Luongo v Clarke (No 2)

[2018] ACTSC 108

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Luongo v Clarke (No 2)

Citation:

[2018] ACTSC 108

Hearing Date:

On the papers

DecisionDate:

27 April 2018

Before:

Elkaim J

Decision:

See [19]

Catchwords:

TORTS – NEGLIGENCE – Contributory negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages

PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1725

Cases Cited:

Luongo v Clarke [2018] ACTSC 81

Symes v Commonwealth of Australia (1987) 89 FLR 356
Yogini v Eveille [2006] ACTSC 23

Parties:

Giuseppina Luongo (Plaintiff)

William Grant Clarke (Defendant)

Representation:

Counsel

Mr A Muller (Plaintiff)

Mr R Gambi (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

McCabes Lawyers (Defendant)

File Number:

SC 140 of 2017

ELKAIM J:

1. On 29 March 2018, I gave judgment in this matter in favour of the plaintiff in the sum of $119,059.80 (Luongo v Clarke [2018] ACTSC 81).

1. The judgment sum was a result of a 70% reduction from the figure of $396,866. The reduction was brought about by my assessment of contributory negligence.

1. The civil jurisdiction of the Magistrates Court is $250,000. Where a matter is litigated in the Supreme Court, costs will normally follow the event, except where the amount recovered is less than $175,000. In that case, r 1725 of the Court Procedures Rules 2006 (ACT) comes into play and the entitlement to costs will be reduced. There is, however, a discretion to make a different order.

1. In the principal judgment I made an order that, subject to further order, the defendant pay the plaintiff’s costs. I made these observations about r 1725, at [85] – [86]:

In the normal course, costs would follow the event. However, by reason of r 1725 of the Court Procedures Rules 2006 (ACT), the plaintiff’s costs would normally be reduced. The rule does, however, allow for a discretion which, in my view, should be exercised in the plaintiff’s favour. This is because the full value of the case, before the reduction is made for contributory negligence, would have entitled the plaintiff to a normal costs order.

Contributory negligence was a hard fought and real issue in this matter, which was ultimately decided on the whole of the evidence. My findings, as discussion during the case would illustrate, could have been different. My preliminary view is that the case was appropriately brought in the Supreme Court. I will, however, hear any submissions for a different costs order.

1. At the request of the defendant, I allowed further submissions to be made concerning my preliminary view. Both parties have made submissions. The plaintiff submits that I should maintain the order already made. The defendant submits that I should not exercise my discretion to alter the effect of r 1725.

1. The defendant’s submissions may be summarised in this way:

(a)The parties were in broad agreement…