Garrott and Blyton v Tote Tasmania Pty Ltd (No 2)
[2008] TASSC 45
•28 August 2008
[2008] TASSC 45
CITATION: Garrott and Blyton v Tote Tasmania Pty Ltd (No 2)[2008] TASSC 45
PARTIES: GARROTT, Geoffrey Robert
BLYTON, Kevin James
v
TOTE TASMANIA PTY LTD (ACN 095 972 106)
TASRADIO PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 241/1993
855/1998
DELIVERED ON: 28 August 2008
DELIVERED AT: Hobart
HEARING DATES: 18 August 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure – Costs – General rule – Costs follow the event – Costs of issues – Stay on costs pending Full Court appeal.
Aust Dig Procedure [557]
REPRESENTATION:
Counsel:
Plaintiffs: C J Gunson
Defendants: A B Walker
Solicitors:
Plaintiffs: Mackie Crompton
Defendants: Dobson Mitchell & Allport
Judgment Number: [2007] TASSC 45
Number of Paragraphs: 7
Serial No 45/2008
File Nos 241/1993855/1998
GEOFFREY ROBERT GARROTT and KEVIN JAMES BLYTON v TOTE TASMANIA PTY LTD (ACN 095 972 106) and TASRADIO PTY LTD (NO) 2)
REASONS FOR JUDGMENT SLICER J
28 August 2008
The trial on this action was split into matters of liability and damages, by order of the Master (as he then was) on 20 July 2007, apart from one discrete matter involving the proceeding comprised in the amended statement of claim, par20, and the defence, pars20 and 21. That discrete matter involved the date at which loss or damage was alleged to have been suffered by the plaintiffs as a basis for quantification. The trial of liability was formulated through questions to be answered by the trial judge in the following terms, and the answers provided, in the reasons for judgment [2007] TASSC 101, published on 17 December 2007:
"An attempt is made to provide the answers to those questions, dealt with in detail in these reasons, in brief form. If that response does not adequately meet the formulation required by the parties to resolve the issue of liability and provide a sufficient basis for any future determination of damages, counsel may seek further exposition. An example is that of the answer to question 4(a). The answer relates to the separate argument as to the validity of the decision of a board. It does not provide an answer to the terms of cl 1.2. Question 3(a) might be ambiguous. The defendants did use their best endeavours to obtain the licence. It was the acceptability or otherwise of tenure which was the issue. The questions posed and the answers provided are set out below:
'1 (a) Was the first defendant "made aware" in any sense relevant to the determination of the issues in the proceeding of any or all of the matters set out in paragraph 9 of the amended statement of claim? Yes 2 (a) Are any or all of the terms to the effect below to be implied into the Agreement?
(i) The defendants would act in good faith.
(ii) The defendants would act honestly and reasonably in determining whether or not the terms of the grant of the licence were acceptable to them.
(iii) The defendants would make reasonable enquiries and otherwise act reasonably in establishing the nature and extent of the terms of the grant of the licence referred to.
(iv) The defendants would use their best endeavours to obtain the licence on terms acceptable to them.
(v) The defendants could not rely on clause 1.2 of the Agreement capriciously, arbitrarily or in bad faith.
Yes
Yes
Yes
Yes
Yes
(b) Is the Agreement to be construed so that:
(i) The requirement in clause 1.2 of the Agreement that the defendants use their "best endeavours" relates only to obtaining "such a licence"?
(ii) The decision as to whether or not the terms of the licence were acceptable to the defendants was at their absolute and unfettered discretion?
(iii) The only condition affecting the exercise of that discretion, was that the defendants had only 30 days from the date they received notification of the terms of the licence from the Australian Broadcasting Authority in which to make the decision?
Yes
No
Yes, as decided by the defendants but not necessarily so by the terms of the agreement.
3 (a) By the receipt of the letter, did the defendants satisfy their obligation pursuant to clause 1.2 of the Agreement that they use their best endeavours to obtain the "licence" (as that expression is to be construed in accordance with paragraph 13 of the amended statement of claim ("Licence"))?
Yes 4 (a) Did the defendants make a decision in accordance with clause 1.2 of the Agreement that the terms upon which the ABA would grant the Licence were not acceptable to them?
(b) If the answer to sub-paragraph (a) of this paragraph is no, by failing to make the decision, did the defendants breach the Agreement and wrongfully terminate and repudiate the Agreement?
(c) If the answer to sub-paragraph (a) of this paragraph is yes, in making that decision, did the defendants otherwise breach the Agreement and wrongfully terminate and repudiate the Agreement?'"
Yes, in that each made a valid decision.
Not necessary to answer.
Yes
The defendants have appealed the decision. Due to circumstances beyond the control of the parties, the hearing of the appeal cannot occur until November 2008 and will require the appointment of two judges from outside this jurisdiction.
The plaintiffs seek a costs order which the defendants oppose due to the possible consequences of a split trial because, despite the success of the plaintiffs on liability, it remains possible, on the pleadings for the defendant, that no award of damages will be made.
The parties have requested a quick resolution of the costs application and do not require detailed reasons for the determination. The plaintiffs do not seek a costs order for all matters to date. Refined, the application is either:
(a)for all costs incurred in relation to the issue of liability; or
(b)for the trial of the action between 29 June 2006 and 10 October 2007.
They are prepared to submit to a "stay" order until the determination of the appeal. Neither side of the action is bereft of resources.
The plaintiffs contend:
(1)That it is necessary to fully resolve the matter before the hearing of the appeal. The Court would be able to set aside the order if it upheld the primary claim of error.
(2)They require a commencing date, provided by a court order, from which any claim for interest on the judgment can run.
(3)The assessment of the damages portion of the trial might be undertaken by a different judge and convenience suggests that the "liability trial" judge is better situated to make this portion of the costs claim.
(4)The formulation of the order through "time reference" referred to in (b) above will make it easier for any taxation officer to assess an eventual claim.
(5)There is no prejudice to any right for the defendants to pay money into court or make a binding settlement offer, since such would only date from its making.
The defendants claim that:
(1)The pleadings still permit a conclusion that the plaintiffs have suffered no damage and might recover nothing. In such a case, the costs order would be vacated.
(2)The appeal is ready for hearing and any costs order could not be a matter which would be revisited by the appellate court.
(3)The defendants already have a costs order for costs thrown away following the abandonment of a claim for specific performance which would partially offset the order sought. Convenience would suggest that all costs orders be dealt with at the one time.
(4)Any claim for interest payable upon the order would be met by an argument of delay on the part of the plaintiffs.
I have concluded, on balance, that an order ought be made. It could be readily set aside by the Full Court if it upholds the primary appeal. I am conscious that there may be tactical or strategic reasons for the parties adopting their respective positions, but such is of little import. Although this is a "split" trial, the plaintiffs have succeeded, at this stage, on liability. Preparation as and from the date of the order and trial concerned this issue alone. Costs ought follow the event. It remains open for the defendants to make a binding offer, which would address the remaining pleadings issue, even if in a nominal amount. The assessment of damages might be dealt with by a different judge. Interest might become an issue requiring a commencing date. Prejudice can be met by a "stay" order, pending a determination by the Full Court. The parties have chosen, for good reason, to separate the issues of liability and loss and damage. Convenience suggests the fixing of identified dates governing the order sought.
Orders:
(1)That the defendants pay the costs of the action referable to the issue of liability incurred between 29 June 2006 and 10 October 2007, such costs to be taxed.
(2)That the right of the plaintiffs to seek to enforce or execute order 1 be stayed until the determination of the Full Court Appeal, No 130/2008.
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