Nudrill Pty Ltd v La Rosa
[2010] WASCA 158 (S)
•4 AUGUST 2010
NUDRILL PTY LTD -v- LA ROSA [2010] WASCA 158 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 158 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:69/2009 | 9 APRIL 2010 & ON THE PAPERS | |
| Coram: | McLURE P BUSS JA MURPHY JA | 4/08/10 | |
| 11/11/10 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Parties to bear own costs of third and fourth days of the hearing before the trial judge Otherwise, respondents to pay appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal | ||
| B | |||
| PDF Version |
| Parties: | NUDRILL PTY LTD GIUSEPPE LA ROSA ROSINA LA ROSA |
Catchwords: | Costs New trial ordered Who should pay costs of first trial Circumstances justifying departure from general rule Respondents caused miscarriage of first trial Turns on own facts |
Legislation: | Nil |
Case References: | Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53 Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427 Malpas v Malpas (1885) 11 VLR 670 Monaco v Arnedo Pty Ltd (1994) 13 WAR 552 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 Steele v Mirror Newspapers Ltd [1975] 2 NSWLR 48 Stewart v McKinley (1885) 11 VLR 802 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NUDRILL PTY LTD -v- LA ROSA [2010] WASCA 158 (S) CORAM : McLURE P
- BUSS JA
MURPHY JA
DECISION : 11 NOVEMBER 2010 FILE NO/S : CACV 69 of 2009 BETWEEN : NUDRILL PTY LTD
- Appellant
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Respondents
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
Citation : NUDRILL PTY LTD -v- LA ROSA & ANOR [2009] WADC 84
File No : CIV 1523 of 2008
(Page 2)
Catchwords:
Costs - New trial ordered - Who should pay costs of first trial - Circumstances justifying departure from general rule - Respondents caused miscarriage of first trial - Turns on own facts
Legislation:
Nil
Result:
Parties to bear own costs of third and fourth days of the hearing before the trial judge
Otherwise, respondents to pay appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal
Category: B
Representation:
Counsel:
Appellant : Mr J A Thomson
Respondents : Dr P R MacMillan
Solicitors:
Appellant : SRB Legal
Respondents : Friedman Lurie Singh & D'Angelo
Case(s) referred to in judgment(s):
Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53
Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427
Malpas v Malpas (1885) 11 VLR 670
Monaco v Arnedo Pty Ltd (1994) 13 WAR 552
Nudrill Pty Ltd v La Rosa [2010] WASCA 158
Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478
(Page 3)
Steele v Mirror Newspapers Ltd [1975] 2 NSWLR 48
Stewart v McKinley (1885) 11 VLR 802
(Page 4)
1 McLURE P: I agree with Murphy JA.
2 BUSS JA: I agree with Murphy JA.
MURPHY JA:
Introduction
3 On 4 August 2010 the court allowed the appeal in this matter, set aside the judgment and consequential orders of the District Court and ordered that the matter be remitted to the District Court for a retrial before a differently constituted court. Following publication of the court's reasons, parties were given time to file and serve submissions regarding the appropriate orders as to the costs of both the appeal and the first trial. These reasons deal with those submissions.
4 The appellant submits that the respondents should be ordered to pay the appellant's costs of both the appeal and of the first trial.
5 The respondents make no submission regarding the costs of the appeal, but say that the costs of the first trial should be costs in the cause of the retrial.
6 It is unnecessary once again to describe the course of the first trial, which is set out at [7] - [10] of the court's reasons: Nudrill Pty Ltd v La Rosa [2010] WASCA 158. It is sufficient to note that the trial ran over five days (albeit not all full days), the appellant (plaintiff) closed its case at the end of the second day and the third to fifth days involved the course of events which has ultimately led this court to order a retrial.
7 There is no suggestion by either party that the costs should be paid out of the fund provided by the Suitors' Fund Act 1964 (WA).
Appellant's submissions
8 The appellant relies on Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427and submits, in effect, that the court should depart from the general rule that the costs of the first trial should be costs in the cause of the retrial because the respondents' counsel 'particularly led the trial judge into error' by making the following submissions at trial, which were demonstrated to be wrong on appeal:
(a) that the proposed 'identity amendments' to the statement of claim should be disallowed;
(Page 5)
- (b) that the respondents were not required to make an election before advancing a submission of no case to answer;
(c) that there was no case to answer; and
(d) that any claim in tort against the first-named respondent was dependant on establishing the existence of a contract with the first-named respondent.
Respondents' submissions
9 The respondents submit that the general rule should be applied in the circumstances for, in effect, the following two reasons:
(a) a considerable amount of time at trial was spent dealing with the appellant's proposed 'identity amendments' whereas, on appeal, the amendments were found to be unnecessary; and
(b) had the appellant's counsel argued its case, including its opposition to the no case submission, in accordance with the reasoning espoused by this court in its disposition of the present appeal, the trial would not have taken the course that it did, and the appellant's failure to run its case in that way therefore materially contributed to the result at trial.
10 As to the second reason, the respondents cite Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 in support of their contention that the appellant materially contributed to the result at trial.
Relevant principles
11 There is no dispute that the general rule when a retrial is ordered is that the costs of the first trial should be costs in the cause of the retrial, unless it would be unjust to do so. See eg, Brittain v The Commonwealth of Australia (No 2) [4], [23], [30]; Monaco v Arnedo Pty Ltd (1994) 13 WAR 552, 523; Stewart v McKinley (1885) 11 VLR 802, 808 - 810; Malpas v Malpas (1885) 11 VLR 670, 710 - 711.
12 In Brittain v The Commonwealth of Australia (No 2), McColl JA (with whom Handley and Tobias JJA agreed) explained the rationale underpinning the general rule as follows [30]:
The logic of the general rule is manifest. While the Court has a plenary discretion concerning costs … the ordinary principle is that costs follow the event … Where a new trial is ordered the parties' rights have not been
(Page 6)
- finally determined. The identity of the successful party has not been established. The general rule is clearly intended to ensure that the ultimate costs order reflects the ordinary principle when the parties' rights are finally determined. Departures from the general rule are intended to deal with situations where its application would lead to injustice.
13 In that case, the plaintiff sought a direction from the trial judge which counsel for the defendant initially accepted, but subsequently opposed. The trial judge acceded to the defendant's submission and refused to give the direction. On appeal, the court held that the plaintiff was entitled to the direction and ordered a retrial. Regarding the costs of the trial, the plaintiff contended that the defendant was responsible for 'persuading' the trial judge not to give the direction by adopting an approach which was, inter alia, 'wrong in law' and 'led the court into error' [12]. It sought an award of indemnity costs in relation to the first trial.
14 The defendant submitted, in effect, not unlike the respondents in this case, that had counsel for the plaintiff made clear and cogent submissions concerning its position, the error may well have been averted. The defendant argued that both parties were responsible for the trial judge's error and that, consequently, the general rule should be applied. The court rejected the defendant's submission as 'speculation' and accepted that it was the defendant's submissions at trial which led the court into error. The court held that it would be unjust to deprive the plaintiff of its costs in circumstances where the defendant caused the miscarriage of the trial, and awarded the plaintiff the costs of the trial on an indemnity basis [33].
15 For the court to depart from the general rule, it is not necessary for there to have been any impropriety or malicious intent in the way one party ran its case. An award of the costs of a mistrial is not made by way of punishment and is, rather, an application of the principle that costs thrown away should be borne by the party responsible: Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53 [8]; Steele v Mirror Newspapers Ltd [1975] 2 NSWLR 48, 56.
Application of principles to this case
16 This is a case where the trial judge was, to a substantial extent, led into error by the submissions of the respondents which were accepted by her Honour, but rejected on appeal, resulting in this court ordering a retrial. In my view, the ordinary application of the general rule would do an injustice to the appellant insofar as, if the appellant is unsuccessful at the retrial, it will be responsible for both the costs of that trial and the first trial, notwithstanding that the respondents were responsible for the
(Page 7)
- miscarriage of the latter: Baulch v Lyndoch Warrnamboo Inc (No 2) [10].
17 I do not consider that the appellant's position at trial materially contributed to the error which has led to a retrial. Nor is this a case where the appellant's trial counsel 'permitted' the impugned submissions to affect the trial judge as they did: cf Rees v Bailey Aluminium Products. The appellant’s trial counsel contested the respondents' submissions and in broad terms advanced its case according to reasoning which was, in effect, not dissimilar to the reasoning adopted by this court. Counsel's efforts to draw the trial judge's focus away from the pleadings to the evidence, when making submissions in opposition to the no case application, was, it appears, in consequence of the (incorrect) view her Honour had taken of the appellant's pleaded case, despite counsel's efforts to persuade her otherwise in the context of the amendment application. To say that the trial would have taken a different course had the appellant's counsel presented its case in a different way is mere speculation: Brittain v The Commonwealth of Australia (No 2) [32].
18 There are, however, other features of this case which would make it unjust for the appellant to receive all the costs of the miscarried trial. Although this court determined that the appellant's amendment application ought to have succeeded, the application was very late, it did not initially comply with the rules and significant time was spent at trial dealing with it. I do not accept the respondents' submission that this court found that the amendments were 'unnecessary'; the finding was, relevantly, that the proposed amendments did not alter the substance of the pleaded claim (reasons [37]). However, the appellant should, in my view, bear the costs of that application, as the appellant’s counsel in effect conceded at trial. On the other hand, the appellant should have the costs of the hearing of the no case application, which application clearly ought to have been refused. Taking a broad view, the costs of those two applications, which occupied the third and fourth days of the trial, may be seen to cancel each other out.
19 In relation to the costs of the appeal, there is no suggestion that the general rule, that costs should follow the event, would not be appropriate in the circumstances.
Conclusion
20 Taking the above considerations into account, and bearing in mind the court's broad discretion as to costs (s 37(1) Supreme Court Act 1935 (WA)), orders to the following effect should be made:
(Page 8)
- 1. Each party bear its own costs of the third and fourth days of the hearing before Yeats DCJ.
2. Save as provided in par 1 above, the respondents pay the appellant's costs of the hearing before Yeats DCJ and all other costs thrown away as a result of the order for a retrial, to be taxed if not agreed.
3. The respondents pay the appellant's costs of the appeal, to be taxed if not agreed.
0
6
1