Gwinnett v Day (No 2)

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

GWINNETT v DAY (NO 2)

[2012] SASC 61

Reasons for Decision of The Honourable Justice Stanley

17 April 2012

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - POWERS OF COURT

Both plaintiff and defendants seek orders for costs – where the defendants successfully resisted the plaintiff’s application for return of cattle – where defendants’ position as to ownership of cattle changed at trial of the action – whether the court should exercise discretion to award costs in favour of an unsuccessful party – whether 6SCR263 fetters the operation of s 40 of the Supreme Court Act 1935 (SA).

Held: 6SCR263 does not limit the Court’s unfettered discretion conferred by s 40 – circumstances justify departure from general rule that costs should follow the event – award half plaintiff’s costs.

Supreme Court Civil Rules 2006 (SA) r 263; Supreme Court Act 1935 (SA) s 40; Supreme Court Rules 1987 (SA) r 101.02, referred to.
Cretazzo v Lombardi (1975) 13 SASR 4; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (No 3) (1997) 190 LSJS 101; Re Gillie; Ex parte Cornell (1996) 70 FCR 254, discussed.

GWINNETT v DAY (NO 2)
[2012] SASC 61

1. STANLEY J:        On 22 March 2012 the Court delivered judgment in this matter.

2. In essence the Court refused the orders sought by the plaintiff for the return of the cattle the subject matter of the proceedings but made preservation orders, in respect of the cattle, directed to the defendant. 

3. Both the plaintiff and the defendants sought orders for costs.  The Court reserved the question of costs after hearing the parties’ submissions. 

4. Having considered the matter I am of the view that Nigel Day should pay the plaintiff 50 per cent of the costs of the proceedings.  I make no order for costs in respect of Malcolm Day.  These are my reasons for doing so.

5. The defendants at trial successfully resisted the plaintiff’s application for orders requiring them to return cattle that had been removed by them from the Warwick Hills property owned by the plaintiff.

6. Mr McCarthy, counsel for the defendants, applies for costs in accordance with the provisions of 6SCR263(1) of the Supreme Court Civil Rules 2006 (SA) on the basis that costs should follow the event. 

7. Mr Cudmore, counsel for the plaintiff, opposes an order for costs in favour of the defendants and, in the circumstances, seeks an order for costs in favour of the plaintiff.  He submits that this is an appropriate case where the Court, in the exercise of its discretion, should award costs in favour of an unsuccessful party.  He calls in aid the principle enunciated by Bray CJ in an oft cited passage from Cretazzo v Lombardi:[1]

   [T]here was once an idea that a successful party, though he might be deprived of his costs, could not be ordered to pay his opponent’s costs. As a matter…