Yogini v Eveille - [2006] ACTSC 23

TRUDY YOGINI V BENJAMIN CHARLES EVEILLE &
MELISSA JACQUELINE HERITAGE
[2006] ACTSC 23 (5 April 2006)

COSTS – judgment for the plaintiff – parties not heard on costs at time of judgment – parties ordered to file and serve written submissions on question of costs – judgment sum less than maximum recoverable in Magistrates Court – whether action should have been brought in the Magistrates Court – operation of costs penalty rule – whether Magistrates Court scale of costs applicable – discretion to vary the scale – complexity of issues – whether discretion to vary scale should be exercised under the Civil Law (Wrongs) Act 2002 ss 181 and 184 or under Rules of the Supreme Court of the Australian Capital Territory Order 65 Rule 7A

Magistrates Court Act 1930 (ACT), s 257(1)
Civil Law (Wrongs) Act2002 (ACT) ss 181, 184
Court Procedures Act2004 (ACT) s 134(1)
Supreme Court Rules1937 (ACT) O 65 r 7A

Ditton v Gallagher (1992) 110 ACTR 12
Kneipp v Halliday [1998] ACTSC 33
Elizabeth Heywood v Wayne Miller [2005] ACTSC 12
Symes v Commonwealth of Australia (1987) 89 FLR 356

No. SC 450 of 2004

Judge: Marshall J
Supreme Court of the ACT
Date: 5 April 2006

IN THE SUPREME COURT OF THE  )
  )  No. SC 450 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN: TRUDY YOGINI
Plaintiff

AND:BENJAMIN CHARLES EVEILLE
First Defendant

MELISSA JACQUELINE HERITAGE
Second Defendant

ORDER

Judge:  Marshall J
Date:  5 April 2006
Place:  Canberra

THE COURT ORDERS THAT:

The defendant pay the plaintiff’s costs on a party and party basis at the Supreme Court scale of costs, those costs to be agreed or taxed.

The plaintiff applies for a costs order in relation to a personal injuries matter that was heard before me over two days in November 2005: Trudy Yogini v Benjamin Charles Eveille & Melissa Jacqueline Heritage [2006] ACTSC 13 (6 March 2006).
The plaintiff commenced the proceeding in this Court by Originating Application filed 1 July 2004. The matter required a determination of whether, and to what extent, the plaintiff suffered personal injury when she fell over building material protruding onto the footpath from a residential building site in Ainslie, a suburb of Canberra. Both quantum and liability were in dispute. Each issue was earnestly contested.
In the substantive judgment, I assessed total damages at $148,098.60. However, I found that the damages must be reduced by 75% to reflect the contributory negligence of the plaintiff.
After reduction, the plaintiff recovered $37,024.65. That sum is less than the jurisdictional limit of $50,000 of the Australian Capital Territory Magistrates Court: s 257(1) of the Magistrates Court Act 1930 (ACT).
The parties have filed written submissions on the question of costs. I have taken those submissions into account in determining the appropriate costs order.

The issue

The issue before me is whether, as a matter of discretion, the plaintiff is entitled to recover costs at the Supreme Court scale, or whether (as the defendants submit) the plaintiff…

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 Yogini v Eveille

Details

AGLC: Yogini v Eveille [2006] ACTSC 23
Case: [2006] ACTSC 23
Decision Date

CaseChat Overview and Summary

In Trudy Yogini v Benjamin Charles Eveille and Melissa Jacqueline Heritage [2006] ACTSC 23, the plaintiff sought an order for costs following a successful action for damages for personal injury. The plaintiff had fallen over building material protruding from a residential building site, resulting in injury. The matter proceeded to trial on both liability and quantum and was heard over two days in November 2005. The plaintiff was awarded damages, but this was reduced by 75% for contributory negligence. The net award was $37,024.65, which was below the jurisdictional limit of the Magistrates Court. The parties were ordered to file and serve written submissions on the question of costs, which were considered by the Court in determining the appropriate order.

The central issue before the Court was whether the plaintiff was entitled to recover costs at the Supreme Court scale, or whether she could only recover costs at the Magistrates Court scale. The parties disagreed on the applicability of ss 181 and 184 of the Civil Law (Wrongs) Act 2002 (ACT) and O 65 r 7A of the Supreme Court Rules 1937 (ACT). The plaintiff argued that the Wrongs Act provisions applied and that the case was sufficiently complex and that the prudent course was to bring the case in the Supreme Court, given the high pre-apportionment damages award. The defendants argued that the Wrongs Act did not apply to party and party costs and that the Rules should apply. They also submitted that the case was not complex and that the plaintiff's financial position relative to their own should be a consideration in determining the appropriate scale of costs.

The Court determined that the discretion to be exercised was under the Rules, specifically O 65 r 7A(5), which allows for a different amount for costs to be ordered where a plaintiff recovers an amount of not more than $40,000. The Court found that the issues before it were sufficiently complex to warrant bringing the proceeding in the Supreme Court and that the plaintiff's advisers could not reasonably be expected to predict with certainty the level of apportionment that would be ordered at trial. The Court did not consider it necessary to decide whether the discretion to be exercised was under the Wrongs Act, as the Rules gave the Court the necessary discretion. The Court concluded that there was no inequity between the parties to warrant a costs order at the Magistrates Court scale.

The Court ordered that the plaintiff's party and party costs be at the Supreme Court scale, and that those costs be agreed or taxed. The defendants were ordered to pay the plaintiff's costs on a party and party basis at the Supreme Court scale of costs.

Orders