Redken Laboratories (Aust) Pty Limited v Docker [No 2]

[2000] NSWCA 235

CITATION:	REDKEN LABORATORIES (AUST) PTY LIMITED v DOCKER & ANOR [NO 2] [2000] NSWCA 235
FILE NUMBER(S):	CA 40752/98
HEARING DATE(S):	In Chambers
JUDGMENT DATE:	7 September 2000
PARTIES :	Redken Laboratories (Aust) Pty Limited - Appellant Natasha Docker - First Respondent Achievement Concepts Pty Limited - Second Respondent
JUDGMENT OF:	Sheller JA

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20797/96
LOWER COURT JUDICIAL OFFICER :	Hidden J

COUNSEL:	P J Deakin QC/A Ventura - Appellant P Webb QC/D R Conti/D F Kell - First Respondent D J Fagan SC/C M Simpson - Second Respondent
SOLICITORS:	Hickson Wisewoulds - Appellant McClellands - First Respondent Blake Dawson Waldron - Second Respondent
CATCHWORDS:	COSTS
LEGISLATION CITED:	N/A
CASES CITED:	James Hardie & Coy Pty Ltd v Wyong Shire Council (unreported) [2000] NSWCA 107
DECISION:	Amend order 10 of the consent orders by the addition of the words ‘and pay the appellantl its costs of the trial’.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40752/98
CL 20797/96

SHELLER JA

Thursday, 7 September 2000

REDKEN LABORATORIES (AUST) PTY LIMITED v DOCKER & ANOR [NO 2]

JUDGMENT
(COSTS)

1    SHELLER JA: On 9 June 2000 the Court published its reasons for judgment in these appeals and ordered that they be stood over for mention before the Registrar on 19 June 2000. On that date orders were made by consent. The result of these orders was:

Substituted judgment for the plaintiff [Natasha Docker] against Achievement in the sum of $662,643.40;
Substituted judgment for the plaintiff against Redken in the sum of $534,921.60;
Redken’s appeal against the plaintiff dismissed and Redken to pay the plaintiff’s costs of the appeal;
Redken’s appeal against Achievement allowed and the order dismissing Redken’s cross-claim against Achievement set aside;
Judgment for Redken on its cross-claim against Achievement in the sum of $534,921.60;
Achievement to pay Redken’s costs of the cross-claim;
Achievement to indemnify Redken for all costs that Redken had to pay the plaintiff of the trial;
Achievement to pay Redken’s costs of the appeal against Achievement.

2    No order was made for Achievement to pay:

· Redken’s own costs of the trial (apart from the costs of its cross-claim);
· the plaintiff’s costs of the appeal which Redken was ordered to pay; or

· Redken’s own costs of its appeal against the plaintiff.

Nor did the judgment on Redken’s cross-claim against Achievement include anything on account of those costs.

3    On 19 June 2000 orders were also made that Redken and Achievement file and serve within 21 days any further written submissions on the costs issues. It was noted that Redken and Achievement had agreed that I, sitting alone, might determine any further costs issues between those parties at the trial and on the appeal.

4    In my reasons for judgment on the appeal I said:

“In principle, the verdict against Achievement in favour of Redken should provide an indemnity for all damages and costs that Redken has to pay Ms Docker in the proceedings both at trial and on appeal. However, the parties may wish to put further argument having read these reasons about the amount of the verdict and about costs.”

A general discussion about the recovery as damages of costs incurred in previous proceedings by an unsuccessful defendant against a third party is found in McGregor on Damages , 16th ed at paras 748-796. At 791 authority is cited for the proposition:

“Where the now plaintiff has unsuccessfully but reasonably defended an action against him, he will generally recover, as well as the damages he has been adjudged to pay the third party suing him, the taxed costs he has had to pay him and his own costs of defending the action taxed as between solicitor and client.”

5    As to costs of an unsuccessful appeal, the learned author says at 794:

“…..any of the costs involved in an unsuccessful appeal in the prior proceedings by the now plaintiff after his failure at first instance will generally not be recoverable because they will not be held to have been reasonably incurred, and thus the now defendant should not be liable for them. ….. However, in one exceptional case, Sutton v Baillie (1892) 65 LT 528, it was held reasonable to appeal, since there had been a difference of opinion among the judges below, and the costs of the unsuccessful appeal against the third party were allowed as damages against the now defendant.”

6    Redken submitted that the following issues as to costs remained to be determined:

Costs of trial
(a) Whether Achievement should pay Redken’s costs of the trial, being those costs additional to the costs of Redken’s cross-claim against Achievement.

Costs of Appeal
(b) Whether Achievement should indemnify Redken for the costs that Redken has to pay the plaintiff of the appeal.

(c) Whether Achievement should pay Redken’s costs of the appeal against the plaintiff.

7    In its written submissions Achievement resisted this claim only to the extent that Redken sought:

(i) an order that Achievement pay Redken’s costs of its unsuccessful appeal against the award of damages in favour of the plaintiff; and

(ii) indemnified against its liability to the plaintiff in respect of its appeal.

8    Accordingly, by concession, order 10 of the consent orders should be amended by the addition of the words “and pay the appellant its costs of the trial additional to the costs of its cross-claim”.

9    This leaves for decision the question of whether Achievement should indemnify Redken for the costs of the appeal Redken was ordered to pay the plaintiff and Redken’s own costs of the appeal against the plaintiff. I put aside for the present the question whether the amount of these costs should have been treated as part of the damages payable by Achievement to Redken and whether such amount is appropriately dealt with by a costs order. Compare the decision of this Court in James Hardie & Coy Pty Ltd v Wyong Shire Council (unreported) [2000] NSWCA 107.

10    Redken’s appeal against the plaintiff was directed only to the damages awarded to the plaintiff for economic loss, which were said to be excessive. In part, this appeal succeeded because of a miscalculation made by the trial Judge in assessing the damages. Of this I said in my reasons for judgment:

“No explanation was advanced for the failure by those advising the parties to the proceedings to discover the discrepancy of $43,431.96 and bring it to the attention of the Court that heard the proceedings. The amount of damages could have been adjusted without any need to come to this Court.”

11    Otherwise in its appeal Redken submitted that the trial Judge failed to make any or adequate allowance for the plaintiff’s decision to terminate her employment with Redken in order to pursue studies overseas and for the fact that the plaintiff would, after she was diagnosed with a malignant melanoma in October 1995, have for that reason been incapacitated for work both physically and psychologically, even if she had not been injured in August 1992.

12    As to the first of these submissions, I observed in my reasons for judgment that in neither the written nor oral submissions put on Redken’s behalf was any indication given of how the trial Judge, in accordance with Redken’s submission, should have calculated damages for past economic loss to take account of the matters relied on. As to the argument based on reduced life expectancy, I observed that, though not expressly abandoned, Redken’s counsel conceded that this part of the appeal was unsustainable. The appeal was dismissed.

13    In my opinion, Redken’s appeal against the verdict in favour of the plaintiff had no real prospect of success and, accordingly, cannot be regarded as reasonable. For that reason, I do not think that Redken is entitled to any order against Achievement requiring Achievement to indemnify it for the costs of the appeal Redken was required to pay the plaintiff or for its own costs of the appeal. I will make no order as to the costs of this further application. The only order I make is as follows:

Amend order 10 of the consent orders by the addition of the words ‘and pay the appellant its costs of the trial additional to the costs of its cross-claim’.
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