Tan v Cheah No. DCCIV-00-1645

[2002] SADC 62

TAN v CHEAH
[2000] SADC 1645

Judge Robertson
Civil

1. I have granted the Defendant an adjournment of the Trial on the grounds that she is medically unfit to travel from Perth to Adelaide to attend the Trial.  The Plaintiff is entitled to her costs thrown away.  The Plaintiff seeks an order that the costs be ordered to be paid on an indemnity basis.  In other words, the Plaintiff seeks an order on a solicitor and client basis, which costs would also include counsel fees.

2. The usual order for costs is on a party and party basis.  However, costs on a solicitor and client basis may be awarded where there is some special or unusual feature to justify the Court departing from the ordinary practice.  (Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234; Re Wilcox; ex parte Venture Industries (1996) 141 ALR 727). It is the Plaintiff’s contention that the Defendant’s delay in bringing the application is the special or unusual feature which requires the Court to exercise its discretion to order solicitor and client costs.

3. The Defendant has been suffering from the medical condition for some considerable time.  It was this condition which led to the hearing of the trial set for 19 November 2001 to be adjourned.  Master Norman in granting the adjournment commented that the application had been brought at a late stage. The application for adjournment was brought on 8 November 2001 although her condition was diagnosed in August 2001.

4. The Defendant in her affidavit sworn on 16 May 2002, in support of her application to adjourn this Trial, deposed that although surgery for her medical condition was contemplated back in December 2001 it was not possible for her to undergo the surgery prior to the date of the Trial because of the shortage of hospital beds.  The Defendant further deposed that she is to undergo surgery for her condition on 21 June 2002. 

5. The Plaintiff filed her application for an adjournment on 17 May 2002, some four days before the commencement of the Trial.  The matter had been set down for hearing at a listing conference on 15 January 2002.  During that conference the Defendant’s solicitor obtained instructions from the Defendant that 21 May 2002 was a satisfactory date.

6. On 1 May 2002 the Plaintiff’s solicitor wrote to the Defendant’s solicitors in Perth indicating that he had been informed that the Defendant intended to apply for the adjournment of the Trial to be held on 21 May 2002 on the grounds of ill health.  The Plaintiff’s solicitor urged the Defendant’s solicitors to immediately apply for an adjournment.  He received no reply to this letter.  The Plaintiff’s solicitors forwarded a facsimile to the Defendant’s solicitors on 10 May 2002 enquiring about the application to adjourn the trial date and received no reply.  The first positive sign by the Defendant was when her solicitors wrote to the Plaintiff’s solicitors on 14 May 2002 advising of  the intention to make the application and enclosing a medical report in support.

7. Prior to this period the Defendant’s  Adelaide solicitor had advised her in a facsimile dated 12 February 2002 that if she intended to apply for an adjournment of the trial then she would need to make the application well in advance of the trial date.

8. I was not told the reason why the Defendant filed her application at such a late time.  This was the second time she had made a late application to adjourn the trial.  The only suggestion of an explanation for the lateness is contained in the Defendant’s solicitors’ letter of 14 May 2002 when they said that they had encountered difficulties in obtaining a medical report for reasons beyond the control of the Defendant.  No further details were given.

9. The Defendant has not provided any information regarding when she was informed that her surgery would be in June 2002.  She was aware before Christmas 2001 that her medical condition prevented her from travelling to Adelaide and that this problem could be overcome by surgery.  From the information that came to the attention of the Plaintiff’s solicitor, as expressed in his letter of 1 May 2002, the Defendant must have been aware, at the very least shortly before that date, that she would not be able to travel to Adelaide to attend the Trial on 21 May 2002.   The Defendant must have also been aware of the criticism regarding the lateness of the application to adjourn in November 2001 through the written Reasons of Master Norman when he adjourned the previous Trial.

10. In my opinion the lateness of this application viewed against the background of facts which I have outlined leads me to the conclusion that there is a special or unusual feature which requires me to depart from the ordinary practice of awarding costs and award solicitor and client costs.  The evidence suggests that the Defendant could have brought this application by at least the first of May.  If the application had been brought earlier the costs thrown away would have been far less. 

11. Accordingly I order that the Defendant pay the costs thrown away as a result of the adjournment on a solicitor and client basis.

12. I refer the question of the quantum of costs to Master Norman for determination.