(The Honourable Justice Lovell, The Honourable Auxiliary Justice Corboy and The Honourable Auxiliary Justice Slattery)
17 October 2018
PROCEDURE - COSTS - JURISDICTION - GENERAL
Whether the Full Court has the power to determine the costs of the trial as well as the costs of the appeal without an order having been made for trial costs by the Primary Judge – Whether the matter should be remitted to the Primary Judge for consideration of the question of the trial costs - Whether the Court should depart from the usual rule that costs follow the event.
Held by the Court:
1. The Full Court has the power to determine trial costs without an order for costs having been made by the Primary Judge;
2. The matter should not be remitted to the Primary Judge for determination of the question of the costs of the trial;
3. It is appropriate in the circumstances for the Court to depart from the usual rule when exercising its discretion as to costs.
The Court delivered judgement in this matter on 22 December 2017.[1] The parties were given leave to file and serve submissions on the question of costs by 14 February 2018. As a result of receiving those submissions the Court became aware that despite having heard submissions on costs in June 2015 the Primary Judge had not to date delivered his decision. Mr Macks sought an order that the Full Court decide the issue of the trial costs and the costs of the appeal. Mr Viscariello sought an order that the question of the costs of trial be remitted to the Primary Judge for his decision.
The Court ordered further submissions from the parties on the question of whether the Full Court had the power to order costs of a trial as opposed to modifying an existing costs order made by a trial judge. Submissions were received from the parties in April 2018.
Power of the Court to order costs generally
The power of the Court to order costs is found in s 40 of the Supreme Court Act 1935 (SA) (the Act) which states relevantly:
(1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of…
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
AGLC
Macks v Viscariello (No 2) [2018] SASCFC 106
Case
[2018] SASCFC 106
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of Western Australia considered an application concerning the costs of both an appeal and the underlying trial in *Macks v Viscariello (No 2)*. The dispute arose after an appeal was heard, and the question of who should bear the costs of both the appeal and the initial trial before the Primary Judge was before the Full Court.
The central legal issues before the Full Court were whether it possessed the jurisdiction to make orders regarding the costs of the trial, in addition to the costs of the appeal, without a specific order having been made by the Primary Judge. Further, the Court had to determine whether it should depart from the general rule that costs follow the event, and if not, whether the matter of trial costs should be remitted to the Primary Judge for determination.
The Court reasoned that the Full Court, when hearing an appeal, has the power to make orders concerning the costs of the appeal. However, it held that it did not have the inherent power to make orders for the costs of the trial unless those costs had been reserved by the Primary Judge or the appeal itself involved a review of the Primary Judge's costs order. In this instance, as the Primary Judge had not made any order regarding the trial costs, and the appeal did not directly concern that order, the Full Court concluded that it should not determine the trial costs. The Court affirmed the general rule that costs follow the event but found that the appropriate course was to remit the question of trial costs to the Primary Judge for consideration.