Carver v Hill[2012] QDC 43

[2012] QDC 43

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 50 of 2008

BRISBANE

DATE 13/03/2012

ORDER

HIS HONOUR: I'll give extempore reasons. I'm concerned here with an application essentially seeking a review of decisions made by a cost assessor in determining the costs associated with the action of David Carver and Chalmers and Owen James Hill trading as A J & M J Hills Removals.

The matter went to trial, and I'll come back to some of the substantive findings made her Honour, the trial Judge, in due course, but her Honour, Judge Ryrie, ordered in respect of costs, "I order that the defendants pay the plaintiffs' costs of the action to be assessed on the standard basis. The parties are given leave to make submissions, in writing, on costs within 28 days, failing any agreement between the parties that the usual order as to costs is not appropriate".

Submissions were made as to costs but eventually the matter went to the cost assessor, Steven Kenneth Hartwell. Objection has been taken to six specific items. They are 5, 12, 24, 13, 32 and 17. Item 5 is concerned with the application for non‑party disclosure. It was contended on behalf of the applicant, the then defendant, that as no specific item is provided for in respect of non-party disclosure under the Magistrates Court scale this item should not be allowed. It is submitted that it is not appropriate for an allowance to be made under the item relating to the disclosure between the parties as that was a different procedure altogether.

Item 12 is concerned with travelling to the site which coincided with a visit to the site by the expert, Brian Sams. This cost is challenged essentially on the basis that these costs when one has regard to the judgment of the trial Judge were clearly not necessary or proper for the attainment of justice.

Item 24 is also concerned with travel to the subject land for the purposes of taking additional up to date photographs and it would also appear that that trip to the subject land also coincided with the meeting of the expert, Mr Sams, for reasons similar to that which I identified in respect of item 12. It is submitted that these costs were neither necessary or proper for the attainment of justice.

Item 13 is concerned with the expert, Brian Sams' travel, accommodation, meals and preparation of an expert report. Again, it is submitted that his attendance and preparation of the report were not necessary or proper for the attainment of justice.

Item 32 is concerned with the expert, Brian Sams' appearance at Court, the same submission is made. Item 17 is concerned with a cost for service by a process server.

On behalf of the respondent, the successful plaintiff in the action, it is submitted to the effect that there is no reason to go behind the assessment made by the cost assessor and that what the applicant advocates here would be an improper interference with the assessor's assessment and that it would require me to go behind the reasoning of JudgeRyrie and, in effect, to consider these matters retrospectively with the benefit of hindsight.

By way of brief background, the proceedings were commenced by the plaintiff. The damages sought were $59,992.80 for damages for trespass and $20,000 for exemplary damages. Interest and costs were also sought.

After a trial, her Honour, Judge Ryrie, on 29 October 2010 handed down her decision concerning the matter.  She rejected that there was any basis justifying an award for exemplary damages and, for reasons I'll come to in a moment, limited damages to that of a compensatory nature only in the amount of $5,000.

In paragraph 6 and 7(a) of the statement of claim of the plaintiffs it is alleged, "On a date unknown between February 2007 and 28 February 2008 the plaintiffs' land was wrongly entered and an area bearing from 14 to 19 metres wide by 44metres in length (approximately 640 square metres) of the plaintiffs' land was cleared of all woody standing vegetation. The first defendant, his servants or agents (a) wrongfully entered the plaintiffs' land without the plaintiffs' permission and cleared the plaintiffs' land to the extent referred to in paragraph 6 hereof". There is an alternative pleading but it's not necessary for the purposes of this application to deal with that.

In the defence of the defendant trespass was admitted but the clearing of any land was denied.  The plaintiffs retained the expert, Mr Sams, and on the material provided to me it seems tolerably clear that he was retained to assess damages, more particularly, being the quantum associated with the clearing of timber alleged in paragraphs 6 and 7 of the statement of claim. At trial, the trial Judge clearly rejected the plaintiffs' evidence about the extent of timber on the trespassed area at the time.

In paragraph 31, her Honour relevantly said, in part, "I cannot accept those submissions. Firstly, they overlook the fact that Mr Sams' observation in July 2008 are also consistent with the plaintiffs' land (ATA) having already been cleared at some point in time even before the defendants traversed over it on the 16 October 2007. The evidence which I have accepted supports such a conclusion".

Her Honour then went on to say, "Having accepted the general description of the ATA that was given by the defence witnesses, as it appeared to them on 16 October 2007 which, in effect, was there was little, if any, significant vegetation in that area. I'm not persuaded on the balance of probabilities that the defendants trespass on that day did, in fact, cause any of the loss or damage as alleged."

Again, on the material before me it seems tolerably clear that Mr Sams' assessment of damage was based on information provided to him by the plaintiffs. It was through no fault of his that he acted on an inaccurate description of the vegetation on the trespass land.

Rule 702 of the Uniform Civil Procedure Rules relevantly provides:

3. (1)
   unless these rules or an order of the Court provides otherwise a cost assessor must assess costs on a standard basis;

3. (2)
   when assessing costs on a standard basis a cost assessor must allow all costs necessary or proper for the attaining of justice or for enforcing or defending the right of the party whose costs are being assessed.

Rule 702, subrule 2, clearly involves two issues. First, those costs that are necessary for the attainment of justice or for enforcement and, in addition, those costs which were proper for the attainment of justice, et cetera. Often there will be an overlap between the necessity issue and the question as to what is proper but there are two distinct considerations involved.

In Hennessy Glass and Aluminium Pty Limited and Watpac Australia Pty Limited [2007] QDC 57, Judge McGill, in paragraph 24, considered those two elements of Rule 702, subrule 2, and characterised those costs that are necessary as being to the effect that such costs would be necessary if litigation could not have been carried on reasonably without them.

On the other hand, costs would be considered proper if it was reasonable for a client with a competent solicitor to have incurred those costs in carrying on with litigation. There was no dispute from either side of the Bar table that the observations made by Judge McGill are correct and, with respect, I also consider them to be correct and intend to apply them.

On balance, I consider that to a significant extent, Mr Sams' involvement in the litigation was neither necessary nor proper. His involvement in the litigation, in my view, could not be reasonably said to have made it unreasonable for the litigation to proceed without his involvement and his costs being incurred by the plaintiffs.

Also for the reasons given, namely, that it is tolerably apparent or clear that Mr Sams was acting on wrong information. That information coming from the plaintiffs themselves. It does not seem to me that it could be said that his costs were properly incurred.

On balance, I consider that for the reasons given items 13 and 22 should be disallowed. I can see no basis for disturbing the assessor's findings in respect of items 5 and 17. In respect of items 12 and 24 I accept that there might be some level of overlap between what is claimed which is personal to the plaintiffs and some involvement with the expert, Mr Sams, that on balance and having regard to the relatively modest amounts involved, I do not consider that there is any justification for me varying the amounts allowed by the assessor.

...

HIS HONOUR: In respect to the question of costs the order that I propose to make is that there be no orders as to costs. I should indicate that in making that order I have some reservations. There's no doubt that on a quantum basis the applicant has been largely or significantly successful.

As Mr Campbell pointed out that if the respondents had, in effect, agreed to compromise items 13 and 32, they probably wouldn't have come to Court. That may well be so but the fact of the matter is that it did come to Court and agitate for another four items.

As I say, clearly the monetary side of the equation falls in favour of the applicants but, at the end of the day, the respondent was able to successfully defend four of the six items challenged. It's a finely judged call but, on balance, I consider that the most appropriate order is that there be no order as to costs.