Latz v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) (No 2)

[2017] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

LATZ v AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) (No 2)

[2017] SADC 91

Judgment of His Honour Judge Gilchrist

24 August 2017

PROCEDURE - COSTS

Orders sought by the plaintiff that the defendant pays his costs for the action on an indemnity basis following the filing by the plaintiff of an offer to settle that was less than the judgment entered in his favour; and certification that the trial was fit for senior and junior counsel.

Dust Diseases Act 2005 s 9; Civil Liability Act 1936 s 33; District Court Rules  r 187, 188F, referred to.
Latz v Amaca Ltd [2017] SADC 56; Stanley v Phillips [1966] HCA 24, considered.

LATZ v AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) (No 2)
[2017] SADC 91

1. This is an application for costs following judgment for the plaintiff on 26 May 2017[1] in the amount of $1,062,000, comprising of $1,032,000 by way general damages and $30,000 by way of exemplary damages.

   [1] [2017] SADC 56.

2. The plaintiff seeks an order that he recover from the defendant costs on an indemnity basis following the filing of his offer and that the matter be certified fit for senior and junior counsel.

3. The defendant contends that the appropriate order is for costs in favour of the plaintiff’s costs on a party/party basis and that the matter be certified fit for senior counsel only. It contends that the engagement of two counsel was an extravagance that the defendant should not have to pay for. Finally, it contends that I should instruct the taxing Master that it was unnecessary for the plaintiff to instruct interstate counsel and that no allowance should be made for counsel’s travel and accommodation costs.

4. The plaintiff’s claim for indemnity costs is based upon Rule 188F of the District Court Rules. For present purposes the rule provides that if a formal offer of settlement is made by a plaintiff and is not accepted by the defendant and the Court determines the claim on terms that are more favourable to the plaintiff, subject to the Court’s overriding discretion, the plaintiff is entitled to recover from the defendant the costs of the action on an indemnity basis.

5. By formal offer the plaintiff offered to settle his claim for $900,000 plus costs.

6. The defendant responded by filing its own offer for a lesser amount.

7. On the face of it, because the plaintiff has beaten his filed offer, the costs order that he seeks should follow.

8. The only ground advanced by the defendant in resisting such an order was that the only reason the plaintiff beat the filed offer is because I awarded him $500,000 by way of damages for future economic loss. I did so because I determined that he was entitled to future economic loss due to the loss of his pension entitlement as a result of his impending premature death. The amount awarded was affected by my conclusion that no deduction should be made on account of the plaintiff’s wife’s entitlement to a pension on his death. The defendant argued that these were novel issues that had hitherto never been decided and in that sense there was much more at stake than a conventional dispute between litigants. It said that it was entitled to run the case so as to have the issue authoritively determined because it was an issue that would have implications for many cases. As such, it said that in the exercise of the Court’s discretion, I should not burden the defendant with an order that it pay the plaintiff’s costs on an indemnity basis in these circumstances.

9. Had the defendant indicated to the plaintiff that it regarded the pension and deduction issues as so significant that neither party should be faced with an adverse order as to costs regardless of the outcome on those issues, I would have found some merit in the defendant’s position. It could have, for example, when it filed its offer, advised the plaintiff that if he failed to beat that offer because he failed on these issues, it would not seek to recover costs.

10. It is not to be penalised because it did not do so, but this reveals why this case proceeded to judgment. True it is a test case. But ultimately it ran because the parties were divided on a number of issues and it proceeded to judgment for the simple reason that they could not agree on a compromise. Each party took a chance in connection with their respective and unconditional filed offers. The plaintiff beat the offer that he filed. He is therefore entitled from when that offer took effect, to costs on an indemnity basis. He is otherwise entitled to costs on a party/party basis.

11. The plaintiff’s claim for certification regarding counsel is based upon the general jurisdiction of the court as to costs.

12. The principles guiding the determination of this issue were discussed by Barwick CJ in Stanley v Phillips.[2] After noting that the issue is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case he said:

    But it seems to me to be unprofitable to attempt any exhaustive examination of what features of a case will justify the opinion that more than one counsel are required to conduct it if justice is to be done. The important matter is to recognize that the question is not whether one member of the Bar will present the case better than another. The question for the taxing master is whether the case by reason of any of its features, the volume of material to be handled, the number or character of the witnesses to be examined, the nature or extent of the cross-examination required, the anticipated length of the case, the complexity of its issues of fact or of law, the extent of the preparatory research of fact or of law to be undertaken, the involvement of charges of fraud, or other serious imputations of personal reputation or integrity, the complexity of the required presentation and so on, make it reasonably necessary or proper that the services of two counsel be engaged in order that the court may do justice between the parties.

    [2]    [1966] HCA 24 at para 17; [1966] HCA 24; (1966) 115 CLR 470 at 479-80.

13. With these matters in mind I now turn to consider this case.

14. Whilst the evidence in connection with liability and damages generally was not particularly complicated, the case involved a very novel point of law in connection with future economic loss. And, in respect of the claim for exemplary damages, it involved the tendering of a great deal of written material, which was very helpfully summarised and collated.

15. It was apparent to me that considerable effort was expended in the preparation of the case generally, and in the preparation of written and oral submissions. I was greatly assisted by the submissions in preparing my reasons for judgment. I expect that the joint efforts of senior and junior counsel for the plaintiff saved considerable time in terms of sitting time and the time spent by me in preparing reasons. I also need to make mention of counsel for the defendant. His submissions were succinct and to the point. Without the invaluable assistance of all counsel, including counsel for the defendant, I would have struggled to deliver judgment in a timely fashion. I take this opportunity to commend them for their efforts.

16. Upon reflection, I think it can be said that it was reasonably necessary and proper for the plaintiff to engage the services of two counsel to prosecute his case. I certify the matter fit for senior and junior counsel.

17. The defendant contends that there are a number of counsel at the local Bar competent enough to conduct an action such as this and that in a sense it is an affront to think that only interstate counsel are qualified to conduct litigation under a unique South Australian Act.

18. I have been involved in a number of dust disease cases, some of which have been conducted by members of the South Australian Bar. Plainly there are a number of local counsel, well able to conduct litigation like this. But it does not follow that it was extravagant for the plaintiff to engage interstate counsel and that I should give the direction sought by the defendant.

19. This case was brought on with some urgency. I do not know whether appropriately experienced local counsel were available to take the brief. I do not know what, if any, advantages there were in retaining the counsel involved in this case. Given the nature of the case, especially in connection with the claim for exemplary damages, there may have been. It is notable that the defendant briefed interstate counsel. Without more, I am not in a position to make any more meaningful comment than this: There are a number of senior and junior counsel at the South Australian Bar well capable of conducting dust disease litigation. Unless suitably experienced local counsel were unavailable or there was some significant advantage in retaining the counsel engaged by the plaintiff, the defendant should not be required to meet any additional costs associated with the retention of interstate counsel.