Costs - proceedings resolved without determination of liability in respect of several defendants - whether judge bound to award costs against plaintiff where judgment entered in favour of a defendant - whether judge entitled to assess the reasonableness of the actions of the parties - principles discussed - whether a Calderbank offer as an early stage giving 14 days to respond was reasonable.
Appellant: Mr P Biscoe QC, Miss I L Collins First respondent:B J Evans QC submitting Second, nineth,tenth respondent and eleventh Respondents: Mr I Maconachie QC, R Sheldon
SOLICITORS:
Appellant: Minter Ellison Lawyers First Respondent: Carroll & O'Dea Lawyers
3 DAVIES AJA: Although s.76 of theSupreme Court Act 1970 confers a wide discretion upon the Court to award costs, that discretion must be exercised judicially and in accordance with well established guidelines. If there has been a trial and judgment given, costs will follow the event, absent good reason to the contrary. See Oshlack v Richmond River Council (1998) 193 CLR 72 at 96-7.
4 However, if the matter does not proceed to a determination after trial, the ordinary benchmark upon which costs are awarded, success or failure, is absent. McHugh J pointed this out in Re The Minister for Immigration and Ethnic Affairs Ex Parte Lai Qin (1997) 186 CLR 622 at 624:-
“In most jurisdiction today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs Latoudis v Casey (1990) 170 CLR 534. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order Latoudis (1990) CLR 534, 566-568. When there has been no merits, however, a court is necessarily deprived…
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 Edwards Madigan Torzillo Briggs Pty Ltd v Stack
Edwards Madigan Torzillo Briggs Pty Ltd (the plaintiff) appealed a decision of the primary judge regarding costs in proceedings where judgment had been entered in favour of the defendant, Stack. The dispute concerned the plaintiff's entitlement to costs after the proceedings were resolved without a determination of liability in respect of several defendants.
The central legal issues before the Court of Appeal were whether the primary judge was bound to award costs in favour of the defendant where judgment had been entered in their favour, and whether the judge was entitled to assess the reasonableness of the parties' actions in the context of awarding costs. The court also considered the reasonableness of a *Calderbank* offer made by the defendant at an early stage of proceedings, which allowed only 14 days for response.
The Court of Appeal held that a judge is not automatically bound to award costs in favour of a defendant simply because judgment is entered in their favour, particularly where liability has not been determined. The court affirmed that judges are entitled to consider the conduct of the parties and the reasonableness of their actions when exercising their discretion regarding costs. The court found that the primary judge had correctly applied these principles and that the *Calderbank* offer, made early in the proceedings with a limited response period, was not necessarily unreasonable in the circumstances.
Leave to appeal was refused, and the plaintiff was ordered to pay the costs of the appeal.