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Burford v Allan

Burford v Allan

Case [1998] SASC 6693 26 May 1998

Civil Litigation & Procedure

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BURFORD v ALLAN

Full Court: Doyle CJ, Millhouse and Nyland JJ

DOYLE CJ

Background and procedural matters

This is an appeal against a decision by a judge of this Court. The judge’s decision was made upon a review of a decision by a master upon a taxation of costs: see Supreme Court Rules 1987 r101.21.

Section 50 of the Supreme Court Act 1935 (“the Act”) provides:

“(2) No appeal shall lie without the leave of the judge from any order-
(a).... ...
(b).... as to costs only which by law are left to the discretion of the judge.”

The issue on appeal is whether the master had the power to allow the item in question. The judge held that he did not have that power. Accordingly, the issue on appeal is not the manner in which the discretion as to costs was exercised, nor whether there was an error of law in the course of making a decision, but a question of the scope of the power in relation to costs. It follows, in my opinion, that leave to appeal was not required: see Copping v ANZ McCaughan Ltd (1995) 63 SASR 523 at 529 King CJ. In any event, the judge gave leave to the extent that leave might be required.

The appellant was the successful plaintiff in an action claiming damages for personal injury that she sustained in a motor vehicle accident. The plaintiff is an infant. She sued by her next friend. The plaintiff suffered very severe injuries. She ultimately recovered damages amounting to $6 323 698.47.

As I understand it, there was no dispute that the plaintiff and her family lacked the funds required to meet the disbursements that her solicitors had to incur in preparing her case for trial. The disbursements were heavy. The bill of costs claimed disbursements amounting to $361 061.66, and disbursements were allowed at $196 640.07.

Because the plaintiff was unable to provide funds to cover the disbursements, the plaintiff’s solicitors arranged for what is called a litigation loan. We were not provided with any precise details about the loan, but I do not think that that matters. I proceed on the basis that a bank lent money to the plaintiff’s next friend or, perhaps, to her mother, for the purposes of meeting disbursements to be incurred by the solicitors in connection with the litigation. I assume that the bank took some form of security over the anticipated proceeds of the action. We were informed that the loan was not used to meet costs payable to the solicitors or to meet counsel fees. The amount finally repaid to the bank was $185 650.85, which included $26 270.85 for bank fees and interest.

The amount paid to the bank by way of interest and charges in respect of the litigation loan was claimed by the plaintiff upon the taxation of costs. The master allowed the sum of $14 000.00. It is not necessary to consider how he arrived at that amount. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burford v Allan

Details

AGLC: Burford v Allan [1998] SASC 6693
Case: [1998] SASC 6693
Decision Date: 26 May 1998

CaseChat Overview and Summary

Burford v Allan is an appeal against a decision by a judge of the Supreme Court of South Australia, which was made upon a review of a decision by a master upon a taxation of costs. The plaintiff, Burford, was the successful plaintiff in an action claiming damages for personal injury that she sustained in a motor vehicle accident. The plaintiff was unable to provide funds to cover the disbursements to be incurred by the solicitors in connection with the litigation, and therefore her solicitors arranged for a litigation loan. The master allowed the sum of $14,000.00 as interest and charges in respect of the litigation loan. The judge reversed the decision of the master, holding that there was no authority to support the allowance of such an item. The issue on appeal is whether the master had the power to allow the item in question.

The court held that the power to award costs is statutory and is contained in s40(1) of the Supreme Court Act 1935. The term "costs" is not defined by the Act, but the Rules regulate the awarding of costs and it is regulated by r101 in particular. The court found that the master was not authorised to allow the item as it did not fall within the recognised meaning of "costs". The court concluded that the judge was right to reverse the master’s decision on the point.

The court also considered the decision of the judge relating to the award of interest upon the taxed costs. The court held that there is no fixed rule that costs must follow the event and there is a well-recognised practice of awarding costs in accordance with the outcome of particular issues. The court held that it was not open to the judge to exercise his discretion in the manner that he did, and the court would not interfere.

The court dismissed the appeal and ordered that the cross-appeal be struck out as incompetent. The court hoped that either the court, through an amendment to the Rules, or Parliament, through an amendment to s.40 of the Act, may be able to remedy the injustice caused by the decision.

Orders