Rolfe v Investec Bank (Australia) Ltd (Ruling No 3)
[2013] VCC 1157
•6 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-02073
| JAMES GEOFFREY ROLFE | Plaintiff |
| v | |
| INVESTEC BANK (AUSTRALIA) LTD (ACN 071 292 594) | First Defendant |
| and | |
| GADENS LAWYERS (A FIRM) | Second Defendant |
| and | |
| SUTHERLAND FARRELLY (ACN 004 601 469) | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 May 2013 | |
DATE OF RULING: | 6 September 2013 | |
CASE MAY BE CITED AS: | Rolfe v Investec Bank (Australia) Ltd & Ors (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1157 | |
FURTHER RULING AS TO COSTS
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Subject: COSTS
Legislation Cited: County Court Civil Procedure Rules 2008; Wrongs Act 1958
Cases Cited:Rolfe v Investec Bank (Australia) Ltd & Ors (Ruling) [2013] VCC 843; Oldaker v Currington [1987] VR 712; Peile v Nobel Australasia Pty Ltd [1966] VR 433
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr S Metaxas | Goldsmiths Lawyers |
| For the Investec | Dr O Bigos | Arnold Bloch Leibler |
| For the Second Defendant | Mr D Aghion | Colin Biggers & Paisley |
| For the Third Defendant | Mr M Stirling | DLA Piper Australia |
HIS HONOUR
1 My ruling is sought as to the costs order which should be made in the proceeding.
2 The issues which arise for my determination being:
(i) The nature of the order which should be made as to the liability of Investec to meet the costs of the plaintiff with respect to the first day of the trial;
(ii) Whether the terms of the costs order should be influenced by reason of the joinder by Investec of the second and third defendants;
(iii) Whether I should certify that it was appropriate for the plaintiff to brief two counsel to appear at the trial of the proceeding.
3 I approach my analysis of the above issues from the starting point that as the plaintiff’s claim against Investec was dismissed, absent the plaintiff satisfying me that a special order should be made in the proceeding, the costs should follow the event.
4 In this proceeding, whilst there is no issue that Investec is entitled to an order against the plaintiff with respect to the costs of the proceeding, issues arise between the parties as to the nature of the order which should be made.
5 Essentially, it is put by the plaintiff that:
(i) Any order made in favour of Investec with respect to costs should be reduced to take into account the fact that Investec joined the second and third defendants as parties to the proceeding (the effect of that action being to prolong the trial considerably through no fault of the plaintiff), and the liability of the plaintiff to Investec for costs should be adjusted so as to take account of that situation;
(ii) An order for costs should be made in favour of the plaintiff with respect to any time occupied in the course of the trial in dealing with issues which arose by reason of the joinder by Investec of the second and third defendants.
The costs associated with the first day of the trial
6 On the first day of the trial, Investec sought leave to amend its Defence to plead an additional defence “based on the terms of the contracts between Investec and Mr Rolfe and his related entities”.[1]
[1]Paragraph 1 of the submission on behalf of the defendants dated 13 July 2013
7 Whilst it is put on behalf of Investec that the plaintiff’s lawyers “could continue to prepare for the trial which continued the following day so not all the costs incurred on the day were thrown away”,[2] this statement assumes that the plaintiff’s legal team were not adequately prepared to commence the trial on the day upon which it was listed to proceed.
[2]Paragraph 2 of the submission on behalf of the defendants dated 31 July 2013
8 In the absence of any persuasive evidence to support that proposition, I do not accept the position on behalf of Investec that it should not be held fully responsible for the costs thrown away by reason of the adjournment on the first day of the hearing.
9 I am satisfied that the appropriate order with respect to the costs associated with the first day of the trial is one equivalent to an order that Investec meet the plaintiff’s costs thrown away by reason of the adjournment of the first day of the hearing.
10 Further given:
· The complexity of the issues in this proceeding which is not in issue; and
· The quantum of the plaintiff’s claim;
I am satisfied, applying the analysis set out in Oldaker v Currington[3] and Peile v Nobel Australasia Pty Ltd,[4] that a reasonably prudent solicitor would have been justified in taking the view at the time at which briefs were required to be delivered, that the retention of Senior and Junior Counsel was justified in this instance.
The application by the Plaintiff that there be an apportionment of the trial costs payable to Investec and recoverable by the Plaintiff
[3][1987] VR 712
[4][1966] VR 433
11 In dealing with the matters which arise for my determination in this instance, I do so adopting the findings and reasons set out in my previous rulings in this matter, and:
(i) Accepting the position put on behalf of both the plaintiff and Investec that the issues which arose in this instance were legally and factually complex;[5]
[5]See paragraph 9 of the submissions on behalf of the defendants dated 19 July 2013 and paragraph 24 of the submissions on behalf of the plaintiff dated 25 July 2013
(ii) Accepting the matters set out in the chronology appearing at paragraph 23 of the submission of the solicitors for Investec dated 31 July 2013;
(iii) Being satisfied that:
· The plaintiff’s case against Investec was effectively founded upon allegations that servants, agents or employees of the second and third defendants acted inappropriately and, accordingly, that even in the absence of the joinder by Investec of the second and third defendants, much of the evidence adduced by the second and third defendants in the course of the trial would have been required to be adduced by Investec in its defence of the plaintiff’s claim;
· Given the possibility that the plaintiff’s case was apportionable pursuant to the provisions of the Wrongs Act, Investec (even in the absence of the joinder of the second and third defendants) would have been required to adduce evidence which would have allowed the Court to fix the responsibility of the second and third defendants for the loss and damage claimed by the plaintiff in the event of the plaintiff succeeding in his claim.
12 In these circumstances, I am satisfied that the task involved in identifying whether the joinder by Investec of the second and third defendants resulted in the trial occupying more time than it otherwise would have, involves a process of “impression and common sense”[6] and that it is incapable of any definitive mathematical analysis.
[6]Paragraph 9 of the submissions on behalf of the plaintiff dated 25 July 2013
13 The parties have prepared various submissions and tables which set out the time occupied by the various parties during the trial in their openings, cross-examination and closing addresses. In deciding the issues which arise in this application, I have taken account of this material, and whilst I was assisted by it to some extent, I am satisfied that it should be employed by me only as providing a potential guide to my analysis and not as making a definitive statement as any extension of trial time associated with the presence in the trial of three defendants rather than one defendant.[7]
[7]I make this statement on the basis of my findings in paragraph 11 hereof.
14 Whilst it is put on behalf of the plaintiff that the trial was originally the subject of an estimate of five days but that the trial occupied some eleven days, and that the difference between the trial estimate and the length of the trial is an indicator of the difference in the duration of the trial occasioned by reason of Investec’s joinder of the additional parties, I do not accept this submission. In a trial involving a serious dispute as to the facts and complex legal issues, it comes as no surprise to me that the initial trial estimate of five days (which was no more than an estimate) was inaccurate, and I am not satisfied that I should give significant weight to the difference between the actual length of the trial when compared with its estimate in making the findings required of me in this application.
15 Effectively, the trial occupied ten sitting days. Whilst I am satisfied that the presence of counsel representing each of the defendants may have contributed to the trial proceeding for some period longer than it otherwise would have, given the obligation upon counsel for Investec to deal with most if not all of the matters which were canvassed by counsel for the second and third-named defendants, I cannot fix with any degree of certainty whether the involvement of the second and third defendants in the trial extended the duration of the trial such that the parties to this application were exposed to additional costs.
16 In my ruling of 27 June 2013[8] I commented that, given the way in which the plaintiff pleaded his case against Investec, the plaintiff could have foreseen the joinder by Investec of the second and third defendants. I am satisfied, for the reason set out in my ruling of 27 June 2013, that the joinder of these parties was one which could not be said to be unreasonable.
[8]Rolfe v Investec Bank (Australia) Ltd & Ors (Ruling) [2013] VCC 843
17 For the reasons I have expressed both above and in my previous rulings, I am satisfied that, when fixing the liability of the plaintiff to Investec with respect to costs, I should fix that liability on the basis that the costs to which the plaintiff is liable should be the totality of the trial costs, excluding the first day of the trial day.
18 Even were I to have been satisfied as to the position put on behalf of the plaintiff that additional time was taken in the trial by reason of the joinder by Investec of additional defendants, I am satisfied, taking into account:
(i) The fact that plaintiff failed against Investec on every issue in the trial;
(ii) The nature of the plaintiff’s pleading, which was such that it was foreseeable, and, in my opinion, not unreasonable that Investec commence proceedings against the second and third defendants in circumstances in which its defence of the plaintiff’s claim had to be managed almost entirely by adducing evidence from employees or agents of the second and third defendants;
that the plaintiff would not have been entitled to any order made in his favour in respect of any additional costs incurred by him in association with the trial, and that any accounting as to costs, if appropriate, should have been applied to the costs liability of the plaintiff to Investec.
The costs between 28 February and 3 May 2013
19 Investec accepts that it is liable for the plaintiff’s costs of the hearings dated 2 and 3 May 2013. I am satisfied that an order should be made in favour of the plaintiff as to the costs associated with the hearing on those dates.
20 On 28 February 2013, her Honour Judge Kings recused herself from dealing with the issues which arose as to costs in this proceeding.
21 Notwithstanding that the plaintiff’s solicitors (Goldsmiths) learnt of the intention of Investec to pursue an application for costs against them personally on 21 February 2013, it was not until the morning of 28 February 2013 that Investec was advised by Goldsmiths that an issue existed which might cause her Honour to recuse herself from hearing the proposed application against Goldsmiths.
22 It is put on behalf of the plaintiff that my ruling that I should defer the hearing of the application by Investec for costs against Goldsmiths in some way impacts upon the issue as to whether the costs incurred by the parties between 28 February 2013 and 1 May 2013 would have been avoided. This position is based upon the assertion that Investec should not have pursued this aspect of its costs application on 28 February 2013, with the result that her Honour would have dealt with all outstanding costs issues (other than the issue which arose by reason of the application by Investec against Goldsmiths).
23 I am satisfied that:
· It was not inappropriate for Investec to seek to have all costs matters dealt with at the same time, this being the usual course in such applications;
· The decision made by her Honour Judge Kings to recuse herself from the hearing of the application for costs against Goldsmiths could not have been foreseen by Investec prior to Investec being notified by Goldsmiths as to the factual situation which existed which might cause her Honour to recuse herself.
24 Neither do I accept the position that my earlier ruling in which I exercised a discretion as to timing of the application by Investec for costs against Goldsmiths should be dealt with, necessarily provides an indication as to the way in which her Honour Judge Kings would have dealt with the same issue in the exercise of her discretion had she not recused herself.
25 Equally, it is clear that the decision by Investec to pursue its application for costs against Goldsmiths was first raised relatively late in the process, given that the date for the costs application had been fixed on 21 January 2013 cost.
26 In my earlier ruling, I reserved the position of Investec to pursue its application for costs against Goldsmiths at a later time and ruled that I should deal with all other outstanding issues which arose as to costs. It seems to me that:
· The delay by Investec in notifying Goldsmiths of its intention to make an application for costs against it;
· The delay by Goldsmiths in notifying Investec of the existence of circumstances which may have caused her Honour to recuse herself;
· My earlier ruling in which I deferred any ruling as to the costs sought by Investec against Goldsmiths but ordered that I should deal with all other costs issues
should be regarded as involving a relatively equal outcome between the parties to this application, involving not only some degree of blame, but also both some degree of success and failure on the part of each of the parties as to the various positions taken by each of the parties.
27 For these reasons, I am satisfied that I should make no order as to costs with respect to the costs of both the plaintiff and Investec between 28 February and 1 May 2013.
28 I propose to make the following costs orders to give effect to my findings. I will allow the parties to address me however as to the precise terms of the orders:
(1) The plaintiff is to pay the first defendant’s costs of the proceeding by the plaintiff against the first defendant on a party/party basis to be taxed in default of agreement save that:
(a) the first defendant is to pay the plaintiff’s costs of the first day of the trial and the costs of and incidental to the amendment of the defence on the first day of the trial;
(b) the first defendant’s costs of the trial of the proceeding not include the first day of the trial;
(c) the first defendant is to pay the plaintiff’s costs of 2 and 3 May 2013 to be taxed in default of agreement on a party/party basis.
(2) The Court certifies that it was reasonable for the plaintiff to brief Senior and Junior Counsel to appear on behalf of the plaintiff at the trial of the proceeding.
(3) The costs payable by the first defendant to the plaintiff are to be set-off against the costs payable by the plaintiff to the first defendant.
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