Mickelberg v The State of Western Australia
[2007] WASC 140 (S)
•29 JUNE 2007
MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 140 (S) | |
| Case No: | CIV:1628/2003 | 1, 2 MARCH & 13 JULY 2007 | |
| Coram: | NEWNES J | 29/06/07 | |
| 30/07/07 | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs to pay defendants' costs of strike out application to be taxed without regard to limit in relevant legal costs determination | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND JOHN MICKELBERG PETER MICKELBERG RAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC) THE STATE OF WESTERN AUSTRALIA ELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC) MARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC) WILLIAM ROUND JOHN GILLESPIE HENRY HOOFT DENIS WILLIAM HENLEY ROBERT CHARLES KUCERA |
Catchwords: | Costs Whether successful party who fails on particular issue should be deprived of costs of that issue Relevant principles Legal Practice Act 2003 (WA), s 215 Whether matter of unusual difficulty, complexity or importance Whether evidence needed Whether Court can determine from its own knowledge of the matter Turns on own facts |
Legislation: | Legal Practice Act 2003 (WA), s 215 |
Case References: | Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425 Cretazzo v Lombardi (1975) 13 SASR 4 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282 Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 MacKinnon v Petersen, unreported; CA SCt of NSW; 19 April 1989 Mickelberg v The State of Western Australia [2007] WASC 140 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Oshlack v Richmond River Council (1998) 193 CLR 72 Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S) Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd, unreported; SCt of NSW; 3 June 1998 R v Secretary of State for Transport; Ex parte Factortame Ltd (1998) EWCA 2999 Victoria v Master Builders' Association of Victoria, unreported; App Div SCt of Vic; No 7981/93; 15 December 1994 Waters v PC Henderson (Australia) Pty Ltd, unreported; CA SCt of NSW; No 40678/91; 6 July 1994 Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 30 JULY 2007 FILE NO/S : CIV 1628 of 2003 BETWEEN : RAYMOND JOHN MICKELBERG
- First Plaintiff
PETER MICKELBERG
Second Plaintiff
RAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC)
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
ELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC)
Second Defendant
- MARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC)
Third Defendant
WILLIAM ROUND
Fourth Defendant
JOHN GILLESPIE
Fifth Defendant
HENRY HOOFT
Sixth Defendant
DENIS WILLIAM HENLEY
Seventh Defendant
ROBERT CHARLES KUCERA
Eighth Defendant
Catchwords:
Costs - Whether successful party who fails on particular issue should be deprived of costs of that issue - Relevant principles - Legal Practice Act 2003 (WA), s 215 - Whether matter of unusual difficulty, complexity or importance - Whether evidence needed - Whether Court can determine from its own knowledge of the matter - Turns on own facts
Legislation:
Legal Practice Act 2003 (WA), s 215
Result:
Plaintiffs to pay defendants' costs of strike out application to be taxed without regard to limit in relevant legal costs determination
(Page 3)
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
Third Plaintiff : Mr M L Bennett
First Defendant : Mr G T W Tannin SC & Ms M J Paterson
Second Defendant : Ms K A Vernon
Third Defendant : No appearance
Fourth Defendant : Ms K A Vernon
Fifth Defendant : Ms K A Vernon
Sixth Defendant : Ms K A Vernon
Seventh Defendant : Ms K A Vernon
Eighth Defendant : Ms K A Vernon
Solicitors:
First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
Third Plaintiff : Lavan Legal
First Defendant : State Solicitor for Western Australia
Second Defendant : Carol Adams
Third Defendant : No appearance
Fourth Defendant : Carol Adams
Fifth Defendant : Carol Adams
Sixth Defendant : Carol Adams
Seventh Defendant : Carol Adams
Eighth Defendant : Carol Adams
Case(s) referred to in judgment(s):
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
(Page 4)
Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282
Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568
MacKinnon v Petersen, unreported; CA SCt of NSW; 19 April 1989
Mickelberg v The State of Western Australia [2007] WASC 140
NRMA Ltd v Morgan (No 3) [1999] NSWSC 768
Oshlack v Richmond River Council (1998) 193 CLR 72
Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S)
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd, unreported; SCt of NSW; 3 June 1998
R v Secretary of State for Transport; Ex parte Factortame Ltd (1998) EWCA 2999
Victoria v Master Builders' Association of Victoria, unreported; App Div SCt of Vic; No 7981/93; 15 December 1994
Waters v PC Henderson (Australia) Pty Ltd, unreported; CA SCt of NSW; No 40678/91; 6 July 1994
Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998
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1 NEWNES J: On 29 June 2007, I delivered judgment on an application by the first defendant and the second and fourth to eighth defendants to strike out the plaintiffs' statement of claim: Mickelberg v The State of Western Australia [2007] WASC 140. I now have before me applications by those defendants (the "defendants") for the costs of the applications.
The issues
2 The defendants seek orders that the plaintiffs pay their costs of the application to be taxed without regard to the limit on costs fixed in the relevant determination, pursuant to s 215(2)(c) of the Legal Practice Act 2003 (WA) (the "Act"), and with an allowance for Senior Counsel, pursuant to s 215(2)(d) of the Act.
3 The application was opposed by the plaintiffs who, whilst conceding that the first defendant was entitled to its costs of the action, the claim against it having been struck out, argued that on the strike out application there should either be no order as to costs or an order that the plaintiffs pay 50 per cent of the defendants' costs with no special orders in relation to those costs.
The first defendant's submissions
4 It was submitted that the first defendant was entitled to its costs of the application as it had been wholly successful in striking out the plaintiffs' claim. It had also been successful on three of the five grounds upon which it had relied, namely the Enever principle, witness immunity and the absence of any liability of the first defendant for acts of police officers who are no longer serving police officers. Senior Counsel acknowledged that the first defendant had not succeeded on its complaint that the form of the pleadings was embarrassing or that the plaintiffs' actions were statute-barred, it being unnecessary for the Court to deal with the former and it being found in relation to the latter that there was an arguable ground of estoppel available to the plaintiffs.
5 It was submitted, however, that the first defendant's entitlement to costs should not be affected by its failure to succeed on those two grounds. The argument in relation to pleading issues occupied a very small part of the overall argument and was not conclusively in favour of the plaintiffs in any event. While the limitation issues were fully argued, the issues were properly and reasonably raised by the first defendant. The estoppel point was not raised by the plaintiffs in conferral before the hearing of the application. It was apparent from the reasons for decision that the estoppel argument was a difficult and novel one.
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6 Senior Counsel argued that there was therefore nothing which would warrant depriving the first defendant of any portion of its costs. All of the matters relied upon by the first defendant had been reasonably and properly raised. He referred to the decision of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16, for the proposition that the ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all material issues.
7 It was further submitted that it was appropriate, having regard to the unusual difficulty, complexity and importance of the matter, that the costs be taxed without regard to the limit on costs fixed in the relevant determination.
8 Senior Counsel for the first defendant argued that it was unnecessary to have specific evidence in relation to the unusual difficulty, complexity or importance of the matter as those elements were readily apparent to the Court from its own observations.
9 The most recent statement of claim ran to 181 pages. Lengthy submissions had been filed on both sides and a very large number of cases were referred to. The hearing itself had taken one and a half days. The application required the consideration of complex, important and novel legal principles, including whether the tort of misfeasance in public office could be committed by a defendant who at the relevant time had ceased to hold the public office (on which there were no authorities on point), as to the extent of the doctrine of witness immunity, and as to a relatively novel plea of estoppel in relation to the limitation arguments.
10 It was therefore appropriate that the costs determination, which limited the costs to a total sum of $9306, should not apply, and it should also be recognised that it was appropriate for Senior Counsel to be briefed on behalf of the first defendant.
11 The first defendant also sought a special costs order in relation to a request for further and better particulars it had served on the plaintiffs in respect of the preceding version of the statement of claim. It was submitted that, as a consequence of the manner in which the statement of claim was framed, it was necessary to seek extensive particulars. The request for particulars, dated 19 March 2006, extended to 59 pages. As a result of the request, the plaintiffs made extensive amendments to the statement of claim, resulting in the filing of an amended substituted statement of claim of 18 September 2006 which incorporated answers to the majority of the requests. The allowance in the relevant determination
(Page 7)
- for a request for further and better particulars was a maximum amount of only $693.00. That was manifestly inadequate in the present circumstances.
The submissions of the second and fourth to eighth defendants
12 It was submitted on behalf of the second and fourth to eighth defendants (the "police defendants") that their application to strike out had been substantially successful. The police defendants had succeeded on the issue of whether they were liable for acts of misfeasance in public office alleged to have been committed after they ceased to be members of the police service, and on the witness immunity argument they had succeeded in respect of the majority of the significant allegations pleaded against them in the statement of claim. The only allegations to which it was held not to apply were the alleged fabrication of notes of interview and the statements to the Barthelmeh Inquiry.
13 The plaintiffs had succeeded on the limitation issue on an estoppel argument not raised in conferral before the application and which had arisen for the first time in written submissions filed the day before the special appointment. Moreover, the estoppel argument involved not simply an ordinary application of recognised principles but was a relatively novel one. The limitation issue had been properly and reasonably raised by the police defendants.
14 Counsel argued there had been no conduct on the part of the police defendants which would disentitle them to a costs order, such as a failure to confer under O 59 r 9 or some relevant misconduct.
15 It was submitted that the application was one of unusual difficulty, complexity or importance within the meaning of s 215(2) of the Act. The statement of claim was long and involved, and pleaded detailed allegations of facts extending over 20 years from 1982 to 2002. It raised a number of relatively novel legal issues. In addition, the difficulties were exacerbated by the form of the pleading which rolled together various allegations against the police defendants, although different individuals had different alleged levels of involvement in the investigation and prosecution of the plaintiffs and had ceased to be police officers at different times.
16 Extensive submissions had been filed on each side and a large number of cases referred to. The special appointment was listed for two days and ultimately took one and a half days. Counsel for the police defendants also referred to a statement in the plaintiffs' outline of
(Page 8)
- submissions on the substantive application which referred to the statement of claim raising "complex legal and factual issues".
17 Counsel argued that it was unnecessary to file evidence in support of the application as the Court was eminently capable of making an assessment of what work was done, why it was done, its necessity in the context of the pleading and the fact that the relevant determination was unlikely to be adequate to compensate the police defendants.
18 The police defendants did, however, file an affidavit of their solicitor sworn 12 July 2007 in which reference is made to the work that had been carried out on their behalf for the purposes of the application.
The plaintiffs' submissions
19 It was submitted on behalf of the plaintiffs that it was a relevant consideration on the question of costs that the conduct of the defendants had unnecessarily increased the costs of the application. In addition to its extensive submissions, the first defendant had filed detailed schedules on which little reliance was placed in the course of argument, and had cited 78 authorities, of which 66 were denoted as authorities from which counsel may read. In fact, only a limited number of authorities were referred to in the course of argument and no more than 10 were read from. That had resulted in substantial costs being incurred unnecessarily by the plaintiffs.
20 The submissions of the police defendants had been late and that had resulted in the plaintiffs having to file separate submissions in respect of the first defendant's application and the police defendants' application respectively, thereby incurring significant additional costs.
21 It was submitted that whilst the first defendant had succeeded on the Enever principle, that had not occupied a substantial part of the argument, the greater time being taken by the issues of witness immunity and the limitation argument. In relation to witness immunity, in the course of argument on the substantive application the plaintiffs had conceded that certain claims by the plaintiffs were liable to be struck out and, save for that concession, the plaintiffs were wholly successful in resisting the application on this issue.
22 It was argued in relation to the police defendants that whilst they had been partially successful on the witness immunity issue and had succeeded on the issue of their liability for acts after they ceased to be police officers, they had been wholly unsuccessful on the limitation issue.
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23 It was therefore appropriate in respect of all of the defendants that there be an apportionment of the costs of the application. Substantial time had been spent on issues on which the defendants had not succeeded.
24 It was submitted that no matters have been raised which would justify a special costs order under s 215(2) of the Act. That provision requires the defendants to establish first, that the matter is unusually difficult, complex or important; and secondly, that the usual amount allowable under the determination is inadequate because of the unusual difficulty, complexity or importance of the matter. No affidavit evidence had been produced in relation to any of those matters, apart from the late affidavit of the police defendants' solicitors, which was itself inadequate.
25 It was submitted that the papers before the Court were not sufficient to demonstrate that the matter was one of unusual difficulty, complexity or importance so as to warrant a special costs order.
26 It was further submitted on behalf of the plaintiffs that in assessing the reasonableness of a special costs order, the Court should have regard only to the grounds of the application on which the defendants were ultimately successful. The Court should also have regard to the significant extent to which matters upon which the defendants were unsuccessful increased the time and costs incurred in prosecuting the application. Had the arguments on the application been confined to those on which the defendants were ultimately successful, the special appointment would have been concluded within the one day on which the costs determination was based.
27 Counsel acknowledged that the factual background to the proceedings and therefore the statement of claim was detailed and complex, but argued that it was not correct to suggest that all aspects of the application involved the determination of complex legal and factual issues. Thus, it was argued the principles relating to witness immunity were well-established, as were the elements of the tort of misfeasance in public office.
28 The plaintiffs conceded that the first defendant was entitled to its costs of the action, but having regard to the conduct of the strike out application, and the number of issues upon which the plaintiffs were successful, there should either be no order as to costs of the application or the plaintiffs should be required to pay only 50 per cent of the costs of the first defendant and the police defendants respectively.
(Page 10)
The relevant principles
29 The general principles to be applied in the exercise of the Court's discretion in respect of costs were summarised by Toohey J in Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 at 48,136, as follows:
"The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.
1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12.
There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at p 16. His Honour sounded what he described as 'a note of cautious disapproval' of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented:
'But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by
- the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgement goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.' "
30 While the principles described by Toohey J continue to be relevant to the exercise of the discretion, the exigencies of modern-day litigation have led to a re-assessment of the significance of the caveat to which his Honour referred. In particular, increasing concerns about the high cost of litigation and the burdens imposed on the public resources of the courts have focussed attention on the need for greater economy and efficiency in the conduct of litigation, leading to much more emphasis on the proper identification of, and confinement by the parties to, the real issues.
31 In Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425, Wilcox J (at 430) said that in light of extensive court delays and the high cost of modern-day litigation, the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. His Honour suggested that if parties come to realise that they will not necessarily recover the whole of their costs if they have unsuccessfully raised a discrete issue, they are likely to give more careful consideration to whether the raising of that issue is a justifiable course to take.
32 In a similar vein, in R v Secretary of State for Transport; Ex parte Factortame Ltd (1998) EWCA 2999, Woolf LJ (with whom Schiemann and Robert Walker LJJ agreed) said:
"… the practice of the courts does evolve and in recent times there has been a greater emphasis on recognising that the raising of issues in the course of complex litigation … can increase the costs of that litigation. It is therefore important that the parties should pay careful attention to the merits, not only of the whole case but to the issues which arise in the course of a case. In complex litigation, where issues are raised on which a party is unsuccessful, the court should, when appropriate, make orders
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- for costs which reflect the fact that, where as a party may generally be successful, in regard to some of those issues that party has been unsuccessful. Furthermore, if the way in which an issue is conducted or argued has the result of increasing the costs of the litigation, and the court finds it was unnecessary for the party to develop the issue in that way, that again can be reflected in a special order for costs."
33 Most recently, in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568, Bergin J observed, by way of obiter, that "litigation has changed somewhat since Cretazzo v Lombardi was decided." Her Honour commented (at [11]) that "[t]he modern litigation practitioner has a far greater burden of deciding which issues or causes of action should be pursued in a Court. The cost consequences not only for parties but also practitioners are a reality that was not present in 1975 when Jacobs J suggested that parties should not be dissuaded from canvassing doubtful issues."
34 See also Victoria v Master Builders' Association of Victoria, unreported; App Div SCt of Vic; No 7981/93; 15 December 1994, per Ormiston J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272; Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699 [7]; and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282 at [5].
35 But that does not mean that in the exercise of its discretion as to costs a court should as a matter of course embark upon a dissection of the case before it to determine which party was successful on each issue, or necessarily deprive a successful party of some portion of its costs because it has lost on a particular distinct or severable issue.
36 Indeed, in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd(No 2) [2000] FCA 602, Goldberg J said at [54] that:
"[a] court should be reluctant to embrace the proposition that, as a general rule, it is appropriate to undertake an enquiry as to who was successful in relation to particular issues in a case to determine whether there should be an apportionment of costs against a successful party. A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that
(Page 13)
- issue: cf Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154."
37 And Cole JA warned in MacKinnon v Petersen, unreported; CA SCt of NSW; 19 April 1989, that to embark on such inquiries as a general practice would be likely to add further uncertainty and complexity to the outcome of litigation, derogating from the prospect of settlement and obliging the Court to hear lengthy and frequent arguments in relation to costs, as an additional burden on its resources and the costs of the parties. See also Oshlack v Richmond River Council (1998) 193 CLR 72, per McHugh J at [67] - [68].
38 A cautionary note was also sounded by Anderson J in Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998, where his Honour said:
"The court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar-perfect costs orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough."
39 Justice may also not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 at [24].
40 The circumstances in which it will be appropriate, for the purpose of determining the question of costs, to embark upon an analysis of the outcome of specific issues in a case cannot be exhaustively stated. But I respectfully take the general approach to be that stated by Mahoney JA (with whom Kirby and Priestley JJA agreed) in Waters v PC Henderson (Australia) Pty Ltd, unreported; CA SCt of NSW; No 40678/91; 6 July 1994, where his Honour put the position as follows:
"Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be
(Page 14)
- appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which it failed."
41 That statement was referred to with apparent approval by the Court of Appeal of New South Wales in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296.
42 The approach to be taken where it is appropriate to consider the outcome of different issues was considered by Hodgson CJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd, unreported; SCt of NSW; 3 June 1998, where, after discussing the competing considerations of encouraging selectivity of issues and not penalising a party for supporting their case in every reasonable way, his Honour said (at 13):
"Apart from that consideration, in general terms I accept that if an issue is raised reasonably and is not disproportionate to the whole case, then normally the successful party should get his or her costs. However, particularly in relation to severable issues, the lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; and if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue."
43 It seems to me, therefore, that the effect of the authorities is that if a successful party fails on some issue, the circumstances may make it reasonable that that party be deprived of their costs of that issue. It is not necessary that the issue concerned was raised unreasonably by the party. But parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings, or there has been some unreasonable or inappropriate conduct by the successful party in relation to an issue, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which it was successful and those on which it failed.
44 Where it is appropriate to consider the outcome of particular issues in the case, it will be relevant to consider whether there has been any
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- unreasonable or inappropriate conduct on behalf of the successful litigant in relation to that issue, the relative merits or strengths of that party on the issue, whether the length of the hearing was greatly increased by the issue, and whether the issue otherwise was of sufficient significance in proportion to the whole case to warrant an order depriving that party of the costs of that issue.
45 Plainly, however, there can be no hard and fast rules and the discretion must be exercised having regard to all of the relevant circumstances of the case.
46 Where the Court does take the course of disallowing costs by reference to a particular issue or issues, the exercise of discretion that is involved in doing so will often be more a matter of art than science. As Gummow, French and Hill JJ pointed out in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (supra), where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial Judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.
47 I should say that I do not consider that, in respect of the question of the allocation of the costs of legal proceedings, there is any relevant distinction in respect of the applicable principles between the trial of an action and an interlocutory application of the present nature.
48 It is against that background that I turn to the particular considerations that are relevant in this case.
What are the appropriate orders as to costs?
49 I am satisfied that the first defendant is entitled to its costs of the application. The first defendant was successful in having the plaintiffs' claims against it struck out on the basis of the Enever principle. It was successful on the alternative issue of whether it was vicariously liable for the alleged acts of the police defendants after they had ceased to be police officers and it was also partially successful on the alternative issue of witness immunity. The plaintiffs' concessions on the latter were made only in the course of argument on the application. The first defendant was unsuccessful on the agency point, although that was simply an alternative to its argument on the Enever principle, should the latter argument not prevail.
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50 Whilst the first defendant was unsuccessful on the limitation issues, I do not consider that in the circumstances that issue was unreasonably raised by the first defendant. The first defendant's contention was not obviously of doubtful merit and even during the course of argument counsel for the plaintiffs took some time to state with precision the terms of the estoppel for which the plaintiffs contended in answer to the defendants' limitation arguments. The estoppel point was also raised late, not having been raised in conferral before the application was made. Having regard to those circumstances, and the nature of the issue and the extent of the time it occupied, I do not consider that it warrants the first defendant being deprived of a portion of its costs.
51 The police defendants succeeded on the issue of their liability for misfeasance in public office after they ceased to be police officers and in part on the issue of witness immunity. They failed on the limitation issue. The claim against the police defendants was not struck out in its entirety but remains alive in part.
52 In my view, the police defendants are entitled to their costs of the application. They were substantially successful. It is correct that the police defendants were successful on the issue of witness immunity only to the extent of the plaintiffs' concessions but, as I have mentioned, those concessions were made by the plaintiffs' counsel only in the course of argument on the application. On the limitation issue the police defendants were unsuccessful but I do not consider that the police defendants acted unreasonably in the approach they took to that issue. The estoppel point was raised late in the day and, as I have said, was a point of some novelty.
53 When regard is had to all of the circumstances, including the nature of the issues on which the police defendants were unsuccessful and the amount of the time those issues occupied, I do not consider that the failure of the police defendants on those issues justifies depriving them of a portion of their costs.
54 In relation to the applications for special costs orders under s 215(2) of the Act, I do not accept the plaintiffs' submission that it is essential to file affidavit evidence to make good such an application. Whether such evidence is necessary will depend upon the circumstances of the particular case.
55 In Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S), Wheeler J (as her Honour then was) (with whom Miller and Jenkins JJ
(Page 17)
- agreed) was considering an application under s 215(2) of the Act. Her Honour said (at [8]):
"The respondent submits that, as was formerly the case under O 66 r 12, what is required at this stage is a 'preliminary and provisional' judgment as to whether the relevant conditions are satisfied, citing Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 64, 68. I accept that submission. I accept also the submission that the Court, having heard the appeal, is in a position to make that judgment from its own observations. Because some time has elapsed since the hearing of the matter, however, I have reviewed the judgment, the original notice of appeal and amended notice of appeal, and the submissions, in order to refresh my memory of those matters."
57 I am satisfied that this was an interlocutory application of "unusual difficulty, complexity or importance". As counsel for the defendants pointed out, the statement of claim under attack extended to some 181 pages and contained detailed allegations of fact going back to 1982. It is, I think, incontrovertible that the pleading was intricate and complex, and raised legal issues of relative novelty, in particular in relation to misfeasance in public office and limitation of actions. Very lengthy written submissions were filed on both sides and a great number of cases were referred to. While the reference to authority by the first defendant may in some instances have gone further than was strictly necessary, it would be wrong to be particularly critical of that given the nature of the issues in question. I think it is also clear that the oral argument, which occupied one and a half days, is likely to have taken considerably longer had counsel not been able to rely to a significant degree on their detailed written submissions.
58 The defendants' applications were plainly applications of considerable importance. The first defendant was wholly successful in having the claims against it struck out and the police defendants were successful in having significant parts of the claims against them struck out.
59 In the circumstances, I am satisfied that the amount of costs allowable under the relevant costs determination in respect of the
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- applications is inadequate because of the unusual difficulty, complexity and importance of the matter and I would order that the costs be taxed without regard to the limits on costs fixed in that determination.
60 I am not, however, satisfied that the grounds have been made out for a special costs order in respect of the action generally, and in particular in respect of the first defendant's request for further and better particulars of the statement of claim, and I would decline to make such an order.
61 I would therefore propose to make the following orders:
1. Subject to par 3 hereof, the plaintiffs pay the first defendant's costs of the action, including reserved costs, to be taxed.
2. The plaintiffs pay the first defendant's costs (including reserved costs) of the amended application dated 6 February 2007 to strike out the statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
3. The plaintiffs pay the first defendant's costs of the action and of the application within 60 days of those costs being taxed or agreed.
4. The plaintiffs pay the second, fourth, fifth, sixth and seventh defendants' costs (including reserved costs) of the application to strike out the further re-amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
5. The plaintiffs pay the eighth defendant's costs (including reserved costs) of the application to strike out the further re-amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
6. The eighth defendant's costs of the application and the second, fourth, fifth, sixth and seventh defendants' costs of the application are to be taxed as one set of costs.
7. The plaintiffs pay the second, fourth, fifth, sixth, seventh and eighth defendants' costs within 60 days of those costs being taxed or agreed.
0
18
1