event. (See : rule 101.02 and In Leisure v D.F. Cloy (No. 2) (1991) 28 FCR 172 at 174). Rule 101.07(6) provides :
“In any rule or order unless the contrary meaning is indicated by the context or other factors :
(a)    costs as between party and party, or a like expression, means only the costs which have been necessarily and reasonably incurred by the party in the conduct of the litigation;
(b)    costs, or a like expression, means costs as between party and party;
(c)    costs as between solicitor and client, or a like expression, means all costs reasonably incurred by the party in respect of the litigation and having regard to the proper interests of the persons who will ultimately bear the burden or such costs;
(d)    costs as between solicitor and own client, or a like expression, means costs as a complete indemnity against the costs incurred by the party in respect of the litigation provided that they are not to include any amount shown by the party liable to pay them to have been incurred unreasonably in the interests of the party incurring them;
(e)    indemnity costs, or a like expression, means the same as costs between solicitor and own client.”
The usual order for costs to a successful litigant is as between party and party. There must be some special or unusual feature in the case to justify the exercise of the Court’s discretion to order costs on an indemnity or solicitor and client basis. (See Health and Life Care Ltd (in liquidation) v South Australian Asset Management Corporation (No. 2) (1995) 181 LSJS 56)
In Casley-Smith v Evans and Sons (1989) 148 LSJS 483 Olsson J in dealing with an application for an order for costs to be taxed against the defendants on a solicitor and client basis said at page 488 :
“In most instances, the proper rationale for such an exceptional order will, in fact, be expressed in terms of either improper motive or conduct on the part of the party concerned, which has inevitably imposed an undue burden upon some other party.”
Instances in which orders for costs outside the usual party and party scale may be made include instances where there has been an unreasonable refusal to compromise, where there has been fraud, or where a party has no chance of success. If a party has completely misconceived the case or where the difficulties of success have been pointed out and ignored or where a party has unnecessarily prolonged the litigation or concocted a case, then the Court may order costs on an indemnity or solicitor and client basis. The categories are not closed but what must be established by the party seeking the order is that there are some special or unusual features in the case to justify the exercise of the discretion.
The matters upon which the plaintiffs rely in support of this application can be summarised as follows :
1.      The imputation of dishonesty and the conduct of the defendant in seeking to justify the defamation.
2.      The failure at any time of the defendant to apologise.
3.      The manner in which the defendant conducted the defence, including the defendant’s refusal to initially admit matters which subsequently turned out to be not in issue. The lengthy cross examination of the plaintiff.
4.      The finding that the plaintiff, Robert John Gilbert, had made out a case for aggravated and exemplary damages.
5.      The considerable publicity, the publication having occurred on a popular television programme which was seen interstate by at least some people.
6.      The putting of the plaintiffs to proof in respect of matters which were not truly in issue.
The case was hard-fought. The defendant maintained throughout that the various broadcasts were not defamatory and it relied on the defence of justification. Mr Gilbert was cross examined at length, but in my view, the cross examination was neither unfair nor prolix. There was no objection that the cross examination was unnecessary, irrelevant, unfair or embarrassing.
It is true that in relation to a number of matters the plaintiffs were put to proof and it subsequently transpired that there was no issue in respect of them. I consider that the initial refusal of the defendant not to admit the receipt of Messrs Andersons’ letter, which had been delivered to the defendant on the morning prior to the programme going to air, was unreasonable. On the other hand, the trial was not unduly lengthened nor did the conduct of the defence case have the unusual features to satisfy the making of an order other than the usual order for costs.
As to the award of aggravated and exemplary damages, the fact that Mr Gilbert succeeded in his claim does not in itself bring the case within the exceptional circumstances referred to by the authorities. The findings resulted in the damages being increased. The defendant should not be required to suffer both the additional damages and an exceptional costs order.
All other matters relied upon by Ms Nelson, QC, were relevant to the award of damages but in my view, do not justify a conclusion that the conduct of the case or the defendant’s conduct in defending the case amount to unusual or exceptional circumstances sufficient to order costs on other than a party and party basis.
Mr Swan, on behalf of the defendant, seeks an order that as to part of the case, the plaintiffs pay to the defendant its costs, or alternatively, the plaintiff not recover costs in respect of part of the case relating to past and future economic loss.
Mr Swan submitted that in respect of the claim for economic loss, the plaintiffs were substantially unsuccessful. The first plaintiff did not succeed in its claim and the second plaintiff received a very small award. He argued that the evidence of the expert accountant called on behalf of the plaintiffs was rejected and the expert called by his client was wholly accepted. Further, he submitted that because there had been incomplete discovery his client was put to additional expense and the expert accountant was required to do additional work during the trial.
Mr Macklin, who was the plaintiffs’ expert accountant, had not prepared a report prior to being called. When he was called, Mr Swan objected to his evidence and submitted that an expert report should have been filed and served. I adjourned Mr Macklin’s evidence so that a report could be prepared. As it happened, the trial had to be adjourned because it had run well over the anticipated hearing time and Ms Nelson, QC, had other pre-arranged commitments. The report was provided during the adjournment and as it turned out, no Court time was lost because of the plaintiffs’ failure to provide a report as required by the rules. The defendant’s expert, Mr Crase, may have been required to do some additional work once the defendant received the report, but I do not consider it would have required much additional time because Mr Macklin accepted the figures upon which Mr Crase relied.
The settled practice is that a successful party receives their costs from their opponent. In Cretazzo v Lombardi (1975) 13 SASR 4 the trial judge made an order awarding certain costs to the losing party. The order was the subject of an appeal. Jacobs J stated the position as follows at page 16 :
“But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom a judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.”
In my view there must be good reasons, which go beyond the loss of some issues by the successful party, before that party should be deprived of an order that the losing party pay the costs of the action. If for example, an inordinate time was taken arguing an issue upon which the successful party ultimately lost, or if the successful party caused a delay, resulting in the losing party being put to unnecessary additional cost, that may lead a Court not to follow the usual practice.
In my view although the plaintiffs were not wholly successful in their claim for damages for economic loss, I do not consider the case to be so unusual as to justify the making of an order sought by the defendant. I am not satisfied that there is a basis for me to depart from the practice that the successful party ought to be entitled to an order for costs of the action.
Both applications are refused. The defendant is to pay the plaintiffs’ costs either to be agreed or to be taxed on a party and party basis.

[1999] SADC 54

9 April 1999