Brandrill Ltd v MILREECE Pty Ltd

[2002] WADC 158

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BRANDRILL LTD -v- MILREECE PTY LTD [2002] WADC 158

CORAM:   NISBET DCJ

HEARD:   24 JULY 2002

DELIVERED          :   2 AUGUST 2002

FILE NO/S:   CIV 384 of 2001

BETWEEN:   BRANDRILL LTD

Plaintiff

AND

MILREECE PTY LTD
Defendant

Catchwords:

Adjournment - Costs of - Turns on own facts

Legislation:

Suitors Fund Act 1964

Result:

Costs reserved to trial Judge

Representation:

Counsel:

Plaintiff:     Mr P A Fyfe

Defendant:     Mr R R Cywicki

Solicitors:

Plaintiff:     Jackson McDonald

Defendant:     Godfrey Virtue

Case(s) referred to in judgment(s):

Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137

Giustiniano Nominees Pty Ltd v The Minister for Works & Ors, unreported; FCt SCt of WA; Library No 950661; 1 December 1995

Lydall v Martinson (1877) 5 Ch D 780

Myers v Myers [1969] WAR 19

Sullivan v Harris (1901) 3 WALR 86

Case(s) also cited:

Nil

1. NISBET DCJ:  The trial in this matter was due to commence on Tuesday, 23 July 2002 and was listed for hearing for three days.  On the morning of trial and before the plaintiff's counsel opened the case for the plaintiff, counsel for the defendant moved for an adjournment on account of instructions he had received that Mr Milfred Simpson, the principal director of his client company was ill and being examined in Royal Perth Hospital for severe abdominal pain.  I adjourned the matter to 2.15 pm on that day in order to ascertain the nature and extent of the illness of Mr Simpson.  At 2.15 pm I received a note from Royal Perth Hospital that the plaintiff was being investigated and was unfit to attend court and accordingly I adjourned the matter to 10.30 am the next day, Wednesday, 24 July.

2. On the morning of Wednesday, 24 July I received a further medical report advising that the plaintiff had undergone an operation and I was informed by Mr Cywicki of counsel for the defendant that at 12.30 am that day Mr Simpson had undergone an emergency appendectomy.  The prognosis was not clear and he moved for an adjournment of the trial.  Mr Fyfe of counsel for the plaintiff resisted the motion for an adjournment but in the end result I was bound to grant it and I did, making additional orders that the matter be re‑listed with expedition and that the defendant do provide the plaintiff with a written prognosis of Mr Simpson's condition by no later than 5.00 pm on Monday, 29 July 2002.

3. Mr Fyfe then moved for an order that the defendant do pay the plaintiff's costs of and occasioned by the adjournment on an indemnity basis.  The defendant opposed the order for costs and moved for a certificate pursuant to the provisions of s 14 of the Suitors Fund Act 1964.  I ruled that the Suitors Fund Act did not apply to these circumstances because it could not be said within the meaning of s 14(1)(c) of the Act that the trial had been discontinued and a new trial ordered.

4. The granting of adjournments and the awarding of costs are of course exercises of a very broad discretion and in the ordinary case adjournments of trials are only granted if there would be no injustice occasioned to the other party which could not be cured by an appropriate award of costs – see for example authorities such as Myers v Myers [1969] WAR 19; Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 and the authorities referred to in both of those authorities.

5. There are some old authorities that say that the costs of an adjournment should be borne by the party obtaining it:  Lydall v Martinson (1877) 5 Ch D 780 at 781 but this was said to be an exceptional case in Sullivan v Harris (1901) 3 WALR 86 at 88.

6. The nearest case analogous to the current situation where it could be said that the adjournment was occasioned through no fault of either party are those cases in this Court when parties arrive with counsel and witnesses ready to commence their trial and the Court is unable to provide a judge because of its policy of double listing in its civil jurisdiction.  In those cases the costs of and occasioned by the adjournment were dealt with as costs in the cause and an unsuccessful party accordingly bore the brunt of the costs of the adjournment.  Another analogous situation is where a superior court orders a re‑trial by reason of an error of law of the judge or where there was an apprehension of bias for example, as was the case in Giustiniano Nominees Pty Ltd v The Minister for Works & Ors, unreported; FCt SCt of WA; Library No 950661; 1 December 1995 where the court said:

   "The normal rule in a case where a retrial is ordered is that the costs of the original trial should be costs in the cause on the retrial, that is to say, they should be paid by the party who is eventually unsuccessful.  Nevertheless, the matter remains one of discretion."

7. In this case I have come to the view that there is insufficient material before me to enable me to make a decision which would do justice to both parties, and a decision as to who bears the costs of the adjournment should be left until after the trial when the merits of the matter may be better understood.  I will accordingly order that the costs of and occasioned by the trial be reserved to the trial Judge.