Glover v Fuller (No 3) - [2023] ACTSC 101

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Glover v Fuller (No 3)

Citation:

[2023] ACTSC 101

Hearing Date:

Decided on the papers

Decision Date:

5 May 2023

Before:

McWilliam J

Decision:

(1)	Pursuant to r 1725(3) of the Court Procedure Rules 2006

(ACT), the plaintiff is entitled to any determined fee at the
Supreme Court rate and 75 percent of the costs and
disbursements that the plaintiff would have been entitled to
recover in the Supreme Court had the judgment been
more than $250,000.

Catchwords:	PRACTICE AND PROCEDURE – COSTS – where plaintiff successful in negligence claim – where costs awarded were less than jurisdictional limit of Magistrates Court – application of r 1725 of the Court Procedures Rules 2006 (ACT) – relative success of parties – whether some indemnity costs should be awarded –
alternative costs order made
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1721, 1752, 1725
Cases Cited:	Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77 Campbell v Blackshaw (No 2) [2019] ACTCA 28 Clarkson Williams Partners Ltd v Vaughan (No 2) [2016] ACTCA 8 Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; 46 FCR 225
Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FCR 267
Donohue v Volanne Pty Ltd (No 3) [2021] ACTCA 20
Glover v Fuller (No 2) [2023] ACTSC 12
Latoudis v Casey (1990) 170 CLR 534 Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343
Luongo v Clarke (No 2) [2018] ACTSC 108 Mareva Building Consultants v Zevon (No 2) [2012] ACTSC 24
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
McLennan v Clapham (No 2) [2019] ACTSC 100
McLennan v Meyer Vandenberg (No 2) [2020] ACTCA 15
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 Yogini v Eveille [2006] ACTSC 23
Parties:	Jack Glover (Plaintiff)
Daniel Fuller (Defendant)
Representation:	Counsel
N Farooq (Plaintiff)
S J Walsh (Defendant)
Solicitors
United Legal (Plaintiff)
Barry Nilsson Lawyers (Defendant)
File Number:	SC 281 of 2018
McWilliam J:

1. On 31 January 2023, I delivered judgment on a claim for personal injury brought by the
plaintiff: Glover v Fuller (No 2) [2023] ACTSC 12. The plaintiff was successful in
obtaining an award of damages of $92,585, plus interest in the sum of $310.95.

The defendant was ordered to pay the plaintiff’s costs. Because the amount ultimately
awarded was less than $175,000 and the matter was one which the Magistrates Court
would have had the jurisdiction to hear and decide, r 1725 of the Court Procedures Rules
2006 (ACT) (Rules) applies. Under r 1725(2)(c) of the Rules, the plaintiff is only entitled
to recover 50% of the costs and disbursements to which he is entitled (that is, 50% of
costs on the ordinary basis).

3. Through written submissions, the plaintiff sought alternative costs orders as follows:

(a)

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 Glover v Fuller (No 3)

Details

AGLC: Glover v Fuller (No 3) [2023] ACTSC 101
Case: [2023] ACTSC 101
Decision Date

CaseChat Overview and Summary

The case of Glover v Fuller (No 3) was heard in the Supreme Court of the Australian Capital Territory. The plaintiff, Jack Glover, was successful in a personal injury claim against the defendant, Daniel Fuller, with an award of damages of $92,585 plus interest of $310.95. Glover sought an alternative costs order under rule 1725(3) of the Court Procedures Rules 2006 (ACT), which allows the court to make a different order from that which would apply under rule 1725(2)(c) of the Rules. Glover also sought indemnity costs for discovery, expert evidence, and repleading. Fuller opposed both orders.

The court considered the discretion in ordering costs and the principles guiding the exercise of that discretion. Costs are in the discretion of the court, and the fundamental purpose of the discretion on costs is to compensate the successful party. The court must exercise its discretion judicially, in accordance with established principles and the statutory context. The question is not what is the appropriate starting point, but what should be regarded as a fair and just outcome in ordering costs. The court must also consider the requirements of section 5A of the Court Procedures Act 2004 (ACT), which provides for the objective of ensuring that court processes are conducted fairly, justly, efficiently, and at proportionate cost.

The court considered the arguments of the parties and found that the proceedings were complex and not plainly inappropriate for the proceeding to be commenced in the Supreme Court. However, the court agreed with Fuller that Glover had unrealistic views about the quantum of his claim and that maintaining proportionality, even in complex proceedings, is a clear objective of section 5A of the Court Procedures Act. The court found that taking proper account of the complexity in this case, a different order was appropriate. Having regard to the quantum ultimately achieved and proportionality considerations lying behind the rule, it was in the interests of justice to allow Glover to recover 75 percent of the recoverable costs on an ordinary basis.

The court also considered whether the defendant should pay indemnity costs in respect of discovery, expert evidence, and repleading. The court found that there was no basis for requiring Fuller to pay indemnity costs, as the denial of liability was not in any way conducted in wilful disregard of known facts or established law.

The orders of the court were as follows: Glover is entitled to any determined fee at the Supreme Court rate and 75 percent of the costs and disbursements that Glover would have been entitled to recover in the Supreme Court had the judgment been more than $250,000.

Orders