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…

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 WINFIELD v JONES (No 2)

Details

AGLC: Winfield v Jones (No 2) [2010] SADC 59
Case: [2010] SADC 59
Decision Date: 7 May 2010

CaseChat Overview and Summary

In the matter of Winfield v Jones, the plaintiff sought to recover damages for injuries sustained in a motor vehicle accident. The case was heard in a lower court where it was determined that the plaintiff was an unreliable witness in many respects. As a result, the trial was adjourned, among other things, to allow the plaintiff to be re-examined by a psychiatrist. The defendant, in turn, subpoenaed a large volume of documents, including records from Centrelink, which were later set aside.

The legal issues before the court included the appropriate assessment of costs in light of the plaintiff's unreliability and the procedural steps taken during the litigation. The court needed to consider whether the general rule that costs follow the event applied, and if so, how it should be applied given the unusual circumstances of the case. The plaintiff argued for a party and party costs order, while the defendant contended that he should be awarded costs due to the adjournment and the plaintiff's failure on certain issues, or alternatively, that the plaintiff should only receive a proportion of her costs.

The court deliberated on the general principle that costs should follow the event, but also recognised the exceptional nature of this case. The plaintiff's unreliability significantly impacted the proceedings and necessitated further expert examination. The court found that, apart from the issue of the Centrelink subpoena, the plaintiff was entitled to a party and party costs order. The court reasoned that the plaintiff's unreliability, while a significant factor, did not wholly deprive her of success, and the procedural steps taken were necessary for a fair trial. Therefore, the defendant was not entitled to costs for the adjournment, nor was the plaintiff to be penalised for her partial failure on certain issues. The court ordered that the plaintiff receive costs on a party and party basis, except in relation to the set aside Centrelink subpoena.

Orders