Howard v Telstra Corporation Ltd - [2003] NSWCA 188

CITATION: Howard v Telstra Corporation Ltd [2003] NSWCA 188

HEARING DATE(S): 25 June 2003

JUDGMENT DATE:
9 July 2003

JUDGMENT OF: Santow JA at 1; Young CJ in Eq at 2; Davies AJA at 15

DECISION: 1. Costs below be set aside and, in lieu thereof, the plaintiff, Roger Howard, pay the costs of the arbitration and the defendant, Telstra Corporation Ltd, otherwise pay the costs of the proceedings in the District Court; 2. That the parties abide their own costs of the appeal.

CATCHWORDS: CATCHWORDS: Costs - General Rule - Costs follow the event - Failure to call witnesses at arbitration led to adverse costs order - Fair and just results for costs - Appeal from a discretionary decision of trial judge - Is there conduct that allows the Court to depart from the general rule

LEGISLATION CITED: Arbitration (Civil Actions) Act 1983, s18(3)
District Court Rules Pt 39A r 31

CASES CITED: Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
MacDougall v Curlevski (1996) 40 NSWLR 430
Morgan v Johnson (1998) 44 NSWLR 578

PARTIES :
Roger HOWARD (Appellant)
TELSTRA CORPORATION LTD (Respondent)

FILE NUMBER(S): CA 40576/02

COUNSEL: M L Williams, SC/ P R McGuire (Appellant)
W Fitzsimmons (Respondent)

SOLICITORS: Carroll & O'Dea (Appellant)
Henry Davis York (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 101/01

LOWER COURT
JUDICIAL OFFICER : Robison DCJ

CA 40576/02
DC 101/01

SANTOW JA
YOUNG CJ IN EQ
DAVIES AJA
9 JULY 2003

ROGER HOWARD v TELSTRA CORPORATION LTD

CATCHWORDS

COSTS – General Rule – Costs follow the event – Failure to call witnesses at arbitration led to adverse costs order – Fair and just results for costs – Appeal from a discretionary decision of trial judge – Is there conduct that allows the Court to depart from the general rule

FACTS

This was an appeal by leave from a District Court judgement on a question of costs.

The appellant injured his shoulder in May 1998 when he tripped over a cable that had been laid across his driveway by an employee of the respondent. The appellant’s claim for damages was referred out to arbitration under the Arbitration (Civil Actions) Act 1983. The only witness as to liability, called in the arbitration, was the appellant. The arbitrator found that the appellant’s case needed corroboration or supplementary evidence. Accordingly, he dismissed the claim. Subsequently the matter was reheard in the District Court. At the rehearing the appellant called two additional witnesses. The trial judge believed the appellant and his witnesses and gave judgement in favour of the appellant.

The trial judge ordered the defendant to pay the costs of the appellant up to and including the day before the arbitration, but that thereafter the appellant was to pay the costs of the defendant, including the costs of the arbitration. The trial judge purported to follow MacDougall v Curlevski (1996) 40 NSLWR 430,…

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.

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Details

Case: [2003] NSWCA 188
Decision Date: 9 July 2003

CaseChat Overview and Summary

The appeal concerned an application by Roger Howard (the plaintiff) against Telstra Corporation Ltd (the defendant) following an arbitration. The primary dispute revolved around an adverse costs order made against the plaintiff after the arbitration, which the plaintiff sought to set aside on appeal. The appeal was heard by Santow JA, Young CJ in Eq, and Davies AJA.

The central legal issues before the court were whether the trial judge erred in exercising their discretion regarding costs, and whether there was conduct on the part of the plaintiff that justified departing from the general rule that costs follow the event. Specifically, the court considered the implications of the plaintiff's failure to call witnesses at the arbitration on the fairness and justice of the costs outcome.

The Court of Appeal found that the trial judge had erred in their assessment of costs. They reasoned that while the general rule is that costs follow the event, a court has discretion to depart from this rule where it is fair and just to do so. The failure to call witnesses at the arbitration, while a factor, did not, in the circumstances, warrant the entirety of the adverse costs order against the plaintiff. The court determined that a more equitable distribution of costs was required.

Consequently, the Court of Appeal set aside the costs order made below. In its place, the plaintiff was ordered to pay the costs of the arbitration, while the defendant was ordered to pay the costs of the proceedings in the District Court. The parties were directed to abide their own costs of the appeal.

Orders

Orders of the court

1. Costs below be set aside and, in lieu thereof, the plaintiff, Roger Howard, pay the costs of the arbitration and the defendant, Telstra Corporation Ltd, otherwise pay the costs of the proceedings in the District Court; 2. That the parties abide their own costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Howard v Telstra Corporation Ltd [2003] NSWCA 188
HEARING DATE(S):	25 June 2003
JUDGMENT DATE:	9 July 2003
JUDGMENT OF:	Santow JA at 1; Young CJ in Eq at 2; Davies AJA at 15
DECISION:	1. Costs below be set aside and, in lieu thereof, the plaintiff, Roger Howard, pay the costs of the arbitration and the defendant, Telstra Corporation Ltd, otherwise pay the costs of the proceedings in the District Court; 2. That the parties abide their own costs of the appeal.
CATCHWORDS:	CATCHWORDS: Costs - General Rule - Costs follow the event - Failure to call witnesses at arbitration led to adverse costs order - Fair and just results for costs - Appeal from a discretionary decision of trial judge - Is there conduct that allows the Court to depart from the general rule
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983, s18(3) District Court Rules Pt 39A r 31
CASES CITED:	Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 MacDougall v Curlevski (1996) 40 NSWLR 430 Morgan v Johnson (1998) 44 NSWLR 578
PARTIES :	Roger HOWARD (Appellant) TELSTRA CORPORATION LTD (Respondent)
FILE NUMBER(S):	CA 40576/02
COUNSEL:	M L Williams, SC/ P R McGuire (Appellant) W Fitzsimmons (Respondent)
SOLICITORS:	Carroll & O'Dea (Appellant) Henry Davis York (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 101/01
LOWER COURT JUDICIAL OFFICER :	Robison DCJ