Papale v Wilmar Sugar Australia Ltd (No 2)
[2017] QSC 160
•2 August 2017
SUPREME COURT OF QUEENSLAND
CITATION:
Papale & Ors v Wilmar Sugar Australia Ltd (No 2) [2017] QSC 160
PARTIES:
R PAPALE & V J PAPALE (TRADING AS VJ & R PAPALE); GK & MR STOCKHAM; JORDAN FARMING (QLD) PTY LTD ACN 126 223 532 AS TRUSTEE FOR THE JORDAN FARMING TRUST; PHILIP MARANO AS TRUSTEE FOR THE
G MARANO FAMILY TRUST (TRADING AS P J &
G MARANO) & ORS(plaintiffs)
v
WILMAR SUGAR AUSTRALIA LTD ACN 098 999 985 (FORMERLY SUCROGEN LIMITED)(defendant)
FILE NO:
BS No 11630 of 2012
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
2 August 2017
DELIVERED AT:
Brisbane
HEARING DATES:
On the papers
JUDGE:
Daubney J
ORDER:
The plaintiffs shall pay 95 per cent of the defendant’s standard costs of and incidental to the proceeding
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF THE ISSUES – where a defence was pleaded and persisted with until final submissions – where the defence was not referred to in final submissions – whether to depart from the general rule that costs follow the event – whether a reduction in the costs recoverable is appropriate
Uniform Civil Procedure Rules 1999 (Qld), rr 681(1), 684
Alborn & Ors v Stephens & Ors [2010] QCA 58
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270
Papale & Ors v Wilmar Sugar Australia Ltd [2017] QSC 72COUNSEL:
G A Thompson QC and D Pyle for the plaintiffs
G J Gibson QC and D E F Chesterman for the defendant
SOLICITORS:
Clayton Utz Lawyers for the plaintiffs
Russells for the defendant
The background to this matter is set out at considerable length in the principal judgment,[1] when I ordered that the plaintiffs’ claims be dismissed. A corollary was that the defendant’s defensive counterclaim was also dismissed.
[1] Papale & Ors v Wilmar Sugar Australia Ltd [2017] QSC 72.
Submissions on costs of the proceeding have now been delivered by the parties.
The plaintiffs acknowledge the operation of the general rule with respect to costs, as articulated in UCPR r 681(1), but invoke r 684 to argue that, in the circumstances of this case, the defendant should be awarded only 90 per cent of its standard costs.
The basis for this submission is that a defence of estoppel which had been pleaded by the defendant, and which was not at any time formally abandoned during the trial, was simply not pursued by the defendant in its final submissions.
The plaintiffs say that they incurred significant costs in relation to that issue, both in the course of preparation for trial and in the trial itself. In particular, it is said, Mr Christaudo was called to give evidence on that point, and but for the pleaded defence of estoppel he would not otherwise have been called. As to this, it would, of course, have been a matter for the plaintiffs whether or not they would have called Mr Christaudo in the absence of the estoppel issue, but it is also clear from my primary reasons that his evidence was of assistance in deciding the matters which were ultimately left to me for determination.
The plaintiffs argued that the estoppel issue was a “clearly defined and several issue which occupied a significant part of the trial”, and it is appropriate that I exercise the discretion under r 684 to attribute 10 per cent of the defendant’s costs to that issue, and make an order reducing the recoverable costs by that percentage.
Counsel for the defendant resisted this approach, saying there was no proper reason to deviate from the usual practice of costs following the event. I was reminded of the observations by Muir JA in Alborn & Ors v Stephens & Ors[2] in which his Honour, with whom Holmes JA (as she then was) and I agreed, referred to the usual rule of costs following the event, and said[3]:
“The ‘event’ is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to ‘the events or issues, if more than one, arising in the proceedings’. However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs.”
[2] [2010] QCA 58.
[3] At [8].
I was also referred to a number of appellate decisions which considered the question of costs in relation to appeals where an appellant had succeeded on some grounds of appeal but not others. So, for example, in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2)[4], French CJ, Kiefel, Nettle and Gordon JJ said in a joint judgment:
“[6]In any event, the preferable approach in this case is the one usually taken, that costs should follow the outcome of the appeal. This is not a case where it may be said that the event of success is contestable by reference to how separate issues have been determined. There are no special circumstances to warrant a departure from the general rule, and good reasons not to encourage applications regarding costs on an issue by issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like …”
[4] (2005) 90 ALJR 270.
The present case, however, is a little different. It is not a case in which the pleaded estoppel defence was unsuccessfully pursued by the defendant in circumstances where it was arguable. Rather, it was a discrete allegation, pleaded as such by the defendant, on which evidence was called, and in respect of which the defendant, without any prior advertising, simply “ran dead” when it came time for submissions. Indeed, the estoppel defence was not even referred to in the defendant’s submissions.
Consistent with a view I have previously expressed[5], I consider it generally undesirable for the Court to conduct a minute dissection of issues, in the way proposed by the plaintiffs, for the purposes of r 684.
[5] McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd (No 2) [2011] QSC 284.
In the particular circumstances of this case, however, I do consider it appropriate to make a very small adjustment in favour of the plaintiffs to reflect the fact that the estoppel defence was pleaded and persisted with right up to the time of final submissions, and there was not, it would seem, even a hint that the defendant would not be relying on that defence at any time prior to the delivery of the parties’ final written submissions. Taking a broad brush approach, I consider that a five per cent reduction in the costs recoverable by the defendant would be appropriate.
Accordingly, it will be ordered that the plaintiffs pay 95 per cent of the defendant’s standard costs of and incidental to the proceeding.
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