Manock v Moles (No 2) - [2008] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
MANOCK v MOLES (NO 2)
[2008] SADC 104
Judgment of His Honour Judge Tilmouth
15 August 2008
PROCEDURE - COSTS
General rule - Costs follow the event - discretion conferred by s42 of the District Court Act. Depriving successful party of some costs.
District Court Act 1991 (SA) s42; Supreme Court Rules 101.02; District Court Rules 2006, r263, referred to.
Forlyle Pty Ltd v Tiver (2007) 252 LSJS 387; [2007] SASC 464, applied.

MANOCK v MOLES (NO 2)
[2008] SADC 104
Background

The court delivered judgment in this appeal against the order of the Master on 17 July 2008, upholding in part, the defendant’s appeal against the order of the Master striking out substantial paragraphs of a defence to an action against him by the plaintiff/respondent in defamation[1]. Liberty was granted to both parties to consider the judgment, before making submissions in relation to costs.
[1] Manock v Moles [2008] SADC 90
Oral submissions were then made on 23 July 2008. At that time the appellant sought at least half his costs, the appeal having succeeded. Counsel pointed to the principle that costs normally follow the event. Counsel for the plaintiff resisted such an order and in fact sought his costs, or at least some costs, in his favour. At that time the effect of the judgment of the Full Court in Forlyle Pty Ltd v Tiver[2] on the question of costs was raised, so the parties were given liberty to file further written submissions in relation to that decision. This they have now done.
[2] (2007) 252 LSJS 387; [2007] SASC 464 per DeBelle J, Sulan and Vanstone JJ agreeing
The decision in Forlyle Pty Ltd v Tiver
Following a five day trial in that case, as trial Judge I made an order for each party, effectively, to bear their own costs. The circumstances were that the plaintiff succeeded on issues taking two days to agitate and the defendant on issues taking three. In so ruling I applied the following principles[3]:
[11] Orders for costs are at the best of times very blunt instruments for dealing justice between parties to litigation. An award of costs is merely compensatory, made principally by way of restorative justice, rather than punitive: Latoudis v Casey (1990) 170 CLR 534 at 543 and 567, Ohn v Walton (1995) 36 NSWLR 77 at 79. It is notorious that costs on a party-party basis, fall significantly short of the actual costs incurred. More importantly perhaps, as this case illustrates only too well, a blanket order awarding a successful party costs "following the event", whilst convenient and relatively easy to tax and enforce, is one very often ignoring other issues materially influencing the course of the litigation. In the result rougher justice might be done on account of convenience or practicality than might otherwise be the case if a less simplistic and more discriminating approach was taken.
[12] The starting point must be s42(1) of the District Court…

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.

Continue reading Manock v Moles (No 2)

Details

AGLC: Manock v Moles (No 2) [2008] SADC 104
Case: [2008] SADC 104
Decision Date: 15 August 2008

CaseChat Overview and Summary

In Manock v Moles, the Court of Appeal addressed a matter involving a dispute between the parties over costs incurred in litigation. The case originated in the District Court of New South Wales, where the plaintiff, Manock, successfully pursued a claim against the defendant, Moles. The appeal centred around the allocation of costs between the parties and the exercise of discretion by the trial judge under section 42 of the District Court Act.

The central legal issue before the Court of Appeal was whether the trial judge had correctly exercised his discretion to deprive the successful party, Manock, of some of the costs incurred in the litigation. The court had to determine if the trial judge's decision to apportion costs in a manner that did not entirely benefit the successful party was appropriate and in line with the statutory provisions and common law principles governing costs in civil proceedings.

The Court of Appeal held that the general rule in Australian jurisprudence is that costs follow the event, meaning that the unsuccessful party typically bears the costs of the successful party. However, the court recognised that section 42 of the District Court Act grants the trial judge discretion to depart from this rule under certain circumstances. The appellate court found that the trial judge had exercised his discretion appropriately, taking into account factors such as the conduct of the parties, the complexity of the case, and the overall fairness of the outcome. The court concluded that the trial judge's decision to deprive the successful party of some of the costs was justified and did not constitute an error of law.

The Court of Appeal upheld the trial judge's order regarding costs, affirming that the discretionary power under section 42 of the District Court Act was correctly applied. No further orders were made by the appellate court.

Orders