Kiama City Council v McMillan - [2003] NSWCA 33

NEW SOUTH WALES COURT OF APPEAL

CITATION: KIAMA CITY COUNCIL v McMILLAN [2003] NSWCA 33

FILE NUMBER(S):
40927/01

HEARING DATE(S): 13 February 2003

JUDGMENT DATE: 28/02/2003

PARTIES:
KIAMA CITY COUNCIL v Alison McMILLAN

JUDGMENT OF: Mason P Giles JA Cripps AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4915/99

LOWER COURT JUDICIAL OFFICER: Gamble ADCJ

COUNSEL:
Appellant: M McCulloch
Respondent: J Glissan QC/ M Cleary

SOLICITORS:
Appellant: Phillips Fox
Respondent: Keddies Solicitors

CATCHWORDS:
District Court - District Court Rules Pt 26 r6A - dismissal on plaintiff's application on terms - costs normally to be borne by plaintiff in accorance with Pt 39 r1A - trial judge's discretion as to costs miscarried. (ND)

LEGISLATION CITED:

DECISION:
Appeal upheld. See further par 67

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40927 of 2001
DC 4915 of 1999
MASON P
GILES JA
CRIPPS AJA
Friday 28 February 2003

KIAMA CITY COUNCIL v Alison McMILLAN

JUDGMENT

MASON P: A claim and a cross-claim for leave to appeal were heard concurrently and in circumstances where the Court heard full argument as on an appeal. (The cross claim was withdrawn during the course of argument.) I shall refer to the parties as the plaintiff and the Council.
Three sets of proceedings were instituted by the plaintiff against the Council on 30 June 1999. Each related to a different accident said to have occurred when she fell in the Black Head Reserve at Gerroa.
The claims based upon accidents occurring in July 1996 and September 1996 were resolved in May 2000 by consent, with the entry of judgment for the defendant. These accidents remain relevant because of the Council's assertion in the continued proceedings that the plaintiff's injuries stemmed from these earlier (non-tortious) incidents.
These appellate proceedings arise out of the third action, which involves an accident originally pleaded to have occurred “on and/or about January 1998”. The plaintiff claimed that the Council was negligent in failing to maintain the Reserve, more particularly in creating or permitting a hole to be dug into which she fell, injuring her hand. The plaintiff’s case, in essence, was that the hole was created during the reconstruction of the car park giving access to the Reserve.
Following arbitration proceedings in 2000 that failed to resolve the dispute, the trial opened on 28 June 2001 before Gamble ADCJ. The trial proceeded on June 28 and 29, August 15, 16 and 17 and September 17.
On August 17 the plaintiff made an unsuccessful application to vacate the trial. The refusal of such application was the subject matter of her foreshadowed cross appeal.
The proceedings were dismissed on the plaintiff’s application on 12 October 2001 in circumstances set out below. In this Court the Council complains about the costs order made at that time.
At the trial, issues as to liability and damages were strongly contested. In short, the Council disputed that any accident occurred, disputed that it occurred on or about the date…

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 33
Decision Date: 28 February 2003

CaseChat Overview and Summary

Kiama City Council (the defendant) appealed a decision of the District Court of New South Wales, which had granted the plaintiff's application to dismiss proceedings on terms. The core of the dispute concerned the appropriate costs order to be made following the dismissal of the plaintiff's case at her own request.

The legal issues before the District Court were whether to grant the plaintiff's application to dismiss the proceedings, and if so, on what terms, particularly regarding the costs of the proceedings. The appeal court was required to determine whether the trial judge had miscarried her discretion in relation to the costs order.

The trial judge, Gamble ADCJ, granted the plaintiff's application to dismiss the proceedings on terms. Her Honour considered several factors, including the length of the proceedings, the defendant's failure to produce timesheets (which was not deliberate), prejudice to both parties, the plaintiff's intention to commence further proceedings, and the decision to allow the reopening of the plaintiff's case. While acknowledging that District Court Rules did not contain an equivalent provision to Supreme Court rules regarding costs on dismissal applications, her Honour was influenced by case law suggesting that a plaintiff who successfully applies for dismissal generally bears the costs of the defendant. Consequently, the judge ordered that the plaintiff pay the defendant's costs of the application and stipulated that the plaintiff could not recommence proceedings on the same or a related cause of action without leave.

The appeal was upheld, indicating that the trial judge's discretion regarding costs had miscarried. The specific orders made by the trial judge were that the proceedings be dismissed on terms, including the plaintiff not recommencing proceedings without leave, the defendant having leave to re-open the question of costs in the event of such an application, and the plaintiff paying the defendant's costs of the application.

Orders

Orders of the court

Appeal upheld. See further par 67

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

The plaintiff correctly maintained that r6A has a different genesis from s126(2) and that it is the modified successor to the common law non-suit. The application was adjourned to 12 October 2001 for judgment, the parties being given leave to file written submissions in the meantime. Those submissions reveal common ground that r6A (like its counterparts in the Supreme Court and the Federal Court of Australia) is to be applied having regard to the principles discussed in SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 and The Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) (1987) 12 IPR 75. Gamble ADCJ gave judgment on 12 October 2001. She granted the plaintiff’s application to dismiss the proceedings, on terms. She held that the relevant considerations were the length of the proceedings, the failure of the defendant to produce the timesheets (observing that this failure had not been deliberate and that it had been explained as an error or misjudgment on the defendant’s part), prejudice suffered by the plaintiff and the defendant respectively, the plaintiff’s intention to commence further proceedings, and the decision to permit reopening of the plaintiff’s case. Her Honour observed that:It is not desirable for the Plaintiff to be compelled to litigate against her will. Therefore, the court would normally allow the Plaintiff to discontinue if she wants to, provided there is no injustice to the Defendant. The court must be careful to see that the Defendant is not deprived of some advantage already gained in the proceedings and should be ready to offer adequate protection to preserve such advantage. This does not mean that an application for dismissal must always be refused if the Defendant’s rights cannot be protected completely. The decision to grant an application is always a matter for the discretion of the Court having regard to all relevant circumstances, including any injustice to any party involved in granting or refusing the application. In her reasons for judgment Gamble ADCJ said this as to costs and orders:I note that when an order is made dismissing proceedings on the Plaintiff’s application under the equivalent provision in the Supreme Court Rules (Part 34 Rule 6A) guidance as to an appropriate order for costs is provided by part 52A Rule 23(2). That Rule requires that the Plaintiff who is successful in an application for dismissal will pay the costs of the other party incurred in defendant the dismissed claim. I am unable to find an equivalent costs provision in the District Court Rules, however there is case law which indicates that a similar result may occur under the general law (see Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194, J T Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122 and Acacia Resources Ltd v Delta Gold NL (No 2) [(1999) 33 ACSR 144 at 158ff)]. These matters have influenced me in making the following orders.ORDERSThe application to dismiss is granted and the proceedings are dismissed on the following terms:•The Plaintiff is not to recommence proceedings in the same or a related cause of action, including an application to extend the time in which to commence proceedings, without leave of the Court;•In the event of such an application, the Defendant has leave to re-open the question of costs of these proceedings;•the Plaintiff is to pay the Defendant’s costs of this application.Judgment accordingly.