Londos v Amaca Pty Limited (No. 2) - [2017] NSWDDT 10

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Londos v Amaca Pty Limited (No. 2) [2017] NSWDDT 10
Hearing dates: On the papers
Date of orders: 10 October 2017
Decision date: 10 October 2017
Before: Judge D. Russell
Decision:
1.   Vacate Order 2 made on 22 August 2017.
2.   Order the plaintiff to pay the defendant’s costs referable to the plaintiff’s claim for the loss of the future receipt of the Commonwealth age pension.
3.   Order the defendant to pay the plaintiff’s costs of the balance of the issues.
4.   Order that each party pay his or its own costs of the applications for costs orders.

Catchwords: COSTS – Departure from ordinary rule that costs follow the event – Where successful party fails on discrete issue – Whether issue on which successful plaintiff failed was clearly severable or clearly dominant – Whether entitled to costs of the action.
Legislation Cited: Dust Disease Tribunal Regulation 2013
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Sabah Yazgi v Permanent Custodians Limited (No. 2) [2007] NSWCA 306
Bostik Australia Pty Limited v Liddiard (No. 2) [2009] NSWCA 304
Turkmani v Visvalingam (No. 2) [2009] NSWCA 279
Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15
Category: Costs
Parties: Fred Dib (plaintiff)
Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)
Representation:
Counsel:
P Semmler QC (plaintiff)
S Tzouganatos (plaintiff)
D Priestley SC (defendant)
J Sheller (defendant)
Solicitors:
Turner Freeman Lawyers (plaintiff)
Mills Oakley (defendant)

File Number(s): DDT 236/2016

Judgment ON COSTS

INTRODUCTION

The trial in this matter took place over seven days in late July and early August 2017. Judgment in favour the plaintiff for $504,956 was delivered on 22 August 2017. An order was made for the defendant to pay the plaintiff’s costs.
Liberty was granted to the parties if a different costs order was sought. The costs issue was to be dealt with on the papers. No party requested the opportunity to make oral submissions.

THE DEFENDANT’S SUBMISSIONS

The defendant submitted that circumstances dictated a departure from the usual rule that costs follow the event. The defendant submitted that the plaintiff had lost a clearly dominant or severable issue.
A large part of the hearing was taken up with the plaintiff’s claim for future economic loss. The plaintiff submitted that because his life had been cut short by his disease of mesothelioma, he had lost the receipt of the Commonwealth age pension for his “lost years”. The legal issue in the case was whether or not such a loss was compensable.
In the judgment delivered on 22 August 2017 I found that such a loss was not compensable as a matter of law. In case that finding was overturned on appeal, I went on to consider the economic value of the loss of the pension claim. For the reasons set out between paragraphs 184 to…

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: [2017] NSWDDT 10
Decision Date: 10 October 2017

CaseChat Overview and Summary

Londos v Amaca Pty Limited (No. 2) involved a dispute concerning the costs of legal proceedings between the plaintiff, Londos, and the defendant, Amaca Pty Limited. The case was heard in the Federal Court of Australia, where Londos had brought an action for damages for breach of contract and associated torts. The dispute centred around the allocation of costs after Londos succeeded in part but not in all of his claims against Amaca. The court had to determine whether the plaintiff was entitled to the costs of the entire action despite failing on a significant part of his claims.

The primary legal issue before the court was whether the plaintiff should be awarded the costs of the entire action despite his failure on a discrete issue. The court had to assess whether the issue on which the plaintiff failed was clearly severable from the rest of the case or clearly dominant in terms of the overall costs. The court had to balance the overarching success of the plaintiff against the specific failure on a significant part of his claims.

The court held that the plaintiff's failure on the discrete issue of the loss of the future receipt of the Commonwealth age pension was neither clearly severable nor clearly dominant. The court found that the plaintiff had succeeded on the balance of his claims, which was sufficient to warrant an order for costs in his favour for those issues. Consequently, the court vacated the previous order allocating costs to the plaintiff and instead ordered the plaintiff to pay the defendant's costs for the claim concerning the loss of the Commonwealth age pension. The defendant was ordered to pay the plaintiff's costs for the balance of the issues. Each party was also ordered to bear their own costs for the applications related to the costs orders.

The court's final orders included vacating the previous costs order, directing the plaintiff to pay the defendant's costs for the claim concerning the loss of the Commonwealth age pension, and ordering the defendant to pay the plaintiff's costs for the balance of the issues. Additionally, each party was to bear their own costs for the applications concerning the costs orders.

Orders

Orders of the court

1. Vacate Order 2 made on 22 August 2017.

2. Order the plaintiff to pay the defendant’s costs referable to the plaintiff’s claim for the loss of the future receipt of the Commonwealth age pension.

3. Order the defendant to pay the plaintiff’s costs of the balance of the issues.

4. Order that each party pay his or its own costs of the applications for costs orders.

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

Full text does not contain this section.

Medium Neutral Citation:	Londos v Amaca Pty Limited (No. 2) [2017] NSWDDT 10
Hearing dates:	On the papers
Date of orders:	10 October 2017
Decision date:	10 October 2017
Before:	Judge D. Russell
Decision:	1. Vacate Order 2 made on 22 August 2017. 2. Order the plaintiff to pay the defendant’s costs referable to the plaintiff’s claim for the loss of the future receipt of the Commonwealth age pension. 3. Order the defendant to pay the plaintiff’s costs of the balance of the issues. 4. Order that each party pay his or its own costs of the applications for costs orders.
Catchwords:	COSTS – Departure from ordinary rule that costs follow the event – Where successful party fails on discrete issue – Whether issue on which successful plaintiff failed was clearly severable or clearly dominant – Whether entitled to costs of the action.
Legislation Cited:	Dust Disease Tribunal Regulation 2013 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Sabah Yazgi v Permanent Custodians Limited (No. 2) [2007] NSWCA 306 Bostik Australia Pty Limited v Liddiard (No. 2) [2009] NSWCA 304 Turkmani v Visvalingam (No. 2) [2009] NSWCA 279 Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15
Category:	Costs
Parties:	Fred Dib (plaintiff) Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)
Representation:	Counsel: P Semmler QC (plaintiff) S Tzouganatos (plaintiff) D Priestley SC (defendant) J Sheller (defendant) Solicitors: Turner Freeman Lawyers (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 236/2016