Elite Protective Personnel Pty Ltd v Salmon (No 2)
[2007] NSWCA 373
•18 December 2007
New South Wales
Court of Appeal
CITATION: Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 HEARING DATE(S): On the papers
JUDGMENT DATE:
18 December 2007JUDGMENT OF: Beazley JA at 1; McColl JA at 1; Basten JA at 1 DECISION: 1. In lieu of order 7 made on 14 November 2007, respondent to pay seventy-five per cent of the costs of appeal.; 2.. Respondent to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified. CATCHWORDS: COSTS - whether costs should depart from general rule that costs follow the event where appellant abandons two grounds of appeal and fails on one. LEGISLATION CITED: Suitor's Fund Act 1951
Uniform Civil Procedure Rules 2005CASES CITED: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd & Murray Epiha v Thomas Salmon [2007] NSWCA 322
James and Ors v Surf Road Nominees Pty Ltd and Ors [No 2] [2005] NSWCA 296
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
State of New South Wales v Stanley [2007] NSWCA 330
Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27])
Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported)PARTIES: Elite Protective Personnel Pty Ltd - First Appellant
Murray Epiha - Second Apellant
Thomas Salmon - RespondentFILE NUMBER(S): CA 40002 0f 2006 COUNSEL: Mr L King SC for the Appellants
Mr HN Kelly SC with Mr SJ Maybury for the RespondentSOLICITORS: Shearman Lawyers for the Appellants
Stacks the Law Firm for the RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 100 of 2002 LOWER COURT JUDICIAL OFFICER: Phelan DCJ LOWER COURT DATE OF DECISION: 14 September 2005
CA 40002/06
DC 100/02
Tuesday 18 December 2007BEAZLEY JA
McCOLL JA
BASTEN JA
Judgment
1 THE COURT: Judgment in this matter was delivered on Wednesday 14 November 2007: Elite Protective Personnel Pty Ltd & Murray Epiha v Thomas Salmon [2007] NSWCA 322. The appeal was allowed. The respondent was ordered to pay the costs of the appeal (the “first costs order”). On 4 December 2007 the respondent’s legal representatives sought, and were granted, leave to file further submission as to costs.
2 The respondent submitted that the Court should substitute the costs order with an order that each party pay his or its costs of the appeal.
3 The respondent submits that this order is appropriate, because, of the seven grounds of appeal in the Amended Notice of Appeal, two were abandoned at the commencement of the hearing and one, contributory negligence, was resolved in his favour. The respondent submits that each ground of appeal was discrete and required his legal representatives to prepare written submissions. He argues that the costs of preparation would have been significantly reduced if the first three grounds had not been in the Notice of Appeal.
4 The appellants oppose the respondent’s application. First, they argue that the application should not be entertained in any event as the matters raised ought to have been dealt with in oral address at the hearing. Secondly, the appellants point out (as the respondent accepts) that grounds one and two were abandoned due to the respondent having notified the appellants, the day before the hearing in this Court by way of supplementary submissions, of a concession made at trial by the appellants in relation to the assessment of damages.
5 Next, the appellants submit that the bulk of the time in oral argument was devoted to damages, a matter which impelled the respondent to prepare for that argument and to debate the relevant issues before the Court. They submit that had the respondent sought an order which departed from the general rule that costs followed the event, (UCPR 42.1) he should have raised that argument in the course of the hearing to permit the issues to be debated when their relative significance was fresh in everybody’s mind. Finally, the appellants submit that the respondent has advanced no proper reason to depart from the general rule as to costs.
6 Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).
7 As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]). A similar approach is adopted in the Court of Appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27]).
8 Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 (at [18]) per Hislop J (with whom Beazley JA and Tobias JJA agreed).
9 In the Court’s view, the contributory negligence issue was a separable issue from the damages issue on which the appellants succeeded. A separable issue for these purposes can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James and Ors v Surf Road Nominees Pty Ltd and Ors [No 2] [2005] NSWCA 296 (at [34]). The respondent should not have to pay the costs of that issue.
10 As to the grounds of appeal which were abandoned, the Court is of the view that some allowance should be made having regard to their late abandonment.
11 As to the extent to which the appellants should lose the benefit of the first costs order, the appellants are correct that it is often difficult to decide, in retrospect, how much time was occupied upon one issue or the other in the course of an appeal. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James and Ors v Surf Road Nominees Pty Ltd and Ors [No 2], citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 (at 272). Doing the best it can, having regard to the significance the contributory negligence issue played in the appeal, the Court is of the view that the respondent should bear only seventy-five per cent of the costs of the appeal, such costs to include the costs of this application
12 In addition, the Court neglected to give the respondent a certificate under the Suitor’s Fund Act 1951 an order which would ordinarily be made in the circumstances of the outcome of this appeal and the first costs order should be varied in this respect also.
Order
13 The first costs order is varied as follows:
8. Respondent to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.
7. In lieu of order 7 made on 14 November 2007, respondent to pay seventy-five per cent of the costs of appeal.
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