Hand v District Council of Barunga West

[2013] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

HAND v DISTRICT COUNCIL OF BARUNGA WEST

[2013] SASC 195

Judgment of The Honourable Justice David

13 December 2013

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY

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

Application for costs by parties to proceeding where plaintiff was unsuccessful in principal application for reinstatement as CEO of defendant but was successful in his alternate claim for damages.  Whether plaintiff or defendant should pay costs of action and on what basis.

Held:  Defendant to pay plaintiff’s costs of and incidental to action on a party and party basis.

Supreme Court Civil Rules 2006 rr 263, referred to.
Hand v District Council of Barunga West [2013] SASC 182; Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105; Cretazzo v Lombardi (1975) 13 SASR 4; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523, considered.

HAND v DISTRICT COUNCIL OF BARUNGA WEST
[2013] SASC 195

Civil:  Application for Costs

1. DAVID J:              This matter arose from an application by the plaintiff seeking reinstatement of his employment as the Chief Executive Officer of the defendant, the District Council of Barunga West.  Alternatively, the plaintiff sought damages.  I delivered judgment on 20 November 2013 after a six day trial.  Though I refused the plaintiff’s application for reinstatement, I found that the defendant had breached an implied term of its contract with the plaintiff, such that the plaintiff was entitled to damages in an amount equivalent to two and half months’ wages.[1]

   [1]    See Hand v District Council of Barunga West [2013] SASC 182

2. On 20 November 2013, both the plaintiff and the defendant made oral applications for costs as against one another.  I reserved my decision in respect of costs and, at the suggestion of the parties, received short written submissions to be provided to the Court.  I was subsequently provided with written submissions from the plaintiff and the defendant and written submissions in reply from the plaintiff.

3. I have carefully reviewed the written submissions provided to me by the parties, which raised a number of issues including offers of settlement made by the defendant.  While reviewing the parties’ submissions, I have borne in mind that the proceedings were hard fought and that the plaintiff was ultimately successful in obtaining an order for damages, notwithstanding his primary application was for reinstatement. 

4. I have also borne in mind that my discretion to award costs is absolute and unfettered, subject only to the requirement that it be exercised judicially, not arbitrarily or capriciously.[2] Importantly, the Court’s discretion as to costs remains unfettered, notwithstanding the exceptions prescribed in 6SCR 263, and each case must be decided on its own facts.[3]

   [2]    Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105 per Stanley J at [55]; Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ.

   [3]    Copping v ANZ McCaughan Ltd (1995) 63 SASR 523 per King CJ at 527; Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105 per Stanley J at [57]-[58]

5. Having regard to these matters, I award costs to the plaintiff on a party and party basis which are to be taxed or agreed.  I consider that in circumstances where the plaintiff was successful in establishing that the defendant had breached its contract with him and was successful in obtaining an order for damages, he is entitled to his reasonable costs.  However, the circumstances of this case do not justify a special costs order (such as an award of costs on a solicitor and client basis).

6. I further order that interest is payable on the judgment debt at a rate of 6%, accruing from 1 September 2013.