Davis v Vine Options Pty Ltd - [2014] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
DAVIS v VINE OPTIONS PTY LTD
[2014] SADC 2
Reasons for Decision of His Honour Judge Barrett
14 January 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
Application for Review of costs order made following the trial of a Minor Civil action. Trial judge sought assistance from parties in obtaining expert evidence on viticulture. Respondent/Plaintiff engaged expert after parties unable to agree on selection of expert. Magistrate relied on expert evidence. Plaintiff substantially succeeded in action. Applicant/Defendant appeals against order that it pay costs of expert.
HELD: Hearing of Minor Civil Action is an inquiry. Trial magistrate entitled to ask parties for expert witness assistance. Magistrate relied on expert and found substantially in Respondent's favour. No error in costs order requiring Applicant to pay costs of expert. Application dismissed.
Magistrates Court Act 1991 (SA) s 38(1)(a); Magistrates Court Act 1991 (SA) s 38(1)(c); Magistrates Court Act 1991 (SA) s 38(1)(e); Magistrates Court (Civil) Rules 2013 (SA) r 106(5); Magistrates Court Act 1991 (SA) s 38(5); Magistrates Court Act 1991 (SA) s 38(6), referred to.

DAVIS v VINE OPTIONS PTY LTD
[2014] SADC 2

This is an application to review a minor civil decision consisting of a costs order made against the applicant by Mr Milazzo SM on 24 July 2013.
I set out how the costs order came to be made. The order followed the trial of a minor civil action heard in the Naracoorte Magistrates Court by another magistrate, Mr Fahey SM. The respondent in this action was the plaintiff in the original action. The applicant was the defendant. For convenience I will refer to the parties by their original descriptions. The plaintiff is a company which carried out vine pruning work for the defendant in 2010. The defendant paid only part of the invoice rendered by the plaintiff for the pruning work. The dispute before Mr Fahey SM related to the plaintiff’s claim for unpaid moneys and the defendant’s counterclaim. The counterclaim alleged that the plaintiff’s failure to carry out the work in accordance with standard viticultural practices made it necessary for him to commission remedial pruning in the following season. It is not necessary for me to describe in more detail the full extent of the dispute between the parties at trial although it will be necessary to canvass one aspect of the evidence lead at trial.
The costs dispute which is the subject of the present application arises from an allowance made by Mr Milazzo SM for the report and witness fees of an expert who gave evidence at the trial. I explain how the witness came to give evidence before Mr Fahey.
At the trial each party was unrepresented. It became clear during the trial that an issue central to the resolution of the matter concerned what exactly was the standard viticultural practice with regard to pruning. Mr Fahey indicated to the parties that he was going to be unable to resolve that question without assistance from an expert in viticulture. His Honour adjourned the matter to enable to the parties to consider that problem.
It is to be noted that the action was a minor civil action. The plaintiff’s claim was for $4138.20 and the defendant’s counterclaim was for $1320.00. That being so the proceedings were governed by s 38 of the Magistrates Court Act 1991 (SA). In particular that section provides that the trial takes the form of an enquiry by the court rather than the ordinary adversarial contest between the parties (s 38(1)(a)). The Court may itself call and examine witnesses (s 38(1)(c)). The Court is not bound by rules of evidence (s 38(1)(e)).
In these circumstances Mr Fahey might have chosen to call an expert himself but he invited the parties to work out amongst themselves, if they could, how best to assist him obtain the expert evidence he needed.
While the parties were unrepresented at the hearing they had each consulted a solicitor at some stage before the trial. It seems that some discussion took place between the solicitors for each party about the calling of an expert and the costs of calling that expert.
The defendant did not agree to the calling of an expert, nor did he agree to contribute to the cost. Mr Wohling, on behalf of the plaintiff, told me on review that Mr Fahey had indicated to the parties that in all likelihood he would order the costs of the expert to be borne by whichever of the parties lost the action. If that indication was given to the parties by Mr Fahey then that would be a fair and reasonable prediction of what might be the outcome of a costs order.
When the defendant indicated he would not contribute to the cost of an expert the plaintiff instructed his solicitors to engage one. The solicitors were unable to secure the services of a local expert but they engaged the services of Mrs Retallack whose business is based in Aldgate.
To save the costs of travelling Mr Fahey took evidence from Mrs Retallack over the telephone. The call was made from the courtroom on the adjourned hearing so that his Honour and both parties could hear Mrs Retallack’s evidence and ask her questions.
In his judgment, published some time before the 18 July 2013 (the date is not clear), it is evident that Mr Fahey accepted Mrs Retallack as an expert witness and he relied on her evidence in making his findings.[1] His Honour found substantially in the plaintiff’s favour.[2] His Honour found that the plaintiff had not performed all the pruning work to the required standard but that the partial failure of pruning work was not the only cause of the regrowth on the vines which caused the defendant extra expense in the following season. His Honour found that there were 2 other causes of the regrowth. One was that the pruning work had been started too early in the season. However his Honour found that the early start had been at the defendant’s insistence against the plaintiff’s advice. The other cause of the regrowth was the unusually wet season. Taking what he described as a broad axe approach, his Honour ordered the defendant to pay the amount of the plaintiff’s outstanding invoice minus half of the counterclaim.[3] His Honour adjourned the question of costs.
[1] See [23]-[27] of the judgment.
[2] See [27]-[29].
[3] See [28] and [29].
As it turned out his Honour was not sitting in the Court on the costs hearing but both parties agreed to Mr Milazzo SM determining the question of costs. The submissions on costs appear to have been made on 24 July. That is certainly the date on which Mr Milazzo published his costs decision.
The plaintiff’s solicitor filed written submissions on costs. There appears to have been no written submission on the defendant’s behalf. The written submissions include an account of the efforts the plaintiff’s solicitors had made to engage a local expert. In the end however there were no travel costs incurred in calling Mrs Retallack because her evidence was given by telephone.
The question of costs in a minor civil review is determined by s 38 of the Magistrates Court Act and by Rule 106(5) of the Magistrates Court (Civil) Rules 2013.
Section 38(5) provides that, except in circumstances which do not obtain here, costs may not be awarded for getting up the case for trial or for counsel fees. Section 38(6) provides power in the District Court to hear a review of a costs order.
Rule 106(5) provides that a successful party in a minor civil review is entitled to costs against an unsuccessful party in accordance with cost scale 2 in the third schedule. That schedule provides that the Court may allow disbursements as an item of costs.
In my view the costs associated with obtaining Mrs Retallack’s report amount to a disbursement. Effectively at the request of the Court, an expert was engaged. The plaintiff engaged the expert and has incurred the costs of the report. The report appears to be a detailed nine page report with eight annexures. It specifically addresses questions asked by the plaintiff’s solicitors which have clearly informed Mr Fahey’s reasons for judgment. I have read the report and can see passages in it that are similar to the passages in his Honour’s judgment. There is no suggestion that the fee of $1375.00 plus GST for the report is unreasonable.
Mrs Retallack rendered two invoices, one for $1512.50 ($1375 plus GST) for the report and the other for $242 being $220 for “preparations and answering questions posed during the Wohling v Davis trial plus GST”. It appears that that sum is for an attendance for one hour.
I note that there is a separate item in the costs schedule for “professional witnesses/$500 per day”. The witness fee claim is therefore less than half the daily rate. Although the stated attendance time is one hour, I do not know for how long Mrs Retallack was engaged in preparing for giving evidence and actually giving the evidence itself.
No submission was made by the defendant as to the quantum of the invoices, nor really on the quantum of costs ordered. There was no appeal from any part of the costs order except for the expert witness. Rather the application for review is based on the following:
The expert’s report was irrelevant to the hearing. The expert had never seen the pruning work, or even the vineyard.
The defendant had not agreed to the calling of the expert.
The defendant had not agreed to contribute to the costs of the expert.
In his reasons for the costs judgment Mr Milazzo rejected the submission that the experts report was irrelevant to the hearing. In my view his Honour was correct in so finding. The submission is misconceived. It is true that Mrs Retallack had not inspected the vineyard but what she did was provide precisely the expert evidence that Mr Fahey told the parties he needed in order to carry out his function. The matters which were in dispute were the sorts of matters that an expert in the area of viticulture can speak of. Quite understandably Mr Fahey was unable to determine which of the parties’ accounts he should accept if he did not hear from an expert witness. It does not matter that the expert has not inspected the work done. That is an everyday occurrence in the courts. Experts bring to the court evidence of the standard best practice in the relevant area. Mr Fahey needed to hear from an expert in viticulture what was the standard or best practice that the plaintiff said he exercised in the pruning work and the defendant said the plaintiff failed to exercise. As her report indicates Mrs Retallack has university qualifications and practical experience in viticulture. Mr Fahey demonstrably accepted her as an expert and relied on her evidence to assist him in deciding the dispute between the parties. For these reasons Mrs Retallack’s report and her evidence were very relevant to the proceedings.
It is true that the defendant did not agree to Mrs Retallack giving evidence, nor did he agree to contribute to the cost of calling her. However a party’s agreement to the calling of a witness does not determine his liability to pay the costs. The Magistrate had told the parties that he needed an expert’s evidence. The plaintiff chose to assist the court by engaging the expert after attempts to get the defendant’s cooperation were unsuccessful. The defendant was not in any way obliged to cooperate, but he cannot avoid liability for the costs of the expert if he loses the case. The defendant did substantially lose the case. The plaintiff claimed $4138.20 and was successful in recovering all but $660.00 of that sum. There is no reason why, in the circumstances, Mr Milazzo should not have ordered the defendant to pay all of the expert’s costs.
It is true, as the defendant Mr Davis put to me, that he has been put to expense in this litigation. However, as I told him, it is a regrettable fact of life that if matters proceed to the end of litigation both parties are burdened with expenses.
In my opinion the decision of Mr Milazzo SM was correct. I dismiss the application for review.