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Osborne v Kelly

Osborne v Kelly

Case [1999] SASC 486 12 November 1999

Civil Litigation & Procedure

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OSBORNE v KELLY & KLIMENCO
[1999] SASC 486

Full Court: Doyle CJ, Mullighan and Wicks JJ

DOYLE CJ. The appellant (I will refer to him as the plaintiff) obtained a judgment in this Court against the defendant (the respondent before us) for damages for personal injury and for costs as between solicitor and client.
The costs were finally taxed at about $361,000. The plaintiff claimed interest on the costs from the date of the judgment of the trial Judge. The Master who taxed the bill of costs rejected the claim. However, he allowed a lump sum of $18,530.09 for interest, on the basis that the defendant should have acknowledged its liability and paid an amount of $250,000, the subject of an interim allocatur, about ten months sooner than the defendant did pay that sum.
The plaintiff applied to a Judge for a review of the decision on interest. The Judge declined to interfere.
The plaintiff has appealed by leave to the Full Court. He now claims interest from a date preceding the date of the trial judgment, or at least from the date of that judgment. The submissions for the plaintiff raised some issues about the principles by reference to which a claim for interest on costs is to be decided.

The power to award interest on costs

In South Australia the award of interest on money payable under a judgment, including costs, is regulated by s 114 of the Supreme Court Act 1935. That section provides as follows:
“(1) All money, including costs, payable under any judgment or order shall bear interest at the rate from time to time prescribed by the rules of court.
(2) The interest shall be computed from the following times:-
(a).... in the case of money other than taxed costs, from the time specified in the judgment or order, and if no time is so specified from the date of the judgment or order:
(b)in the case of taxed costs, from the date of the certificate of the taxing officer by whom the costs were taxed or an earlier date specified by the taxing officer in the certificate.”
The section was amended in 1991 by adding to s 114(2)(b) the power to award interest from a date earlier than the date of the certificate of the taxing officer. Prior to 1969 the section had always provided that interest on taxed costs was to be computed from the date of the certificate of the taxing officer.
Plainly enough, the provision as it now stands confers a broad discretion on the Master or Judge concerned. The discretion is to be exercised having regard to the facts of the case and to the interests of justice. In Burford v Allan (unreported, 26 May 1998, Judgment No S6693), I considered the application of s 114(2). I said:
“The starting point is not an award of interest from the date of the judgment by virtue of which the party is entitled to costs. There must be some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Osborne v Kelly

Details

AGLC: Osborne v Kelly [1999] SASC 486
Case: [1999] SASC 486
Decision Date: 12 November 1999

CaseChat Overview and Summary

In Osborne v Kelly, the Full Court of the Supreme Court of South Australia considered the matter of interest on taxed costs. The plaintiff had obtained a judgment for damages and costs, and sought interest on the costs from a date prior to the date of the taxing officer’s certificate. The taxing officer had awarded a lump sum of interest, but had declined to order interest from a date prior to the date of the certificate. The plaintiff appealed the taxing officer’s decision. The Full Court allowed the appeal, holding that the taxing officer’s exercise of discretion should be reconsidered in light of the plaintiff’s payment of some of the costs from judgment monies, and the defendant’s knowledge of the costs claimed by the plaintiff about a year earlier than the taxing officer realised. The Court held that the discretion under s 114(2)(b) in relation to the date from which interest runs is not to be exercised on the basis of a general principle that interest on costs and disbursements should run from the date of the judgment awarding costs or from some earlier date at which the costs were earned. The Court emphasised that the award of costs is intended as a partial indemnity against expense incurred, and that if a plaintiff has paid the costs, wholly or in part, or has agreed to pay interest on them, that will be a circumstance which might justify an award of interest from judgment, or even from an earlier date. The Court also suggested that the taxing officer should have the power to award a lump sum by way of interest, in addition to the power to fix a date from which interest is to run.

Orders