Wainright v Barrick Gold of Australia Ltd [No 2] - [2012] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WAINRIGHT -v- BARRICK GOLD OF AUSTRALIA LTD [No 2] [2012] WADC 126

CORAM: BOWDEN DCJ

HEARD: 13 AUGUST 2012

DELIVERED : 13 AUGUST 2012

FILE NO/S: CIV 1291 of 2007

BETWEEN: SHEILA WAINRIGHT
Plaintiff
AND
BARRICK GOLD OF AUSTRALIA LTD
Defendant

Catchwords:

Costs

Legislation:

Rules of the Supreme Court 1971

Result:

Costs order made
Application for stay of execution of judgment refused

Representation:

Counsel:

Plaintiff: Mr S V Forbes
Defendant: Mr M L Greenland

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Greenland Legal Pty Ltd

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

Alcoa of Australia Ltd v Apache Energy Ltd (No 2) [2012] WASC 280
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425
David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307
Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (No 7) [2009] WASC 218
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222

BOWDEN DCJ: In this action for personal injuries both liability and quantum were in dispute.
The plaintiff succeeded on liability but not quantum, as the judgment of $211,148.88 was less than an O 24A offer made by the defendant.
It is agreed the defendant should pay the plaintiff's costs, including any reserved costs, up to and including 20 December 2010.
The plaintiff says from that date they should pay 60% of the defendant's costs, including any reserved costs, or alternatively the defendant should pay their costs in relation to liability, including any reserved costs, and they should pay the defendant's costs excluding costs relating to liability, including any reserved costs.
Further the plaintiff seeks an order that the defendant pay the costs of her application for further and better discovery filed 12 March 2012.
The defendant says they should pay the plaintiff's costs, including any reserved costs, up to and including 20 December 2010 and from that date the plaintiff should pay the defendant's costs including any reserved costs.
The defendant also applies for a stay of execution of the judgment pending the determination of the appeal lodged by the plaintiff.

Costs

The plaintiff says as they were successful on liability but not on quantum the defendant should pay the costs of determining liability.
The defendant says they made a lump sum offer to settle the plaintiff's claim for damages and the offer was not confined to quantum. They say the normal effect of an O 24A offer is that if the plaintiff recovers less than the offered amount the plaintiff should pay the costs from that date.
Ordinarily the general rule that the overall successful party recovers their costs is a just outcome because a party who turns out to have unjustifiably brought another party before the court should be required to recompense the other party. However that general rule is qualified by the power of the courts to award costs in relation to issues: Rules of the Supreme Court 1971 (WA) O 66 r 1(3); Alcoa of Australia Ltd v Apache Energy Ltd (No 2) [2012] WASC 280 [24].
In Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) the Court of appeal stated:
5It is clear that while the court has a broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971(WA), O 66 r 1(1). It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407.
6The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time‑consuming, expensive and burdensome enough already.
7In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
8In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the position was put as follows:
[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way [7].
Whilst I am mindful of the injunct that a costs order enabling a successful party to recover a portion of its costs when they have been unsuccessful on other discreet issues should not be made as a matter of course and of the need not to add uncertainty and complexity to the outcome of litigation and the other matters referred to in Bowen the plaintiff has satisfied me there are good reasons why it should not pay all of the defendant's costs.
Costs are discretionary and they do permit a flexible approach and the overriding consideration must be the need to do justice between the parties.
There is also a need for costs to be determined in such a way that parties realise that they will not necessarily recover the whole of their costs if unsuccessfully raising a discreet issue and cost orders should hopefully encourage the parties to consider the matters that they will raise and litigate at the trial: Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425, 430; Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (No 7) [2009] WASC 218 [19] ‑ [20].
The plaintiff was successful on liability and although the defendant did not act frivolously or unreasonably in raising that issue it was not successful and liability was a discreet and severable issue and it added to the cost of the proceedings in a significant and readily discernible way and it was always open to the defendant to avoid this consequence by making an early admission of liability.
The court should take a pragmatic approach in framing the costs order and this will naturally involve my impression and evaluation of not only the importance of the matters but also the time occupied and ambit of the submissions: David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233. However it is unrealistic to expect mathematical precision.
I consider it is appropriate that the plaintiff pay 70% of the defendant's costs of the action from 21 December 2010 including any reserved costs to be taxed.
In making this order I am mindful that although the defendant disputed liability and made a plea of contributory negligence the amount of time occupied by contributory negligence arguments was relatively minimal. I also consider that a separate costs order is not required in respect of the notice to admit facts as any such order is effectively subsumed in the orders I now make.
I also consider it appropriate that the defendant pay the plaintiff's costs of the further and better discovery filed 12 March 2012.
Notwithstanding the frequent attempts by the plaintiff for further discovery prior to trial, even during the course of the trial (12 December 2011) counsel for the defendant advised that minutes of safety meetings had been located explaining in part the discovery of such documents as 'its just one of those things' (ts 729 ‑ 732), as a result of these revelations an order for further discovery was made (ts 1127).
The further affidavit provided in purported compliance with that order did not list the items of discoverable documents, nor did it depose as to whether any further documents were in the possession, custody and power of the defendant.
In those circumstances it is appropriate that the defendant pay the plaintiff's costs of the application for further and better discovery filed 12 March 2012 to be taxed.

The defendant's stay application

The plaintiff has appealed the judgement and the defendant seeks by its written submissions a stay of execution of the judgement and refers to O 47 r 13 and O 63 r 15 unaware, perhaps, that those orders have been repealed.
No formal application for a stay has been filed nor any affidavit in support. I shall however deal with the application.
The defendant is really seeking a stay of execution and a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
The general principles applicable are referred to in that section and in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307 which basically provide that a successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal. It is for the applicant to satisfy the court to exercise the discretion to grant a stay in its favour and to do so they will need to satisfy the court that there are special circumstances justifying the departure from the ordinary rule.
A stay may be granted if it can be demonstrated that an appeal has reasonable prospects of success and if the judgment debt is paid the respondent will be unable to repay the money if the appeal is successful, rendering a right to appeal nugatory: Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222.
The defendant, as I understand it, argues by analogy the same position should apply when there is a reasonable prospects of taxing its costs higher than the judgement sum and costs payable by them to the plaintiff and says the stay is necessary to preserve the subject matter of the litigation and it has a reasonable prospects of taxing its costs higher than the judgement sum and costs payable by them to the plaintiff and the balance of convenience lies in their favour in that the hardship to the plaintiff if a stay is granted is exceeded by the hardship to them if there is no stay.
In support of this submission the defendant says the amount which is payable to the plaintiff after deduction for workers' compensation pursuant to the Workers' Compensation and Injury Management Act 1981 is approximately $70,000.
It says its costs since December 2010 are in the order of $190,000 and it has a reasonable prospect of taxing its costs in a sum which will exceed the judgment plus the costs they are to pay to the plaintiff.
They point out the evidence shows the plaintiff has not worked since 2005 and say from the bar table, unsupported by affidavit, that the only real property of the plaintiff is her home in Hamilton Hill which is mortgaged to her solicitors for the sum of $200,000 with interest at 12% per annum from 13 July 2011 and is also subject to another caveat.
They say that if the defendant pays the judgment sum and the appeal is determined in their favour its insurer would have to decide whether to sell the plaintiff's house to recover the costs owing to it and would have to take into account the damage to its public image that may result from taking that course.
Even if I accept the defendant has reasonable prospects of taxing its costs in the sum that will exceed the amount of the judgment and costs payable to the plaintiff and that the judgement sum if paid is spent and that the plaintiff's appeal is unsuccessful there is nothing to establish the plaintiff would be unable to repay the amounts she owns.
Establishing inferentially the plaintiffs likely legal costs and that they are secured by a mortgage over her property and the existence of a caveat over that property does not assist the defendant, in the absence of some evidence establishing the worth of her home. There is nothing to show the plaintiff is incapable of repaying the amounts the defendant says she may in future owe.
The plaintiff is entitled to the fruits of her judgment. I do not consider the balance of convenience lies in favour of the defendant. I therefore dismiss the application for a stay.
The orders I make therefore are as follows:
1.Judgment be entered for the plaintiff in the sum of $211,148.88;
2.The defendant pay the plaintiff's costs of the action including any reserved costs up to and including 20 December 2010, to be taxed;
3.The plaintiff pay 70% of the defendant's costs of the action from 21 December 2010 including any reserved costs to be taxed;
4.The defendant pay the plaintiff's costs of her application for further and better discovery filed 12 March 2012 to be taxed;
5The application for a stay is dismissed; and
6The defendant do pay the plaintiff's costs of the applications determined on 13 August 2012, to be taxed.