Krkovski v Jacobs Group (Australia) Pty Ltd [No 2]
[2019] WADC 182
•23 DECEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: KRKOVSKI -v- JACOBS GROUP (AUSTRALIA) PTY LTD [No 2] [2019] WADC 182
CORAM: PRIOR DCJ
HEARD: 6 DECEMBER 2019
DELIVERED : 23 DECEMBER 2019
FILE NO/S: CIV 279 of 2016
BETWEEN: NIKOLA KRKOVSKI
Plaintiff
AND
JACOBS GROUP (AUSTRALIA) PTY LTD
Defendant
Catchwords:
Appeal - Appeal by plaintiff from principal registrar's decision on costs
Legislation:
District Court of Western Australia Act 1969, s 64
District Court Rules 2005, r 15
Rules of the Supreme Court 1971, O 66 r 1
Result:
The application for costs by the plaintiff is dismissed
Representation:
Counsel:
| Plaintiff | : | Mr N F Morrissey |
| Defendant | : | Mr C C Rimmer |
Solicitors:
| Plaintiff | : | Foyle Legal |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Guy v Hampson [2019] WADC 19
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Krkovski v Jacobs Group (Australia) Pty Ltd [2019] WADC 124
Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85
Stewart v Hames [2019] WASCA 127
Strezelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
PRIOR DCJ:
Background
The background to this action is set out in Principal Registrar Melville's (the registrar) judgment in Krkovski v Jacobs Group (Australia) Pty Ltd [2019] WADC 124 [1] - [9] (the decision).
At the hearing before the registrar on 30 July 2019 the plaintiff applied for three specific costs orders in his favour. Both parties filed detailed written submissions and affidavits in support.
In the decision the plaintiff succeeded on two of the three costs orders it sought. On one of the two costs orders the plaintiff succeeded on, he did not pursue part of his original application as to the length of time for which the costs order was sought.
When the registrar published the decision on 26 August 2019 he also ordered that each party bear its own costs of the plaintiff's application for costs (the plaintiff's application). It is this order which is the subject of this appeal.
General principles as to appeals from registrars
A party who is dissatisfied with a decision of a registrar may appeal to a judge.[1]
[1] District Court Rules 2005 (DCR) r 15(1).
The appeal is to be by way of a new hearing of the matter that was before the registrar.[2] This requires the plaintiff body to exercise its powers whether or not there was an error at the first instance.[3] The plaintiff is not required to establish an appealable error was made by the registrar.[4] The application is to be dealt with as though it had not been previously determined. A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.[5]
[2] DCR r 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ).
[3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].
[4] Stewart v Hames [2019] WASCA 127 [8] (Murphy and Mitchell JAA).
[5] Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ).
Analysis
The awarding of costs under O 66 r 1 of the Rules of the Supreme Court 1971 (RSC) is a discretionary exercise.[6]
[6] District Court of Western Australia Act 1969 s 64(1).
Generally the successful party will be awarded the costs on its application. Where a party is successful on some issues and fails on others it is a legitimate exercise of the discretion as to costs to award some of the costs. The award of costs to a partially successful party can be done by a percentage deduction or a fraction from the total costs that otherwise would have been awarded had a party achieved complete success on all issues.[7] The exercise of the discretion can also result in an order that each party bear their own costs. Such an order may be made if there was no clear successful party.
[7] Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 [28] (Owen J).
As I am exercising the discretion afresh on this appeal there are four options available to me:
1.Award the plaintiff costs.
2.Award the defendant costs.
3.Apportion costs between the parties.
4.Order that each party bear their own costs.
The plaintiff was only partly successful on the plaintiff's application.
The plaintiff had sought orders that:
(a)The defendant pay the plaintiff's costs on a party/party basis up to 29 March 2019 or alternatively 14 May 2019 and thereafter on an indemnity basis or alternatively on a solicitor/client basis.
(b)Pursuant to s 280 of the Legal Profession Act 2008 (WA) (LPA):
(i)the plaintiff's costs in respect of item 7(b) (giving discovery of documents) be taxed without regard to the limits imposed by the applicable scale limits in the Legal Profession (Supreme and District Courts Contentious Business) Determination 2018 (the Determination);
(ii)the plaintiff's costs in respect of item 18 (preparation for trial) be taxed without regard to the limits imposed by the applicable scale limits in the Determination;
(iii)the plaintiff's costs in respect of item 21(a) and 21 (b) (fee on brief for counsel and senior counsel) be taxed without regard to the limits imposed by the applicable scale limits in the Determination.
Pursuant to his decision the registrar made the following orders:
(a)The defendant pay the plaintiff's costs of and incidental to the action including reserved costs up to 14 May 2019 on a party/party basis and thereafter as between a law practice and client to be taxed if not agreed;
(b)Pursuant to s 280 of the LPA, costs of discovery be taxed without regards to the scale limit; and
(c)Each party bear their own costs of the application for indemnity costs and the special costs order.
The orders made by the registrar above indicate that both parties had mixed success in relation to the plaintiff's various costs applications.
The registrar declined to make the preparation for trial special costs order or the fee on brief special costs order and declined to award the plaintiff indemnity costs. These orders sought were a significant part of the plaintiff's application. Further, at the hearing the plaintiff did not pursue the costs order in 9(a) above as from 29 March 2019 and sought that order apply from 14 May 2019.[8]
[8] Krkovski v Jacobs Group (Australia) Pty Ltd [9].
The power to award costs pursuant to RSC O 66 r 1(1) is wide but must be exercised judicially. This discretion includes the power to award some costs on discrete issues where a party has not been completely successful. It was therefore open to the registrar to award the plaintiff some costs but not all his costs on the application.
The assessment of whether a party is successful will depend on the circumstances of the case or application.[9]
[9] Strezelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [50].
In considering the plaintiff's application de novo in this appeal I have read and considered the following materials:
(i)the decision;
(ii)the affidavit of Christian John Foyle sworn 22 July 2019;
(iii)the affidavit of Christian John Foyle sworn 24 July 2019;
(iv)the affidavit of Christian John Foyle sworn 24 October 2019;
(v)the affidavit of Carys Jane Hawkins sworn 26 July 2019;
(vi)the defendant's outline of submissions dated 29 July 2019;
(vii)the plaintiff's outline of submissions dated 29 July 2018;
(viii)the plaintiff's submissions dated 10 July 2019;
(ix)the plaintiff's outline of submissions dated 2 December 2019; and
(x)the defendant's outline of submissions dated 6 December 2019.
Unlike the registrar I did not have the benefit of hearing the oral submissions made before him on 30 July 2019 that led to his decision on 26 August 2019.
Having considered all the materials referred to in par 17 and the orders made by the registrar described in par 12, I am not satisfied that one party was more significantly successful than the other in relation to the plaintiff's application.
I do not consider therefore it would be appropriate to make an apportionment of costs between the parties as it is not readily apparent to me what the degree or level of apportionment should be.
Success on an application or issue is not just confined to success on a discrete application or issue. Success on an application may require significant argument, other applications may be the type that they should not have been opposed. Some applications are more important than others. The circumstances on every case will vary.
Conclusion
In my view in the interests of justice, each party should bear their own costs in relation to the plaintiff's application.
Having come to the conclusion that each party should bear their own costs I would dismiss the plaintiff's appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior23 DECEMBER 2019
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