Moore v Bigmac Pty Ltd

[1993] QCA 479

IN THE COURT OF APPEAL	[1993] QCA 479
SUPREME COURT OF QUEENSLAND

Appeal No. 127 of 1993

Brisbane

[Moore v. Bigmac]

BETWEEN

BRYAN JOHN MOORE

(PLAINTIFF) Respondent

AND:

BIGMAC PTY LTD

(First Defendant) Appellant

AND:

MAC'S TRUCK SALES & SERVICE PTY LTD

(Second Defendant)

AND:

AXHAIR PTY LTD

(Third Defendant)

AND:

DENNIS McENIERY

(Fourth Defendant)

The Chief Justice

Mr Justice Davies

Mr Justice Mackenzie

Judgment delivered 29/11/93

Judgment of the Court.

(1) APPEAL AGAINST FINDING OF LIABILITY DISMISSED.

(2) APPEAL AGAINST ORDER FOR COSTS ALLOWED. SET ASIDE THE ORDER FOR COSTS. IN LIEU ORDER (i) THE FIRST DEFENDANT PAY THE PLAINTIFF'S COSTS OF AND INCIDENTAL TO THE ACTION LIMITED TO THE CASE OF ACTION IN BREACH OF THE CONTRACT REFERRED TO IN PARA. 3(A) OF THE AMENDED STATEMENT OF CLAIM, TO BE TAXED ON THE BASIS OF SOLICITOR AND CLIENT.

(ii) THE PLAINTIFF PAY THE FIRST DEFENDANT'S COSTS OF AND INCIDENTAL TO THE OTHER ISSUES AS BETWEEN THE PLAINTIFF AND THE FIRST DEFENDANT, TO BE TAXED.

(3) FURTHER ORDER THE APPELLANT PAY THE RESPONDENT THREE

QUARTERS OF THE COSTS OF THE APPEAL TO BE TAXED.

CATCHWORDS:  LIABILITY - finding of fact - whether plaintiff credible witness - whether trial judge gave proper reasons for decision

COSTS - award of costs - whether exercise

of	discretion approached upon correct basis.
Counsel:	Mr T. Kirk for the Appellant Mr P. Hack for the Respondent
Solicitors:	Hopgood & Ganim for the Appellant Craig Ray & Associates for the Respondent
Hearing Date(s):	27 October 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 127 of 1993

Brisbane

Before The Chief Justice

Davies J.A.

Mackenzie J.

[Re: Moore v Bigmac]

BETWEEN:

BRYAN JOHN MOORE

(PLAINTIFF) Respondent

AND:

BIGMAC PTY LTD

(First Defendant) Appellant

AND:

MAC'S TRUCK SALES & SERVICE PTY LTD

(Second Defendant)

AND:

AXHAIR PTY LTD

(Third Defendant)

AND:

DENNIS McENIERY

(Fourth Defendant)

JUDGMENT OF THE COURT

Judgment delivered 29 November 1993

This is an appeal against a judgment in the District Court entered for the respondent against the first defendant for $75,333 with interest and costs. The issue in the case before the District Court Judge was, in the end, a narrow one. The appellant alleged that the fourth defendant as agent for one or more of the other defendants had entered into a contract with him to pay commission on the sale of certain army vehicles at a particular rate. Mr McEniery denied that he had so agreed. The critical question was whether the District Court Judge was satisfied that a conversation had occurred in the terms sworn to by the appellant or not.

Oral reasons were delivered by the trial Judge on the day upon which the evidence concluded. In the reasons he recited a number of factors which led him to accept that it was conceivable and logical, even if not commercially sound, that Mr McEniery would pay the plaintiff a higher rate of commission than was to be paid to other sales staff. He said that he took into account a number of matters which he acknowledged reflected badly on the plaintiff's case. He noted that the plaintiff seemed to be a man who believed he had been wronged and "went out initially for all he thought he could get." He said that he regarded the plaintiff's evidence with some circumspection, as he had needed to do with all of the evidence in the case. He concluded "notwithstanding these matters I find that the conversation alleged by the plaintiff ... occurred either precisely or to the effect" of the plaintiff's version. He went on to give judgment against the first and second defendants.

The matter came on again before the trial judge the following day, principally for the purpose of deciding the question of costs. Attention was drawn to a letter dated 31st October, 1990 from the solicitors who represented all of the defendants to the effect that the respondent was mistaken that his employer was the second defendant, Mac's Truck Sales & Service Pty Ltd. It followed from the assertions in the letter that at the time when the right to commission crystallised, his employer was Denmac Ford Pty Ltd. (the former name of the first defendant). It was stated in the letter that the transfer of his employment from the second defendant carried with it all the benefits of continuation of employment since February, 1988. There was therefore a basis, which was not resisted by the appellant before the trial Judge, for judgment to be entered against the appellant.

The grounds of appeal attacked, for a variety of reasons, the finding of fact by the trial judge to the effect that the contract had been made in terms alleged by the respondent. It was submitted that the reasons for judgment did not make any adverse finding in respect of the credibility of Mr McEniery, gave no explanation or reason for preferring the evidence of the respondent to that of Mr McEniery and did not have regard to contemporaneous documents which supported the evidence of Mr McEniery. It has been said frequently in this Court, (e.g. Fidler v Green (C.A. 235/92 12th March, 1993, unreported); Capoz Pty Ltd v Cupples (C.A. 228/92 19th March, 1993, unreported)) that it is the duty of the trial judge to give proper reasons for his decision.

It is true that the ex tempore reasons do not disclose

on their face any discussion of Mr McEniery's credibility.
However this was a case where the essential issue was a
narrow question of credibility. We are satisfied that, read
as a whole, the reasons indicate unequivocally that,
notwithstanding the matters to which reference was made as
factors detracting from the plaintiff's credibility, the
trial judge was nonetheless prepared to accept him to the
required standard as a credible witness as to the critical
conversation. That necessarily involves rejection of Mr
McEniery's evidence. We have had regard to Mr Kirk's
submissions on behalf of the appellant on all of the grounds
of appeal. He recognised the difficulty of upsetting the
findings of fact, given the applicable principle (e.g.
Devries v Australian National Railways Commission (1992) 112
ALR 641). There is nothing in the submissions made to us
that persuades us that the trial judge's findings can be
disturbed. The kinds of matters argued before us were no
doubt, argued below. Having heard the witnesses and the
submissions of counsel the trial judge chose to accept one
version of the relevant conversation in preference to the
other. The appeal against the finding of liability must be
dismissed.

There was also an appeal against the order for costs made by the trial judge. The appellant's complaint is that a number of issues raised on the pleadings were abandoned by the respondent at trial or not established. It was submitted that the appellant had been put to expense in pleading to those allegations, completing discovery, preparing for trial, and giving evidence in relation to them. It was submitted that had the trial judge given proper consideration to those matters he would have deprived the respondent of his costs in respect of those issues and ordered the respondent to pay the appellant's costs of them.

The trial judge correctly identified that the action had been dismissed against the second, third and fourth defendants and made no order as to costs in respect of those aspects of the matter. There is of course no appeal in respect of those orders. The question is whether in relation to the costs which were awarded against the first defendant there is an error in principle which requires this Court to intervene. The award of costs is a discretionary matter. Rule 353 of the District Court Rules provides as follows:

"Except where herein otherwise provided, the costs of any action or proceedings shall be paid by or apportioned between the parties in such manner as the judge directs, and in default of a special direction shall abide the event."

In Colburt v Beard (1992) 2 Qd R 67, this was interpreted as importing the notion that where separate identifiable issues were capable of being isolated the party who was successful overall was entitled to get general costs but on issues upon which the party failed, the other party was entitled to costs of that issue. In reality the issue upon which the plaintiff succeeded was that a contract was made late 1989 to pay commission on the basis alleged by him and that the first defendant was liable for that breach of contract. The District Court Judge appears to have taken the view that the fact that issues had been abandoned only during trial or found not to be made out was not a matter which required him to address the question whether he should made a special order as to costs. What he said was as follows:

"So far as costs are concerned,.... it is unfortunate that a lot of issues often are brought before these Courts and either abandoned or ultimately are found not to have been made out, but it seems to me this case is not in any unusual situation so far as that position is concerned.

The plaintiff having been substantially successful against the first defendant, I propose to order that the plaintiff have its costs against the first defendant of and incidental to the action to be taxed on the basis of solicitor and client, having regard to the offer evidenced by the now Exhibit B."

There is no dispute that issues other than the issue of the late-1989 contract were not ultimately pursued by the respondent against the appellant. In our opinion, the exercise of discretion has not been approached upon the correct basis and the appeal against the order for costs should be allowed. The costs order in which the District Court Judge ordered the plaintiff to have its costs against the first defendant of and incidental to the action to be taxed on the basis of solicitor and client is set aside and in lieu thereof the following order is made in respect of the costs at trial. It is ordered that the first defendant pay the plaintiff's costs of and incidental to the action limited to the cause of action in breach of the contract referred to in para. 3(a) of the amended statement of claim, to be taxed on the basis of solicitor and client. It is further ordered that the plaintiff pay the first defendant's costs of and incidental to the other issues as between the plaintiff and the first defendant, to be taxed.

As to the costs of the appeal, the issue of liability was the major issue. The respondent has been successful on that but unsuccessful on the issue of costs. The appropriate order in the circumstances is that the appellant pay to the respondent three quarters of the costs of the appeal to be taxed.