Cowan v Marine 1 Pty Ltd (Ruling No 2)
[2015] VCC 1415
•14 October 2015
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-12-02957
| GLEN COWAN | Plaintiff |
| v | |
| MARINE 1 PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21, 22, 23, 24, 28, 29, 30 September, 1, 5, 6, 7, 8, 9 and 12 October 2015 | |
DATE OF RULING: | 14 October 2015 | |
CASE MAY BE CITED AS: | Cowan v Marine 1 Pty Ltd (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1415 | |
RULING
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Subject: COSTS
Catchwords: Costs of first trial reserved – whether costs of first trial should follow the event - Order 63 A.22 – whether plaintiff entitled to seek an adjournment of first trial – finding that adjournment of first trial not necessitated by any fault on the part of the plaintiff – defendant ordered to pay costs of first trial
Legislation Cited: County Court (Civil Procedure) Rules 2008
Cases Cited:Hatziandoniou v Ruddy(No 2) [2015] NSWCA 277
Ruling: The defendant pay the costs reserved by Judge Morrish of the first trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr A Macnab | Petersons |
| For the Defendant | Mr R Meldrum QC with Mr R Stanley | Wisewould Mahony |
HER HONOUR:
1 This matter was previously heard by her Honour Judge Morrish with a jury of six at Geelong in March 2014 over eight days (“the first trial”).
2 At the first trial, Klaus Johnston, an employee of the defendant, was cross-examined and re-examined about matters which her Honour later ruled were of an expert nature. In particular, he gave evidence about the practise of testing the boat “2 Up”. When this evidence was given, there was no objection taken by Senior Counsel for the defendant.
3 Prior to the first trial, the plaintiff served an Order 44 Notice detailing expert evidence that marine consultant, Peter Burge, proposed to give. Lawyers for the plaintiff decided not to call Mr Burge after Mr Johnston had given his evidence.[1]
[1]Transcript (“T”) 1017
4 In the first trial, Senior Counsel for the defendant opened with a summary of the evidence to be called on the defendant’s behalf and described the evidence which he proposed to call from a number of lay witnesses (“the proposed evidence”).[2]
[2]T529,T532 in the first trial
5 Senior Counsel for the plaintiff objected to this proposed evidence on the basis that these witnesses did not have the necessary expertise to give such evidence. Senior Counsel for the defendant resisted this application, submitting such evidence could be given by these witnesses based on their practical experience.[3]
[3]T534,T536 in the first trial
6 Her Honour ruled that the proposed evidence was of an expert nature.[4] Further, without any application by the defendant, her Honour indicated that she intended to direct the jury that no lay witness could give evidence of an expert nature (on that subject) and that Mr Johnston and the plaintiff had not qualified themselves as experts to express such an opinion.[5]
[4]T557 in the first trial
[5]T544 in the first trial
7 Senior Counsel for the plaintiff submitted that this ruling meant the jury must disregard the quasi expert opinion that had been led from lay witnesses for the plaintiff without objection from counsel for the defendant.[6]
[6]T1018
8 As a result of her Honour’s ruling, Senior Counsel for the plaintiff submitted that the plaintiff was confined to his case that Corio Bay should have been the testing venue and he could not run a case based on the ground that two people should be present in the boat when testing.
9 In these circumstances, Senior Counsel for the plaintiff sought an adjournment. Senior Counsel for the defendant sought costs of the first trial. Senior Counsel for the plaintiff applied for costs to be costs in the cause.
10 Her Honour ordered that costs of the first trial be reserved.[7]
[7]T539 in the first trial
11 Following the conclusion of the second trial, Senior Counsel for the plaintiff submitted that costs of the first trial should follow the event in accordance with Order 63A.22 of the County Court (Civil Procedure) Rules 2008 which provides:
“Costs reserved
Where by order of the Court the costs of any interlocutory or other application, or of any step in a proceeding, are reserved, the reserved costs are the parties’ costs in the proceeding, unless the Court otherwise orders.”
12 Reliance was also placed on the decision of the New South Wales Court of Appeal in Hatziandoniou v Ruddy(No 2) [2015] NSWCA 277,[8] where the Court ordered costs follow the event in circumstances where it held the trial judge was in error in rejecting an opinion of an expert proffered by the appellant in support of his claims as to how the accident occurred.
[8][2015] NSWCA 277
13 Further, in seeking an order for costs of the first trial, Senior Counsel for the plaintiff relied on the fact that a lot of the time in the first trial was taken up by the issue of damages, which were subsequently agreed upon between the parties prior to the commencement of this trial.[9]
[9]T1019
14 It was submitted in these circumstances that the costs of the first trial should follow the event in circumstances where it was respectfully submitted the trial judge had made an error at first instance.
15 Senior Counsel for the defendant submitted the plaintiff’s counsel could have made an election not to proceed with his objection but he elected forensically to do so. Whilst it was true the evidence relied upon by the plaintiff was in without objection, when her Honour ruled, Senior Counsel for the plaintiff lost his forensic advantage and had to abandon the trial.
16 It was submitted in these circumstances, both counsel had contributed to the plaintiff’s request for an adjournment and that the appropriate way for the costs of the first trial to fall was on the basis of no order for costs.[10]
[10]T1031
17 In my view, there was no conduct on the part of Senior Counsel for the plaintiff that would alter the normal practice of the costs of the first trial following the event. He was entitled to take the course he chose to seek an adjournment to enable the full extent of the plaintiff’s case to be before the jury.
18 Senior Counsel for the plaintiff was entitled, following her Honour’s ruling which he sought, and also her subsequent ruling, made without application from the defendant, to decide the plaintiff’s case could no longer proceed in the absence of evidence upon which he sought to rely.
19 It would be wrong and inappropriate for me to comment on the correctness or otherwise of her Honour’s ruling and I specifically do not do so. But it is abundantly clear that the application for an adjournment was not necessitated by any fault on the part of the plaintiff.
20 Taking into account all these matters, I order that the costs of the first trial be paid by the defendant.
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