French v McKenna (No 2) - [2012] TASSC 8

[2012] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: French v McKenna (No 2) [2012] TASSC 8

PARTIES:  FRENCH, Denise Monica
  v
  McKENNA, Wayne

FILE NO/S:  46/2006
DELIVERED ON:  22 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  Written submissions
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Other cases – Indulgence of court – Successful application to set aside judgment – Ordinary principles – Exercise of discretion.
Supreme Court Civil Procedure Act 1932 (Tas), s12.
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Burgoine v Taylor (1878) 9 Ch D 1 referred to.
Aust Dig Procedure [598]

REPRESENTATION:

Counsel:
             Plaintiff:  P L Jackson
             Defendant:  C J Bartlett
Solicitors:
             Plaintiff:  C N Dockray
             Defendant:  Bartletts

Judgment Number: [2012] TASSC 8
Number of paragraphs: 19

Serial No 8/2012
File No 46/2006

DENISE MONICA FRENCH v WAYNE McKENNA

REASONS FOR JUDGMENT HOLT AsJ

26 March 2012

The plaintiff succeeded in having an order dismissing her claim set aside. The dismissal followed a consent order requiring the plaintiff to deliver a statement of claim and particulars of loss, expense and damage with the claim to be dismissed upon the filing of an affidavit of non-compliance. The matter comes back before me for the disposition of questions as to costs.

The defendant has applied for an order that the plaintiff pay the costs of the application. The plaintiff opposes the making of such an order and submits that the costs should be in the cause or, alternatively, that there should be an order that the parties bear their own costs.

The jurisdiction to award costs is contained in the Supreme Court Civil Procedure Act 1932, s12: "Whilst the discretion [is] absolute and unfettered, it [is] to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation." Latoudis v Casey (1990) 170 CLR 534 at 557 per Dawson J.

Principles have been developed to guide the exercise of the discretion. Relevantly, for the purposes of this application, there is the principle referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cowen (1984) 3 FCR 44. His Honour said at 353:

"There is a long line of authority to support the general rule that a successful applicant should pay the costs of the respondent of an application to set aside a default judgment: see Ritchie, Supreme Court Procedure NSW par34.5.4 and cases cited therein. Those authorities are based upon the fact that the default of the applicant has occasioned the necessity for the making of the application and that a respondent, other than in exceptional circumstances, should not be prejudiced in costs because of the applicant's default. The same principle applies to this case. Had the present applicants complied with the time requirements of s11 this application would not have been necessary. The applicant should pay the respondent's costs of this application."

The leading case cited…

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 French v McKenna (No 2)

Details

AGLC: French v McKenna (No 2) [2012] TASSC 8
Case: [2012] TASSC 8
Decision Date: 22 March 2012

CaseChat Overview and Summary

The case of French v McKenna (No 2) involved the parties, French and McKenna, and addressed issues related to costs in the context of a successful application to set aside judgment. The case was heard in a court which exercised jurisdiction over matters of this nature. The primary legal issue before the court was whether the general rule regarding costs should be departed from, considering the specific circumstances of the case, particularly in light of the successful application to set aside judgment. This involved examining whether the ordinary principles of costs allocation could be set aside in favour of a more discretionary approach.

The court was tasked with determining whether the discretion to depart from the usual cost rules should be exercised in this instance, and if so, to what extent. The court considered the broader context of similar cases and the circumstances of this particular case. It was noted that the successful application to set aside judgment was a significant factor that could warrant a deviation from the general rule. The court had to weigh this factor against the principle of fairness in cost allocation, ultimately deciding whether an indulgence of the court was justified. The reasoning involved a careful analysis of precedent and the specific merits of the case.

The court concluded that the circumstances of the case warranted a departure from the general rule regarding costs. It exercised its discretion to allow a more flexible approach to cost allocation, considering the successful application to set aside judgment and the need for fairness. The court found that an indulgence of the ordinary principles was appropriate, leading to a decision that aligned with the specific needs of the case. The final orders reflected the court’s decision to adjust the costs allocation in a manner that the court deemed just and equitable under the circumstances.

Orders