| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VINCE -v- CITY OF ARMADALE & ANOR [2005] WADC 9 CORAM : MARTINO DCJ HEARD : 23 NOVEMBER 2004 DELIVERED : 31 JANUARY 2005 FILE NO/S : CIV 1511 of 2002 BETWEEN : PETER FRANCIS VINCE Plaintiff
AND
CITY OF ARMADALE
First Defendant
TELSTRA CORPORATION LIMITED
Second Defendant
Catchwords: Practice and procedure - Costs on grant of leave to discontinue
Legislation: Nil
Result: No order made as to costs
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Representation:
Counsel:
Plaintiff : Mr D M Bruns
First Defendant : Mr J Eller
Second Defendant : Mr M J Feutrill
Solicitors:
Plaintiff : Separovic & Associates
First Defendant : John Eller
Second Defendant : Sparke Helmore
Case(s) referred to in judgment(s):
Alpine Holdings Pty Ltd v Warrick Entertainment Centre Pty Ltd [2003] WASC 53
Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Case(s) also cited:
ColgatePalmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Covell Matthews & Partners v French Wools Ltd [1977] 2 All ER 591
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
O'Neill v Mann [2000] FCA 1680
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 18 WAR 190
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1 MARTINO DCJ: The plaintiff claimed damages for personal injuries he alleged he suffered on 23 June 2000 when he stepped into a hole in a footpath near bus bays near the Roleystone District High School, within the boundaries of the first defendant. He claimed that the first defendant was responsible for and in control of the footpath and was occupier of it. He also claimed the second defendant's workers had cut the hole along with two other nearby holes.
2 Each defendant denied liability to the plaintiff and each issued a notice claiming contribution or indemnity for the plaintiff's claim from the other defendant. 3 The action was listed for trial to commence on 25 November 2004. By letter dated 19 November 2004 the plaintiff's solicitors informed the court and the parties that the plaintiff would not be proceeding with his claim and that on the first day of trial he would be seeking leave to discontinue the action. 4 The parties appeared before me on 25 November 2004. The plaintiff sought orders that he have leave to discontinue the action with no order as to costs. I made an order by consent that the plaintiff's claim against the first defendant be dismissed with no order as to costs. The second defendant sought an order that the plaintiff pay its cost of the action on an indemnity basis. Upon the plaintiff giving an undertaking that he would not commence any action based on the same cause of action against the second defendant, I granted leave to the plaintiff to discontinue his action against the second defendant. I reserved my decision on costs as between the plaintiff and the second defendant and on what orders I should make in relation to the claims between the defendants. 5 In support of its claim for costs the second defendant filed two affidavits by the solicitor having the conduct of the defence of the action for the second defendant. The following history is taken from those affidavits and from a chronology filed by the plaintiff's solicitors as part of its submissions. The second defendant did not object to the chronology not being verified by affidavit. 6 On 12 July 2000 the plaintiff's solicitors wrote to the Chief Executive Officer of the first defendant enquiring as to who cut the holes in the footpath. By letter dated 24 July 2000 the safety/insurance officer of the first defendant replied that the first defendant did not know who had cut the holes and suggested that the plaintiff's solicitors may wish to contact the second defendant to enquire as to whether one of their contractors cut
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the hole as one of the second defendant's inspection covers was located next to the hole. 7 On 1 August 2000 the plaintiff's solicitors wrote to the second defendant enquiring whether the second defendant had cut the holes. By letter dated 13 September 2000 the second defendant's public liability claims manager wrote to the plaintiff's solicitors informing the plaintiff that Telstra had no knowledge of who cut the holes in the footpath or when they were cut and that the holes had no connection with any Telstra services. 8 By letter dated 1 August 2002 the second defendant's solicitors forwarded the second defendant's defence to the plaintiff's solicitors. In that letter the second defendant's solicitors wrote: "You will note that we are denying liability. This is because our investigations have revealed that there is no record of Telstra having performed any work in the area prior to and around the time of the incident on 23 June 2000. Furthermore, our investigations also reveal that there is no evidence whatsoever that Telstra was involved, either directly or indirectly, in the digging of the holes that were allegedly responsible for your client's injuries. Our client is willing to resolve this matter on the basis that you discontinue your action against it and that the parties bear their own costs. If this matter proceeds our client will seek to recover it's (sic)costs from your client." 9 By letter dated 16 August 2002 the plaintiff's solicitors replied that their investigations revealed that the second defendant did carry out work in the area as pleaded. 10 The plaintiff and the second defendant provided discovery by list of documents in September 2002. By letter dated 21 October 2002 the second defendant's solicitors wrote to the plaintiff's solicitors in the following terms: "It is our view that the Plaintiff's Informal List of Discoverable Documents does not disclose any documents that contain evidence implicating our client in the allegations pleaded in the Plaintiff's Statement of Claim.
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We put the Plaintiff on notice that unless we are provided with evidence, by close of business on Monday 4 November 2002, indicating that our client has a case to answer, we will apply for summary judgement in the District Court and seek to recover our costs from your client." 11 On 8 November 2002 the plaintiff's solicitors wrote to the second defendant's solicitors in the following terms: "Our position is that if indeed Telstra is not the correct defendant then we will proceed to discontinue with each party to bear their own costs. We request that you not take any further action in this matter until we are in a position to clarify the position further. In the interim are you able to provide us with any documentation or clear evidence indicating that Telstra was not involved." 12 By letter dated 6 March 2003 the second defendant's solicitors wrote to the plaintiff's solicitors in the following terms: "Our client has instructed us to make the following offer of compromise ("the Offer"): 1 Your client's action against our client be dismissed; 2 Our respective client's (sic) bear their own costs The Offer is open until 5pm on Thursday, 10 April 2003. As you are aware, our client maintains that it did not undertake the works that allegedly gave rise to your client's accident and had no involvement whatsoever with the matters pleaded in your client's Statement of Claim. In those circumstances, the Offer represents a genuine endeavour to resolve your client's action on a purely commercial basis. If your client does not accept the Offer, his action against our client will be defended and our client will seek its costs of the defence. Our client reserves its right to refer to and tender this letter on the question of costs in accordance with the principles in Calderbank –v- Calderbank [1975] All E.R. 333, including in
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support of an application for costs to be awarded against your client on an indemnity basis." 13 By letter dated 27 March 2003 the second defendant's solicitors wrote to the plaintiff's solicitors in the following terms: "We refer to our letter dated 6 March 2003, your letter dated 10 March 2003 and our response dated 13 March 2003. Our client has advised that it has recently undertaken a complete search of its records and that no further documentation has been found in relation to this matter. Our client's offer (that your client's action against our client is dismissed and that our respective clients bear their own costs) remains open until 5pm on Thursday 10 April 2003." 14 On 13 October 2004 the plaintiff's solicitors provided to the second defendant's solicitors the substance of the expert evidence that the plaintiff proposed to adduce. That evidence was that the pattern of holes in relationship to the Telstra pit cover was characteristic of Telstra's practice. On 12 November 2004 some of the second defendant's expert evidence was faxed to the plaintiff's solicitors. On 16 November 2004 the balance of the second defendant's expert evidence was provided. Included with that evidence were two maps of the Telstra network in the area served. These two maps had not been discovered by the second defendant. In his affidavit dated 25 November 2004 the solicitor for the second defendant has deposed: "I am advised by Patrick Brian Duggan, Project Officer for Recoverable Works Level 8, Telstra Corporation Ltd, and believe that the information contained in the diagrams attached to his Substance of Expert Evidence dated 12 November 2004 being annexures "C1" and "C2" thereto, is information which can be obtained by any member of the public telephoning the organisation 'Dial Before You Dig' and requesting the Second Defendant's service location plans." 15 As I have noted by letter dated 19 November 2004 the plaintiff informed the court and the parties of his intention to seek leave to discontinue the action. 16 Order 23 r 2(3) of the Rules of the Supreme Court provides a broad discretion as to costs upon the grant of leave to discontinue the action.
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There may be many reasons why a plaintiff seeks leave to discontinue the action. Where the plaintiff has determined that the action cannot succeed it may be appropriate to order that the plaintiff pay the defendant's costs. Where the defendant has taken steps to remedy the plaintiff's cause of action and the plaintiff has achieved what it set out to do by commencing the action, it may be appropriate to order that the defendant pay the plaintiff's costs: Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469. 17 Further where a party has made a Calderbank offer which has not been accepted and the result of the action is not more favourable to the party who rejected the offer than the offer made, a court commences its consideration of an application for indemnity costs from the position that such an order should be made unless the party who rejected the offer can persuade the court that it should not be made: Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425; Alpine Holdings Pty Ltd v Warrick Entertainment Centre Pty Ltd [2003] WASC 53. 18 The plaintiff has not obtained any benefit from commencing this action. I conclude that his application to discontinue the action is made on the basis that he has determined that it is bound to fail. The result is that the plaintiff's position is not more favourable than that offered to him by the second defendant when it made its Calderbank offer on 6 March 2003. The consequence is that in the exercise of my discretion I should make a costs order against the plaintiff, with an indemnity order from 6 March 2003, unless there is a good reason why those orders should not be made. 19 In my view there is a good reason why those orders should not be made. That reason is the failure of the second defendant to provide full discovery until 16 November 2004 when it provided two plans of its network annexed to its expert's report. In my view it is no answer to the second defendant's failure to comply with its obligation to provide full discovery that any member of the public can telephone an organisation and request the second defendant's service location plans. There is no reason why the plaintiff or his solicitors should have known that fact. In any event the second defendant's plans showing where its lines were located in the area were clearly relevant and should have been discovered earlier. I have decided therefore to make no order as to costs as between the plaintiff and the second defendant as a mark of my disapproval of the second defendant's failure to comply with its obligation to provide complete discovery of documents.
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20 As I have decided to make no order as to costs as between the plaintiff and the second defendant it is also appropriate that I make no order as to costs as between the defendants.
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