Palmer v Australian Capital Territory (No 3)
[2023] ACTSC 387
•12 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Palmer v Australian Capital Territory (No 3) |
Citation: | [2023] ACTSC 387 |
Hearing Date: | On the papers |
Decision Date: | 12 December 2023 |
Before: | McCallum CJ |
Decision: | (1) The defendant is to pay 80% of the plaintiff’s costs as agreed or assessed on a party and party basis up to 31 August 2020 (the day before the proceeding commenced) pursuant to r 1725(2)(c) of the Court Procedures Rules. (2) The defendant is to pay 80% of the plaintiff’s costs as agreed or assessed on a solicitor and client basis from 1 September 2020 (the day the proceeding commenced) pursuant to rr 1010(2) and 1725(2)(c) of the Court Procedures Rules. (3) The costs recovered under orders 1 and 2 above are not to include the costs of the abandoned allegations referred to in paragraph 5 of the primary judgment. (4) The plaintiff is entitled to any determined fee at the Magistrates Court rate pursuant to r 1725(2)(a) of the Court Procedures Rules. (5) Each party to pay its own costs in respect of the argument on costs. |
Catchwords: | COSTS – personal injury claim – where the plaintiff obtained judgment in an amount exceeding a settlement offer made by him that was rejected by the defendant – where proceedings could have been brought in the Magistrates Court – where statutory claims abandoned at the outset of the hearing – where the defendant’s conduct of the hearing contributed to its length |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 68 Corrections Management Act 2007 (ACT) s 138 Court Procedures Rules 2006 (ACT) rr 674, 1010, 1725 |
Cases Cited: | Carew v Heitanen; Heitanen v Carew [2014] ACTSC 179; 288 FLR 141 Palmer v Australian Capital Territory (No 2) [2023] ACTSC 340 Roberts-Smith v Fairfax Media Publications Pty Limited (No 45) [2023] FCA 1474 |
Parties: | Paul Palmer ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel D Richards ( Plaintiff) S Whybrow SC ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 208 of 2020 |
McCALLUM CJ:
Paul Palmer claimed damages for personal injury arising from the use of force against him by corrections officers at a time when he was a prisoner at the Alexander Maconochie Centre. On 20 November 2023, I entered judgment in Mr Palmer’s favour in the sum of $159,654: Palmer v Australian Capital Territory (No 2) [2023] ACTSC 340.
This judgment determines the costs of the proceedings. The parties provided written submissions on that issue and agreed that it could be determined on the papers.
Indemnity costs
Mr Palmer’s highest claim was for indemnity costs for the whole of the proceedings. He contends such an order is warranted because of the failure of the Territory to discover certain documents, which he submits resulted in a waste of time.
I do not think a basis for awarding indemnity costs is established. The basis on which Mr Palmer’s claim succeeded was the unlawful use of force by one corrections officer in particular, Officer Ward. The application for indemnity costs is made on the basis that the Territory did not disclose or discover documents concerning other complaints of excessive force against that Officer.
The submissions made bare reference to several sources of power to make such an order without expanding upon their application, leaving it for the Court to undertake that task. The first was s 68(5) of the Civil Law (Wrongs) Act 2002 (ACT). That section does not appear to support a claim for indemnity costs. Section 68(1) requires a respondent in a personal injuries claim to give a claimant:
(a)copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim:
(i)reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;
…
It is not clear that other complaints against Officer Ward for the use of excessive force were “directly relevant to” or “about” the incident complained of by Mr Palmer. It is possible that such material might have been admissible as tendency evidence but that is not the submission that was made.
Even assuming reports of other complaints should have been produced, it does not appear to follow that Mr Palmer should have indemnity costs. Section 68(5) of the Civil Law (Wrongs) Act provides “[i]f a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.”
It is not clear what costs are alleged to have resulted from the failure. Mr Palmer was successful in establishing the unlawful use of force on the part of Officer Ward without the evidence of other complaints.
Next, Mr Palmer cited r 674 of the Court Procedures Rules 2006 (ACT). That rule is in similar terms to s 68(5), conferring power to order a party who has failed to produce a document required to be produced to pay “any costs incurred by another party because of the failure”. For the reasons given above in respect of s 68(5), I am not persuaded that the application of that rule entitles Mr Palmer to indemnity costs resulting from the alleged failure to produce the other complaints against Officer Ward.
Finally, the submissions instanced “where the defendant knew facts causing a loss of time to the court and the plaintiff” (which is not a statement of legal principle) and cited the decision of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 45) [2023] FCA 1474 (without giving a point reference). That decision dealt with an application by the respondent for indemnity costs in an unsuccessful defamation action brought by the applicant in circumstances where it was contended that the applicant knew from the outset of the proceedings that a number of the imputations on which he sued were substantially true. I do not see how that decision supports the plaintiff’s application for indemnity costs here. If the proposition is that the Territory should not have defended the claim because it knew Officer Ward was alleged to have used excessive force on other occasions, I reject it.
Solicitor client costs
In the alternative, Mr Palmer seeks his costs assessed on a solicitor and client basis for the whole of the proceeding on the basis that he obtained judgment in an amount exceeding his offer (rejected by the Territory) to settle the proceedings for $51,000 plus costs. He relies on r 1010(2) of the Court Procedures Rules, which provides that, in such a case, if the claim is a personal injury claim, the plaintiff is entitled to an order for costs in relation to the claim assessed on a solicitor and client basis for the whole of the proceeding.
The Territory accepts that r 1010(2) applies. However, in helpful written submissions prepared by the solicitor for the Territory, Ms Hann, it was noted that r 1725(2) also applies to the present case. That rule provides for a plaintiff who obtains judgment for less than $175,000 in the Supreme Court in proceedings that could have been determined in the Magistrates Court to receive a percentage of their costs fixed according to the amount of the judgment obtained (in Mr Palmer’s case, 75%: see r 1725(2)(d)). That is subject to r 1725(3), which confers a broad discretion to allow a different amount.
Mr Palmer contended that it was appropriate to have the claim heard in the Supreme Court because it included a claim for breach of the Human Rights Act 2004 (ACT). Section s 40C(2) of the Act provides that a person claiming to be the victim of an act of a public authority in contravention of s 40B may:
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.
Section 40C(5) provides that the Supreme Court “may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages”. Mr Palmer claimed damages. The Territory accordingly submitted that the claim was not one against a public authority under s 40B(a) and so must be taken to be a claim that could have been determined in the Magistrates Court, where Mr Palmer would not have been prevented from relying on his rights under the Human Rights Act.
In any event, the claim for breach of the Human Rights Act was abandoned on the first day of the hearing, as was a claim for breach of the Corrections Management Act 2007 (ACT). The Territory submitted that, having regard to its jurisdictional limit, the Magistrates Court would have had jurisdiction and power to hear and decide the proceedings. As noted in the Territory’s written submissions, that issue is to be determined as at the time when judgment is given: Carew v Heitanen; Heitanen v Carew [2014] ACTSC 179; 288 FLR 141 at [32].
The Territory submitted that Mr Palmer should bear the consequence contemplated by the rules for commencing in the wrong jurisdiction, while the Territory should bear the consequence of rejecting the offer of compromise. On that basis, it was submitted that, in accordance with r 1725(2)(d), Mr Palmer should be awarded only 75% of his costs, albeit on a solicitor client basis to reflect the application of r 1010(2). That was the conclusion reached by Elkaim J in similar circumstances in Perry v Pese (No 2) [2018] ACTSC 232 at [18].
But for one further consideration, that would be an appropriate result here. It is relevant to have regard to the fact that the Territory’s conduct of the proceedings unnecessarily lengthened the hearing in at least two respects. First, as explained in my primary judgment, the Territory brought forward a late application to amend its defence due to a failure on its part to plead its case in accordance with the rules. Secondly, on the fifth day of the hearing, the defendant made admissions of liability in relation to two discrete acts of Officer Ward. Had those admissions been made in a timely way, I am confident that the hearing time would have been reduced. The Territory knew as it went into the hearing that Officer Ward had not been located and so would not give evidence. Having regard to the terms of s 138 of the Corrections Management Act, the impossibility of defending the claim in so far as it concerned allegations against him was obvious and should have been identified earlier. In the circumstances, it would be unfair to deprive Mr Palmer of 25% of his costs of a hearing that should have been shorter, but for the Territory’s late recognition of the implications of not having Officer Ward available to give evidence.
On the other hand, as submitted by the Territory, it has had to bear the wasted costs of preparing to defend the abandoned claims. While it is difficult to compare the competing wastage, there can be no doubt that the period of a hearing is when the most costs are incurred. Doing the best I can and in the interests of avoiding the need for a complex assessment, I consider the fair result to be to allow the plaintiff 80% of his costs rather than 75% as contemplated under the rules. I am otherwise satisfied that the orders proposed by the Territory are appropriate. A question I raised in correspondence with the parties as to the form of those orders has been addressed by the Territory in further submissions dated 8 December 2023.
For those reasons, I make the following orders:
(1)The defendant is to pay 80% of the plaintiff’s costs as agreed or assessed on a party and party basis up to 31 August 2020 (the day before the proceeding commenced) pursuant to r 1725(2)(c) of the Court Procedures Rules.
(2)The defendant is to pay 80% of the plaintiff’s costs as agreed or assessed on a solicitor and client basis from 1 September 2020 (the day the proceeding commenced) pursuant to rr 1010(2) and 1725(2)(c) of the Court Procedures Rules.
(3)The costs recovered under orders 1 and 2 above are not to include the costs of the abandoned allegations referred to in paragraph 5 of the primary judgment.
(4)The plaintiff is entitled to any determined fee at the Magistrates Court rate pursuant to r 1725(2)(a) of the Court Procedures Rules.
(5)Each party to pay its own costs in respect of the argument on costs.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 13 December 2023 |
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