Viscariello v Macks (No 5) - [2022] SASC 136

Supreme Court of South Australia
(Civil: Application)
VISCARIELLO v MACKS (No 5)
[2022] SASC 136
Judgment of Auxiliary Judge Norman a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS
Applications for costs following an argument on 18 November 2021.
Held:
The costs of Viscariello's application FDN 342 and 371 and Mack's application FDN 385 are reserved and will be further considered at a later time in the taxations.
Law of Costs (5th Edition) 8.23, 14.25; Supreme Court Act 1935 (SA) s 40(1); Uniform Civil Rules 2020 (SA) ss 194.4, 194.4(5), 194.5(2), referred to.
Carey v Balfour (No 2) [2021] SASC 111; Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75; Murray v Lesicar [2014] SASCFC 43; Viscariello v Macks (No 4) [2022] SASC 30, discussed.

VISCARIELLO v MACKS (No 5)
[2022] SASC 136
JUDGMENT NAME
Supreme Court: Civil Application

NORMAN AJ: These are applications of the parties for costs relating to an argument before me on 18 November 2021, following which I published reasons on 31 March 2022 in Viscariello v Macks (No 4).[1] As there are multiple applications the applicant to the proceedings is referred to as “Viscariello” and the respondent to the proceedings as “Macks”.
[1] Viscariello v Macks (No 4) [2022] SASC 30.
Parties’ applications and rulings on same
Viscariello issued two applications. The first was dated 17 September 2020 seeking orders for the production by Macks of documents held by him evidencing his entitlements to costs for preparation, filing and service of an amended claim for costs, and for the filing and service of a response to Viscariello’s claims for costs served on 1 July 2020. The second was dated 19 May 2021 and sought as an alternative that in Macks’ claim for costs and in his further response, he was to comply with requests and complaints set out in letters dated 23 April 2021 and 29 April 2021, or alternatively to file and serve a separate document providing further and better details of his claim for costs, a response to Viscariello’s claim for costs, and orders for inspecting and copies of documents.
Macks issued an application dated 24 August 2021 seeking orders that the claim for costs of the parties be assessed on a lump sum basis and that these assessments be consolidated.
I heard argument on the parties’ respective applications as referred to above at a hearing on 18 November 2021, and on 31 March 2022 published reasons.
I found that Viscariello’s applications for further particulars of Macks’ claim and for associated orders were premature and I declined to make the orders ought, although I indicated that if following inspection, production and a pre-taxation conference, Viscariello continued to assert prejudice, he would be at liberty to apply for further submissions on those applications to be presented.
On Macks’ application for orders that his costs be taxed on a lump…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Viscariello v Macks (No 5)

Details

AGLC: Viscariello v Macks (No 5) [2022] SASC 136
Case: [2022] SASC 136
Decision Date: 21 November 2022

CaseChat Overview and Summary

In the matter of Viscariello v Macks (No 5), the parties were involved in a legal dispute concerning the costs of interlocutory applications. The case was heard by the South Australian Supreme Court. The primary issue before the court was the determination of the appropriate costs order in relation to the interlocutory applications, and whether the costs should be in the cause or follow the events of the interlocutory applications. This decision was based on an analysis of the proximate cause of the incurring of those costs.

The court examined the nature of the interlocutory applications and the outcomes of the proceedings. The court found that the applications had not been fully determined and that no final decision had been made on any of the applications. The court also noted that the parties had avenues to re-enliven the applications at a later stage. In such circumstances, the court held that it would be premature to award the costs of the interlocutory applications at that stage. The court further held that it would not be appropriate to complete the necessary analysis of the proximate cause of the incurring of costs by both parties in relation to the interlocutory applications.

In light of the above, the court found that the appropriate order would generally be to reserve the costs of the interlocutory applications, as no final determination had been made on the applications and the analysis of causation may depend on contingencies in the proceeding yet to occur. The court held that this approach was consistent with the principles established in the case of Mayfield.

As a result of the court's decision, the costs of the interlocutory applications were reserved, and no order was made in relation to those costs at that stage. The parties were left with the option to re-enliven the applications at a later stage, subject to any changes in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In determining the appropriate order in relation to the costs of an interlocutory application, the Court will principally be informed by an analysis as the proximate cause of the incurring of those costs.[6] Blue J indicated that where a court was satisfied that the costs of an interlocutory application were merely part of the overall costs of the action, the appropriate costs order would generally be that such costs would be in the cause and would, by extension, follow the events of the substantive action. Further, the costs of an interlocutory application should only be ordered to follow the event of the interlocutory application where it could be confidently determined when the interlocutory application was decided, but the cause of the incurring of those costs was the making of the application by the unsuccessful party or resistance of the application by the unsuccessful party. Further, where there was a mixed result on an interlocutory application such that neither party was clearly successful in making or resisting the application, generally the Court would make no order in relation to the costs of the interlocutory application. Finally, where no final determination had been made on the interlocutory application, such that the analysis of causation would be unclear at that stage or may depend on contingencies in the proceeding yet to occur, the appropriate order would generally be to reserve such costs. [6] [2021] SASC 75 at [9] per Blue J.Consideration and findings It is clear from the orders made that although the Court declined to make the orders sought by the parties, it did not dismiss any of those applications. In relation to Viscariello’s applications, which were essentially seeking particulars, aspects were neither withdrawn nor determined, but remained adjourned for further consideration. Although the Court determined that the request was premature, it gave liberty to apply later, if Viscariello could then establish that he would be prejudiced if these were not supplied. In relation to Macks’ application for lump sum taxations of both sets of costs, this had been issued in respect to the suggestion raised by the Court that the parties should consider the merits and feasibility of lump sum assessments, but it had been declined following argument because Viscariello had established that it would be inappropriate to undertake a lump sum taxation by random sampling because the big ticket and like items would not produce a reliable result, would not be logical, fair and reasonable, and might skew that random sampling. The Court did not find, however, that a lump sum taxation would be inappropriate after the big - ticket item taxation process had been completed. I have formed the view in these circumstances that because the Court has made no final decision on any of the three applications and has left avenues open to the parties to re-enliven them at a later stage, it would be premature to award the costs of any of the applications at this stage. As it will not be possible to now make a final decision on any of the applications, it will likewise not be appropriate to complete the necessary analysis as to the proximate cause of the incurring of costs by both parties in relation thereto. Accordingly, the present situation falls within the scenario envisaged by Blue J in Mayfield, namely that where no final determination had been made on the interlocutory application, such that the analysis of causation would be unclear at this stage or may depend on contingencies in the proceeding yet to occur, the appropriate order will generally be to reserve such costs.