Yogini v Eveille

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.