Brechin v Shire of Brookton
[2002] WASC 296
BRECHIN & ORS -v- SHIRE OF BROOKTON [2002] WASC 296
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 296 | |
| Case No: | CIV:1823/1998 | 27 NOVEMBER 2002 | |
| Coram: | MASTER SANDERSON | 4/12/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded to plaintiff Order for indemnity costs refused | ||
| B | |||
| PDF Version |
| Parties: | CYRIL BRUCE BRECHIN WATER CORPORATION WESTERN POWER CORPORATION AND OTHERS SHIRE OF BROOKTON |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Nil |
Case References: | Brechin & Ors v Shire of Brookton [2002] WASC 228 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Benfield v Australian National Railways Commissioner (1993) 8 WAR 285 Carroll v Azolia Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998 CAI Fences Pty Ltd v Ravi (Builders) Pty Ltd, unreported; SCt of WA; Library No 8740; 26 February 1991 Cruickshank v Producers Markets Pty Ltd [1960] WAR 184 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Go Exports Pty Ltd v Livestock Shipping Services Pty Ltd [2002] WASC 218 McLean v Kerville, unreported; FCt SCt of WA; Library No 6455; 1 October 1986 Schmidt v Gilmour [1988] WAR 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- WATER CORPORATION
WESTERN POWER CORPORATION AND OTHERS
Plaintiffs
AND
SHIRE OF BROOKTON
Defendant
Catchwords:
Practice and procedure - Costs - Turns on own facts
Legislation:
Nil
Result:
Costs awarded to plaintiff
Order for indemnity costs refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr P D Quinlan & Mr G N Hocking
Defendant : Mr G R Hancy & Mr C J Sweet
Solicitors:
Plaintiffs : Talbot & Olivier
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Brechin & Ors v Shire of Brookton [2002] WASC 228
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Case(s) also cited:
Benfield v Australian National Railways Commissioner (1993) 8 WAR 285
Carroll v Azolia Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998
CAI Fences Pty Ltd v Ravi (Builders) Pty Ltd, unreported; SCt of WA; Library No 8740; 26 February 1991
Cruickshank v Producers Markets Pty Ltd [1960] WAR 184
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Go Exports Pty Ltd v Livestock Shipping Services Pty Ltd [2002] WASC 218
McLean v Kerville, unreported; FCt SCt of WA; Library No 6455; 1 October 1986
Schmidt v Gilmour [1988] WAR 219
(Page 3)
1 MASTER SANDERSON: On 25 September 2002 I entered judgment for the plaintiffs in this matter on trial of a preliminary issue: see Brechin & Ors v Shire of Brookton [2002] WASC 228. The question of costs was reserved to allow the parties to consider the reasons for decision and make further submissions. The plaintiffs now seeks the following orders:
"1. The defendant pay the plaintiffs' costs in relation to the issues of fact and law relating to liability on a party and party basis until 14 August 2001 and thereafter on the basis that the defendant pay all costs incurred by the plaintiffs, including reserved costs, except insofar as they are of an unreasonable amount or have been unreasonably incurred.
2. The limits on the allowances under Items 1(a), 6(a), 9(b), 10(b), 13 and 14(a) to (d) inclusive, of the costs scale be removed and the allowances be made at the discretion of the Taxing Officer.
3. The Plaintiffs be allowed the costs of delivering interrogatories.
4. A certificate for second counsel be allowed.
5. The Plaintiffs be allowed the costs of two solicitors at trial.
6. The Plaintiffs be allowed the costs of the transcript of the trial.
7. The Plaintiffs be allowed costs for conferences with Counsel and that such allowance be at the discretion of the Taxing Officer.
8. The Defendant pay the Plaintiffs the costs of a qualifying fee for each of the experts Ralph Smith, Maurice Tong and Glenn Cook and the sums allowed be made at the discretion of the Taxing Officer.
9. The Defendant pay the Plaintiffs' costs of the action in relation to the issues of fact and law relating to liability forthwith."
2 Counsel for the defendant accepts that orders ought be made in terms of par 3, 4, 6 and 9. In relation to par 2 counsel also accepts that the limits
(Page 4)
- on items 6(a), 9(b), 10(b) and 13 should be removed. Otherwise the orders sought by the plaintiffs are opposed.
3 By far the most contentious of the orders sought by the plaintiffs was order 1. The plaintiffs' submissions in relation to indemnity costs were put in two separate but interrelated ways. First it was said that the defendant never articulated a coherent defence to the plaintiffs' claim. In relation to the way in which the fire started, no expert evidence was led to challenge the plaintiffs' version of events. In relation to the issue of causation the defendant was able to point to nothing in answer to the plaintiffs' claim, which I accepted at trial, that the defendant was negligent in failing to instruct its employees in relation to control of fires at the rubbish disposal site. In answer to this submissions counsel for the defendant pointed out that both in the pleadings and at least on the evidence of Mr Ralph Smith, the plaintiffs' case was that the fire started on the tip, burnt through the tip reserve into Hall's paddock and then on through the district. Counsel maintained that it was never a simple case where the plaintiffs pleaded that the fire in Hall's paddock commenced as a result of the fire brand which originated on the tip reserve. In these circumstances, it was said, the defendant properly required the plaintiffs to prove how the fire started. As to causation, the defendant said that its case rested on an overall assessment of the steps taken by the defendant to manage the rubbish disposal site. This, it was said, was the positive case that was articulated and it was proper for the defendant to put its evidence before the Court.
4 The second point made by the plaintiffs related to a lack of cooperation on the part of the defendant in agreeing matters which were not really in dispute. It was said that up until a few days before the case was due to commence the defendant had declined to concede that each of the plaintiffs had suffered loss as a consequence of the fire. That meant that a good deal of work had to be undertaken by the plaintiffs in circumstances where a concession was always proper. On behalf of the defendant it was said that once all of the evidence was produced which satisfied the defendant that a concession was proper, then the concession was made promptly. It was submitted that in all the circumstances, the defendant had acted properly and in accord with what is required by both the spirit and the letter of the rules.
5 The principles in relation to an award of indemnity costs are well understood. I need do no more than refer to the decision of Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. On balance I am not satisfied that this is an
(Page 5)
- appropriate case for an award of indemnity costs. While I have some reservations about the way in which the defendant's case was presented, I can not conclude that properly advised, the defendant would not have maintained its position. As I mentioned in the reasons, a defendant is entitled to put the plaintiff to proof of the claim. In the circumstances of this case to simply say the defendant should have consented to judgment would, I think, be going too far. Furthermore, as counsel for the defendant pointed out, the other costs orders which are sought by the plaintiffs would go a long way towards covering a substantial proportion of the plaintiffs' costs. That being so, I will not order indemnity costs.
6 I am satisfied, however, that the other orders sought in par 2, 5, 7 and 8 ought be permitted. The matter was of such complexity that the limits on all items set out in the proposed order 2 ought be removed. This was a case where there were numerous witnesses and many documents. That to my mind justifies the costs of two solicitors at trial. It is proper that costs for conferences with counsel be allowed and that these costs be at the discretion of the Taxing Officer. The number of plaintiffs and the broad nature of the evidence the plaintiffs were required to call justifies allowing the costs of these conferences.
7 In relation to the three experts, I am satisfied that the costs of a qualifying fee should be allowed for each. Although the expertise of the three expert witnesses Smith, Tong and Cooke was challenged, there was, in my view, no real basis for such a challenge. That being so, I think it is proper to allow the costs in terms of par 8.
8 I would therefore make orders in terms of the minute of proposed orders save that order 1 should read as follows:
"1. The defendant pay the plaintiffs' costs including reserved costs in relation to the issues of fact and law relating to liability."
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