Maclean v Rottnest Island Authority

[2000] WASC 124

MACLEAN -v- ROTTNEST ISLAND AUTHORITY [2000] WASC 124

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 124
Case No:	CIV:2235/1997	Heard:	4 MAY 2000
Coram:	SCOTT J	Delivered:	17/05/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Costs awarded to plaintiff on judgment sum taxed as a Local Court action
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Parties:	IAN JAMES MACLEAN ROTTNEST ISLAND AUTHORITY
Catchwords:	Costs Costs follow the event Plaintiff successful in one cause of action Rules of the Supreme Court, O 66, r 2(a) Material facts common to both successful and unsuccessful causes of action Calderbank offer served days before trial due to begin Costs awarded to plaintiff on judgment sum taxed as a Local Court action Matter could have been litigated in the Local Court
Legislation:	Fair Trading Act 1987, s 9, s 10 Rules of the Supreme Court, O 66 r 2(a)
Case References:	Parker v Miller, unreported; FCt SCt of WA; Library No 980389; 10 June 1998 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MACLEAN -v- ROTTNEST ISLAND AUTHORITY [2000] WASC 124 CORAM : SCOTT J HEARD : 4 MAY 2000 DELIVERED : 17 MAY 2000 FILE NO/S : CIV 2235 of 1997 BETWEEN : IAN JAMES MACLEAN

Plaintiff

AND

ROTTNEST ISLAND AUTHORITY
Defendant

Catchwords:

Costs - Costs follow the event - Plaintiff successful in one cause of action - Rules of the Supreme Court, O 66, r 2(a) - Material facts common to both successful and unsuccessful causes of action - Calderbank offer served days before trial due to begin - Costs awarded to plaintiff on judgment sum taxed as a Local Court action - Matter could have been litigated in the Local Court

Legislation:

Fair Trading Act 1987, s 9, s 10

Rules of the Supreme Court, O 66 r 2(a)

Result:

Costs awarded to plaintiff on judgment sum taxed as a Local Court action

(Page 2)

Representation:

Counsel:

Plaintiff : Mr L A Tsaknis
Defendant : Mr P P McCann

Solicitors:

Plaintiff : Cockle & Co
Defendant : Phillips Fox

Case(s) referred to in judgment(s):

Parker v Miller, unreported; FCt SCt of WA; Library No 980389; 10 June 1998
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: This matter was heard on 27, 30 and 31 March 2000. Judgment was delivered on 4 May 2000. The plaintiff was successful on only one of his pleaded causes of action. That cause of action was a negligent misrepresentation arising out of a letter dated 21 October 1993, sent to the plaintiff by Dr Christopher John Back ("Dr Back") who was then the defendant’s Chief Executive Officer.

2 In the pleadings the plaintiff alleged that Dr Back, on behalf of the defendant, had also made a misrepresentation to him verbally. That oral representation was said to have arisen out of a telephone conversation on 16 October 1991. The plaintiff was not successful in this claim.

3 At the trial of this matter, and in addition to the claim for negligent representation, the plaintiff pleaded two further causes of action namely; a breach of s 9 and s 10 of the Fair Trading Act 1987, and, estoppel. The plaintiff was unsuccessful on those causes of action.

4 The plaintiff also claimed damages for distress, inconvenience, disruption and waste of time. That claim was dismissed because any distress, inconvenience, disruption or waste of time that may have been occasioned to the plaintiff, could not have been said to have been the result of the defendant’s actions.

5 The plaintiff was awarded $6,000, being part of his expenditure following the written misrepresentation upon which he succeeded.

6 On 4 May 2000, submissions were made in relation to costs. Counsel for the defendant argued that the defendant had been substantially successful in the cause and therefore the defendant should be entitled to an order for a percentage of its costs.

7 The defendant and the plaintiff both relied upon the judgment of Anderson J in Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569, in support of their respective submissions for costs. That judgement arose out of a case in which the plaintiff’s action against the first to fifth defendants alleged three matters. The plaintiff was successful on only one of the three matters and the plaintiff’s claim against the third and fifth defendants was dismissed. At issue was O 66, r 2(a) of the Rules of the Supreme Court 1971, which provides:

"Costs where several causes of action or several defendants, etc

2 In the absence of any special order –

(Page 4)

(a) where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought;"

8 That case was analogous to this in that there were a number of causes of action alleged by the plaintiff, the majority of which were unsuccessful. As in that case, O 66, r 2(a) applies to this matter. Ultimately the court in that matter concluded that the plaintiff should not have to meet the defendants’ costs because the causes of action on which the plaintiff failed had not been unreasonably raised and the material facts upon which the plaintiff relied were related to both the successful and unsuccessful causes of action. The court held that evidence led on the unsuccessful cause was necessary information for the court to adjudicate on the successful cause of action.

9 In argument on the matter of costs, it was brought to my attention that the defendant had made an offer to the plaintiff in the form of a Calderbank letter. The defendant offered to pay to the plaintiff $10,000 plus $5,000 towards costs. The Calderbank offer was served only days before the trial was due to commence giving the plaintiff very little time to seriously consider it. In addition, it was submitted that the total offer was less than the plaintiff's costs to the date of offer. In Permanent Building Society v Wheeler (supra) Anderson J said at 578:

"The offer was made, therefore, four working days before the trial. I do not think that should be encouraged. In expedited matters it is expected that parties will have opportunities well before the trial to make their best offers, and that these opportunities will be used. The provisions of O 24A contemplate that the other party will have 28 days to consider the compromise offer…Although the making of the offer is not to be left out of account, it cannot be given very much weight, in the circumstances."

10 Counsel for the plaintiff submitted that the Judgment of $6,000 was, in any event, a more favourable outcome than the Calderbank offer.
(Page 5)

11 In Parker v Miller, unreported; FCt SCt of WA; Library No 980389; 10 June 1998, the court having ruled upon a first issue, was not required to look at a second issue. Malcolm CJ made a costs order on the issue that was determined and directed that no order for costs should be made in respect of the point that was not determined. That case is similar to this in that the estoppel argument advanced by the plaintiff did not fall for consideration because the plaintiff’s claim for negligent misrepresentation on the second of the two representations was successful.

12 I am ultimately of the opinion, having regard to all the circumstances of this case, and the authority of Anderson J in Permanent Building Society v Wheeler (supra), that costs should be awarded to the plaintiff on the judgment sum taxed as a Local Court action. In this matter it would have been unrealistic to distinguish facts relating to any one cause of action from the others. It would have made little difference to the time and costs involved with the trial had those unsuccessful pleadings not been pursued. I do, however, accept the defendant’s submission that there were some additional costs involved as a result of the plaintiff’s unsuccessful pleading on the first representation. I am also of the opinion that this matter could have been appropriately litigated in the Local Court.

13 The costs order will be that the defendant pay the plaintiff’s costs on the Local Court scale based upon a judgment for $6,000. There will be no special order in relation to complex actions.