Knox and Hargrave v Fullston

[2009] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

KNOX AND HARGRAVE & ORS v FULLSTON

[2009] SADC 37

Reasons for Ruling of His Honour Judge Barrett

6 March 2009

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE

Questions of liability and quantum severed during trial. Defendant's challenges to costs in Supreme Court litigation sought by plaintiffs were pleaded in the Defence. Defendant found liable to pay plaintiffs' costs, question of quantum referred to Supreme Court for taxation.  Upon referral defendant sought to tax whole bill of costs, not just those challenged in the Defence.  Trial judge did not intend that consequence.  Held: Orders varied to restrict taxation to challenges pleaded in Defence.

Law Chambers v Mobitel (1981) 29 SASR 316, considered.

KNOX AND HARGRAVE & ORS v FULLSTON
[2009] SADC 37

1. By Notice for Specific Directions dated 15 December 2008, the plaintiffs make application for judgment and for consequential orders.  The application has given rise to submissions by the parties on a particular aspect of the judgment order sought.  That aspect concerns orders I made on 29 July 2008.  Those orders are as follows:

   6.    The defendant shall on or before 15 August 2008 apply pursuant to s 42(1) of the Act to have the First Plaintiffs’ costs taxed in accordance with the said section (except subsection (7) thereof) and on the basis of the First Plaintiff’s Retainer and in accordance with the Reasons.

   7.    The defendant shall on or before 15 August 2008 apply pursuant to s 42(1) of the Act to have the Second Plaintiffs’ costs taxed in accordance with the said section (except subsection (7) thereof) and on this basis of the Second Plaintiff’s Retainer and in accordance with the Reasons.

2. The costs to be taxed pursuant to those orders were costs incurred in litigation in the Supreme Court.  Following the procedure recommended by King CJ in Law Chambers v Mobitel (1981) 29 SASR 316 at 319 I made a determination that the defendant was liable to each of the plaintiffs for their costs (which was the subject of the litigation before me) and I fixed a date some two weeks thereafter within which the defendant should apply to the Supreme Court for a taxation of the costs.

3. The orders I made on 29 July 2008 were really consequent upon orders I had made during the trial.  It had become clear early in the trial that it would be appropriate to severe questions of liability from questions of quantum.  On 7 May 2007 I made orders directed to that purpose.  I made a particular order in respect of the determination of the quantum of the costs sought to be recovered by the plaintiffs.  At paragraph 24 of his Defence, the defendant challenged in some detail the quantum of costs the plaintiffs were seeking.  The order I made in respect of that challenge reads:

   4.The issues arising from paragraph 24 of the Defence be tried in accordance with further directions to be made in due course by the trial judge.

4. I will not reproduce here the text of paragraph 24 of the Defence, but the particulars of the defendant’s claim of excessive charging extend over four pages.  Some of the individual claims within the particulars are themselves wide ranging. 

5. In response to the plaintiffs’ application the defendant submits first that it would be unjust to deny him the opportunity of taxation by entering judgment for the quantum of the bills.  I will not canvas the plaintiffs’ submissions in support of the claim for judgment.  Essentially the plaintiffs submit the defendant has not complied with my order of 29 July 2008.  While I think that submission has some merit, I am not disposed to order judgment.  I think the defendant should be given the opportunity to tax the costs.  That is at least the spirit of my judgment delivered in July last year. 

6. The defendant’s second response to the application reflects what the defendant did following delivery of my judgment on liability.  He sought in the Supreme Court to tax the whole of the plaintiffs’ bills, not just those aspects of the bills which he challenged in his Defence.  That outcome was never foreseen by me nor intended.  I intended to refer to the Supreme Court the taxation of the plaintiffs’ costs with the expectation that he would be able to ventilate in that forum the challenges particularised so extensively in his Defence.

7. On the defendant’s behalf, Mr Gillam describes that limitation as a fetter working an injustice to the defendant.  Speaking generally I reject that submission.  The Defence was the defendant’s opportunity to challenge unfair or excessive charging.  He took that opportunity, providing extensive detail.  I see no injustice in the broad sense in him now being restricted to the terms of his Defence.  I have only this reservation about that general remark.  I am only now conscious that in the close analysis of items of costs the taxing Masters undertake, I might be though to have presumed to encroach upon on the jurisdiction of the Supreme Court.  I did not, and do not, presume to do so.

8. I should say that Mr Gillam submitted that there is no ambiguity in my orders of 29 July 2008 requiring clarification.  In my view the debate on this application clearly refutes that submission.

9. I clearly have power to vary my order pursuant to Rule 84.12 of the 1987 Rules which are applicable in this case.  That is so whether the orders were interlocutory, as urged by Mr Abbott, or final as Mr Gillam submits.

10. I will vary the orders as follows, rendering the passages added in italics:

    6.    The defendant shall on or before 15 August 2008 apply pursuant to s 42(1) of the Act to have those items of the First Plaintiff’s costs referred to in the Particulars to paragraph 24 of the Defence taxed in accordance with the objections set out in the said Particulars and the said section (except subsection 7 thereof) and on the basis of the First Plaintiff’s Retainer and in accordance with the Reasons.

    7.    The defendant shall on or before 15 August 2008 apply pursuant to s 42(1) of the Act to have those items of the Second Plaintiff’s costs referred to in the Particulars to paragraph 24 of the Defence taxed in accordance with the objections set out in the said Particulars and the said section (except subsection 7 thereof) and on the basis of the Second Plaintiff’s Retainer and in accordance with the Reasons.