The State of South Australia v Ellis

[2008] WASCA 200 (S)

THE STATE OF SOUTH AUSTRALIA -v- ELLIS [2008] WASCA 200 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 200 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:11/2007	Heard:	12 - 14 FEBRUARY 2008 ON THE PAPERS 14 MAY 2008
Coram:	MARTIN CJ STEYTLER P McLURE JA	Delivered:	26/09/08
Supplementary Delivered:	28/01/09
No of pages:	7	Judgment Part:	1 of 1
Result:	Orders made as to costs
Category:	B
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Parties:	THE STATE OF SOUTH AUSTRALIA AMACA PTY LTD (ACN 000 035 512) MILLENNIUM INORGANIC CHEMICALS LTD (ACN 008 683 627) TERESA ELLIS As Executor of the Estate of PAUL STEVEN COTTON (Dec)
Catchwords:	Costs Rules of the Supreme Court, O 24A Calderbank offer Effect of contributory negligence on costs Appellants to be taxed as one set Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 24A
Case References:	The State of South Austalia v Ellis [2008] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF SOUTH AUSTRALIA -v- ELLIS [2008] WASCA 200 (S) CORAM : MARTIN CJ

STEYTLER P
McLURE JA

HEARD : 12 - 14 FEBRUARY 2008

ON THE PAPERS 14 MAY 2008

DELIVERED : 26 SEPTEMBER 2008 SUPPLEMENTARY
DECISION : 29 JANUARY 2009 FILE NO/S : CACV 11 of 2007

CACV 12 of 2007
CACV 13 of 2007

BETWEEN : THE STATE OF SOUTH AUSTRALIA

First Appellant

AMACA PTY LTD (ACN 000 035 512)
Second Appellant

MILLENNIUM INORGANIC CHEMICALS LTD (ACN 008 683 627)
Third Appellant

AND

TERESA ELLIS As Executor of the Estate of PAUL STEVEN COTTON (Dec)
Respondent

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ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : EM HEENAN J

Citation : ELLIS, Executor of the Estate of PAUL STEVEN COTTON (DEC) -v- THE STATE OF SOUTH AUSTRALIA & ORS [2006] WASC 270

File No : CIV 2314 of 2000

Catchwords:

Costs - Rules of the Supreme Court, O 24A - Calderbank offer - Effect of contributory negligence on costs - Appellants to be taxed as one set - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 24A

Result:

Orders made as to costs

Category: B

Representation:

Counsel:

First Appellant : Mr G M Watson SC & Ms C J Thatcher
Second Appellant : Mr G M Watson SC & Ms J M Kubacz
Third Appellant : Mr G M Watson SC & Mr S J Rushton
Respondent : Mr B W Walker QC & Mr J R C Gordon

Solicitors:

First Appellant : State Solicitor for Western Australia
Second Appellant : Minter Ellison
Third Appellant : Lavan Legal
Respondent : Slater & Gordon

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

The State of South Austalia v Ellis [2008] WASCA 200


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1 JUDGMENT OF THE COURT: On 26 September 2008, the court's reasons for decision in the substantive appeal were published (The State of South Austalia v Ellis [2008] WASCA 200). In very general terms, the court, by a majority, concluded that the appeals of the first and third appellants should be dismissed, but that the appeal of the second appellant in respect of the apportionment of damages following the finding of contributory negligence should be allowed, and the reduction in damages as a result of that finding be increased from 10% to 50%.

2 Orders were made dismissing the appeals of the first and third appellants. Directions were made for the filing and service of minutes and submissions dealing with:

(a) the costs of the appeal; and

(b) any variation to the orders made in respect of the costs of the trial in the appeal by the second appellant.

3 No direction was made with respect to the filing and service of submissions as to the costs of the trial in relation to the appeals by the first and third appellants. That was because there was no disturbance of the orders made at trial in respect of those appellants. Directions were made in respect of the possible variation of the costs orders relating to the trial in the case of the appeal by the second appellant because the judgment entered against that appellant was altered as a result of the partial success of its appeal. The clear intent of that direction was to make provision for any appropriate variations to the costs orders made at trial as a result of the partial success of the second appellant's appeal.

4 Various issues have been raised by the parties in the submissions filed pursuant to those directions. We will deal with each of those issues in turn.

The costs of the trial

5 The respondent has filed submissions and an affidavit in support of an application that the orders made in respect of the costs of the trial be varied by providing that the appellants pay her costs of the trial on a party/party basis until 21 July 2005 (in the case of the first and third appellants) and 26 July 2005 (in the case of the second appellant), and thereafter on an indemnity basis. The basis of this application is entirely unrelated to the disposition of the appeal, and depends upon an offer made pursuant to O 24A of the Rules of the Supreme Court 1971 (WA) in the case of the first and third appellants, and a Calderbank offer in the case of the second appellant. In the case of the first and third appellants, the

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orders sought go beyond the directions made at the time of publication of reasons on 26 September 2008. In the case of the second appellant, the orders sought go beyond the intent of the directions made when reasons were published, as the orders sought are unrelated to the partial success of the second appellant's appeal.

6 An application for orders of this kind could and should have been made to the trial judge. It is not appropriate for this court to now deal with those applications. If the respondent wishes to agitate these matters further, the appropriate course is to bring an application before the trial judge.

The orders in the second appellant's appeal

7 The respondent has provided a minute in which a variety of orders are sought in respect of the second appellant's appeal, covering such things as the particular grounds which ought to be allowed, the payment of interest and so on. Many of the matters covered in the minute are unnecessary (such as the provisions relating to interest, which are covered by the Rules of the Supreme Court), and do not accord with the usual practice of the court. The appropriate orders made in the disposition of the second appellant's appeal are:

1. Appeal allowed in part.

2. The judgment against the second defendant be set aside and, in lieu thereof, judgment be entered against the second defendant:


(a) on the estate claim, in the amount of $213,468.42; and

(b) in the dependants' action, in the amount of $37,660.50.

The costs of the second appellant's appeal

8 The second appellant submits that the respondent should be ordered to pay 50% of its costs of its appeal, to reflect its partial success on appeal. There may be a superficial mathematical harmony in that proposition, because the result of the appeal was, in general terms, to reduce the amount of the judgment entered against the second appellant from 90% of the amount of the judgment entered against the first and third appellants, to 50% of that amount. However, the submission does not reflect any substantive evaluation of the significance of the second appellant's partial success on appeal for at least two reasons.

9 The first reason is that the submissions and argument in respect of apportionment as a consequence of the finding of contributory negligence

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occupied only a small portion of the argument on appeal. It was correctly accepted by all parties, in the course of argument, that apportionment is largely a matter of impression, and in this appeal the relevant impression was gained almost entirely from matters that were canvassed during the argument on the many issues upon which the second appellant failed. Viewed from the perspective of the substantive issues ventilated in the course of argument on the appeal, the second appellant was largely unsuccessful. An apportionment of costs as between the second appellant and the respondent by reference to the work and effort involved in the issues upon which they respectively succeeded would result in the majority of the costs of the second appellant's appeal being awarded to the respondent.

10 The second reason why the superficial mathematical harmony of the second appellant's submission should not be accepted in this case is that the court has no way of knowing what the substantive effect of the alteration of the judgment entered against the second appellant has had upon the contributions to be made by the various appellants to the judgments awarded in favour of the respondent. Those judgments have been entered against all appellants, and there have been no proceedings for contribution between the appellants. Accordingly, it cannot necessarily be concluded that the amount which is actually to be paid by the second appellant has been reduced by the amount of the reduced judgment.

11 The respondent submits that it would be inappropriate to either award the second appellant any part of its costs of the appeal or reduce the costs payable by the second appellant to the respondent by reason of its partial success on appeal. That is because the respondent offered to compromise her claim against the second appellant on 26 July 2005, prior to the commencement of the trial, on the basis that her claim be dismissed and each party bear their own costs. The second appellant rejected that offer and proceeded to trial. However, that is a matter that would be relevant only to the costs of the trial. The trial having proceeded to a judgment which was, in our view, partially erroneous, the second appellant was justified in bringing an appeal from that judgment.

12 Taking all these matters into account, in our view, the proper order in relation to the second appellant's appeal is that it pay 80% of the respondent's costs.

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The costs in the appeals of the first and third appellants

13 The first appellant submits that it should be ordered to pay no more than one-third of the respondent's costs of the appeal. There is no basis for such an order. The appeal was presented collectively on behalf of all three appellants. The first appellant was not responsible for only one-third of the appeal, nor for any discrete issues in the appeal. Accordingly, the respondent should have her costs of the appeals brought by the first and third appellants, and 80% of her costs of the appeal brought by the second appellant, to be taxed as one set.

Summary

14 The orders appropriately made for the disposition of the second appellant's appeal are:

1. Appeal allowed in part.

2. The judgment against the second defendant be set aside and, in lieu thereof, judgment be entered against the second defendant:


(a) on the estate claim, in the amount of $213,468.42; and

(b) in the dependants' action, in the amount of $37,660.50.

15 The order appropriately made in respect of the costs of the appeal is that the first and third appellants pay the respondent's costs of the appeal, and the second appellant pay 80% of the respondent's costs of the appeal to be taxed as one set. The effect of this order will be that all appellants will be jointly and severally liable for 80% of the respondent's costs of the appeal, and the first and third appellants jointly and severally liable for the remaining 20% of the respondent's costs. The orders made by the trial judge are otherwise undisturbed.