Swindale v Babic [No 2]
[2007] WASCA 262 (S)
•3 DECEMBER 2007
SWINDALE -v- BABIC [No 2] [2007] WASCA 262 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 262 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:132/2007 | 21 NOVEMBER 2007 | |
| Coram: | PULLIN JA NEWNES AJA | 2/12/07 | |
| 18/02/08 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay appellant's costs of the appeal | ||
| B | |||
| PDF Version |
| Parties: | KENNETH GRIFFITHS SWINDALE DINKO BABIC |
Catchwords: | Costs Costs of successful appeal Whether conduct disentitling appellant to order for costs Turns on own facts |
Legislation: | Suitors' Fund Act 1964 (WA), s 10 |
Case References: | Cilli v Abbott (1981) 53 FLR 108 Latoudis v Casey (1990) 170 CLR 534 Swindale v Babic [No 2] [2007] WASCA 262 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWINDALE -v- BABIC [No 2] [2007] WASCA 262 (S) CORAM : PULLIN JA
- NEWNES AJA
DECISION : 19 FEBRUARY 2008 FILE NO/S : CACV 132 of 2007 BETWEEN : KENNETH GRIFFITHS SWINDALE
- Appellant
AND
DINKO BABIC
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
Citation : BABIC -v- SWINDALE [2007] WADC 166
File No : CIV 1862 of 2006
(Page 2)
Catchwords:
Costs - Costs of successful appeal - Whether conduct disentitling appellant to order for costs - Turns on own facts
Legislation:
Suitors' Fund Act 1964 (WA), s 10
Result:
Respondent to pay appellant's costs of the appeal
Category: B
Representation:
Counsel:
Appellant : Mr M H Zilko QC
Respondent : Mr D R Clyne
Solicitors:
Appellant : Williams Handcock
Respondent : Simon Walters
Case(s) referred to in judgment(s):
Cilli v Abbott (1981) 53 FLR 108
Latoudis v Casey (1990) 170 CLR 534
Swindale v Babic [No 2] [2007] WASCA 262
(Page 3)
1 JUDGMENT OF THE COURT: On 3 December 2007, this court upheld the appellant's appeal against the decision of the learned trial judge by which his Honour refused the appellant's application to rely on certain medical evidence at the trial of the action. We set aside the decision and remitted the appellant's application to the learned trial judge for further hearing: Swindale v Babic [No 2] [2007] WASCA 262.
2 An issue has now arisen between the parties as to the costs of the appeal. The respondent contends that the appellant should pay his costs of the appeal, on the ground that the application to the learned trial judge, and the appeal to this court, only came about because of the appellant's decision, for tactical reasons, not to serve certain expert medical reports in accordance with the rules of court. The respondent also says that the appeal was premature and that the appellant should have awaited the outcome of the trial to determine whether an appeal was in fact necessary.
3 In any event, the respondent submits it is appropriate that he be granted a certificate under s 10 of the Suitors' Fund Act 1964 (WA) in respect of his costs of the appeal.
4 The appellant, on the other hand, seeks an order that the respondent pay his costs of the appeal, submitting that there is no reason to depart from the general rule that costs follow the event. The appellant contends that the problem with the medical evidence in question arose because of the conduct of the respondent, and in delaying service of the medical reports as he did, the appellant was simply responding to a situation of the respondent's making.
5 The appellant says that the appeal, and the adjournment of the trial to allow the appeal to be heard, was necessary because if the evidence in question was not adduced, the evidence that the appellant's medical experts would be able to give at trial would be incomplete and potentially misleading.
6 It is trite law that the court has a broad discretion as to the costs of litigation. The rationale of an order for costs is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred; the function of such an order is not to punish the unsuccessful party, its function is purely compensatory: Latoudis v Casey (1990) 170 CLR 534, 566 - 567, Cilli v Abbott (1981) 53 FLR 108, 111.
7 In the circumstances, we do not consider it is appropriate, or even possible on what is before us, to descend into any detailed assessment of
(Page 4)
- the merits of the conduct of the respective parties in relation to the medical evidence in question.
8 It is, however, clear that the position the appellant found himself in at trial in relation to the medical evidence was one of his own making, or perhaps more correctly, of his legal advisers' making. He was not entitled, for tactical reasons, to delay the service of expert medical reports beyond the time limit by which the rules of court required they be served. It was because he took that course that he found himself in the position of having to seek leave to rely on the medical evidence contained in those reports. As we have said, whether or not that leave should be granted is a matter that has been remitted to the learned trial judge for further consideration.
9 On the other hand, although the reports in question were served on the respondent's solicitors some three weeks before the trial, for reasons which have not emerged it appears that no notice was given by the respondent's solicitors that objection would be taken to the relevant medical evidence being adduced at trial until after the trial had commenced. Indeed, it appears that no objection was taken until after the respondent (the plaintiff in the proceedings) had closed his case.
10 On the material before us it is not apparent that either party can claim the high moral ground. It is difficult to avoid the conclusion that there has been an element of gamesmanship on both sides. We are not persuaded that, on balance, the conduct of the respective parties weighs significantly in favour of one party or the other.
11 Nor do we think that much weight can be given to the fact that the appeal was brought before judgment in the action. While that was not a desirable course, it appears from the transcript of the proceedings below that counsel for the respondent did not oppose the appellant taking that course. Moreover, the fact that the question of whether the appellant should have leave to adduce the evidence arose only in the course of the trial was due, not only to late service by the appellant, but also to the fact that the respondent waited until the trial was underway before giving notice of his objection to it.
12 In the circumstances, we are not persuaded that the court should depart from the general rule that the costs follow the event. Having unsuccessfully opposed the appeal, the respondent should pay the appellant's costs.
(Page 5)
13 We would treat the respondent's written submission as an application for a certificate under the Suitors' Fund Act. We are satisfied that it is appropriate to grant a certificate and would do so.
14 We would therefore order:
1. the respondent pay the appellant's costs of the appeal to be taxed;
2. the respondent is granted an indemnity certificate in respect of the appeal, pursuant to s 10 of the Suitors' Fund Act.
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