Norton v Blight (No 2) - [2014] SADC 28

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
NORTON v BLIGHT (NO 2)
[2014] SADC 28
Judgment of His Honour Judge Barrett
17 January 2014
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE
The plaintiff was awarded damages which exceeded the defendant's filed offer. Ordinarily the plaintiff should be awarded her costs on a solicitor/client basis - r 188(6)(b)(i). There is a residual discretion to depart from the rule. There came into force just before the trial a jurisdictional change affecting the sums which can be awarded in the District and Magistrates Courts. That change affected the costs which might be awarded - r 262(2)(f). The defendant sought to have the plaintiff's costs reduced by reason of duplication in witnesses. The defendant had applied shortly before trial for an order limiting the number of witnesses.
Held: It was reasonable for the plaintiff to maintain her proceedings in the District Court so her costs should not be reduced by reason of the jurisdictional change which occurred shortly before the trial.
There was no identifiable duplication of witnesses such as to call for an exercise of the residual discretion to reduce the award of costs.
District Court Rules r 188(6)(b)(ii), r 262(2)(f), referred to.
Stevens v Chandler (1988) 46 SASR 541; United Petroleum Pty Ltd v Skorpos and Ano (No 2) [2012] SASC 215; Metro Meat v Werlick (1992) 167 LSJS 455; McCutcheon v Grimmond (1986) 40 SASR 404; Liapis v Hawke [1990] SASC 2567, considered.

NORTON v BLIGHT (NO 2)
[2014] SADC 28
Costs Judgment

On 17 January 2014 I delivered judgment for the plaintiff in the sum of $41,989 including interest. Also on that day I heard submissions by both parties on the question of costs. I delivered my ruling on costs, awarding the plaintiff her costs against the defendant on a solicitor/client basis without qualification. I now deliver the reasons for the costs order.
I might add that I had given the parties my draft judgment on 15 January and on that day both parties made preliminary submissions about costs. Between 15 and 17 January both parties forwarded me materials relating to costs.
The plaintiff’s award of $41,989 exceeded the defendant’s filed offer. As appears from the affidavit of Ms Julie Palios dated 16 January 2014, the defendant’s solicitors filed an offer to settle the matter on 12 June 2013. Before apportionment, which had not been agreed at that stage, the defendant offered $100,000.
On 28 June 2013 the plaintiff accepted the defendant’s offer as to liability accepting that the plaintiff is to be entitled to 10 per cent of her damages to be assessed. That meant that the offer made on 12 June would be $10,000.
On 12 July 2013 the defendant filed a further offer of settlement in the amount of $22,000 plus party/party costs on the Magistrates Court scale. That offer was not accepted and the matter went to trial.
Because the judgment sum exceeds the filed offer, the plaintiff would ordinarily be entitled to her costs on a solicitor/client basis pursuant to r 188(6)(b)(ii) and the defendant would not be entitled to any costs not otherwise ordered. Nevertheless there is residual discretion to depart from that rule.[1]
[1] United Petroleum Pty Ltd v Skorpos and Ano (No 2) [2012] SASC 215 per Stanley J at [13]-[17].
On 15 January Mr Ward for the defendant foreshadowed that on the question of costs some consideration might have to be given to a change in the jurisdiction limits of the District Court and the Magistrates Court which came into effect on 1 July 2013. On 17 January Mr Ward abandoned that foreshadowed submission but for the sake of completeness I will express my views on that issue.
A consequence of the jurisdictional change was that the rule affecting costs was changed. The present r 262(2)(f) provides that:
In an action founded on a motor accident claim general costs of action are not to be awarded in favour of a successful plaintiff unless the damages exceed $50,000.
The sum below which costs were not to be awarded was amended from $30,000 to $50,000. I have made an order for damages of $41,989. So my award of damages exceeds the old limit by approximately $12,000 and falls short of the new limit by $8,000.
Rule 263(2) provides for a discretion to be exercised by the court on the question of costs. In Stevens v Chandler (1988) 46 SASR 541 at 543 the Full Court held that a party is not expected by reason of a change in jurisdiction to remove a case from one court and reinstitute it in another. The rationale for that practice is that otherwise there might be a flood of cases removed to a different jurisdiction in consequence of the legislative change. In Metro Meat v Werlick (1992) 167 LSJS 455 at pages 462-3 it was held that where an action was pending when a Rule came into effect it was reasonable to continue the proceedings in the original court. In that case, on facts materially similar to the facts here, a party was not denied costs by reason of a legislative change in jurisdictional limits.
These proceedings were commenced in 2010. The Summons and Statement of Claim were filed on 3 August 2010. The defence was filed on 9 February 2011. The plaintiff’s Statement of Loss was filed on 22 February 2011. The trial began on 5 August 2013. That trial date was fixed on 23 November 2012.
The claim involved relatively complicated issues of fact and assessment. Some 14 medical witnesses and 6 lay witnesses were called. The trial lasted 10 days. The award of damages before reduction by reason of the plaintiff’s liability for the accident was almost $420,000. The case was therefore one of sufficient complexity to be ordinarily heard in the District Court.
In these circumstances I consider it reasonable for the plaintiff to have continued with this action in the District Court notwithstanding the jurisdictional changes which came into effect only five weeks before the trial began. The trial was one reasonably commenced in the District Court and in my view, reasonably continued in the District Court. Further the plaintiff would be faced with a further delay if the case were to be removed to the Local Court of Limited Jurisdiction.
The considerations militating against the plaintiff seem to be these. The plaintiff’s advisors would have been aware before the trial began that any award for damages would be drastically reduced by reason of the plaintiff’s liability for the accident. I should bear in mind the policy of the jurisdictional limits and the associated costs provision. That policy is to encourage litigants to proceed in the lower jurisdiction if appropriate.
In my view the factors militating in favour of the exercise of the discretion in the plaintiff’s favour should prevail. It was reasonable to bring the proceedings in the District Count and continue them there after the jurisdictional change. In my view it would be unreasonable to deny the plaintiff her costs when she would have faced further delay in transferring the proceedings to the lower court. Despite the policy considerations militating against allowing costs, the Full Court has found, in circumstances very similar to this present case, that it would be unfair to deny a party costs to which it would be entitled but for the jurisdictional change. I apply that reasoning to this case. As I say the defendant did not pursue the contrary argument.
On 17 January Mr Ward submitted that the plaintiff should not receive the whole of her costs on a solicitor/client basis. He submitted there should be some reduction of the plaintiff’s costs either on a percentage basis or by a calculation of the costs associated with certain plaintiff witnesses.
The factual basis for that submission is as follows. After the pleadings had been filed the matter was set down for trial. It was set down on 23 November 2012 for trial commencing on 5 August 2013. The time limit for pre-trial disclosure of experts’ reports pursuant to r 160 expired on 26 November 2012 being 60 days after the filing of the list of documents by the plaintiff. At the time the matter was listed for trial the plaintiff had obtained reports from Dr Kerrigan, Dr Hilton, Dr Osti, Dr Klemm and Dr Guirguis. There were also reports in existence in relation to the plaintiff’s WorkCover claim being reports of Dr Ford and Dr Champion. Thereafter the plaintiff obtained reports from the following experts:
·Dr D’Onise – first report dated 15 May 2013
·Dr Blakemore – first report dated 17 may 2013
·Dr Morrison – first report dated 3 June 2013
·Toby Roberts – first report dated 13 June 2013
·Dr Vo – first report dated 15 July 2013.
The defendant made application on 16 July 2013 to limit the number of witnesses giving evidence on behalf of the plaintiff pursuant to r 219(1)(d). The defendant sought to rely on comments of Cox J in the case of McCutcheon v Grimmond (1986) 40 SASR 404 at 406 where his Honour said:
In my opinion it is the duty of the Court, when it learns that the parties contemplate calling an inordinate number of expert witnesses in a routine and relatively uncomplicated kind of case, to intervene, if necessary of its own motion.
Further his Honour said at p 408:
Judges of this Court have expressed their concern on occasions in recent years about the large number of witnesses sometimes called in personal injury actions. I have don so myself.
Finally at p 409 his Honour said:
Ordinarily I should think that two specialists on each side, a surgeon and a psychiatrist, would be enough in a whiplash-neurosis case. Perhaps another surgeon could reasonably be added where the medical dispute is extensive and uncompromising. If there are cases where more experts than that on the whiplash-neurosis aspect could be justified, they would be very few indeed.
In that case Cox J limited the number of experts to four on each side. Cox J’s comments were endorsed by Millhouse J in Liapis v Hawke [1990] SASC 2567.
The application came on before Master Blumberg on 25 July 2013, about two weeks before the trial. Master Blumberg declined to make an order limiting the number of witnesses and referred that question to the trial judge. One can appreciate the difficulty the Master found in determining how to limit the witnesses. On the first day of the trial Mr Ward raised the application before me. I too found it difficult to determine, at that stage, how to limit the witnesses without prejudice to the plaintiff’s claim. I too declined to limit the witnesses.
In his written submissions, and orally before me on 17 January, Mr Ward submitted that there was a degree of duplication between the various witnesses who were called. I will not canvas those submissions. In particular Mr Ward criticised the plaintiff for calling the psychiatrist Dr Blakemore. Dr Blakemore did not assess the plaintiff as suffering a psychological or psychiatric illness contrary to the opinion of the other psychiatrist called by the plaintiff, Dr Hilton. Mr Ward questioned the purpose of calling Dr Blakemore. Although Dr Blakemore’s evidence did not take up a great deal of time in the trial, it is true, as Mr Ward pointed out, that a substantial amount of costs is associated with any witness who is called. The costs are not wholly determined by the time the witness spends in the witness box. There are the costs of the reports, the cost of witnesses waiting and the legal costs in preparing for that witness to be called.
Notwithstanding the force of those submissions I am, even at this stage, unable to identify a completely unnecessary duplication of witnesses. While it is true that Dr Blakemore did not especially assist the plaintiff’s case, he did give me an additional insight into the plaintiff. I was reinforced in my view that the plaintiff did not suffer a psychiatric injury. Mr Ward pointed out correctly that the defendant’s own psychiatrist said that, but Dr Blakemore’s evidence reinforced my view.
In the end the award of damages I made was relatively small. That was because the plaintiff was agreed to be 90 per cent liable for the accident.
While I appreciate the need to discourage parties from calling unnecessary witnesses, I am not in this case able to characterise the calling of any witnesses as unnecessary. I do not believe I should exercise the residuary discretion to reduce the plaintiff’s costs by reason of any suggested duplication.
I order that the defendant pay the plaintiff’s costs on a solicitor/client basis without any qualification or reduction.