Hayes v Woodcroft Tavern (No 2) - [2008] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HAYES v WOODCROFT TAVERN (NO 2)
[2008] SADC 36
Judgment of His Honour Judge Tilmouth
11 April 2008
PROCEDURE - COSTS
General rule - Costs follow the event - discretion conferred by s42 of the District Court Act 1991 (SA) and by Rule 101.02(1) of the Rules of Court.
Depriving successful party of some costs.
District Court Act 1991 (SA) Section 42; Supreme Court Rules 101.02, referred to.
Copping & Ors v ANZ McCaughan & Anor (1994) 63 SASR 523; Forlyle Pty Ltd v Tiver & Anor [2007] SASC 464, applied.
Westsub Discounts Pty Ltd v Idaps Australia (No 2) (1990) 94 AALR 310, distinguished.

HAYES v WOODCROFT TAVERN (NO 2)
[2008] SADC 36

Judgment was delivered in this matter on 4 March 2008, dismissing the plaintiff’s claim and reserving the question of costs.[1] Both parties were given leave to file written submissions as to costs, which they have now done and which the court has considered.
[1] [2008] SADC 20
In this matter the defendant succeeded in resisting the plaintiff’s claim to damages. When it came to a consideration of perhaps the issue of central importance in the case, the time at which the plaintiff actually arrived at the Tavern, the court placed great reliance on the till records, in order to draw inferences as to what time he so entered.[2]
[2] [2008] SADC 20 at [43-46]
However it is to be recalled that such records had not been produced by the defendant before trial, in the course of the discovery process. In the opinion of the court those records were obviously directly relevant to the issues raised by the pleadings and should therefore have been disclosed before trial. The same applies to the images taken by surveillance cameras operating in the area at the time, although their fate remains somewhat of a mystery. Moreover the court was not particularly impressed by the evidence that the images would not have helped, even had the core events taken place off screen, because they were “very likely to be highly relevant since they would have recorded the time of entry, if nothing else”.[3]
[3] [2008] SADC 20 at [67]
The hearing commenced on 15 October 2007 and proceeded for three days. The case for the plaintiff closed on the 17^th, shortly after lunch. The defence then proceeded to open its case and to call Mr Phillips the Hotel manager, who gave evidence directed to the fate of the video. That evidence occupied one and a half hours. On the fourth day, 18^th October 2007, the plaintiff applied for further discovery relating to this very question. The following course of events is described in detail in the reasons for judgement, however the court granted an adjournment later that day, to enable the defendant to make further inquiries as to the existence and whereabouts of such records.[4]
[4] [2008] SADC 20 at [41]
The hearing resumed on 14 January 2008. The defendant had in the meantime provided further disclosure to the plaintiff. It proved the till records, through the witness Mr Woehlert. Woehlert gave evidence as the last witness for the defence, on Tuesday January 15, 2008. This evidence took some one and three quarter hours. Final submissions began first thing on the 16^th and concluded midafternoon on the 17^th. A considerable degree of attention was devoted in both to the central issue identified above, as well as the consequences of the failure to produce the images. It is not possible to disentangle these from the general submissions in point of time taken.
In the result the court sat on the matter for the better part of seven whole days, plus approximately an hour and a quarter on 18^th October, which led to an adjournment, without any further evidence being called on that day. The transcript of the entire proceedings occupies some 741 pages. No less than three and a quarter hours was taken up by direct evidence concerning the till records. Some of the evidence of Naylor in particular dealt with the images as well.
The starting point is s42(1) of the District Court Act 1991 (SA), which vests a wide and unfettered discretion to award costs, a discretion nonetheless to be exercised judicially. Rule 101.02(1) however, provides that costs are to follow the event “unless otherwise ordered”. This rule does not fetter the general discretion vested by statute: Copping & Ors v ANZ McCaughan & Anor[5].
[5] (1994) 63 SASR 523
Both leave it within the discretion of the court to deprive a successful party of costs relating to issues on which that party has failed, when such orders are otherwise warranted: Hughes v Western Australian Cricket Association (Inc),[6] Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No. 2).[7]
[6] [1986] ATPR 48, 134 at 48, 136
[7] (1991) 28 FCR 172 at 173
In this matter the defendant was substantially but not wholly successful. The Full Court in Forlyle Pty Ltd v Tiver & Anon[8] determined that a successful party should ordinarily be entitled to some costs, even though unsuccessful on other significant issues. The trial in that case lasted five days, two days being devoted to a claim on which it succeeded and three to a claim on which it failed. In that context the court made these observations as to costs:
[30] As [the plaintiff] has failed in its claim for consequential losses, it cannot expect to recover the costs associated with that claim. … At the same time, [it] should not recover any costs which are in any respect associated with its failed claim for consequential losses. In all the circumstances, the appropriate order as to costs is to allow [the plaintiff] to recover the costs of two days of the hearing and for other costs associated with that claim including the cost of issuing the proceedings but not allow it to recover those costs or disbursements associated with the claim which failed.
[8] [2007] SASC 464 at [28] and [30]
In the present case an adjournment was granted on account of inadequate discovery by the defendant. The better part of a day was lost to consequential issues, and a further day was lost on account of the adjournment. Applying the approach in Forlyle (above), the defendant should have an order for costs of five out of seven days of the hearing. Further it should be deprived of its costs of the day when the adjournment was granted on 18^th October 2007 and of any costs of, and incidental to that adjournment, as well as the costs of providing further disclosure to the plaintiff as a consequence.
Accordingly there will be an order that the defendant recover five sevenths of its costs, which costs exclude the costs of the 18^th October 2007, any costs of and incidental thereto and of providing further disclosure to the plaintiff as a consequence of the adjournment granted that day.