| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MILLER -v- MUIR [2013] WADC 6 (S) CORAM : BOWDEN DCJ HEARD : 11-13 DECEMBER 2012 DELIVERED : 21 JANUARY 2013 SUPPLEMENTARY
DECISION : 19 FEBRUARY 2013 FILE NO/S : CIV 2529 of 2010 BETWEEN : HELEN FRANCIS MILLER Plaintiff
AND
CELESTE MARIE MUIR
Defendant
Catchwords: Costs - Plaintiff successful in its claim - Defendant successful on part of its counterclaim Legislation: District Court of Western Australia Act 1969
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004
Rules of the Supreme Court 1971
Supreme Court Act 1935
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Result: Each party ordered to pay their own costs
Representation: Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Ms K A Vernon
Solicitors:
Plaintiff : Aboriginal Legal Service
Defendant : Lyn Zinenko Lawyers
Case(s) referred to in judgment(s):
Broadway Pty Ltd Trading as Trustee for The Criddle Family Trust v Lewis [2012] WASC 373 (S)
Godden v Alford [1960] WAR 235
Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569
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1 BOWDEN DCJ: In this case the issues between the parties were 'interlocked'. The whole case revolved around one incident, that is, what occurred when Constable Muir and other police officers attended the plaintiff's residence in response to a domestic disturbance, albeit there were several phases to that incident.
2 The plaintiff was successful in its claim against the defendant for the tort of battery arising out of the second incident and recovered $6,000. 3 The defendant was successful in its claim against the plaintiff for a battery arising out of the first incident and recovered $6,000. 4 The defendant was not successful in its claim for battery arising out of the third incident as I found the plaintiff was acting in self-defence.
The plaintiff's submissions 5 The plaintiff says she was successful in her claim (the second incident) and should have her costs on that basis. They point out the defendant ran a defence (provocation) that as a matter of law could not succeed and that increased her costs. 6 She says, as far as the defendant's costs are concerned, the defendant succeeded only in relation to the first incident and failed in relation to the third incident. 7 The plaintiff says it would be wrong to order each party to pay their own costs as she established the defendant acted unlawfully and with malice. I reject this submission; the purpose of a cost order is to compensate a party for the costs incurred and not, in normal circumstances, to punish the losing party. Any issues relating to a party's malicious conduct in committing the tort are addressed, where appropriate, by an award of aggravated or exemplary damages. 8 The plaintiff says the appropriate order is for the defendant to pay her taxed costs or, at the very least, two-thirds of them
The defendant's submissions 9 The defendant says that each party successfully obtained damages for the tort of battery and was awarded the same damages for the same cause of action. 10 They say the plaintiff commenced the action which prompted the counterclaim and if it had not commenced the action there would be no (Page 4)
counterclaim and say this provides an appropriate basis to award costs in the defendant's favour. 11 However, they say the court should adopt a pragmatic approach and do substantial justice between the parties by making no order as to costs or, alternatively, award each party their taxed costs. 12 If taking the latter approach they say the plaintiff's cost should be on the Magistrates Court scale as that court had jurisdiction to hear the claim pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (WA) and there were no important principles of law or complexity of facts sufficient to justify the action being bought in this court: O 66 r 17(1) Rules of the Supreme Court 1971 (RSC). 13 However the defendant says their costs should be taxed in the usual way because O 66 r 17 is limited to a plaintiff who issues an action in the wrong court. 14 I do not accept the submission that O 66 r 17 applies. The rule provides that 'if an action is brought in the Supreme Court …' certain consequences follow. Rule 6 of the District Court Rules 2005 say the RSCapply in respect of any case in the District Court and state that a reference in the RSC to 'the court' is a reference to the District Court, unless the context requires otherwise. Because the specific reference in O 66 r 17 is to 'the Supreme Court' and not 'the court' the context requires that rule to be confined to matters in the Supreme Court. 15 I also note the defendant made no application to remit this matter to the Magistrates Court pursuant to s 74 of the District Court of Western Australia Act 1969.
General principles 16 The court's discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 of the RSCis broad but, absent other considerations, a court will usually order the successful party recover his or her costs: Broadway Pty Ltd Trading as Trustee for The Criddle Family Trust v Lewis [2012] WASC 373 (S) Jenkins J [5]. 17 However, the overriding consideration must be to do justice to the parties in the circumstances of this case. 18 The court always looks at the realities of the case and attempts to do substantial justice:Permanent Building Society v Wheeler[No 2] (1993) 10 WAR 569. (Page 5)
19 When all causes of action arise out of one course of dealings or the one transaction or the same facts there will usually be one order for general costs of the action moulded as necessary to ensure that however rough and ready it may be substantial justice is done: Godden v Alford [1960] WAR 235; Permanent Building Society v Wheeler [No 2] (574 - 575). 20 At the end of the day the plaintiff was successful in her cause of action arising out of the second incident. 21 The defendant was successful insofar as the first incident is concerned but was not successful in relation to the third incident. The third incident occurred so contemporaneously with the second incident that very little time was separately devoted to it. 22 Each party says the other party was not successful on some of the issues they raised at the trial, however at the end of the day it is not a question of isolating each allegation and counter-allegation made but looking at the case in its entire context. The defendant raised the defence of provocation, by an amendment on the morning of the trial, which was not available and the plaintiff unsuccessfully claimed aggravated damages, however neither issue unduly prolonged the trial. 23 As the facts were so interlocked and the plaintiff was successful in its claim and the defendant substantially successful in its claim, I consider justice is achieved by ordering each party pay its own costs.
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