Perri v Huggard - [2012] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
PERRI & ANOR v HUGGARD & ANOR
[2012] SADC 162
Judgment of Her Honour Judge Davey
23 November 2012
PROCEDURE - COSTS - APPEALS AS TO COSTS
Appeal by the plaintiffs against a costs order for an interlocutory matter.
Held: Appeal dismissed.
District Court Civil Rules 2006 R 263(1) and 263(2), referred to.

PERRI & ANOR v HUGGARD & ANOR
[2012] SADC 162

This is an appeal by the plaintiffs to the action against an order made by a Master of this Court with respect to the costs of the hearing of an Interlocutory Application. Both parties applied for costs following a decision of a Master on 17 August 2012. The learned Master ordered that each party pay their own costs of and incidental to the applications FDN 16 and FDN 18 including the costs of the hearing on 14 August 2012.
The matter concerns a claim by the plaintiffs for damages arising out of personal injuries allegedly sustained whilst the first plaintiff was a passenger on a bus in February 2009. At a listing conference on 5 July 2012 the plaintiffs wanted the action listed for trial; the defendants would not agree readiness for trial unless the first plaintiff agreed to attend future medical examinations. Shortly thereafter the plaintiffs and the defendants filed applications, each seeking orders relating to those interlocutory matters.
A Master heard the applications and on 14 August 2012 he made orders. The plaintiffs’ application was to the effect that the matter be listed to proceed to trial. The defendants’ application sought orders exempting them from Rule 131 and requiring that the first plaintiff submit to medical examination. The learned Master found that defendants were tardy in obtaining expert medical evidence in relation to the first plaintiff but he was not prepared to find any contumelious disregard of the appropriate timetable. He noted that the second defendant had not been involved in the case for as long as the first defendant and had only been joined in the proceedings in late 2011. The learned Master also noted that there would not be any delay of the trial caused by the obtaining of medical reports because of the state of the trial list. He found that the plaintiffs would not suffer oppression as a result of the exemption sought. He made orders for the timetable for the outstanding medical issues. In light of those orders, the parties made applications for costs. By Reasons for Decision (No 2) emailed to the parties on 7 September 2012, the learned Master ordered that each party was to pay its own costs of and incidental to their applications, including the costs of the arguments. There is no appeal as to the substantive orders made by the learned Master. This appeal concerns the costs order.
The appellants correctly assert that with respect to appeals against discretionary costs orders there is a presumption in favour of the correctness of the decision. The appellants also correctly assert that to succeed on an appeal against an order for costs, the appellants must show that the exercise of the discretion as to costs was unreasonable or unjust so as to require the appellate court to substitute its own discretion. The appellants must demonstrate error in approach or error of fact or law with respect to the exercise of the discretion. The question is not whether I agree with the decision made by the Master but rather whether the decision was properly within his discretion.
The grounds of appeal are:
1.The Master erred in the exercise of his discretion as to costs of the applications.
2.The Master erred in failing to recognise that the appellants were successful on their application and in failing to award costs to the appellants on their application.
3.The Master erred in exercising his discretion on the basis that the respondents were substantially successful.
4.The Master erred in adopting as the starting position in respect of the respondents’ application that costs follow the event in circumstances where the respondents’ application, properly characterised, was an application:
4.1    to extend time fixed by or under the Rules;
4.2    that should have been (but was not) made at an earlier stage in the proceedings.
5.The Master erred in characterising the appellants’ conduct as unreasonable, but the respondents’ conduct as tardy (with qualifications).
6.The Master erred in his approach to the exercise of discretion by failing to consider whether it was appropriate to compensate the appellants in the circumstances and by considering whether or not to punish the appellants in the circumstances.
7.The Master failed to give adequate weight to the need for exceptional circumstances and the requirement for the respondents to obtain an order from the Court authorising or ratifying the request for the first appellant to submit to a medical examination before the first appellant was obliged to comply with the request.
8.The Master gave undue weight to cooperation and accommodation between the parties and the desire for things to be done without fuss and without argument.
9.The Master failed to have regard to all of the facts relating to the obtaining of medical evidence by the respondents, including:
9.1    delays by the first respondent in obtaining any medical evidence throughout the history of the matter;
9.2    the lack of any explanation in the affidavit material as to the significance of the involvement of the second respondent in the proceedings in terms of the need to obtain medical evidence in circumstances where the second respondent had the same insurer and solicitors as the first respondent and where the allegations as to the circumstances of the accident and injuries suffered by the first appellant in the accident were the same as against both respondents;
9.3    that there were two Court orders for the provision of medical evidence not complied with by the respondents;
9.4    that no explanation was provided in the affidavit material for the non-compliance referred to in paragraph 9.3 above;
9.5    by erroneously characterising the medical evidence and reports to be obtained by the respondents as further medical reports.
The grounds of appeal are lengthy. The argument before me was relatively long (given the nature of the appeal). I have given close consideration to all of the matters raised by the appellants.
As a general rule, costs follow the event.[1] There is no dispute with respect to that proposition. However, that rule is subject to exceptions[2] and the categories or types of exceptions is not closed. The principle underlying all costs orders relates to the justice of the situation. The usual approach is that where a party seeks an indulgence (such as an extension of time), that party ought to pay the costs. That may be the case even if a party unsuccessfully opposes the order. However costs are discretionary and a court is entitled to have regard to the circumstances before it in addition to those general matters.
[1] R263(1) District Court Civil Rules 2006
[2] R263(2) District Court Civil Rules 2006
At the heart of the appellants’ complaint (though this was not the only matter) was the learned Master’s characterisation of the appellants’ conduct in the matter as unreasonable. The appellants dispute this finding and have, at some length, spelt out the reasons for the appellants’ conduct and pointed to the defendants’ lack of explanation for the delay in obtaining a medical examination and reports of the first plaintiff. The appellants complain that the learned Master did not have proper or adequate regard to these matters and the general principle that the party seeking the indulgence should bear the costs.
In my view the appellants’ argument overlooks the discretionary nature of costs orders and that the discretion is exercised in light of the conduct of the parties. The indulgence sought by the defendants was not consented to. The plaintiffs strongly, and at some length, opposed the order sought. The learned Master found that opposition to be unreasonable. In my view, that was open on the evidence before him. I note that there was a good deal of evidence before the learned Master as to the conduct of the parties. I am not surprised that the learned Master expressed the view that the conduct of the parties was unfortunate nor that he made the contested costs order.
The learned Master found that the defendants were tardy; the plaintiffs unreasonable in their attitude to the defendants’ application. The decision does not reveal a demonstrable disregard of proper principle or inadequate regard to the circumstances. The learned Master was undoubtedly aware of the Rules, relevant principles and general approach to costs orders. In my view, the appellants have sought to place undue significance on the manner of expression in the reasons of the learned Master. In my view, in the determination of a costs argument for an interlocutory matter it was not necessary for the learned Master to expressly refer to each principle, argument and topic of evidence.
In this appeal I have had my attention drawn to all aspects of the evidence and arguments upon which the appellants rely. I have carefully considered those matters.
The appellants have advanced no material or argument which satisfies me that the learned Master acted on wrong principle, made incorrect factual findings, had regard to extraneous or irrelevant matters or failed to give weight or sufficient weight to relevant matters. The learned Master carefully considered all of the material before him as to the conduct of the proceedings and I am satisfied that he had regard to all relevant legal principles. In my view, the appellants have not demonstrated any error in his approach. Accordingly, the appeal is dismissed.