Glenariff Holdings Pty Ltd v Delta Bay Holdings Pty Ltd [No 2]

[2020] WADC 111

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GLENARIFF HOLDINGS PTY LTD -v- DELTA BAY HOLDINGS PTY LTD [No 2] [2020] WADC 111

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   7 JULY 2020

DELIVERED          :   17 AUGUST 2020

FILE NO/S:   CIV 2319 of 2016

BETWEEN:   GLENARIFF HOLDINGS PTY LTD

Plaintiff

AND

DELTA BAY HOLDINGS PTY LTD

Defendant

Catchwords:

Review of taxation of costs - Trial vacated on application of plaintiff because a witness was discharged from the obligation to testify - Whether a costs thrown away order should include work preparing for the testimony of the witness

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Objection dismissed save for some small corrections moved by defendant
Costs allowed on the objection fixed at $900 to the defendant

Representation:

Counsel:

Plaintiff	:	Mr G Zagari
Defendant	:	Ms L A Di Virgilio

Solicitors:

Plaintiff	:	Solomon Brothers Solicitors
Defendant	:	Hotchkin Hanly Lawyers

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

1. This action was listed for a trial before his Honour Judge Troy on 7 November 2018.  On the first day of the trial a witness who had been subpoenaed by the plaintiff made an application to be excused from attendance on the grounds that his account for work which had been done to that stage had not been fully paid and he had no wish to undertake further work on behalf of the plaintiff in the light of that circumstance.  His Honour acceded to the application by the witness and excused him from attendance.  There was thereupon an application by the plaintiff seeking to have the trial adjourned since without the assistance of the witness, the action was not likely to succeed in some respects.  His Honour acceded to that application and one of the orders which he made was for the plaintiff to pay the defendant's costs thrown away by the adjournment to be taxed if not agreed and paid forthwith. 

2. Relying on the order the defendant brought in a bill of costs for taxation originally on 4 May 2020 and thereafter an amended version on 23 June 2020 and that proceeded before me for taxation on 7 July 2020.  The allocator was kept open to give the defendant an opportunity to bring in objections and that he has done. 

3. Three challenges were mounted by the objection and in essence they all revolve around the same point and that point is that an order for costs thrown away by the adjournment of the trial ought not to include an allowance for work which was undertaken to meet the evidence of the witness who was eventually excused.  It is said that the costs incurred in regard to that witness were incurred because the witness was not going to testify and that should not be interpreted as a cost thrown away.  In my opinion, that argument ignores the reality.  This plaintiff subpoenaed the witness to trial but had not paid him in full for the work which he had done in preparing a report for trial.  Unsurprisingly, the witness was reluctant to contribute further effort to the action which the plaintiff was pursuing and the judge agreed and excused him from attendance.  It was that excuse from attendance which prompted counsel for the plaintiff to seek and obtain an adjournment of the trial.  In my opinion it is artificial to separate these two matters.  The trial was adjourned because the witness was not going to testify and it is clear that all the work which was done to prepare to meet the evidence of that witness was wasted. 

4. In my view, the clear intent of the order which was made by his Honour was that the defendant should be compensated for the adverse effect which this course of events had imposed upon it, the work being done to deal with what was expected to be the plaintiff's evidence being wasted and also additionally some disbursements, which were made in anticipation of the evidence being given.  The clear intent of the order was to compensate the defendant for the adverse impact which the failure of the trial to proceed would have upon it and the work which had been put into preparing the case compensated for appropriately. 

5. I think it would be a most unexpected outcome were it to be the case that the defendant, who had prepared for the witness to attend and give evidence on the first day of trial, should be unable to recover for that work on an interpretation of the amending of the order which is propounded by the plaintiff.  In any sense of the phrase in my view the work in preparing for the trial as it was anticipated to proceed was clearly wasted and should form part of the monies recoverable by the defendant from the plaintiff under the terms of its bill. 

6. For these reasons I am of a view that the objection should not be allowed however, there are two additional matters which I need to take into account. 

7. On reviewing the materials which were presented to the court in the form of the bill, counsel representing the defendant informed the court that the amount allowed on item 1 had been overstated by the amounts of $75 and $170, an excess of $182 and to bear in mind that concession I propose to allow the bill in the sum of $25,759.04. In addition to that, I allow the costs of the argument concerning the objections in a further $900, which added to the previous total brings the final amount to $26,659.04 and that is the amount for which I shall sign the allocator. I order that the plaintiff have 28 days following the delivery of this judgment within which to apply to a judge to have my ruling reviewed under the provisions of O 66 r 5 of the Rules of the Supreme Court 1971 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

17 AUGUST 2020