Peter Incandela v Bozo Bobanovic
[2014] ACTSC 21
•18 February 2014
PETER INCANDELA v BOZO BOBANOVIC
[2014] ACTSC 21 (18 February 2014)
COSTS – plaintiff succeeding against defendant – defendant to pay plaintiff’s costs – reduction of 20 per cent due to plaintiff’s falsification of work history and disabilities
No. SC 362 of 2007
Judge: Higgins J
Supreme Court of the ACT
Date: 18 February 2014
IN THE SUPREME COURT OF THE )
) No. SC 362 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:PETER INCANDELA
Plaintiff
AND:BOZO BOBANOVIC
Defendant
ORDER
Judge: Higgins J
Date: 28 February 2014
Place: Canberra
THE COURT ORDERS THAT:
The defendant pay the plaintiff reasonable costs on a party and party basis but the profit cost component, that is, not disbursements, be reduced by 20 per cent to reflect the net effect of the plaintiff’s deliberate but limited falsification of his work history and the extent of his disabilities.
In this matter, on 21 October 2013, I gave judgment for plaintiff against the defendant in the sum of $222,500.00. Costs were reserved to enable the parties to make written and oral submissions therewith.
As the parties agree, that ordinarily would result in an order for costs in favour of the plaintiff at least on the conventional party and party basis.
The plaintiff does not submit that there should be any special order more favourable than that.
The defendant, however, whilst conceding that the plaintiff should have his costs of proving liability, contends that the costs of proof of loss, particularly economic loss should either be paid by the plaintiff, by way of set-off or, at least, that the plaintiff should be denied recovery of those costs.
The basis for that submission is the fact, as I found and explained in my reasons for judgment, that the plaintiff sought to exaggerate that aspect of his claim and indeed, gave false evidence concerning it. Further, he gave a false history of disability to his lawyers, doctors and accountants.
Nevertheless, as I found in those reasons, the plaintiff had suffered a significant injury and, had he told the truth concerning his true level of disability he may have recovered more than he did. His lies made a positive finding more favourable than I found to be quite impossible.
It should also be borne in mind that the challenge made by the defendant to the plaintiff’s credit, went not only to damages but to liability.
Whilst it may be accepted that much of the time taken in the proceedings was devoted to the assertion that the plaintiff’s claim was fraudulent, that succeeded only in part.
That there had been false statements made by the plaintiff was reprehensible and, of course, reflected badly on his claim but it is not the role of a costs order to punish the plaintiff for such conduct. I note that proposition is not at issue.
I also agree with the plaintiff’s submission that any adjustment of the usual costs order should take the form of limiting the plaintiff’s entitlement to costs from the defendant. To do otherwise creates a multiplicity of proceedings and unduly complicates a resolution of the issue.
The same may be said of an order that focuses on particular issues in the proceedings.
In this matter it seems to me that the plaintiff should have an order that recognises his overall success in the proceedings but makes some allowance for the time wasted by litigating those issues which he falsely created. In doing so, I bear in mind that his false statements insofar as they were deliberate, did not, so far as I can see, lead to different witnesses being called on the issue of liability though the extent of cross-examination was undoubtedly greater. The surveillance of the plaintiff though fruitful was, so far as I could tell, not significantly greater than would typically be the case in a contested claim. Nor did it significantly alter the range of witnesses to be called though their contribution was lengthier than otherwise would have been the case.
Indeed, it could be said that the issue of liability was mostly complicated by the endeavour of the defendant to prove that no accident had occurred or that it was fraudulently staged. I appreciate that, on that issue, the plaintiff will recover his costs but, as his submissions point out, there is always some component not recovered.
Balancing these considerations, I order that the defendant pay the plaintiff reasonable costs on a party and party basis but the profit cost component, that is, not disbursements, be reduced by 20 per cent to reflect the net effect of the plaintiff’s deliberate but limited falsification of his work history and the extent of his disabilities.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.
Associate:
Date: 18 February 2014
Counsel for the Applicant: Mr D Campbell SC
Solicitor for the Applicant: Porters Lawyers
Counsel for the Respondent: Mr G Watson SC
Solicitor for the Respondent: Moray & Agnew
Date of hearing: 25 November 2013
Date of judgment: 18 February 2014
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