Shire of Manjimup v Cheetham

[2010] WASCA 225 (S)

SHIRE OF MANJIMUP -v- CHEETHAM [2010] WASCA 225 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 225 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:143/2009	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MAZZA J	Delivered:	29/11/10
Supplementary Delivered:	16/02/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs of action Each party to bear own costs of appeal
Category:	B
PDF Version

Parties:	SHIRE OF MANJIMUP   SANDRA ALICE CHEETHAM
Catchwords:	Practice and procedure Costs Appeal succeeded on contributory negligence but failed on liability Liability apportioned 30% to respondent Respondent entitled to costs of action Each party to bear own costs of appeal
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37
Case References:	Amaca Pty Ltd v Moss [2007] WASCA 162(S) Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Shire of Manjimup v Cheetham [2010] WASCA 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHIRE OF MANJIMUP -v- CHEETHAM [2010] WASCA 225 (S) CORAM : BUSS JA

NEWNES JA
MAZZA J

HEARD : ON THE PAPERS DELIVERED : 29 NOVEMBER 2010 SUPPLEMENTARY
DECISION : 16 FEBRUARY 2011 FILE NO/S : CACV 143 of 2009 BETWEEN : SHIRE OF MANJIMUP

Appellant

AND

SANDRA ALICE CHEETHAM
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : SCOTT DCJ

Citation : CHEETHAM -v- SHIRE OF MANJIMUP [2009] WADC 169

File No : CIV 2233 of 2007

(Page 2)

Catchwords:

Practice and procedure - Costs - Appeal succeeded on contributory negligence but failed on liability - Liability apportioned 30% to respondent - Respondent entitled to costs of action - Each party to bear own costs of appeal

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Supreme Court Act 1935 (WA), s 37

Result:

Appellant to pay respondent's costs of action

Each party to bear own costs of appeal

Category: B

Representation:

Counsel:

Appellant : Mr J Eller
Respondent : Mr R V Lonnie

Solicitors:

Appellant : John Eller
Respondent : Ian Watson Lawyer

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Moss [2007] WASCA 162(S)
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Shire of Manjimup v Cheetham [2010] WASCA 225


(Page 3)

1 JUDGMENT OF THE COURT: On 29 November 2010, the court delivered judgment in this appeal: Shire of Manjimup v Cheetham [2010] WASCA 225. At that time, orders were made dismissing the appeal on liability but allowing the appeal on contributory negligence. The parties sought an opportunity to make submissions on the appropriate orders as to costs and directions were given for the filing and service of written submissions. Pursuant to the directions, the orders as to costs are to be determined on the papers. The parties have each since filed submissions on costs.

2 The appeal arose out of an accident at premises controlled by the appellant. The respondent, who was staying in a cottage on the premises, was injured when she fell into an unguarded culvert at night. The respondent brought proceedings against the appellant in the District Court alleging that the accident was caused by the appellant's negligence. The quantum of damages was agreed at $36,500 and the trial proceeded on the issue of liability alone. The appellant denied that it was negligent and, in the alternative, pleaded contributory negligence on the part of the respondent.

3 The primary judge found that the accident was caused by the appellant's negligence and dismissed the appellant's claim of contributory negligence. The appellant appealed against both findings. Three of its four grounds of appeal concerned the finding of negligence against it. The remaining ground concerned contributory negligence. As we have mentioned, the appeal against the finding that the appellant was negligent was dismissed but the appeal in relation to contributory negligence was upheld. On the appeal, liability was apportioned two-thirds to the appellant and one-third to the respondent.

4 The appellant says that the costs of the appeal should reflect the apportionment, that is, two-thirds to the respondent and one-third to the appellant. It submits that while it was unsuccessful on the three grounds of appeal relating to liability, its success on the issue of contributory negligence meant that the respondent's entitlement to damages was significantly reduced.

5 On the trial costs, the appellant submits there should be no order as to costs. The respondent sought to establish that the appellant was wholly liable for the accident. She has been unsuccessful, liability having now been apportioned on appeal.

(Page 4)

6 The respondent submits that the respondent was substantially successful on the appeal and costs should follow the event. The issue of contributory negligence was ancillary to the appeal and it would be unfair to reduce the respondent's costs by one-third. On the costs of the trial, the respondent submits that the order for costs in her favour should not be disturbed. Even in light of the decision of this court, the respondent was substantially successful at trial.

7 The court has a general discretion as to the costs of proceedings before it: Supreme Court Act 1935 (WA) s 37. Ordinarily, the court will order that the successful party recover their costs of the proceedings: Rules of the Supreme Court 1971 (WA) O 66 r 1. But in the exercise of its discretion the court may apportion costs where one party has succeeded on some issues but failed on others. However, there can never be any hard and fast rule and each case must depend upon its own particular circumstances. Where there is a mixed outcome in proceedings, the exercise of the discretion as to costs will often depend upon matters of impression and evaluation; mathematical precision is illusory: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Amaca Pty Ltd v Moss [2007] WASCA 162(S) [6].

8 In the present case, we would not interfere with the order of the trial judge that the appellant is to pay the respondent's costs of the action to be taxed. The respondent was substantially successful at trial even on the basis of an apportionment of liability on her part of one-third. There is no reason that costs should not follow the event.

9 While the appellant was successful in part on the appeal, resulting in a reduction of the damages payable to the respondent by one-third, it was unsuccessful in overturning the finding that it was negligent. But having regard to the way in which the appeal was argued, this is not a case where the time occupied by the issues of liability and apportionment respectively can readily be differentiated. There was a good deal of overlap between the two and it cannot be said that one was clearly predominant. The best that can be said is that the appellant succeeded on one issue and the respondent succeeded on the other.

10 In the circumstances, in our view the appropriate order is that each party bear their own costs of the appeal.