Domenico Esposito v Commonwealth of Australia [1988] ACTSC 14 (16 March 1988)

SUPREME COURT OF THE ACT

DOMENICO ESPOSITO v. COMMONWEALTH OF AUSTRALIA
S.C. No. 759 of 1984
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Costs - judgment for plaintiff in personal injuries claim with costs - parties did not wish to be heard on costs at time of judgment - judgment sum less than maximum recoverable in Magistrate's Court - rule of court requiring costs to be limited to two-thirds of entitlement unless otherwise ordered - whether slip rule applicable - Rules of the Supreme Court of the Australian Capital Territory Order 32 Rule 11, Order 65 Rule 7(1), (8), (9).

David Robert Symes v. The Commonwealth of Australia (unreported, ACT Supreme Court, 17 July 1987)

R v. Cripps (1984) 2 All ER 705 at 710

Raybos Australia Pty. Ltd. v. Tectran Corporation Pty. Ltd. (unreported, High Court of Australia, 10 February 1988)

Sherwell v. Armour (1962) VR 197

O'Doherty v. McMahon (1971) VR 625

Bunker v. James and Downland Publications Ltd. (1980) 26 SASR 286

John Fairfax & Sons Ltd. v. Palmer (unreported, NSW Court of Appeal, 23 April 1987)

HEARING

CANBERRA
16:3:1988

ORDER

The plaintiff recover his costs under Order 65 Rule 7(1).

Each party bear his and its own costs of the present application.

DECISION

This is an application made orally on 3 March 1988 by counsel for the plaintiff upon notice to the defendant consequent upon an order I made on 17 December 1987 that the defendant pay the plaintiff's costs of action. That order was made immediately after I handed down reasons for judgment in favour of the plaintiff in the sum of $7,337.75 and after I had been informed by counsel for each of the parties that he did not wish to be heard on the question of costs. The order that the plaintiff now seeks is pursuant to Order 65 Rule 7(8) and it is that the costs to be allowed shall be those provided for in sub-rule(1).

2. Order 65 Rule 7(8) provides as follows:

" 7(8) Notwithstanding sub-rule (1), in respect of

an action or proceeding to which this sub-rule
applies, a solicitor is entitled to charge, and
shall be allowed, two-thirds only of the costs
that, but for this sub-rule, he would be entitled
to charge and be allowed under this rule,
provided that in any case the Court or Judge may
provided for by sub-rule (1) or such greater
proportion thereof as is deemed fit."

3. Sub-rule (9) of the same Rule is in these terms:

"(9) Sub-rule (8) applies to an action or proceeding
instituted on or after 1 September 1982
where the amount recovered by the plaintiff by
default, judgment or otherwise or the amount
claimed against the defendant is less than
$10,000."

4. At the commencement of the hearing of the application, counsel for the defendant took the point that the defendant did not really know the nature of the application nor the evidence upon which it was based. Counsel's complaint was well justified. Applications to the Court should be by way of written notice of motion (Order 54 Rule 3) except during the course of a hearing currently being entertained by the Court or in urgent circumstances such as those in which an ex parte injunction or order nisi is sought. If it is intended to support the application by evidence then that evidence should be furnished by affidavit. In the present case the factual material upon which the plaintiff sought to rely was part of the Court record, but the plaintiff should have filed and served a notice of motion setting out the precise terms of the orders sought.

5. Counsel for the plaintiff stated that he relied upon Order 32 Rule 11, the so-called slip rule, which provides as follows:

" 11. Clerical mistakes in judgments or orders, or
errors arising therein from any accidental slip
or omission, may at any time be corrected by the
Court or Judge on motion or summons, without an
appeal."

6. I raised the initial question whether it was necessary to rely on the slip rule and whether in any event the slip rule applied where the terms of the order sought were not, or did not seem to be, inconsistent with the terms of the original order and did not have the effect of amending those terms but merely supplementing them. Counsel for the defendant replied to my query by submitting that the existing order was a final order (which had been perfected by having been formally drawn up and sealed with the seal of the Court) and that to supplement the existing order in the terms sought by the plaintiff would be to have the effect of amending it in the face of the well established principle that an existing order can be altered by the Court only under the slip rule or by the Federal Court on appeal.

7. The question of whether an application in the nature of that now made on behalf of the plaintiff falls within the scope of the slip rule was considered and answered in the affirmative by Gallop J. in David Robert Symes v. The Commonwealth of Australia (unreported, 17 July 1987). His Honour referred with approval to the decision of the English Court of Appeal in R v. Cripps (1984) 2 All ER 705 at 710 in which, after observing that the slip rule was "surprisingly wide in its scope", the Court of Appeal said:

"But it also authorises the court to make an
order which it failed to make as a result of the
accidental omission of counsel to ask for it. It
even authorises the court to vary an order which
accurately reflects the oral decision of the
court, if it is clear that the court inadvertently
failed to express the decision which it
intended."

8. A similar approach was taken recently by Toohey J. in the High Court in Raybos Australia Pty. Ltd. v. Tectran Corporation Pty. Ltd. (unreported, High Court of Australia, 10 February 1988) in which his Honour said:

"In many cases the slip rule or its equivalent is
invoked when, through error or oversight, a
judgment or order fails to express correctly the
intention of the Court at the time when the
judgment or order was announced. But it is clear
that this power of correction extends to cases
where a matter, through inadvertence, was not
dealt with at the hearing. In that case the
purpose of correction is not to give expression
to the intention of the Court at the time the
judgment or order was pronounced; Coppins v.
Helmers & Brambles Constructions Pty. Ltd. (1969)
2 NSWR 279."

9. In Coppins' case, a decision of the New South Wales Court of Appeal, it was held that where the original order has been completed the power extends only to consequential or ancillary matters and does not extend to the variation of the original order on a substantial question in issue which was through inadvertence overlooked at the original hearing.

10. In the light of the foregoing, I hold that the present application does fall within the scope of the slip rule.

11. The next question is whether the application on its merits ought to be granted, or to paraphrase the words of Gallop J., has the plaintiff established that I would have made a special order for costs, but for his failure to apply at the time of the previous order?

12. Counsel for the defendant referred to a number of decisions and particularly to those in the Supreme Court of Victoria. It appears that in Victoria in cases where the plaintiff recovers an amount below one half of the monetary limit of the jurisdiction of the County Court, the practice is not to allow for costs on the higher scale unless the plaintiff can show special circumstances: Sherwell v. Armour (1962) VR 197, O'Doherty v. McMahon (1971) VR 625. A similar approach appears to be taken in South Australia where more precise criteria have been formulated: Bunker v. James and Downland Publications Ltd. (1980) 26 SASR 286. There is a different practice in New South Wales where the relevant rule of court (Part 52 Rule 24) is not framed with express reference to the limits of the lower court in which the proceedings might have been brought, and the discretion is not restricted to cases where the plaintiff can show special circumstances: John Fairfax & Sons Ltd. v. Palmer (unreported, NSW Court of Appeal, 23 April 1987).

13. In Victoria, the rationale of the practice appears to be that as the rules of court provide that the successful plaintiff is to be restricted to a reduced scale of costs in the event of recovering less than one half of the monetary limit of the jurisdiction of the county court, the rules themselves prescribe the extent to which differences of opinion and errors of judgment on the part of the plaintiff and his or her advisers as to the amount likely to be recovered are to be taken into account. In O'Doherty v. McMahon at p 628 the Full Court said:

"The object of the rule is to protect the
defendant against the unnecessary expense of
higher costs in a court which is not appropriate
for the case. The plaintiff, however, is left
free to select his court. If he fails, no
protection of the defendant is necessary because
he receives costs applicable in the court to
which he is taken. If he succeeds, the defendant
is liable for costs appropriate to the court to
which he is taken provided, however, that the
plaintiff obtains more than half of the amount
which the lower court has jurisdiction to award.
If the plaintiff recovers less than that amount
the defendant is liable only for costs applicable
in the lower court, in the absence of a special
order."

14. The provisions of Order 65 Rules 7(8) and (9) are more akin to the New South Wales Rules than to those in Victoria and South Australia.

15. I take the view that, whatever the practice elsewhere, the position in the Territory is that in seeking an order for increased costs pursuant to Order 65 Rule 7(8) the applicant does not have to show special circumstances and that the Court's discretion is an open one to be exercised with a view to doing justice in all the circumstances of the case but bearing in mind the apparent purpose of the rule to encourage litigation in a competent court other than the Supreme Court.

16. In Symes v. The Commonwealth of Australia Gallop J. considered that it was a reasonable prognostication that the plaintiff would recover damages in excess of the statutory limit recoverable in the Magistrates Court. In fact that prognostication turned out to be correct and the plaintiff's damages were assessed at $13,757.35. The defendant, however, was successful on the issue of contributory negligence and the plaintiff in the end recovered judgment after apportionment by a reduction of seventy-five percent for $4,429.34.

17. Although there are conflicting views elsewhere as to whether the plaintiff's expectation, or the expectation of his or her lawyers as to the likely level of damages are irrelevant, those expectations are, in my view, always a material, but not a deciding, factor. On the one hand, deliberate exaggeration by the plaintiff or the legal advisers will not assist the plaintiff to recover increased costs. On the other hand, where there is a difficult medical question, as for instance in the case of a child with alleged brain damage, resolution of the issue in favour of the defendant may not in itself disentitle the plaintiff from an order for costs at the higher scale. In any event, difficult issues of fact or law relating to liability will always be relevant to take into account.

18. In the present case the plaintiff alleged that he had suffered two spinal injuries at work, one on 5 May 1980, the other on 7 October 1980. He alleged that on each occasion the injury occurred as a result of the negligence of the defendant in requiring him to lift unreasonably excessive weights. I found that negligence was proved in relation to the first incident, but as far as the second was concerned, the plaintiff had not discharged the onus of proving lack of reasonable care, and that the minor nature of what occurred on the second occasion did not break the chain of causation of symptoms that related back to the first incident. I found that on the first occasion the plaintiff sustained a liqamentous injury to his spine which led to a loss of some three to four weeks employment immediately thereafter with commensurate but decreasing pain until some time shortly after the end of October 1980, with some spasmodic loss of a few days work in the intervening period. The plaintiff's claim was that the first injury, or a combination of the two injuries, led to increasing pain and symptoms in the lower back, with increasing disability for his duties as a printer, leading to the necessity of a disc excision on 26 January 1982. He claimed that his condition continued to deteriorate until the time his services were terminated in February 1984, after which he has been completely unable to work. Obviously, if the plaintiff's case had been accepted, his damages would have been relatively high. The plaintiff's credit and the medical evidence, however, led me to the conclusion that damages were not recoverable for the plaintiff's condition beyond the end of October 1980.

19. Although there was a good deal of medical material and the medical issues were not straightforward, they were in themselves well within the experience and competence of the Canberra Magistrates Court which has an extensive jurisdiction in workers' compensation. But liability also was in issue. There were many conflicting accounts as to what happened on the two days in question. That again involved matters of fact which taken alone did not need to be decided in the Supreme Court. However, the issues of law and the related questions of fact relating to foreseeability and avoidability of injury were not easy ones. In recent times allegations of negligence against employers in respect of injury caused by lifting have become frequent. The issues raised have been the subject of decisions in the High Court, the Federal Court and in this Court. They have led to differences of opinion between trial judges, intermediate courts of appeal and the High Court. Although I would not purport to lay down any general proposition that claims for damages arising out of alleged negligence in the work place are necessarily to be brought in the Supreme Court, I do think that they are frequently in a different category from claims for damages for personal injuries arising out of motor vehicle collisions. That factor, taken into account with the other factors to which I have made reference leads me to the conclusion that on the whole it was reasonable to bring the present case in the Supreme Court and that the plaintiff ought therefore recover his costs under Order 65 Rule 7(1) and I order accordingly.

20. As far as the costs of the present application are concerned, the plaintiff has been successful, but the application should have been made at the time of the handing down of judgment, or at the very least the plaintiff should at that stage have requested that the question of costs be reserved to a later date. In all the circumstances, I think that each party should bear his and its own costs of the present application.