Chakravarti v Advertiser Newspapers Ltd No. Scgrg-92-1688 Judgment No. S7022

[1998] SASC 7022

CHAKRAVARTI  v  ADVERTISER NEWSPAPERS LTD
[1998] SASC 7022

Full Court: Doyle CJ, Perry and Williams JJ

1. DOYLE CJ:       I will deliver some brief extempore reasons of the Court in the interests of the matter being disposed of without further delay.

2. In this action the Court has already disposed of the appeals to it by its judgment delivered on 14 October 1998.   The Court ordered that the plaintiff’s cross appeal against the award of general damages should be allowed.  It varied the award of the trial judge to provide for an award of damages to the plaintiff in the sum of $796,000 inclusive of interest at 27 April 1995.  The defendant’s appeal against the assessment of damages was dismissed.

3. Now before the Court are the issues of the costs of the trial, the costs of the first hearing by the Full Court, and of the second hearing by the Full Court; and an application by the plaintiff for an order for the payment of interest on taxed costs from the date of the respective judgments.

4. We deal first with the issue of the costs of the trial.

5. The trial judge ordered that the defendant pay to the plaintiff the costs of the trial to be taxed as between solicitor and client.  No doubt that order was made because a little more than 21 days before the trial began, the plaintiff offered to accept the sum of $200,000 plus costs.  The judgment entered by the trial judge was for the sum of $268,000 inclusive of interest.  The plaintiff having recovered more than the amount of the offer r41.04 applied.  It followed that the plaintiff was entitled to costs as between solicitor and client, unless the judge thought fit to order otherwise.

6. The judgment of the trial judge having been varied, it now falls to us to reconsider the question of the costs of the trial.  In our opinion there is no good reason for us to order that the costs should not be paid as between solicitor and client.  Granted, the amount of damages awarded by the trial judge may well have been higher than previous awards in this State.  The amount awarded by this Full Court certainly appears to be higher than any previous award.  But in our opinion that is not of any great importance.  The reasonableness of the defendant’s conduct may be a relevant matter but is by no means decisive.

7. The discretion that the Court has to consider is whether under all the circumstances it should depart from the starting position identified by the rule.  We can find no good reason to do so.

8. The plaintiff has made what in the end turned out to be a reasonable offer.  Having done so there is no reason why the plaintiff should be deprived of the benefit of r41.04.  Accordingly, we order that the defendant/appellant pay to the plaintiff/respondent his costs of the trial as between solicitor and client, which costs we note are fixed by agreement at the sum of $95,000 but not including any entitlement to interest that the plaintiff/respondent may have.  We note that the defendant has already paid to the plaintiff the sum of $80,000 on account of the costs of the trial.  The order as drawn up should reflect that fact.

9. We turn now to the costs of the two hearings before the Full Court.  The usual rule is that costs follow the event, and the costs are taxed as between party and party.  Once again, in our opinion, there is no good reason to depart from the usual rule.

10. In our opinion, the offer made by the plaintiff prior to trial is of no particular significance in relation to the costs of the appeal.  There were arguable points on both sides.  At the end of the day, the plaintiff has had a substantial success and has won on most points.  That is not a reason for ordering the costs be paid as between solicitor and client.  No other factor has been identified to us which persuades us that it is appropriate to depart from the usual rule.

11. We therefore order that the defendant/appellant pay to the plaintiff/respondent his costs of the appeal, including the costs of both hearings before the Full Court, and that such costs be taxed as between party and party.  We note that the costs of the first hearing before the Full Court have been agreed as between party and party at the sum of $25,000, again excluding any interest to which the plaintiff/respondent may be entitled.

12. We order that that amount be fixed as the amount of the costs of the first hearing before the Full Court but, once again, excluding any entitlement to interest that the plaintiff/respondent might have.

13. We note that that amount has already been paid by the defendant to the plaintiff’s solicitors.  The fact of that payment should be taken into account in the order as drawn up.  The costs of the second hearing before the Full Court will of course have to be taxed.

14. We turn now to the question of interest. S.114 of the Supreme Court Act provides that all money, including costs, payable under a judgment is to bear interest. S.114(2) provides that in the case of taxed costs interest is to run:

    “... from the date of the certificate of the taxing officer by whom the costs were taxed, or an earlier date specified by the taxing officer in the certificate.”

15. One view is that the effect of that provision is to commit to the taxing officer the decision as to payment of interest on the date from which it is to be paid.

16. In England the approach taken is that interest is to run from the date upon which the judgment in the action is pronounced rather than from the date upon which the tax of costs is completed: see Hunt v RM Douglas (Roofing) Limited [1990] 1 AC 398, in particular at 415-416 Lord Ackner.

17. That position has been arrived at as a result of a consideration of the terms of the relevant English legislation.  In England there is a statutory provision to the effect that every judgment debt should carry interest from the time of entering up the judgment.  Subsequently to the case just referred to, the House of Lords has accepted that it is anomalous that an order for the plaintiff’s costs to be taxed should be treated as a judgment debt, but it has adhered to that position; see Thomas v Bunn [1991] 1 AC 362 at 380 Lord Ackner.

18. The English courts have taken the view, understandably enough, that the balance of justice favours a rule that interest be paid from the earlier day.  The same approach has been taken in New South Wales on the construction of legislation governing the payment of costs under the Land and Environment Court Act: see Minister Administering the Environmental Planning and Assessment Act (1979) v Carson (1994) 35 NSWLR 342.

19. But it may be, and we do not have to decide this, that in South Australia the position is governed by the terms of s.114(2)(b). It may be that interest is to be payable by that provision from the date of the certificate of the taxing officer, unless the taxing officer specifies an earlier date. In any event, it is clear that the provision gives to the taxing officer a wide discretion. It is not necessary to decide the point because, in any event, we can find no reason why the Full Court should deal with the matter itself. It is a matter which ordinarily would be dealt with by a taxing officer, and there is no particular reason why the Full Court should depart from the ordinary practice.

20. We add, for what it is worth, that in our opinion it would not be appropriate for a taxing officer to proceed on the basis that interest will be payable from the date of the judgment, unless the taxing officer is persuaded otherwise.

21. We say that because in our opinion, to approach the matter on that premise would be to ignore the words of the statutory provision.  The statutory provision gives to the taxing officer a wide discretion, and that discretion is not to be exercised on the basis of any prima facie starting point which has to be displaced.  If we are wrong in that and there is a starting point, then the starting point appears to be the date of the certificate of the taxing officer: cf Burford v Allen (1996) 189 LSJS 497 at 507 Matheson J.

22. We should add, so there is no misunderstanding about it, that the agreement which the parties sensibly reached on costs expressly reserve the issue of interest.  The fact that costs have been agreed does not, in the circumstances of this particular case, preclude him from claiming interest on the costs, or preclude consideration of the question of interest by a taxing officer.

23. For all those reasons we decline to make any order for the payment of interest on the basis that in this case the taxing officer should decide that matter.

24. It is appropriate, there being no opposition, that we certify in relation to the two hearings before the Full Court that the matters were fit for senior counsel.

25. We further order that the plaintiff have the costs of today’s application to be taxed.