Fraser v Burswood Resort (Management) Ltd
[2014] WASCA 130 (S)
•24 FEBRUARY 2015
FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 130 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:9/2013 | ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P NEWNES JA | 24/02/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay 80% of respondent's costs of the appeal No order with respect to costs of notice of contention or cross-appeal | ||
| B | |||
| PDF Version |
| Parties: | TRACEY KATHLEEN FRASER BURSWOOD RESORT (MANAGEMENT) LTD |
Catchwords: | Costs Whether unsuccessful notice of contention and cross-appeal justify departure from general rule that successful party should recover its costs Whether issues discrete and severable Whether costs increased in significant and readily discernible way Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3) Supreme Court Act 1935 (WA), s 37 |
Case References: | Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S) Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130 (S) CORAM : MARTIN CJ
- McLURE P
NEWNES JA
- Appellant
AND
BURSWOOD RESORT (MANAGEMENT) LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
Citation : FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175
File No : CIV 2590 of 2007
Catchwords:
Costs - Whether unsuccessful notice of contention and cross-appeal justify departure from general rule that successful party should recover its costs - Whether issues discrete and severable - Whether costs increased in significant and readily discernible way - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)
Supreme Court Act 1935 (WA), s 37
Result:
Appellant to pay 80% of respondent's costs of the appeal
No order with respect to costs of notice of contention or cross-appeal
Category: B
Representation:
Counsel:
Appellant : Mr G Droppert
Respondent : Ms B A Mangan
Solicitors:
Appellant : CLP Legal Pty Ltd
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S)
Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
1 REASONS OF THE COURT: For reasons published earlier, this court dismissed the appeal, the respondent's notice of contention and cross-appeal.1 The parties are agreed that the appellant should be ordered to pay the respondent's costs of the appeal, but are not agreed on the question of whether the respondent should be ordered to pay the appellant's costs of the notice of contention and cross-appeal, or alternatively, as to whether the respondent's costs of the appeal should be reduced to reflect its failure on those issues, and if so, to what extent. Directions were made for the exchange of written submissions on those issues and, by consent, that those issues be resolved on the papers.
General principles
2 The general principles governing the resolution of the contentious issues with respect to costs are well established. Although the court has a general discretion with respect to the costs of all proceedings before the court,2 'the Court will generally order that the successful party to any action or matter recover his costs'.3 However, where a generally successful party has increased the costs by introducing an issue or issues on which that party failed, the court may order that party to pay the costs of that issue or issues4 or, more commonly in practice, will reduce the costs payable to the successful party to reflect the costs attributable to the issue or issues on which that party failed.5 However, the discretion to reduce the costs payable to the generally successful party by reason of its failure on one or more issues will generally only be exercised where the issues upon which the successful party failed are discrete and severable, and have added to the costs of the proceedings in a significant and readily discernible way.6 Further, the discretion to reduce the costs of a generally successful party will be exercised with caution, for the reasons enunciated by this court in Bowen v Alsanto Nominees Pty Ltd:7
The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.
In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
This case
3 The appellant suffered significant personal injury when the car which she was driving home after finishing her shift at 4 am left the road and rolled over four or five times. She alleged that the car left the road because she fell asleep and that her employer, the respondent, was liable for the damage which she suffered because of various breaches of duty connected with the risk of her falling asleep while driving home in the early morning.
4 The trial judge found that the respondent had a duty to warn the appellant of various aspects of the risk of falling asleep while driving home in the early morning, but rejected the appellant's case with respect to the other breaches of duty alleged. However, he found that the appellant had failed to establish that the vehicle which she was driving left the road because she fell asleep, and further found that even if the respondent had warned the appellant of the risks to which she was subject, it would not have altered her actions or the events which occurred. Accordingly, the appellant's claim was dismissed.
The appeal
5 There were six grounds of appeal. The first two grounds challenged the finding that the appellant had failed to establish that her vehicle left the road because she fell asleep. Those grounds necessitated a detailed review of the evidence relating to the accident and the expert evidence relating to the risk of the appellant falling asleep while driving home. Each of those grounds was dismissed. As the appellant's claim depended critically upon her establishing that she suffered her injuries because she fell asleep, the dismissal of those grounds necessarily meant that her appeal had to be dismissed, and the notice of contention and cross-appeal became otiose. However, the other grounds of appeal, the notice of contention and the cross-appeal had been fully canvassed in both written and oral submissions, and because of the prospect of further appeal, it was necessary for the court to deal with those issues in its reasons.
6 The remaining grounds of appeal raised issues with respect to causation, contributory negligence, and an assertion that the trial judge should have found that the respondent breached a duty to arrange the appellant's shifts so that they ended later in the morning. All were dismissed.
The notice of contention
7 The respondent asserted that the decision of the trial judge should be upheld on the ground that he should have found that the appellant's vehicle left the road as a result of her failure to drive with due care, attention and skill. The issues which it raised were coextensive with the issues raised by grounds 1 and 2 of the appeal and did not add to the costs of the appeal in a significant and readily discernible way. The notice of contention was dismissed because the trial judge had, in effect, found that the appellant had failed to drive with due care, attention and skill, and in any event, his finding that the appellant had failed to establish that she fell asleep prior to the vehicle leaving the road was sufficient to dispose of her claim, and no finding as to an alternative cause of the accident was necessary.8
The cross-appeal
8 There were four grounds of cross-appeal. All challenged the trial judge's conclusion that the respondent had a duty to warn the appellant of the risks to which she was subject when driving home in the pre-dawn hours. Obviously enough, because the appellant had succeeded on that issue at trial, the issues raised by the cross-appeal were quite separate and distinct from the issues raised by the appeal. Those issues included the extent to which the respondent knew or ought to have known of the relevant risks, and the issue of whether the risks were so obvious as to obviate the respondent's duty to warn the appellant of them. Those and the other issues raised by the cross-appeal were canvassed in the written submissions exchanged by the parties, and in oral argument. The economy with which the court's reasons for dismissing those grounds were expressed, having regard to the failure of the appeal, does not provide a reliable guide to the extent of the work properly undertaken in preparing and presenting argument on those issues, which could have been critical to the ultimate disposition of the appeal.
Disposition
9 As we have noted, the notice of contention did not give rise to discrete and severable issues which added to the costs of the appeal in a significant and readily discernible way. Accordingly, the dismissal of the notice of contention provides no justification for departing from the general principle that costs should follow the event.
10 However, the issues raised by the cross-appeal were discrete and severable and quite separate and distinct from the issues raised by the appeal. The work properly undertaken to prepare and present argument on those issues was significant and can be readily discerned from a brief review of the appeal books and the transcript of oral argument. Accordingly, notwithstanding the court's general hesitation to embark upon an analysis of the issues upon which each of the parties was successful for the purpose of making an award of costs, this is one of those cases in which the costs of the proceedings were increased in a significant and discernible way by reason of the successful party's introduction of issues upon which it failed. It is therefore appropriate to adjust the costs orders to take account of the respondent's failure on those issues.
11 As we have noted, in cases such as this, the usual practice of the court is to reduce the costs payable to the successful party by a proportion which reflects the contribution which the issues upon which that party failed made to the overall costs of the proceedings. That practice recognises the desirability of reducing the ambit of any taxation of costs in the interests of the parties and in the interests of the efficient utilisation of the limited resources of the court. The extent of the reduction in the costs payable to the successful party in any particular case will be assessed by the court as a matter of impression rather than science. In this case, it is our view that the respondent's costs should be reduced by 20% to reflect its failure on the issues raised by the cross-appeal. Accordingly, the court will order that the appellant pay 80% of the respondent's costs of the appeal to be taxed if not agreed, and that there will otherwise be no order with respect to the costs of the notice of contention or cross-appeal.
1Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130.
2Supreme Court Act 1935 (WA), s 37.
3Rules of the Supreme Court 1971 (WA), O 66 r 1(1).
4 Order 66 r 1(3).
5Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 [28] per Owen J.
6Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7]; Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [8]; Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S) [2].
7 [2011] WASCA 39 (S) [6] - [7].
8Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 [157].
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