| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LAWRENCE -v- CITY OF MELVILLE [2003] WADC 195 CORAM : COMMISSIONER REYNOLDS HEARD : 29 & 30 OCTOBER 2001, 1 MARCH & 11 OCTOBER 2002 DELIVERED : 9 SEPTEMBER 2003 FILE NO/S : CIV 641 of 2001 BETWEEN : QUENTIN DERRICK LAWRENCE Plaintiff
AND
CITY OF MELVILLE
Defendant
Catchwords: Costs - Unsuccessful plaintiff - Time at trial taken up by late amendments by defendant
Legislation: District Court Act 1969
Local Government Act 1995
Supreme Court Act 1935
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Result:
Unsuccessful plaintiff ordered to pay the defendant's costs save and except for first morning of trial Representation:
Counsel:
Plaintiff : In person
Defendant : Mr D W McLeod
Solicitors:
Plaintiff : In person
Defendant : McLeods
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 COMMISSIONER REYNOLDS: This decision relates solely to the costs of this action and counterclaim. The plaintiff brought the action alleging that the defendant had unlawfully removed his sea container and its contents from the front of premises at 207 Riseley Street, Booragoon, occupied by himself, his wife and their children. The sea container was located partly on the premises and partly on the road reserve of Riseley Street. The plaintiff initially claimed delivery up to him of the sea container and its contents, damages for detention and an interlocutory injunction restraining the defendant from selling or otherwise disposing of the container or its contents. When the trial commenced on 29 October 2001 counsel for the plaintiff informed the Court that the plaintiff was only pursuing an order that the sea container and its contents be delivered up to him.
2 The defendant is a local government established under the Local Government Act 1995 ("the Act"). It claimed that the removal and impoundment of the container was lawful and sought a declaration to that effect together with an order that the plaintiff pay its costs and expenses to remove and impound the sea container. 3 The trial was conducted over three days, 29 and 30 October 2001 and 1 March 2002. On 11 October 2002 I published written reasons and made orders, inter alia, that the plaintiff's claim be dismissed, that on the defendant's counterclaim there be a declaration that the removal and impoundment of the sea container was lawful and that otherwise the defendant's counterclaim be dismissed. I made it clear that the defendant's counterclaim relating to the defendant's costs and expenses for the removal and impoundment of the sea container was not dismissed on the merits and was still a live issue as between the parties and subject to the provisions of the Act relating to impoundment. 4 After I published my reasons both counsel were given the opportunity to make submissions on the costs of the proceedings. During the course of these submissions it was obvious to me that the plaintiff wanted to speak with his counsel. I adjourned to enable the plaintiff to speak with his counsel in private. When we resumed counsel for the plaintiff informed me that the plaintiff had withdrawn instructions and wanted to personally address the Court. Thereafter I decided that the issue of the costs of the proceedings would be better resolved by way of written submissions rather than oral submissions and I made programming orders accordingly. The orders included an order that the hearing on costs be adjourned to a date to be fixed on the application of either party.
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5 On 6 June 2003 I caused a letter to be sent to both parties enquiring whether either of them wanted the question of costs re-listed for decision. The defendant by its solicitors advised that it did.
6 The substance of the plaintiff's written submissions dated 24 October 2002 and 13 December 2002 and filed herein relates more, if not entirely, to the costs and expenses of the impoundment of the sea container rather than the costs of the proceedings. To correct any misunderstanding by the plaintiff and in the interests of fairness to the plaintiff I caused him to be advised in writing on 23 and 24 July 2003 that the only issue of costs to be determined by me is the costs of the proceedings and not the costs and expenses of the impoundment of the sea container. Further, and to ensure that the plaintiff had every opportunity to file written submissions on the question of costs of the proceedings I also extended the time within which submissions could be made to and including 22 August 2003. On 23 and 24 July 2003 I also caused both parties to be advised of the extension of time and that I would deliver my decision on costs at 9.30 am on 9 September 2003. No further submissions have been received. 7 Clearly the defendant was the successful party in the proceedings. The plaintiff's claim was dismissed and further to the defendant's counterclaim a declaration was made that the removal and impoundment of the sea container was lawful. That part of the defendant's counterclaim which was dismissed, namely the claim for the costs and expenses of the removal and impoundment of the sea container, did not occupy any appreciable time during the trial. The duration of the impoundment and the fee was not put in issue. Indeed, I gained the distinct impression at trial that counsel for the defendant appreciated that in the circumstances the costs and expenses for the removal and impoundment of the sea container could not and should not form part of the counterclaim. The trial essentially focused on whether or not the removal and impoundment of the sea container by the defendant was and is lawful. I found in favour of the defendant and made final orders accordingly. 8 Generally, the successful party is entitled to his or her costs. I say generally because s 64 of the District Court Act 1969 and s 37 of the Supreme Court Act 1935 give the judge a discretion in relation to costs. 9 In this case I would have applied the general rule without any variation but for the defendant at the commencement of the trial seeking leave to amend its defence and counterclaim. The amendments were opposed by the plaintiff. The pre-lunch session on the first day of the trial
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was taken up with argument and me considering and ruling on the application for leave to amend. I granted leave to amend. The amendments effectively expanded the legal issues in relation to the lawfulness of the removal and impoundment of the sea container. They did not require any new factual issues to be investigated before the trial could commence and nor did they require any new factual issues to be aired during the trial. Thus once granted the amendments themselves did not prolong the length of the trial. 10 In my view the amendments were the result of a more detailed consideration of the law in combination with the factual circumstances of the case at a time closer to the commencement of the trial. This is not a case where some new facts came to light at the eleventh hour giving rise to the need to amend. In my view the amendments could have and should have been attended to well before the first day of the trial. Had that occurred then at the very outset of the first day of the trial counsel for the plaintiff could have and would have opened and then called evidence. 11 In my view even though my decision was not based on any of the amendments they were nevertheless properly made. The problem lies in their lateness and argument in relation to them taking up all of the pre-lunch session of the first day of the trial. 12 The amendments being proper I direct that the defendant's costs for the preparation of the defendant's defence and counterclaim should be taxed on the basis of the defence and counterclaim as amended. However because of the lateness of the amendments and the fact that the pre-lunch session of the first day of the trial was unnecessarily taken up by argument in relation to them I direct that the defendant should not be allowed its costs of the pre-lunch session of the first day of the trial. I should make it clear that such direction is not and should not be construed to mean that the plaintiff be entitled to the costs of such session to be taxed. 13 The plaintiff has submitted that the proceedings only proceeded to trial because the defendant reneged on some agreement entered into by and between the parties with the assistance of a third party. On the information provided I am far from satisfied about that. The plaintiff in his submissions has also referred to the defendant having opportunities to reach agreement. It needs to be borne in mind that the plaintiff commenced the action against the defendant and ultimately decided to take his action to trial. The plaintiff made no concession in the pleadings nor during the trial that the removal and impoundment of the sea container
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by the defendant was lawful. Indeed he maintained that it was unlawful. He set out to prove that it was unlawful and failed. 14 For all of these reasons I order that the plaintiff pay the defendant's costs of the claim and counterclaim including any reserved costs to be taxed subject only to my direction to the taxing officer that when taxing such costs the defendant should not be allowed any costs for the pre-lunch session of the first day of the trial.
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