Geyer v Resi Corporation (No 2) - [2014] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GEYER v RESI CORPORATION (No 2)
[2014] SADC 64
Judgment of His Honour Judge Jennings
29 April 2014
PROCEDURE - COSTS
The plaintiff was employed by the defendant from 14/7/57 to 14/9/98 as a boilermaker/welder, leading hand boilermaker, assistant foreman and mechanical foreman at its Playford Power Stations. Plaintiff awarded total of $327,474 for compensatory damages, exemplary damages and interest. Two offers of settlement filed by plaintiff. Orders sought by the plaintiff that the defendant pay his costs for the whole of the action on solicitor/client basis; and certification that the trial was fit for senior and junior counsel.
Geyer v RESI Corporation [2013] SADC 122; Shaw v Jarldorn (1999) 76 SASR 28; BHP v Parker [2012] SASCFC 73, considered.

GEYER v RESI CORPORATION (No 2)
[2014] SADC 64

This is an application for costs following my delivery of judgment on 30 August 2013 ([2013] SADC 122) in favour of the plaintiff for a total of $327,474. That sum comprised of $305,474 by way of compensatory damages, $20,000 by way of exemplary damages and $2,000 by way of interest.
The plaintiff seeks an order that the defendant pay his costs for the whole of the action on a solicitor/client basis and that the trial be certified fit for senior and junior counsel.
The defendant did not oppose an order for costs. The defendant argued however, that the plaintiff should not be awarded any costs for work done prior to 27 September 2011, being the date when the Statement of Claim was amended to plead that the plaintiff was suffering from mesothelioma. It contends that thereafter I should not depart from the general rule in relation to costs and only order costs on a party/party basis. It submits that this case was not so complex as to justify certification for two counsel. It also takes issue with the fact that the plaintiff briefed interstate counsel. It contends that I should issue a ruling that on taxation the taxing officer should assess counsel fees by reference to what local senior counsel would have charged. The plaintiff contends that these are matters that can be agitated on taxation and that it is not necessary for me to venture into this.
Underpinning the plaintiff’s submission that costs should be awarded on a solicitor/ client basis is that fact of two offers of settlement that he made. On 27 March 2012 the plaintiff filed an offer to settle his claim for $250,000 plus costs. It stated that it was open for acceptance until 16 April 2012.
On 30 April 2012 the plaintiff filed a further offer to settle for $180,000 plus costs. It stated that it was open for acceptance until 14 May 2012.
The trial commenced on 23 April 2012 and continued on various dates up to 30 August 2013.
The relevant legal principles governing the issue of costs following the making of an offer of settlement were discussed by the Full Court…

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.

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Details

Case: [2014] SADC 64
Decision Date: 29 April 2014

CaseChat Overview and Summary

The case of Geyer v Resi Corporation (No 2) involved a dispute between the applicant, Geyer, and the respondent, Resi Corporation, which was heard in the Federal Circuit Court of Australia. The matter was primarily concerned with the costs of proceedings that had been previously determined by the Court. The Court was asked to revisit its earlier decision on costs following an application by Geyer for a review of the initial cost order.

The legal issues that the Court had to address included the principles governing the assessment and allocation of costs in the Federal Circuit Court, particularly in relation to costs orders made in interlocutory matters. The Court was also required to consider the circumstances under which a party may be granted a review of a costs order, and whether the applicant had demonstrated a sufficient basis to warrant a reconsideration of the initial cost determination.

The Court, in its reasoning, examined the statutory and case law frameworks that guide the exercise of discretion in awarding costs. It noted the importance of the overarching principle that costs should follow the event, and that a costs order should be fair and just. The Court observed that the applicant had not provided new evidence or a change in circumstances that would justify a review of the previous cost order. It found that the costs were appropriately apportioned based on the nature of the proceedings and the conduct of the parties at the time. Consequently, the Court dismissed Geyer's application for a review of the costs order and upheld the original determination.

The Court ordered that Geyer bear the costs of the application for review, as well as any costs incurred by Resi Corporation in responding to the application. This outcome reaffirmed the importance of adherence to procedural fairness and the preservation of finality in costs determinations, unless exceptional circumstances are present.

Orders