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Hudspeth v Scholastic Cleaning

Hudspeth v Scholastic Cleaning

Case [2014] VSCA 78 16 April 2014

Costs

Appeal

Jurisdiction

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0248
LINDA HUDSPETH
v
SCHOLASTIC CLEANING & CONSULTANCY SERVICES PTY LTD
and
THE ROMAN CATHOLIC TRUST CORPORATION FOR THE ARCHDIOCESE OF MELBOURNE

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JUDGES	WARREN CJ, TATE and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 April 2014
DATE OF JUDGMENT/ORDER	16 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 78
JUDGMENT APPEALED FROM	[2013] VSC 14 (Dixon J)

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COSTS – Costs of the appeal – Costs ordinarily follow the event except where the justice of the case requires a different result – Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478 and Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53 applied – Appellant successful on appeal – Appellant’s solicitors and appellant’s senior counsel and second respondent responsible for mistrial – Appellant herself not responsible – Second respondent to pay the appellant’s costs of appeal.

LEGAL PRACTITIONERS – Power to order costs against a solicitor or barrister under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 and s 29 of the Civil Procedure Act 2010 – Alterations made by solicitor to expert report – Failure by senior counsel to disclose supplementary report – Appellant’s solicitors and senior counsel at trial to each indemnify 40% of the costs second respondent ordered to pay appellant.

APPEAL – Whether to remit matter to trial judge or order new trial before different judge or before jury – New trial would cause wastage and injustice – Section 7 of Civil Procedure Act 2010 applied – Trial judge had commenced inquiry in relation to conduct of solicitors and counsel at trial under Civil Procedure Act 2010 – Matter remitted to trial judge to be determined on basis of evidence already led in trial and any further evidence he admits – Liberty to apply reserved should trial judge recuse himself.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Slater & Gordon Lawyers
For the First Respondent	Mr M F Wheelahan SC with Ms M Norton	Minter Ellison Lawyers
For the Second Respondent	Mr J Ruskin QC with Mr M J Hooper	Wotton + Kearney
For Clark Toop & Taylor	Ms A M Ryan SC	Moray & Agnew Lawyers
For Mr J Richards SC	Mr J W S Peters SC with Ms J Frederico	DLA Piper
Mr A Ingram	Mr D V Aghion	CBP Lawyers

WARREN CJ:

I disagreed with the majority as to whether the appeal should be allowed and held that the course adopted by the trial judge was acceptable and appropriate in the circumstances. Notwithstanding my disagreement as to the outcome of the appeal, I agree with the reasons for judgment of Whelan JA on the question of costs and with the disposition his Honour proposes.

TATE JA:

I agree with Whelan JA, for the reasons he gives, that the proceeding should be remitted to be tried as a cause before Dixon J alone. I also agree…

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 Hudspeth v Scholastic Cleaning

Details

AGLC: Hudspeth v Scholastic Cleaning [2014] VSCA 78
Case: [2014] VSCA 78
Decision Date: 16 April 2014

CaseChat Overview and Summary

The case of Hudspeth v Scholastic Cleaning dealt with issues of costs in the context of an appeal, where the appellant was successful. The legal dispute was primarily about the costs incurred during the appeal process and the allocation of these costs between the parties. The Supreme Court of Victoria was the forum for this appeal. The appellant, having succeeded on appeal, sought an order that the second respondent pay the costs of the appeal. The second respondent, however, contested this, arguing that the mistrial was due to the actions of the appellant's solicitors and senior counsel rather than the appellant herself.

The court was required to decide several legal issues, including whether to remit the matter to the trial judge or order a new trial, and the appropriate allocation of costs in light of the mistrial. The court considered whether the mistrial resulted from the actions of the appellant's legal representatives and whether it was just to order the second respondent to bear the costs of the appeal. The court also examined the authority to order costs against a solicitor or barrister under relevant rules and statutes, and whether the alterations made to an expert report by the solicitor and the failure by the senior counsel to disclose a supplementary report contributed to the mistrial.

The court determined that the mistrial was due to the misconduct of the appellant's solicitors and senior counsel, not the appellant herself. It was held that the second respondent was to pay the appellant's costs of appeal. However, the court also held that the appellant's solicitors and senior counsel were to indemnify 40% of the costs the second respondent was ordered to pay. The court found that a new trial would cause wastage and injustice, and therefore, remitted the matter to the trial judge to be determined on the basis of the evidence already led in the trial and any further evidence the trial judge admitted. The appellant was granted liberty to apply if the trial judge recused himself.

Orders