On splitting liability and quantum

In this post, I reproduce an extract from Justice Hoeben’s recent decision in Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 which discusses the increasing willingness of courts (in NSW at least) to determine preliminary issues before the main trial. In this case, everything except for quantum was ordered to be determined in a first trial, with a second trial on quantum only if necessitated by the outcome of the first trial. It was a kind of professional negligence case in a sense: a pupil was suing her school for her teacher’s negligence while she was on school camp.

The only reform of civil justice I seem to hear about these days is an increasing emphasis on mediation. Well, that’s an exaggeration, since Victoria is about to join the uniform evidence legislation jurisdictions, and its Attorney-General proposes to unify the rules for all the courts (excellent idea), but I will put aside these promising developments for a moment. I suggest that rather than increasing the amount of mediation, civil justice reform should concentrate on increasing the level of judicial adjudication, which does not necessarily mean increasing the number of once and for all oral trials of all issues.  What there should be more mediation of is not the final outcome of cases, but the things which litigants at the moment typically go to court for: interlocutory battles.  Far better to outsource the adjudication of disputes about discovery and the parties’ articulation of their respective cases so that the trial is prepared quickly than to outsource the resolution of complaints. Continue reading “On splitting liability and quantum”

Costs of complex litigation in presumptively costs-free consumer tribunals

A Queensland District Court judgment (Saunders v Paragon Property Investments Pty Ltd [2009] QDC 19) about the costs provision in a Queensland consumer tribunal has alerted me to a passage from a decision of the Queensland Court of Appeal (Tamawood Limited v Paans [2005] 2 Qd R 101) which might be useful in arguing for costs if you are successful in a complex VCAT proceeding. It runs contrary to the tenor of certain decisions of VCAT’s President Morris noted in Pizer’s Annotated VCAT Act, (3rd ed.) at points 6 and 7 on pp 426-7 in para [4039.1D], e.g. Buttigieg v Melton SC [2006] VCAT 1058, Mornington Peninsula SC v Fox, unreported, 24 October 2003.

Also, Ballymont Pty Ltd v Ipswich City Council [2002] QCA 454 at [19] to [20] is said to be authority for the proposition that the costs provisions of the consumer tribunal should not be thought to infect the costs provisions of an appellate forum. That is, the costs of an appeal from a consumer tribunal will be dealt with consistently with the costs of appeals generally. The useful passage from Tamawood, and a comparison between the Queensland costs provisions and VCAT’s are set out below. Continue reading “Costs of complex litigation in presumptively costs-free consumer tribunals”

Victorian judges more amenable to sophisticated costs orders in cases of partial success only

Update, 4 May 2009: For an example of these principles in operation in a professional negligence case in which proportionate liability was given effect to (I posted about the main decision here), see Sali v Metzke & Allen (No. 2) [2009] VSC 169, where the successful plaintiff’s costs were reduced by 30% because they raised and failed on numerous issues (and also because, reading between the lines, Justice Whelan was not very impressed by one of the plaintiff’s witnesses).

Original post: Costs have traditionally followed the event. Put up 5 reasons why you should get damages and win on 1 of them, and the starting point has been that you get the costs of the whole proceeding, including of the 4 causes of action which failed. Recent decisions of a Full Federal Court constituted by Victorians and of the Supreme Court have clearly signposted a desire in eminent Victorian judges to get sophisticated about costs so that claimants who propound claims which fail do not get (and may have to pay) the costs of doing so, even if they ‘win the case’. (This might be a good time for solicitors to think about amending that part of their standard costs disclosure letters which deals with s. 3.4.9(1)(g) of the Legal Profession Act, 2004 — range of costs likely to be recovered from the other side if successful.) Justice Robson’s 13,000 word decision on costs in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296 may set a record for such judgments. Certainly, I would be surprised if there were another costs ruling with a table of contents. This is one conscientious judge. At [56]ff, his Honour said:

Continue reading “Victorian judges more amenable to sophisticated costs orders in cases of partial success only”

“this letter will be used on the question of costs”

I came across a really bad interstate solicitor a while back. One of his peccadillos was to write, at the end of all of his letters to my instructor — his opponent — ‘We thank you for your cooperation, and if you have any queries please do not hesitate to contact us.’ The thing is we so weren’t cooperating. I just kept on objecting to the affidavits of merits put up in support of the application to set aside a default judgment until his client decided it was no longer worth the effort. His other favourite line was ‘This letter will be used on the question of costs’ to which I thought ‘Yeah, right.’ I don’t think I ever use that purported threat in correspondence. What’s the point? But it’s so commonplace a tic that I wonder whether there is in fact any good reason for it, whether it might be a hangover from the past and I’m too young to get it. So, my question: has anyone ever crashed and burned, unable to use a letter on the question of costs for want of such a sentence? Anyone want to defend the practice? (Of course, we’re not talking about Calderbank letters here. Putting ‘without prejudice save as to costs’ on a letter is useful, no doubt.)