WINFIELD v JONES (No 2) - [2010] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WINFIELD v JONES (No 2)
[2010] SADC 59
Judgment of His Honour Judge Beazley
7 May 2010
PROCEDURE - COSTS
Costs - Motor vehicle accident - assessment of damages - finding at trial that plaintiff unreliable witness in many respects - trial adjourned inter alia to enable plaintiff to be re-examined by psychiatrist - voluminous documents subpoenaed by defendant - Centrelink subpoena set aside - consideration of the general rule for costs to follow the event - Plaintiff seeks order for costs of action on party and party basis - Defendant submits he ought receive costs thrown away by the adjournment, and on issues upon which the plaintiff failed, or alternatively that the plaintiff ought receive only a proportion of her costs - held: save for one matter, the plaintiff entitled to costs of action on party and party basis.
District Court Act 1991 s42 and 6 DCR 263, referred to.
Cretazzo v Lombardi (1975) 13 SASR 4; Duke Group Ltd (in Liquidation) v Pilmer (No 8) (1998) SASC 6699; Robinson v Australian Association of Social Workers Limited (2000) 210 LSJS 73; Burnie Port Corporation Pty Ltd v Bank of Western Australia (No 3) (2003) 12 Tas LR 325; Ewins v BHP Billiton Ltd (No 2) [2005] SASC 164; Forlyle Pty Ltd v Tiver [2007] SASC 464; Sands v Channel Seven Adelaide (No 2) [2009] SASC 365; Morris v McEwen (2005) 92 SASR 281, applied.
ACCC v Universal Music (No 2) (2002) 201 ALR 618; Hypec Electronics Pty Ltd (In Liq) v Mead (2004) 61 NSWLR 169; Monierv Metalwork Tiling Co (No 2) (1987) 43 SASR 588; Oshlack v Richmond River Council (1998) 193 CLR 72 at [69] and [134], considered.

WINFIELD v JONES (No 2)
[2010] SADC 59
Introduction

On 3 March 2010 I published my Reasons detailing the basis for the assessment of the plaintiff’s damages incurred in a motor vehicle accident on 10 September 2001. I thereupon entered judgment for the plaintiff in the sum of $120,425.05, and I reserved the question of costs. The facts and my findings are set out at length in the primary judgment. [1]
[1] [2010] SADC 24
The plaintiff seeks an order that the defendant should pay to her the costs of the action. Mr Krupka, counsel for the plaintiff, relies principally upon “the general rule” that the costs of the action should follow the event.[2] He submitted that in the subject case, the plaintiff had obtained an award of damages which exceeded any offer filed by the defendant, and accordingly she ought receive her costs of the action on a party/party basis.
[2] District Court Act, 1991, Sec 42(1); 6 DCR 263; and 1987 R 101.02
In Forlyle Pty Ltd v Tiver,[3] Debelle J, in determining an appeal from a decision in respect of which a partially successful party had been denied an order for costs, said:
The general rule is that a successful party has a reasonable expectation of obtaining an order for costs unless for some reason connected with the case a different order was specially warranted.
[3] [2007] SASC 464 at [29]
The matters in issue
Mr Livesey QC, counsel for the defendant, submits that “the general rule” for costs ought not be applied in the subject action. He identified three specific issues, each of which is inextricably entwined with the voluminous records subpoenaed by the defendant, and which detailed the plaintiff’s pre-accident employment and medical history. The three issues and their respective references in the primary judgment are:
·The adjournment of the trial on 9 August 2007, detailed at [29] to [31].
·The Centrelink documents detailed at [32] – [52].
·The document subpoenaed by the defendant generally detailed at [29].
The Context
The documentation subpoenaed by the defendant, dominated the trial. In the primary judgment I described those records as follows:
I have already referred to the voluminous subpoenaed records produced at trial. These included her files with the Royal Adelaide Hospital; the Flinders Medical Centre; the Noarlunga Health Services; the Hawkins Medical Centre; the Moore Street Clinic at Willunga; the Nhill Medical Centre; the Whyalla Hospital; the Christies Beach Medical Centre; the Bridge Clinic; the Mount Gambier Hospital; the Balranald Hospital; the Penola Medical Clinic; the Mossman Medical Centre; the Cairns Base Hospital; the Warinilla Clinic; the Health Commission; the Department for Families and Communities; Housing SA; SAPOL; SA Ambulance Service; Medicare Australia; the notes of her General Practitioner, Dr Klavenick; and certain specified Centrelink documents.
It is common ground that some of those records namely those from the Noarlunga Hospital, the Royal Adelaide Hospital, the Flinders Medical Centre, the Whyalla Hospital and the Mount Gambier Hospital had been made available to the parties prior to the commencement of the trial.
The plaintiff commenced her evidence in chief on 6 August 2007. Her case was that her pre-accident disabilities were sufficiently under control in 2001, prior to the subject accident, such that she was contemplating re-entering the work force. The cross-examination of the plaintiff commenced on 7 August 2007. It is clear that the cross-examination was based in part upon some of the subpoenaed medical records produced prior to trial. Additional subpoenas were answered during the course of the trial, including one directed to the plaintiff’s file with Centrelink returnable much later in the trial on 10 December 2007. On 8 August 2007 leave was given to interpose Dr Tottman as a witness notwithstanding that the cross-examination of the plaintiff had not been completed.
Quite properly senior counsel for the defendant, in cross examining Dr Tottman, put to him a detailed history drawn from the subpoenaed documents. It was obvious that Dr Tottman had been unaware of that history and had not had the opportunity to consider whether that history in any way altered the opinions expressed by him in his expert reports. Indeed it was apparent from the tendered book of medical reports that none of the expert witnesses to be called by either party had expressed opinions based on that detailed medical history.
I expressed my concern that it was unhelpful to the court in the final analysis for the evidence to be left in a form where Dr Tottman, and presumably the other experts were confronted with this evidence for the first time in the witness box, and were unable to say whether the medical records ought alter previously expressed opinions, without examining those records in detail and in context.[4] The parties were left to consider their positions, while the trial proceeded and the plaintiff was given leave to interpose a further witness, namely her general practitioner Dr Klaveniek. Because of difficulties in reading his notes, it was necessary for the plaintiff’s counsel to take him through each line of those records. Upon the completion of his evidence on 8 August 2007, it was anticipated that either the plaintiff would complete her cross-examination or the trial would be adjourned to enable the expert witnesses to consider a synopsis of the subpoenaed records, and determine whether it altered their respective expert opinions.
[4] T. P 199
On 9 August 2007 the plaintiff eventually sought that the trial be adjourned to enable the plaintiff to be re-examined by Dr Tottman in the light of those voluminous subpoenaed records. Thereafter any additional reports from Dr Tottman would be produced to the defendant for the consideration of his expert witness Professor Goldney, so that the factual bases for their respective opinions would be common to them.
Ultimately the trial was adjourned to 10 December 2007 at which time the validity of the subpoena directed to Centrelink was determined. Thereafter the plaintiff’s cross-examination was completed; Dr Tottman was recalled as a witness following the production of additional reports; and the balance of the evidence was completed. Including addresses the trial occupied some 14 days.
The Defendant’s Submissions
Mr Livesey submitted that the principal issues at the trial were the credibility of the plaintiff generally; and in particular the state of the plaintiff’s pre-accident medical condition in the period leading up to the subject motor vehicle accident. He submitted that the plaintiff had failed to provide a detailed pre-accident history to any of her medical witnesses, and accordingly it was necessary for the defendant to incur enormous expense in having to subpoena the voluminous medical and employment records. He submitted that this failure to properly disclose her history led to the adjournment of the trial and increased costs, and accordingly this ought be reflected in an adverse order for costs. Such an order, he submitted, would result in the plaintiff receiving only a proportion of her costs. He submitted that a significant reduction was justified upon a combination of the three categories that he had identified. He did however address each category as follows.
·The adjournment
Mr Livesey submitted that in effect the plaintiff was forced to start afresh during the adjournment having been re-examined by Dr Tottman in light of the subpoenaed records. Accordingly, he submitted, that all of the costs of and incidental to the adjournment, and indeed those costs incurred prior to the adjournment ought be the defendant’s costs.
·The Centrelink documents
Mr Livesey submitted that it was necessary for the defendant to press the question of the validity of the subpoena as the only means by which the defendant could access the plaintiff’s file with Centrelink. The history of that application, the submissions in respect of the same; and the order setting aside that subpoena are set out in [32] – [53] inclusive of the primary judgment. Having set aside the subpoena, I intimated, at [51], that I did have the power to make an order that obliged the plaintiff to access specified documents in her Centrelink file and produce the same to the Court. Ultimately the parties reached agreement whereby some Centrelink records were produced to the defendant following the execution of an authorisation by the plaintiff. The defendant submits that notwithstanding that the subpoena was set aside, the plaintiff ought pay the defendant the costs of and incidental to that application on the basis that it was necessary for the defendant to access the Centrelink records to obtain the pre-accident history of the plaintiff. Mr Livesey submitted that only the plaintiff could access that documentation, and that she had, until trial, declined to do so.
·The subpoenaed documents generally
Mr Livesey submitted that in consequence of the failure of the plaintiff to provide a detailed medical and personal history to the various medical expert witnesses, it was necessary for the defendant to incur the costs associated with the subpoenaed records.
He submitted that those records detailed the plaintiff’s troubled history, and led to the finding that the plaintiff had not recovered from her pre-accident diabilities as at the date of the accident. It was submitted that a special order for costs in favour of the defendant ought be made to allow for the investigation as to the true state of her health; the adverse findings as to the plaintiff’s credit, and in particular, the impact of that documentation upon her credit.
The plaintiff’s submissions
Mr Krupka submitted that there was no basis for any complaint by the defendant as to the Centrelink documents. The subpoena was returnable only after the trial had been adjourned.
The defendant had pressed his argument that the subpoena was valid. He had been unsuccessful in that argument. The intimation that a separate order could be made requiring the plaintiff to sign an authorisation did not lead to any delay. Indeed the plaintiff co-operated with the defendant to enable specified documents, otherwise confidential, to be made available to the defendant. Accordingly he submitted there is no reason in fact or law which would warrant an order as to costs, adverse to the plaintiff.
As to the subpoenaed documents generally, Mr Krupka submitted that there was no obligation upon the plaintiff to subpoena records of the plaintiff’s pre-accident medical and personal history. Nothing had been pleaded by the defendant about the history, and no experts had adverted to her pre-accident history despite the defendant having had access to some of the medical records before the commencement of the trial.
He submitted that the impecuniosity of the plaintiff was a relevant factor in determining how far back a plaintiff is expected to investigate or recall pre-accident events. He referred to the fact that the plaintiff was being asked in late 2007 to recall events which had predated the subject accident in September 2001.
Although conceding that some only of the subpoenaed material was available before trial, he submitted that it was not necessary for the plaintiff to “jump at shadows”, and present that material to Dr Tottman when the defendant had apparently not provided the same material to Professor Goldney prior to trial.
He submitted that each party had contributed to the need for an adjournment. There was a need, recognised by the Court, for all of the expert witnesses to be provided with a summary of the events contained in the subpoenaed documents, before entering the witness box. Mr Krupka submitted that it was not a case of the plaintiff starting all over. The evidence given by her on 7 and 8 August 2007 was unaffected. Ultimately Dr Tottman gave evidence that the subpoenaed documentation, when analysed in context, did not cause him to alter his opinions, albeit that the history of pre-accident improvement given by the plaintiff was clearly wrong.
The principles of law
The principles upon which a court should act in resolving disputes as to costs are not in doubt. The court has a very wide discretion, save that the discretion must be exercised judicially.
In Cretazzo v Lombardi [5] Bray CJ said:
The general discretion is absolute and unfettered except it must be exercised judicially, not arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation.
[5] (1975) 13 SASR 4 at [11].
In the subject case it does not matter whether the District Court Rules (1987), or the District Court Rules (2006) apply. The same principles relevantly apply. I refer however to the dicta of Bleby J in Sands v Channel Seven Adelaide Pty Ltd (No 2), in which his Honour concluded that pursuant to the transitional provisions in 6 DCR Rule 8(2)(a); Chapter 12 of the 2006 Rules ought apply.[6]
[6] [2009] SASC 365 at [8].
While affirming the “general rule” as to costs, 6 DCR 263 relevantly provides:
(c)the costs of an application that should have been (but was not) made at an earlier stage of the proceedings are to be awarded against the applicant;
(d)the costs of an adjournment arising from a party’s default are to be awarded against the party in default.
A successful party may be deprived of costs or “even may be ordered to pay costs if she has been guilty of some sort of misconduct, relating to the litigation.[7]
[7] Oshlack v Richmond River Council (1998) 193 CLR 72 at [69] and [134] and Monier v Metalwork Tiling Co (No2) (1987) 43 SASR 558 at 590.
In Hughes v Western Australian Cricket Association[8] Toohey J said:
A successful party who has failed on certain issues may not only be deprived of the cost of those issues but may be ordered as well to pay the other party’s costs of them. In that sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.
[8] (1986) ATPR 40, 748 at 48, 136.
In Cretazzo’s case, supra, Jacobs J expanded somewhat upon the remarks of the Chief Justice, supra, saying:
Trials occur daily in which the party who in the end is wholly or substantially successful nevertheless fails along the way on particular issues of fact or law. The ultimate end of justice may not be served, if a party is dissuaded, by the risk of costs, from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case including, in particular, the severability of the issues and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes, ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded based merely upon his success in those particular issues.
That latter dicta was adopted and applied in Duke Group (In Liquidation) v Pilmer (No 8) (1998) SASC 6699; Robinson v Australian Association of Social Workers Limited (2000) SASC 239, and Burnie Port Corporation v Bank of Western Australia (No 3) (2003) 12 TAS LR 325.
In Pilmer’s case, Mullighan J referred to the relevance of the limited resources available to a party in considering whether to make a special order as to costs.[9]
[9] (1998) SASC 6699 at p 8-9.
Discussion and orders
I respectfully adopt the dicta of Jacobs J in Cretazzo’s case, supra.
In my opinion a court ought not dissect particular issues such as those involving the Centrelink documents; and indeed the subpoenaed documents generally. For the reasons which follow neither of those matters ought lead to an order for costs adverse to the plaintiff. I have however found the issue of the costs of the adjournment a very difficult matter to resolve.
The subject case, as is common, involved the assessment of damages for personal injuries, and in that respect questions of credit inevitably arise. The plaintiff was obliged pursuant to Rules 46.15 and 46A.11 of the 1987 Rules, to file respective affidavits of loss. She complied with those Rules and no criticism was made of her in that respect. Of course independent of those Rules the plaintiff was obliged to provide to the experts a detailed pre-accident history if requested by those experts.
The Rules of Court provide a mechanism by which a defendant may file offers reflecting what he says is the true quantum of the damage sustained by a plaintiff. I will however, out of respect for counsels’ submissions deal with the three categories of complaints by the defendant. The defendant had access to some of the subpoenaed documents prior to the trial, and could not have been surprised by any of the plaintiff’s evidence at the trial. He could have provided that documentation to the expert witnesses Professor Goldney in order to determine whether it altered his previously expressed opinions.
Ultimately it is for a party to determine how extensively it will cross-examine the other party to the proceedings. I readily accept the submission of the defendant that it was necessary for his case for extensive investigations to be made, and subpoenas issued to establish the true position of the plaintiff’s pre-accident health. I have found in the primary judgment, at [230], that rarely has a plaintiff’s history been so well documented and fully investigated.
However I repeat that I had concluded that the plaintiff did not intend to mislead the various medical experts by down playing the events of the past. In hindsight it would have been better had the plaintiff accessed the subpoenaed records before trial, and presented them to Dr Tottman. I do however accept the submission of the plaintiff that she was constrained by her extremely limited finances from undertaking such a course. From her point of view many of the subpoenaed documents were irrelevant to the losses sustained by her in the subject accident. The fact that the defendant succeeded on issues of credit, and the state of the plaintiff’s health as at the date of the subject accident, does not lead of itself to a conclusion that those issues are severable or that a special order for costs ought be made.

The fact remains that the success of the defendant on the issue of the plaintiff’s pre-accident history was not reflected in the filing of an appropriate offer.
In my opinion there is nothing in the plaintiff’s conduct which ought lead to an adverse order as to costs in respect of the subpoenaed documents generally.
As to the Centrelink documents I do not accept that the plaintiff ought face an adverse order for costs in initially declining to assist the defendant to obtain access to her confidential file. The court time involved the defendant pressing his argument that the subpoena was valid as against Centrelink – an argument which he ultimately lost. The intimation that the plaintiff ought access her file with Centrelink does not fall within 6 DCR 263(2)(c), nor was in fact any time lost, as the parties reached agreement to access specified documents.
The question of the adjournment is a different category. In 6 DCR 263(2)(d) that question is directed to an adjournment arising from a party’s default. I repeat that I have found this issue a difficult matter to resolve.
I have already explained that the adjournment was precipitated by my concern as to the cogency of the evidence of expert witnesses being presented with a history for the first time in the witness box without being given the opportunity to examine the material in detail and in context.
The court would have been left in an impossible position when faced with the contingencies expressed by Dr Tottman. Eventually when he was presented with the files, he was able to explain various cryptic notes in the medical records as being made in a different context than a simple reading of an individual note might suggest.
The question ultimately is whether the plaintiff out be held responsible for the adjournment. The defendant submits that it was a direct consequence of the plaintiff’s failure to fully disclose her pre-accident history. The plaintiff in effect submits that both parties failed to provide the subpoenaed records to the experts prior to trial. In her case, it was implicitly because of her impecuniosity.
Ultimately, in my opinion, it was in the interest of both parties that the trial be adjourned to enable the expert witnesses to examine that documentation before giving or completing their evidence. The trial would have taken considerably more time had each expert been taken through the subpoenaed records in detail for the first time in the witness box.
I have already referred to my finding that the plaintiff did not deliberately mislead those experts by failing to disclose the detail of her pre-accident history.
Once that detailed history was adduced from the subpoenaed records it was proper that the plaintiff be re-examined by Dr Tottman; and further reports be obtained from him and from Professor Goldney.
Save for one matter I do not accept that the plaintiff ought be deprived of her costs in respect of the adjournment. That matter relates to the costs incurred on 9 August 2007.
It was inevitable on 8 August 2007 that the trial had to be adjourned. Although each party had vacated their respective bookings for medical witnesses by that day, the plaintiff, at least initially, sought to continue with the trial. Ultimately that day, the 9^th day of August 2007, was wasted.
In my opinion the plaintiff must pay the defendant’s costs of that day on a party and party basis as thrown away. It follows that the plaintiff is also denied the costs of that day, 9 August 2007.
Save for that order, in the proper exercise of my discretion, I am of the opinion that the issues raised by the defendant ought not be reflected in an award of costs in favour of the defendant nor in any reduced order in favour of the plaintiff.
The formal orders of the court are:
1.That save for the costs of the 9^th day of August 2007, the defendant do pay the plaintiff’s costs of action on a party and party basis, to be taxed or agreed.
2.That the plaintiff do pay to the defendant the defendant’s costs, on a party and party basis, of the 9^th day of August 2007, such costs to be set off against the costs payable to the plaintiff pursuant to paragraph 1 hereof.