Price v Calvary Healthcare Adelaide Incorporated (No 2)

[2013] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

PRICE v CALVARY HEALTHCARE ADELAIDE INCORPORATED AND ANOR (No 2)

[2013] SADC 51

Ruling of His Honour Judge Slattery

24 April 2013

PROCEDURE - COSTS

Cretazzo v Lombardi (1975) 13 SASR 4, applied.

PRICE v CALVARY HEALTHCARE ADELAIDE INCORPORATED AND ANOR (No 2)
[2013] SADC 51

Decision on costs

1. On the 12^th of April 2013 I delivered my ruling on the applications of the plaintiff for a production by the first defendant of a series of documents compendiously called (for the sake of consistency) the midwives documents, the insurance notification documents, the Imgraben documents and the Taylor documents. A claim for privilege had been made in respect of these documents. Shortly before the hearing of the matter which occurred on 8^th of March 2013, the plaintiff made an application to cross examine various deponents of the affidavits filed on behalf of the first defendant. At the hearing, the plaintiff made an oral application for provision under Rule 61 of the District Court Civil Rules of a document allegedly referred to in an affidavit filed by the second defendant.

2. At the time of delivering my reasons for decision, I made an order (Order no. 3) that there be no order as to costs. In coming to my decision on costs, I had regard to the usual principles in relation to awarding costs and the Court’s discretion as to costs under Rule 263. The contents of that Rule and the general principles in relation to costs were the basis that underpinned the orders that I made.

3. At the time of the delivery of my ruling, Mr Frayne SC sought and I granted leave to be heard further on the question of costs and he made submissions that a different costs order should be made. The basis of that application is now set out in the plaintiff’s further written submissions filed with the Court, dated 17 April 2013. I have also given consideration to the first defendant’s written submissions of the 15 April 2013. These further submissions were filed in accordance with orders that I made in the Court on 12 April 2013.

4. In summary, the plaintiff submits that it was required to bring the application, that after the commencement of the application documents 3, 4, 5, 6 and 11 were produced and that in the application the plaintiff was successful in obtaining an order for production of documents numbered 1 and 2. The application for document 22 was not pressed. The plaintiff submits that on an overall view of the costs incurred by him in and about the application and the level of success both before and within the application, there is justification for an order for costs in his favour.

5. The submission of the first defendant was that, in summary and having regard to the 7 matters before the Court on the hearing of the application, a fair assessment of the position was that the first defendant won more than it lost and that, inferentially adopting the plaintiff’s method of argument, it is the plaintiff who should be paying costs not the defendant. Notwithstanding the first defendant’s primary position was that the costs order made on 12 April 2013 should be maintained.

6. The first defendant recognised in its submissions that the Court should not embark upon a decision which requires an assessment of fine distinctions and making analyses with respect to awards of costs on issues argued. The first defendant suggested but did not press an alternative approach of awarding the successful party on each issue the costs of the issue with entitlements for set off.

7. In my view, the first defendant was correct not to press that position because it creates the very difficulties warned against by Bray CJ and Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at [14] and [16].

8. Having reviewed the whole of the contents of the respective submissions made by the plaintiff and the first defendant on 8 March 2013, and having reviewed the contents of the file, the arguments put by counsel, my decision and the further submissions made by the parties, it is my decision that, in the exercise of my discretion, paragraph 3 of the Orders made by me on 12 April 2013 remains. I will not make any further Order about costs and I see no need to re-exercise my discretion afresh in relation to the question of costs of that argument.

9. I therefore affirm the orders that I have made on 12 April 2013.

10. I will hear the parties as to the costs of this application.