Brown v Marron
[2001] WASC 100 (S)
BROWN -v- MARRON & ANOR [2001] WASC 100 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 100 (S) | |
| Case No: | CIV:2038/1997 | 20-24, 27 & 28 MARCH 2000 | |
| Coram: | OWEN J | 20/04/01 | |
| 25/03/02 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL BROWN ERROL FRANCIS MARRON MARRON PROPERTY GROUP PTY LTD (ACN 009 398 583) |
Catchwords: | Costs Turns on own facts |
Legislation: | Nil |
Case References: | Brown v Marron [2001] WASC 100 Australian Competition and Consumer Commission v Back on White Pty Ltd [2001] FCA 372 Australian Trade Commission v Disktravel [2000] FCA 62 Bullock v London General Omnibus Co [1907] 1 KB 264 Gallagher v CSR Ltd, unreported; SCt of WA (Ipp J); Library No 940163; 31 March 1994 Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496 Gould v Vaggelas (1984) 56 ALR 31 Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40748 Jelbarts Pty Ltd v McDonald [1919] VLR 478 Post v Colbert (1978) 20 SASR 62 Whyte v Seenikatty, unreported; DCt of WA (Jackson DCJ); Library No 4026; 23 May 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 25 MARCH 2002 FILE NO/S : CIV 2038 of 1997 BETWEEN : MICHAEL BROWN
- Plaintiff
AND
ERROL FRANCIS MARRON
First Defendant
MARRON PROPERTY GROUP PTY LTD (ACN 009 398 583)
Second Defendant
Catchwords:
Costs - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Orders made
Category: B
Representation:
Counsel:
Plaintiff : Mr R W Richardson
First Defendant : Mr M H Zilko
Second Defendant : Mr M H Zilko
Solicitors:
Plaintiff : Williams & Hughes
First Defendant : Simon Watson
Second Defendant : Simon Watson
Case(s) referred to in judgment(s):
Brown v Marron [2001] WASC 100
Case(s) also cited:
Australian Competition and Consumer Commission v Back on White Pty Ltd [2001] FCA 372
Australian Trade Commission v Disktravel [2000] FCA 62
Bullock v London General Omnibus Co [1907] 1 KB 264
Gallagher v CSR Ltd, unreported; SCt of WA (Ipp J); Library No 940163; 31 March 1994
Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496
Gould v Vaggelas (1984) 56 ALR 31
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40748
Jelbarts Pty Ltd v McDonald [1919] VLR 478
Post v Colbert (1978) 20 SASR 62
Whyte v Seenikatty, unreported; DCt of WA (Jackson DCJ); Library No 4026; 23 May 1994
(Page 3)
1 OWEN J: These reasons relate to the costs of the action that was the subject of judgment in Brown v Marron [2001] WASC 100.
2 I have had the advantage of written submissions from the plaintiff dated 27 February 2002 and 12 March 2002 and from the defendant dated 6 March 2002. The parties agree on the general principles that apply to a costs application of this type. However, they disagree on the application of those principles to the facts of the case.
3 The plaintiff was largely successful in the action against the first defendant. He asserted that the letter the subject of the action was defamatory and I found that it was. The plaintiff alleged that the letter bore a number of defamatory imputations. He established most, but not all, of them. The defendant asserted (among other things) that the imputations, if established, were true or that they were communicated on an occasion of qualified privilege. The defendant failed to establish those defences. However, there were some aspects of the defences on which succeeded. He satisfied me that one of the imputations was true and that the allegation of spite (as part of the retort to the defence of qualified privilege) had not been made out.
4 I accept that the several imputations are not separate causes of action. Nonetheless, in the circumstances of this case they are properly to be characterised as separate issues and success or failure can be reflected in a differential costs order.
5 The defendant also referred to a notice to admit facts dated 17 August 1999 which he delivered to the plaintiff. It should be apparent from pars 191 to 198 of the judgment that the only part of the notice on which the defendant could be said to have prevailed at trial was that in item (1). In my view that is not a sufficiently weighty matter to reduce the costs to which the plaintiff is otherwise entitled.
6 In a letter dated 20 March 2002 from the defendant's solicitors it is said that had the second defendant not been joined the first defendant would have continued, as he had done to that time, to act in person. I have no reason to doubt that statement. However, I do not think it should bear on the ultimate disposition of the costs problem.
7 As between the plaintiff and the first defendant I think the starting point is that the plaintiff was largely successful and should therefore have the costs of the action. However, I must also take into account that the defendant was successful on some identifiable issues which, in my view, extended the length of the trial. In the context of the case it would be very
(Page 4)
- difficult to isolate the issues on which the defendant has been successful and award him the relevant costs. I think a preferable approach is to take a broad view of the relative time and effort attributable to those issues and to make a corresponding reduction in the costs to which the plaintiff is otherwise entitled. An approach of this type requires an intuitive assessment based on the way the trial was conducted. It is not an exact science. In my view, the best way to do it is to apply to the plaintiff's costs a percentage reduction based on that intuitive assessment.
8 I think the plaintiff ought to recover 80 per cent of the costs of the action as against the first defendant.
9 The plaintiff wholly failed against the second defendant. I accept, as the plaintiff has said in the written submissions, that the allegations against the second defendant did not take up a great deal of time. Nonetheless, they represented a discrete issue, based on the use by the first defendant of the second defendant’s letterhead and his method of operation in relation to the family company. The plaintiff wholly failed in this regard. In my view it is appropriate that the plaintiff pay the second defendant's costs of the action.
0
6
0