Corkhill v Commonwealth of Australia (No 4)
[2018] ACTSC 255
•7 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Corkhill v Commonwealth of Australia (No 4) |
Citation: | [2018] ACTSC 255 |
Submissions Dates: | 13 April, 23 August 2018 |
DecisionDate: | 7 September 2018 |
Before: | Refshauge J |
Decision: | 1. Subject to Order 2, Hazel Joan Corkhill pay the costs of the Commonwealth of Australia. 2. There be no order as to the costs of and incidental to the further submissions made since 6 April 2018, the making of these orders and the publication of these reasons. |
Catchwords: | PRACTICE AND PROCEDURE – Costs – ordinary rule – no basis for departure from ordinary rule – error in order made corrected PRACTICE AND PROCEDURE – Judgments and Orders – orders subject to a condition – effect of such orders – correction of order |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 1721, 6906, Pt 2.10 |
Cases Cited: | Brennand v Hartung (No 3) [2015] ACTSC 149 Broers v Forster (1981) 36 ALR 605 |
Parties: | Hazel Joan Corkhill (Plaintiff) Commonwealth of Australia (Defendant) |
Representation: | Counsel Mr R Douglas QC and with him Mr R Davies (Plaintiff) Dr A S Bell SC and with him Mr J Duncan (Defendant) |
| Solicitors Snedden Hall and Gallop (Plaintiff) Australian Government Solicitor (Defendant) | |
File Number: | SC 247 of 2009 |
REFSHAUGE J:
The plaintiff, Hazel Joan Corkhill, claimed damages from the Commonwealth of Australia for what she claimed was a breach of certain duties she said it owed her over alleged failures in its dealings with her late husband in respect of any entitlement he had to join and remain a member of a superannuation scheme established by Commonwealth legislation.
On 6 April 2018, I dismissed Mrs Corkhill’s claim. See Corkhill v Commonwealth of Australia (No 3) [2018] ACTSC 87. I ordered:
1.There be judgment for the defendant.
2.Unless either party applies by written submissions within seven days for any other order, the defendant pay the plaintiff’s costs.
Within the seven days, the Commonwealth sought a different order, namely that Mrs Corkhill pay its costs.
Jurisdiction
In its submission that I should make another order the Commonwealth argued that I had power under r 6906 of the Court Procedures Rules 2006 (ACT) to vary the costs order. This provision gives statutory effect to what was known as the “slip rule” and so is generally known as such. I have set out the approach to amending orders under the slip rule in R v Elphick (No 3) [2017] ACTSC 302 at [19] – [34].
That may be, but there seems to me to be a simpler power. The order itself is a conditional order. That is to say, it will not come into effect if the condition expressed comes into effect (There are, of course, also conditional orders that only come into effect if the condition expressed does come into effect).
It is a common kind of order in many cases, especially personal injury cases, for the court will not ordinarily know whether there has been an arrangement or dealing between the parties which would justify a special order as to costs, such as a rejected offer of compromise under Pt 2.10 of the Court Procedures Rules or a Calderbank offer (see Calderbank v Calderbank [1976] Fam 93) which may affect the basis on which the costs are to be assessed or, indeed, the party which has to pay them or some of them. There is no reason, however, that such orders need be confined to such cases.
Similar orders include what are called self-executing orders such as that “unless [a party takes a certain step, such as filing a defence or answering a request for particulars, within a specified period of time] the proceedings be dismissed or judgment be entered for the plaintiff”. See Broers v Forster (1981) 36 ALR 605. If the event required (filing the defence, providing the particulars or other) does not occur, then the order is effective as the judgment; if the event does occur, then the order has no relevant effect.
In the same way, in relation to the order I made, it would have entitled Mrs Corkhill to be paid her costs on the ordinary party and party basis had the Commonwealth not, in its submissions, sought another order. Once those submissions were filed, the order ceased to have any effect and I was required to consider the appropriate order and make it. It may then be in the same terms or in different terms, depending on the substance of the submissions and the arguments put.
Submissions
The Commonwealth submitted that the requirement that the defendant pay the plaintiff’s costs was a slip for the following reasons:
a.the defendant was wholly successful in the proceedings
b.the usual costs order is that costs follow the event
c.in the reasons for judgment, his Honour does not address, in respect of costs, why there would be any deviation from the usual order
d.there was no argument at the hearing in relation to costs
e.there was no special arrangement between the parties in relation to costs, as advised to the Court or otherwise.
Mrs Corkhill submitted that the Commonwealth had not made submission as contemplated by the orders I had made on 6 April 2018, that there was, in any event, no clerical error, that the absence of reasons for the costs order actually made did not justify a finding of such error and that the Court was not bound to make a costs order to follow the event and that there was no reason to do so here.
Consideration
Mrs Corkhill submitted that the Commonwealth had not complied with the order I had made, set out above (at [2]). This appears to have been based on the fact that the Commonwealth’s submission was that I should exercise my power under the slip rule, rather than relying on the terms of the order which permitted submissions seeking “any other order”.
I do not accept that submission. On any view, the Commonwealth sought, by its written submissions, a different order to the one I had made. That the basis of the power for me to respond to those submissions by making any such other order was said to be under the slip rule neither derogates from that description nor provides any reasons for reading it other than as a submission seeking another order as contemplated by what I had ordered.
Regrettably, it does appear that there was a slip in the articulation of the order as to costs. Unfortunately, it is not an entirely unknown error of its kind; see Brennand v Hartung (No 3) [2015] ACTSC 149 at [26]. This error can occur where the title of the parties is used instead of their names. It is much more difficult to confuse the latter than the former. I can see no basis in the circumstances of the proceedings why the Commonwealth should pay Mrs Corkhill’s costs.
There is no doubt that the Commonwealth was wholly successful in its defence of Mrs Corkhill’s claim. As I clearly said on this issue in Corkhill v Commonwealth (No 3) at [570]-[573]:
570.For the reasons above, I am not satisfied that Mrs Corkhill has a claim on the Commonwealth. She has not made out her claim for a cause of action for what I have called the direct claim for negligent misstatements.
571.I am also not satisfied that Mr Corkhill would have joined a Commonwealth superannuation scheme even if he had been given the correct information.
572.There is, further, no claim of the kind I have called a derivative claim that Mrs Corkhill can maintain for the reasons I have set out above.
573.Accordingly, Mrs Corkhill’s claim must be dismissed.
While the Court has a wide discretion as to costs, as to which see r 1721 of the Court Procedures Rules, the discretion must be exercised judicially. Ordinarily, as McHugh J, with whom Brennan CJ agreed, pointed out in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 96; [66], the ordinary rule is that a successful litigant is generally entitled to be awarded his, her or its costs, that is that costs follow the event. See also per Kirby J at 120-3; [134]. The event is to be considered as the “practical result” of the claim: Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]. In this case, of course, “the event” is the dismissal of Mrs Corkhill’s claim for damages against the Commonwealth. There would have to be a matter of significance to overcome the prima facie position that the costs follow the event. The Commonwealth was wholly successful in the proceedings.
It is correct, as the Commonwealth submits, that I did not deal with costs at all in the reasons published in Corkhill v Commonwealth of Australia (No 3). It may reasonably be inferred that the ordinary rule would thus apply and that, had I intended a departure from it, I would have addressed the issue in those reasons unless the circumstances make another order plain and obvious.
That there were no reasons published by me that explained the order as to costs is a matter that I consider that I can take into account. By itself, as Mrs Corkhill submitted, the absence of such reasons does not justify the assumption that error has been made.
As the High Court explained in Penfold v Penfold (1980) 144 CLR 311 at 315-6:
Judges very frequently make orders for costs without giving reasons or making findings even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his [sic] discretion to order costs, though it will place an appellate court in a position of examining the circumstances to show that the discretion was erroneously exercised (Kent v Kent (1970) WN (NSW) 503 at 505).
Nevertheless, as Gibbs CJ accepted in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667, the requirement of a judge to give reasons is “an incident of the judicial process” though his Honour added “the qualification that it is a normal but not invariable incident”.
The absence of reasons is not, therefore, fatal to any reconsideration of the costs order, but does, especially in the absence of other justifying circumstances, tend very strongly to show that error was made.
The Commonwealth submits, further, that there was no argument at the hearing about costs. That must be accepted. There was no contrary submission to this one made by the Commonwealth so that also justifies my reliance on it. Thus, neither party sought to raise at the hearing, nor in any of the subsequent submissions, any basis for me not to make the usual order as to costs. This meant that there was nothing before me to suggest that another order was appropriate. The only basis could be found in the circumstances of the case and in my reasons and neither party identified anything in either which would justify the departure from the usual order.
Further, while I am not able to say that there was no special arrangement (such as an offer of compromise or a Calderbank letter) between the parties, no submission was made by Mrs Corkhill that there was such an arrangement which would justify a different order to the usual order as to costs.
Mrs Corkhill submitted that, while “costs usually follow the event … may be correct in a numerical sense, it is not an argument as to how the court should exercise its discretion in particular cases”. This must be accepted, though I am not sure I completely understand the reference “in a numerical sense” since this is a matter of authority, not merely a reference to what happens in most cases.
On the other hand, since the discretion as to the awarding of costs must be exercised judicially, there must be some basis for making an order that is not the usual order else the making of the order becomes capricious. No other basis has been suggested here.
If, however, the reference to “a numerical sense” is meant to suggest that Mrs Corkhill’s success on some issues in the proceedings might affect the appropriate order as to costs, I reject that submission. No identification of such issues was provided in her submissions nor how they would bear on the question of costs, whether by the preponderance of hearing time spent on them, their importance to the proceedings or as a matter of law and precedent and I am satisfied that no such matters can be identified in this case.
Reflecting on these submissions and the relevant events, I am satisfied that I simply made an error in the costs order. I accept that I had no basis for making an order other than one in accordance with the ordinary rule. I intended to order that Mrs Corkhill pay the costs of the Commonwealth.
Accordingly, I am satisfied that there was an error in the articulation of the conditional costs order on 6 April 2018 and that the terms used for the parties was incorrectly interchanged so that the wrong party was ordered to pay the other party’s costs.
Disposition
Given my conclusion, I should now order that Mrs Corkhill pay the Commonwealth’s costs and I will do so.
For the reasons given above, I consider that I simply make that order. In the event that there is some doubt about proceeding in that way, I am satisfied that the slip rule would justify the order I propose to make and I would waive any non-compliance with the Court Procedures Rules as would prevent me making such an order.
Given that the error was mine, I do not consider that either party should pay to any other party the costs associated with the correction of the error, including the making of the submission, the making of the orders I will make and the publication of the reasons for them.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2018 |
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