Price v BW & RD Smart (No 2) - [2020] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PRICE v BW & RD SMART (No 2)
[2020] SASCFC 15
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
28 February 2020
PROCEDURE - COSTS - APPEALS AS TO COSTS - DISCRETION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - COUNSEL FEES - SENIOR OR QUEEN'S COUNSEL
Appellant successfully appealed against a Master’s order that he, as a non-party to an action, pay two thirds of the respondent’s costs of the underlying proceedings.
Appellant now seeks orders that (1) the respondent pay the appellant’s costs of the proceedings before the Master on a party and party basis; and (2) that the respondent pay the appellants costs of the appeal on a party and party basis until 29 March 2019 and on an indemnity basis thereafter.
Held by the Court:
1.      The respondent is to pay the appellant’s costs of the respondent's application for costs against the appellant before the Master on a party and party basis.
2.      The respondent is to pay the appellant’s costs of the appeal, including of the respondent’s application to introduce fresh evidence on appeal, on a party and party basis.
3.      The proceeding on appeal is certified fit for junior counsel.
Supreme Court Act 1935 (SA) (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 263, r 264, referred to.
Hay Direct Australia Pty Ltd v BW & RD Smart (Unreported, Action No SCCIV-17-490, 26 February 2018); Hay Direct Australia Pty Ltd v BW & RD Smart (Unreported, Action No SCCIV-17-490, 24 October 2017); Price v BW & RD Smart [2020] SASCFC 2; House v The King (1936) 55 CLR 499; Copping v ANZ McCaughan (1995) 63 SASR 523; Gwinnett v Day (No 2) [2012] SASC 61; Stanley v Phillips (1966) 115 CLR 470; Beasley v Marshall (No 3) (1986) 41 SASR 321, considered.

PRICE v BW & RD SMART (No 2)
[2020] SASCFC 15
Full Court: Kelly, Blue and Nicholson JJ
THE COURT
Introduction

The appellant successfully appealed to this Court against a Master’s order that he, as a non-party to an action, pay two-thirds of the respondent’s costs of the underlying proceedings. The appellant now seeks orders:
(i)that the respondent pay the appellant’s costs of the proceedings before the Master on a party and party basis; and
(ii)that the respondent pay the appellant’s costs of the appeal on a party and party basis until 29 March 2019 and on an indemnity basis thereafter.
The full background to the matter has been canvassed in the Master’s trial reasons,[1] the Master’s costs reasons[2] and this Court’s reasons on appeal.[3]
[1]    Hay Direct Australia Pty Ltd v BW & RD Smart (Unreported, Action No SCCIV-17-490, 24 October 2017).
[2]    Hay Direct Australia Pty Ltd v BW & RD Smart (Unreported, Action No SCCIV-17-490, 26 February 2018).
[3]    Price…

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 Price v BW & RD Smart (No 2)

Details

AGLC: Price v BW & RD Smart (No 2) [2020] SASCFC 15
Case: [2020] SASCFC 15
Decision Date: 28 February 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia regarding the assessment of costs. The dispute arose from a prior proceeding where the respondent had sought costs against the appellant. The core of the appeal focused on whether the fees of two counsel, including senior counsel, were reasonably incurred and therefore recoverable.

The legal issues before the Full Court were whether the taxing Master had erred in allowing the fees of two counsel, including senior counsel, and whether the circumstances of the case justified such an engagement. The Court was required to determine the appropriate principles for assessing the necessity and reasonableness of engaging senior counsel and a second junior counsel in the context of the original proceedings.

The Court reasoned that a reasonable litigant, at the time the brief was delivered, would not have considered it necessary or prudent to brief senior counsel for the adequate prosecution of the case. While acknowledging that such matters are ordinarily for the taxing Master, the Court held that only one junior counsel's fees should be recoverable. The Court referred to the principles outlined by Barwick CJ in *Stanley v Phillips* for considering such matters. The Court made orders that the respondent pay the appellant's costs of the application before the Master and the costs of the appeal, certifying the proceeding on appeal as fit for junior counsel.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Nevertheless, we agree with the respondent’s contention that the nature and circumstances of this costs dispute did not warrant two counsel[7] nor senior counsel. In our view, a reasonable litigant at the time of delivery of the brief would not have considered it necessary or prudent to brief senior counsel for the adequate prosecution of the case.[8] Ordinarily these are matters for the taxing Master. However, we wish to make clear that only one junior counsel’s fees should be recoverable on any adjudication.[7] The matters to be considered in this respect were identified by Barwick CJ in Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470 at 479-480.[8] Beasley v Marshall (No 3) (1986) 41 SASR 321.Conclusion We make the following orders.1.The respondent is to pay the appellant’s costs of the respondent’s application for costs against the appellant before the Master on a party and party basis. 2.The respondent is to pay the appellant’s costs of the appeal, including of the respondent’s application to introduce fresh evidence on appeal, on a party and party basis.3.The proceeding on appeal is certified fit for junior counsel.

Ratio Decidendi

Legal Principle Established

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