Bradford v Devlot 17 Pty Ltd (No 2)
[2020] VSC 828
•8 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2018 01134
| VICKI ADELE BRADFORD and JONATHAN ALAN UPHILL | Plaintiffs/Defendants by counterclaim |
| v | |
| DEVLOT 17 PTY LTD (ACN 126 265 790) | Defendant/Plaintiff by counterclaim |
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JUDGE: | Kennedy J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers; submissions received on 3 December 2020 and 7 December 2020 |
DATE OF RULING: | 8 December 2020 |
CASE MAY BE CITED AS: | Bradford v Devlot 17 Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 828 |
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PRACTICE AND PROCEDURE – Costs – Where successful party should generally recover their costs – Whether plaintiffs properly characterised as the ‘successful party’ – Where defendant’s appeal unsuccessful – Where plaintiffs, in substance, brought a cross appeal –Where neither side wholly successful - No order for costs appropriate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D Lorbeer | Aitken Partners |
| For the Defendant | Mr P B Murdoch QC | Clayton Utz |
HER HONOUR:
In reasons delivered on 27 November 2020 I determined that, subject to hearing from the parties, it was appropriate for an appeal against a decision of a Judicial Registrar to be dismissed with no order as to costs.[1]
[1][2020] VSC 792 (‘The reasons’).
Following the receipt of an objection from the plaintiffs as to the proposed costs order, I have subsequently received written submissions in relation to the question of costs.[2] The plaintiffs have submitted that the Court ought to make an order that the defendant pay two-thirds of their costs of the appeal. Such an order has been opposed by the defendant who submits that the appropriate order is that there be no order as to costs.
[2]The plaintiffs relied upon submissions dated 3 December 2020 and the defendant relied upon submissions dated 7 December 2020.
The sole issue is therefore what is the appropriate costs order in relation to the appeal.
Submissions
The plaintiffs emphasise that the starting point is that costs should follow the event, although this may be modified where there is conduct on the part of the successful party that would justify a different outcome.[3]
[3]Citing Northern Territory v Sangare (2019) 265 CLR 164, 173 [25].
The plaintiffs submitted that that they enjoyed a greater measure of success on appeal than the defendant did, thereby resulting in an order that the defendant pay two-thirds of the plaintiffs’ costs of the appeal. In support of this proposition they highlighted the finding that the Court allowed the plaintiffs leave to withdraw the concession that there had been a waiver.
The plaintiffs further submitted that there was nothing about their conduct in the case that would justify an outcome which displaced the general rule and deprived the plaintiffs of their costs in the entirety. On the contrary, the plaintiffs endeavoured to assist the Court, including by the helpful identification of key documents and contentions.
The defendant submits that the plaintiffs have not attached sufficient weight to the fact that the appeal was a hearing de novo of objections made by the plaintiffs to inspection of documents. This meant that, on appeal, the plaintiffs were able to advance a series of cascading contentions beginning with the contention that there had been no waiver at all. The plaintiffs thereby, in substance, advanced a cross-appeal in respect to central elements of the decision of the Judicial Registrar which were ultimately entirely unsuccessful.
The defendant also disagreed with the plaintiffs’ submission as to the relative success of the parties on appeal. The defendant submitted that the Court was entitled to take into account the disorganised way in which the plaintiffs advanced their objections, and also noted that the proposed costs order was consistent with the order made by the Judicial Registrar (who had determined that costs be reserved).
Principles
In the Court of Appeal decision in Chen v Chan (No 2) Forrest AJA identified the following relevant principles:[4]
(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5) Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
[4][2009] VSCA 233, [10].
Analysis
I accept that the general rule is that costs should follow ‘the event’ and that the defendant chose to bring an appeal which has failed. I also accept that the plaintiffs’ Counsel, in particular, presented submissions in a helpful way, and saw no evidence of disorganised behaviour as alleged by the defendant.
However, when the ‘realities of the case’ are properly considered I consider that the plaintiffs, in substance, sought to cross appeal the orders of the Judicial Registrar. Thus, through the prism of the de novo appeal, they sought to challenge all aspects of the Judicial Registrar’s decision, including a significant matter that they had previously conceded i.e. whether there had been a waiver in the first place.
For reasons advanced by the defendant, I also do not accept that the plaintiffs should obtain some benefit by reason that they obtained leave to withdraw the concession. First, the grant of leave constituted the grant of an indulgence. Secondly, and in any event, the question of leave should properly be regarded as a sub issue of whether there was a waiver of privilege, a point on which the plaintiffs failed.
Thus, as the reasons make clear, there were two main issues for determination on the appeal: first, whether there was a waiver; secondly, the scope of that waiver.[5] While the plaintiffs challenged the existence of both the waiver and the scope of that waiver (as found by the Judicial Registrar), the defendant in effect challenged only the scope. The plaintiffs were further unsuccessful in relation to the first issue, while neither party was successful in relation to the second.
[5]The reasons (n 1) [4].
I am therefore unable to view the plaintiffs as the ‘successful party’ within the principles above. More particularly, I am unable to be satisfied that the outcome is fairly reflected by the outcome of the appeal itself.
To the contrary, I am satisfied, doing ‘substantial justice’ between the parties, that there should be no order as to costs of the appeal.
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