TATLI v CHRISTIANSEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 28 March 1988 [1988] NSWCA 154 COSTS — matter remitted by High Court — appeal to High Court from Court of Appeal allowed — judgment sum reduced below award at trial — normal rule as to costs — separate issues argued on appeal in Court of Appeal — proper approach to retrospective determination of costs orders that would have been made, allowing for re-determination of one issue by High Court — reversal of approach to discount of allowance for future economic loss — Todorovic & Anor v Waller (1981) 150 CLR 402 applied by High Court — held: partly successful appellant to Court of Appeal should have half only of the costs of the appeal and cross-appeal. Supreme Court Act 1970, s46. Suitors Fund Act 1951, s6. ORDERS 1. That the opponent pay half of the costs of the claimants of the appeal and cross-appeal; 2. That the opponent have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal to this Court and the costs of the appeal the High court of Australia; and 3. That the claimants, having succeeded in this motion, have the costs of the motion. Kirby P This motion is a further illustration of the fact that few issues so agitate the parties to litigation as those concerning the disposition of costs. The matter that is before me now is the final stage in litigation which began with an accident suffered by the opponent on 6 November 1974. This accident led to litigation which came before Larkins J and was determined by judgment on 2 September 1980. His Honour entered judgment in favour of the opponent in the sum of $250,923. The claimant appeal led to this Court. The opponent eventually filed a cross-appeal. This was handed up only on the return of the appeal. However it was dealt with on 3 June 1981 by the Court, comprising Moffitt P, Hutley and Glass JJA. In the result, the Court dismissed the claimant's appeal, allowed the opponent's cross-appeal with costs and substituted for the judgment entered by Larkins J, judgment in the sum of $317,843 to take effect from the date of the original judgment. The claimant then appealed to the High Court of Australia. That appeal was heard by that Court comprising the then Chief Justice (Sir Harry Gibbs) and Wilson and Deane JJ on 11 March 1983. By the time the appeal came before the High Court the decision of that Court in Todorovic & Anor v Waller (1981) 150 CLR 402 was available. Its application to the decision under appeal then retired an adjustment of the amount allowed to the opponent for future economic loss. Larkins J had allowed a sum of $80,280 applying a discount rate of five per cent which was in accordance with the understanding of the law then applicable. This Court, on appeal, increased the allowance for future economic loss to $187,200 applying a zero discount rate, as was then the law applicable in this State. By the time the matter came to the High Court, applying the principle in Todorovic, a three per cent discount rate was allowed, resulting in an amount for this component of the opponent's judgment of $106,290. 2 UNREPORTED JUDGMENTS In this Court there had been two further adjustments to the judgment entered by Larkins J. The first was an increase in the judgment sum by $10,000, being an allowance made by the Court of Appeal for footwear which it was held that the opponent was entitled to have and for which Larkins J had made no allowance. However, the Court, having reached the opinion that the allowance for future economic loss should be so significantly increased by more than $100,000, proceeded to express the view that "in the light of the much more substantial sum to be awarded to [the opponent] for loss of earning capacity", the amount for general damages should be reduced. That component of the judgment was then reduced by $50,000 to $100,000. This reduction, and the allowance for footwear, were not challenged in the appeal to the High Court. The High Court, when it disposed of the appeal and applied the principle in Todorovic, reduced the aggregate judgment in favour of the opponent to a final sum of $236,923. The Court remitted to this Court the entry of the judgment and the disposal of the question of the costs of the appeal and cross-appeal. No substantial reasons were given by the High Court for doing so. The Chief Justice simply said that such would be an "appropriate course". The matter has come before the Court today. I am dealing with it pursuant to the powers conferred on me sitting as a single Judge of Appeal under s46 of the Supreme Court Act 1970. The claimants argue that they should have the whole of the costs of the appeal and the cross-appeal to this Court on the basis that the final result of the litigation in this Court would have been, if the Court had applied the principle in Todorovic as later expounded by the High Court, a net reduction of the judgment entered by Larkins J. It is true that the normal principle of costs applied in this Court is that the party successful in litigation will secure an order for costs. However, a subordinate principle which is frequently applied is that if there are multiple issues in contest, the Court will often make an adjustment to the order for costs which takes into account the amount of time spent on issues and the relative success of the parties in respect of them. I propose to look, in a global way, at the outcome of this litigation. What would have been done by the Judges constituting the Court on 3 June 1981 (none of whom are still members of the Court)? It would seem to me that, had the outcome been as it now finally is, the judges would have taken into account the fact that the opponent succeeded on two of the three issues litigated in the appeal to this Court, namely, the allowance for footwear and the allowance for future economic loss. Even after the decision of the High Court of Australia, the opponent continued to hold the increases in respect of those two issues. So far as the reduction of general damages is concerned, it appears that in this Court the final result of the judgment entered by Larkins J was affected by the very great increase in future economic loss allowed by the Court, which the High Court later discounted. But what allowance should be made for such increase? It is impossible for me to do more than fix an appropriate adjustment of the costs. I must do so for myself, the matter having been remitted to this Court by the order of the High Court. But, in determining what to do in these circumstances, it is appropriate to examine what happened in the appeal here and what would probably have happened if the matter had been disposed of in the Court of Appeal by the application of the principles later declared to be the law by the High Court. URJ TATLI v CHRISTIANSEN (Kirby P) 3 I have concluded that it would be appropriate to give the claimants part of the costs of the appeal, they being successful in aggregate. But it is also right to deny them the whole of the costs, on the basis of the issues in respect of which the opponent ultimately succeeded. In my opinion it would be just that the costs in this Court should be disposed of on the basis that the claimants have half of the costs of the appeal and cross-appeal and I would so order. Iam asked to make an order in respect of the Suitors Fund Act, 1951. It was agreed that the case raised questions of law and that in respect of the reduction in this Court and in the High Court of Australia the amounts reduced are attributable to points of law determined on the respective appeals. There has been no suggestion of any reason why the discretion under the Suitors Fund Act 1951 should not be exercised in favour of the opponent. Examining the papers, it seems to me that there is every reason why the discretion should be exercised in his favour. Accordingly, in respect of the costs of the appeal to this Court and to the High Court of Australia, the opponent should have a certificate under the Suitors Fund Act 1951. The orders I make are therefore:- 1. That the opponent pay half of the costs of the claimants of the appeal and cross-appeal; 2. That the opponent have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal to this Court and the costs of the appeal to the High court of Australia; and 3. That the claimants, having succeeded in this motion, have the costs of the motion.