ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY JJA and BROWNIE AJA 5-6 October 1994, 5 May 1995 [1995] NSWCA 396 JUDGMENT FOR $3,360 IN SUPREME COURT WHETHER PLAINTIFF ENTITLED TO MORE THAN HALF COSTS. Following a trial in the Supreme Court in which the plaintiff sued her former husband for assault and battery the jury returned a verdict for the plaintiff for $2,000. The proceedings were commenced in 1982. The trial Judge awarded pre-judgment interest of $680 and entered judgment for $2860. Under SCR Pt51 R24(2)(c) this judgment carried no prima facie entitlement to costs unless the Court in the exercise of its discretion under R24(2)(c)(i) so ordered. The trial Judge made such an order which entitled her to half her costs but under R24(4) he declined to order that she receive any greater proportion. The plaintiff appealed against the award for prejudgment interest, and against the refusal of the trial Judge to make a more favourable order as to costs. The appeal in respect of pre-judgment interest was allowed, and the judgment was increased to $3360. Under R24(3)(c)(i) this judgment carried a prima facie entitlement to half costs. The appellant sought a more favourable order pursuant to R24(4). Held (by majority). No order should be made under R24(4) entitling the plaintiff to a greater proportion of her costs. The plaintiff had reasonable grounds for expecting to recover a greater amount. However the judgment was substantially below the upper limit of $20,000 on the jurisdiction of the District Court which applied when the proceedings were commenced and there were no special factors which made that Court an inappropriate forum for the determination of the proceedings. Priestley JA The circumstances of this appeal to date are set out in the reasons of Brownie AJA, in which he deals with the outstanding issues. Except as to the question of the appropriate costs order in the proceedings heard by Sully J, I agree with the opinions arrived at by Brownie AJA. On the costs question, it seems-to me that since, by our decision of 12 September 1994, the case now falls into Pt52 R24(3)(c)(i) of the Supreme Court Rules. whereas on the material before Sully J he was bound to (and did) deal with it as falling within Pt52 R24(2)(c), the question for this court is not whether there was any error by Sully J in his discretionary decision, but how. on the different factual situation now for the first time before the court, discretion should be exercised in regard to costs. However, in approaching this question it seems to me it will be useful first to examine how Sully J dealt with the somewhat different question that was before him. The case with which Sully J was dealing was one where the proceedings had been commenced after 31 October 1980 but before 31 March 1983. S44(1) of the District Court Act 1973, when the plaintiff commenced her proceedings gave the court jurisdiction in any personal action at law where the amount claimed did not exceed $20,000. Jurisdiction in regard to claims for higher amounts was only available by consent of the parties (s51). Because the judgment was for $2,680, the case fell within Pt54 R24(2)(c). The whole of subR24(2) was as follows: "(2) Where: 2 UNREPORTED JUDGMENTS (a) in proceedings commenced on or before 28 September, 1973, a plaintiff recovers a sum not more than $300; (b) in proceedings commenced after 28 September, 1973, but on or before 31 October, 1980, a plaintiff recovers a sum not more than $1,000; (c) in proceedings commenced after 31 October, 1980, but on or before 31 March 1983, a plaintiff recovers a sum not more than $3,000; (d) in proceedings commenced after 31 March 1983, but on or before 30 June 1993, a plaintiff recovers a sum not more than $10,000; or (e) in proceedings commenced after 30 June 1993, a plaintiff recovers a sum not more than $75,000, he shall not be entitled to payment of his costs of the proceedings unless, it appearing to the Court that he had sufficient reason for commencing or continuing proceedings in the Court, the Court makes an order for payment." In deciding whether it appeared to him that the plaintiff had sufficient reason for commencing or continuing the proceedings in the court, Sully J referred to subR24(2A), which said: "(2A) Without limiting the generality of subR(2), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule." Sully J found that the plaintiff, "on her case as she originally pleaded it, and as she pursued it... had an obviously reasonable expectation of recovering more than $3,000". He next said that this result "entails that the plaintiff is entitled, without any further special order of the Court, and in terms of subR(3)(c)(i) of R24, to one-half of her costs as assessed or taxed." SubR24(3) was as follows: "(3) Subject to subR(4), where by or under the rules or any order of the Court the plaintiff is entitled to his costs of any proceedings to which this rule applies, the amount of costs payable to him shall (a) in respect of proceedings commenced on or before 28 September, 1973: (i) where he recovers a sum more than $300 but not more $1000, be only one third of the amount (the 'whole amount') which would be payable to him apart from this subrule; (ii) where he recovers a sum more than $1000 but not more than $2000, be only two thirds of the whole amount; (b) in respect of proceedings commenced after 28 September, 1973 and on or before 31 October 1980: (i) where he recovers a sum more than $1000 but not more than $5000, be only a half of the whole amount; (iii) where he recovers a sum, in respect of damages for personal injuries more than $5000 but not more than $7500, be only three quarters of the whole amount; (c) in respect of proceedings commenced after 31 October, 1980, but on or before 31 March 1983 (i) where he recovers a sum more than $3,000 but not more than $6000, be only a half of the whole amount: (ii) where he recovers a sum, in respect of damages for personal injuries, more than $6,000 but not more than $7,500, be only three quarters of the whole amount; (d) in respect of proceedings commenced after 31 March 1983, but on or before 30 June 1993, where he recovers a sum more than $10,000 but not more than $50,000, be only a half of the whole amount; and URJ ROGERS v WENTWORTH (Priestley JA) 3 (e) in respect of proceedings commenced after 30 June 1993, where he recovers a sum more than $75,000 but not more than $150,000, be only a half of the whole amount." Sully J then went on: "The entitlement of the plaintiff to any more beneficial order for costs depends upon the effect of subR(4) and subR(4A) of R24." These were: "(4) In a case to which subR(3) applies, if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court may order that the amount of costs payable to the plaintiff be some greater part or the whole of the amount which would be payable to him apart from that subrule. (4A) Without limiting the generality of subR(4), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule." It was thus Sully J's view that his conclusion from subR(2A) that the plaintiff had sufficient reason for commencing proceedings in the court, ENTAILED her entitlement to half her costs under subR24(3)(c)(i) and that her entitlement to any more beneficial order DEPENDED on subR(4) and subR(4A). In my respectful opinion there was a plain mistake in this reasoning. The case Sully J was considering was one within subR(2)(c). A plaintiff within that subrule was "not entitled to payment of... costs" unless it appeared to the court the plaintiff had sufficient reason for commencing or continuing the proceedings in the court. It did appear to Sully J, and he held, that the plaintiff had a sufficient reason within subR(2). At that point, it seems to me, the condition precedent to the plaintiff's entitlement to costs was fulfilled, and the court's ordinary discretion became applicable. It was not necessary to consider subR3(c)(i) at all. The case before Sully J was not within that provision. It was close to being in it, but was not within it, any more than it was within subR(3)(c)(ii). Therefore, the plaintiff's entitlement to more than half costs could not depend, as Sully J said it did, upon the effect of subR(4) and subR(4A). I think Sully J was entitled to consider those provisions as relevant to the exercise of his discretion, but in my opinion it was an error to treat them as necessarily the provisions upon which the plaintiff's case for costs depended. Sully J however, on the basis of the view I think was mistaken, proceeded: "Tf, as [have already found, the plaintiff had reasonable grounds at the time she commenced her claim in this Court for expecting that she would recover on that claim an amount exceeding $3,000, then the discretion for which provision is made in subR(4) falls to be exercised in some way in the present case." and a little later, he continued, "It seems to me that the correct starting point is that broad policy which decisions of this Court have repeatedly held to be the basic rationale of R24 of Pt52; that is to say, the policy of encouraging the litigation in the District Court, or if appropriate in the Local Court, of any claim which is within the jurisdiction of either such Court, and which is capable of being disposed of justly and efficiently in any convenient District or Local Court. In considering whether the present claim was appropriate for litigation in the District Court, - I would not myself have thought it appropriate for litigation in a Local Court - regard can properly be had, in my opinion, to the following considerations: 4 UNREPORTED JUDGMENTS (1) The issues for trial between the plaintiff and the defendant were uniformly straight-forward issues. The plaintiff alleged the commission by the defendant of a series of connected and most grievous personal assaults upon her. The defendant flatly denied all such allegations. The plaintiff buttressed her case by alleging that the defendant had, by subsequent word and deed, admitted either expressly or by necessary implication his guilt of the assaults alleged by her. The defendant denied all such allegations. Essentially, and notwithstanding that each party called short supporting evidence of various kinds, the contest at trial was essentially one of credit as between the plaintiff herself and the defendant himself. (2) There were no complicated issues of law at trial. There were one or two contested evidentiary points of substance, but they were not of their nature foreign to the experience of the District Court. (3) The verdict of the jury, which was given regularly according to law, entails necessarily that, although the plaintiff might have thought in 1982 that she had a reasonable expectation of recovering more than $3,000, a Jury of her peers thought in 1994 that she was not entitled even to as much as $3,000. I think it would be wholly contrary to the policy of R24 as a whole, and to the policy in particular of subR(4) and subR(4A) to ignore the verdict of the jury and the reasonable inferences open to be drawn from that verdict, in considering whether the plaintiff should receive a greater proportion of her costs than the half to which I have held her to be entitled. Bringing all of the foregoing considerations into what I consider to be a fair balance, I have come to the conclusion that the plaintiff has not made good her claim to be awarded a greater proportion of her costs than the one-half for which provision is made in subR(3)(c)(i) of R24." The first consideration stated by Sully J seems to me to overlook a matter of considerable importance on the costs question, and that is the availability to the plaintiff, at the time she commenced her proceedings, of a statement by Mr Hegarty, a solicitor, of evidence he could give of admissions made by the defendant which appeared to support to the full her account of the assault. Mr Hegarty, as an apparently independent professional man, was a potentially important witness whose evidence was likely to make the contest between the versions of plaintiff and defendant something quite different from a simple contest of credit between the two parties. Sully J's third consideration, to my mind, and with proper respect, seems to attribute to what he supposed was the jury's rejection of part of the plaintiff's case a decisive weight on the costs question which it did not deserve. I think in some circumstances the use made by Sully J of the inferences he drew from the jury's verdict would have been appropriate, but in others not. I will try to explain what I mean by contrasting three situations which could arise in a case such as the present. In the first situation a plaintiff has no witness other than herself in support of her case and before commencing proceedings made a formal statement, of which both she and the defendant had copies, seriously inconsistent with part of her case going to damages; in the second situation a plaintiff has herself as a witness, and has reason to believe that a second person will be able to give evidence which supports her account as to damage, but is nevertheless not sure what that potential witness may say; in the third situation the plaintiff has herself as a witness, and has reason to believe that a respectable witness will give evidence that the defendant admitted the plaintiff's allegations going to damage were all true, and URJ ROGERS v WENTWORTH (Priestley JA) 5 has a statement from the potential witness to that effect. In each case the plaintiff obtains a verdict which the court infers is only explicable on the basis that part only of the plaintiffs case has been accepted. It seems to me that the weight the court, in considering whether the plaintiff had reason for starting proceedings in the Supreme Court, should give to the (inferred) rejection by the jury of part of the plaintiffs allegations would differ in each of the three situations. In the first situation the inference would tend to confirm what the shaky state of the evidence available to the plaintiff would itself indicate; she was over optimistic in thinking she would obtain damages at Supreme Court level; the court might well decide not to give her more than half costs, in exercise of its discretion. The second situation would arguably justify the court in giving more than half, but less than full costs. The third situation would arguably justify the awarding of full costs. The point I am making at this stage is only that it would, in my opinion be a mistake to think that the same weight should be given to the jury's (inferred) rejection of part of the plaintiff's case in each situation. Restating what I have just sought to explain, Sully J took the jury's assessment of damage to have a major bearing on his exercise of discretion. This could be appropriate, in a case which showed that the plaintiff's case was based on insufficient evidence (either as to matter or prospect of acceptance) to justify any strong belief on the prospects of the amount to be recovered; but it does not appear that Sully J considered this question separately, rather he seems to have relied on the smallness of the verdict as itself meaning there must have been some flaw in the plaintiff's approach to size of likely recovery, of which she should have known in either commencing or continuing the proceedings. I think this question should have been given further consideration than he gave it. I come now to the question which is before this court. We must exercise our own discretion in regard to it, because it was not before Sully J. The question is, does it appear to the court that the plaintiff had sufficient reason for commencing or continuing proceedings in the court? If yes, another question arises, should the court award more than half costs under subR(4)? If yes, how much more? Questions of degree are plainly contemplated by subR(3). The various parts of the subrule, which will operate automatically unless the discretion in subR(4) is activated, show that although cases within the subrule are treated by the subrule as cases whose results, taken by themselves, indicate the cases would have been better commenced in a lower court, nevertheless the plaintiffs in some cases may be better treated as to costs because their case came close to being one suitable for commencement in the Supreme Court. Once a case gets into a particular classification within subR(3) the case is prima facie within a non-discretionary area. Taking a subR(3)(c)(ii) situation as an example, and assuming a plaintiff has recovered $7,000, the plaintiff is entitled to three quarters of the whole costs, without any exercise of discretion. (This would be so, in a straightforward running down case, and notwithstanding the availability of jurisdiction up to $20,000.) If the court then finds subR(4) applies. the court has a discretion to award more than three quarters of the whole amount. The court in deciding whether to exercise the discretion would consider whether, although the plaintiff (ex hypothesi) had sufficient reason for commencing proceedings in the Supreme Court, any expectation of recovering more than $7,500 although reasonable, was also sufficiently strong to justify the plaintiffs 6 UNREPORTED JUDGMENTS going to the higher rather than a lower court. Here the court would have to be guided by its own evaluation of what the plaintiff could reasonably have expected to prove in support of the claim made. In doing this in the present case, the starting point is the plaintiff's commencement of proceedings in 1982. In 1985 the defendant filed a cross-claim for damages for malicious prosecution. The plaintiff sought separate hearings of her claim and the cross-claim. The defendant opposed this and Roden J ordered that the claim and cross-claim be heard together. In December 1985 a jury returned verdicts for the defendant both on the plaintiff's claim and the defendant's cross-claim. Judgments were entered accordingly. The judgment on the cross-claim was for $571,000. The judgments were set aside on appeal: Wentworth v Rogers (No 10) [1987] 8 NSWLR 398, and a re-trial ordered. At that stage I do not think it would have occurred to anyone that the proceedings were not fully appropriate for hearing in the Supreme Court. It would have been impossible to suggest, as it seems to me, that the trial before Maxwell J was not properly heard in the Supreme Court. Nor, when a re-trial was ordered by the Court of Appeal do I think it would have occurred to anybody that the Supreme Court was not an appropriate forum for that re-trial. That re-trial was eventually fixed for hearing on 26 April 1994. By notice of motion filed 23 March 1994 Ms Wentworth applied for a separate hearing of her statement of claim. This application was granted by Sully J on 8 April 1994. He gave reasons for his decision which were before this court in this appeal and from which I have abstracted the facts in this paragraph and the paragraph before the preceding one. Again, I do not think it could have occurred to anybody when Sully J gave his decision on 8 April 1994 ordering separate hearings that Ms Wentworth should apply to have her claim litigated in the District Court. I think this was because the apparent strength of the plaintiff's case, which I will mention subsequently, was known to all concerned. In my opinion, certainly until 8 April 1994 Ms Wentworth had every reason for continuing her proceedings in the Supreme Court. Did that position change when she succeeded in obtaining the order for severance from Sully J? What was the case that she was then asserting? According to her statement of claim it was that on 29 January 1977 at the home of herself and the defendant he wrongfully assaulted and beat her by throwing her to the ground and kicking her, pushing her down, procuring the family dog to attack her, inserting a large rubber dildo in her vagina, inserting his penis in her anus and then inserting his penis in her vagina while the dildo was still inserted therein. It seems to me to have been reasonable for her to expect, that if she could prove this case, she would recover damages of an order fully justifying her bringing the case in the Supreme Court. What evidence did she have to support her case? I will confine my answer to this question to material which appears in his Honour's summing-up, material which it is quite plain was available to Ms Wentworth long before the first trial, and which the defendant was aware she might well be able to prove. There was the direct sworn evidence of the plaintiff herself that what she alleged in her statement of claim had in fact happened (the summing-up, 30). There was also Mr Hegarty's evidence of admissions made by Mr Rogers in Mr Hegarty's office on | February 1977 (summing-up, 30). URJ ROGERS v WENTWORTH (Priestley JA) 7 There was other evidence also referred to by his Honour, but it will be sufficient for my purposes if I confine myself to Mr Hegarty's evidence. From the judge's summing-up it appears that Mr Hegarty, in 1981, had made a statement setting out his recollection of what had happened in his office in 1977. It also appears that his memory, unassisted by his statement, was no longer clear about the events of 1977. The statement never got into evidence, but Mr Hegarty's evidence, as recounted by Sully J, was as follows: "A. I think the sequence was that Miss Wentworth said that she and Mr Rogers and the children wanted to be taken, I think to the local police station or to a police station where he, Mr Rogers, was to make a statement or a statement in the nature of a confession in relation to events that she had said occurred over the weekend. Q. What were the words she used as best you can recall? A. She said that on the Monday in the morning I think it was the Monday, Mr Rogers had assaulted her. With more particulars she said that he had beaten her and had set the dog on her and had anal intercourse with her without her consent. She said that the police had been called and that she had spoken with Jeffery Graham and also with her uncle, William Wentworth, but that no one had taken any action. Q. And did she say what she wanted done? A. Yes, she said that she wanted me to accompany her and Mr Rogers to the police station so that he could make a statement about that. Q. What did Rogers say? A. My recollection is that he didn't say anything responsive to what was being said. He was standing to the left of my desk and looking out the windows. There were floor-to-ceiling windows. And he, not addressing anyone in particular, was saying that he might as well commit suicide or jump out the window or words to that effect. Q. Did he say anything before that? A. Apart from the formality of being introduced to me, I don't think he did." It is also clear from his Honour's summing up, that although Mr Hegarty no longer could remember all the details, even with the help of his 1981 statement, and although as a consequence Mr Hegarty's evidence to the jury said less than what was in his statement, that statement in fact recorded that "the plaintiff had indeed said to him. among other things, that she had been attacked by the defendant in the ways that she now alleged" (summing-up p 48). Thus, at the time of commencing the proceedings, and thereafter, the plaintiff had solid reason to expect that her account of the assault would be corroborated by an independent solicitor, who would say that in the presence of the defendant she told him the details of the assault which the defendant, either by words and/or conduct, admitted. With this state of affairs in mind, I turn to subrR24(3), (4) and (4A). SubR24(3) applies to the case. Therefore, unless subR24(4) applies, the plaintiff is only entitled to half the whole amount of her costs. I think subR24(4) does apply, because in light of the material available to the plaintiff when she commenced her proceedings, I think she had sufficient reason for commencing them in the Supreme Court. I also think she had sufficient reason for continuing them in the Supreme Court. SubR24(4) being applicable, the court may order some greater part than half of the plaintiff's costs, or the whole, to be paid to her. 8 UNREPORTED JUDGMENTS In exercising this discretion it seems appropriate to look at subR24(3)(c)(ii) as giving some guidance. It seems to me the plaintiff had reasonable grounds for expecting recovery in excess of $7,500. Proof of the allegations in the statement of claim would in my opinion have justified recovery of considerably more than $7,500. In my opinion the strength of the plaintiffs reasonable expectation of recovery in excess of $7,500, notwithstanding the jury's award (based on less specific evidence from Mr Hegarty than that the plaintiff might reasonably have expected him to give, this difference being no fault of hers, at least on the material known to this court) was such as to justify awarding her more than three quarters of her costs. In my opinion it justified the award to her of the whole of them. My opinion therefore is that the appropriate orders in the appeal are those proposed by Brownie AJA together with a further order to follow proposed O.(a) to the effect that the defendant pay the plaintiff the whole of the amount of her costs of the trial before Sully J. Handley JA In this matter I have had the benefit of reading in draft form the reasons for judgment of Priestley JA and Brownie AJA. My brethren disagree on only one point, that relating to the proper order for the costs of the proceedings heard by Sully J in June, 1994. I agree with the other orders proposed by Brownie AJA and with his reasons for those orders. There is no need for me to set out the relevant facts and I can go straight to the remaining issue. As a result of the plaintiff's successful appeal to this Court the judgment entered by Sully J following the jury's verdict was increased from $2,680 to $3,360. Accordingly the case fell within SCR Pt52 R24(2)(c) and the plaintiff was not prima facie disentitled to her costs. However she still required an order for their payment. SCR Pt51 R8. R24(3) therefore applies. This provides, so far as relevant, in subpara(c) that in cases such as the present commenced before 31 March, 1983 a plaintiff recovering more than $3,000 but less than $6,000 is only entitled to half costs. This is subject to subR(4) which provides that if "the plaintiff had sufficient reason for commencing or continuing proceedings in the Court" an order "may" be made that the plaintiff recover a greater percentage or the whole of his or her costs. SubR(3), (4) and (4A) presuppose that a plaintiff who recovers a particular amount may have "sufficient reason" for commencing or continuing proceedings in the Supreme Court if he or she "had reasonable grounds for expecting" to recover a greater amount than that recovered. In other words judgment for a particular amount does not, in itself, establish that the plaintiff did not have "reasonable grounds... for expecting" to recover more. I agree with Priestley JA that the statement of Mr Hegarty the solicitor, which was available to the plaintiff, and I would add the evidence of the defendant at the first trial referred to in the Judge's summing up at 39-41 gave the plaintiff reasonable grounds for expecting that her account of the assault would be accepted by the jury. This conclusion however merely enlivens the discretion under subR(4) to order that the plaintiff receive a greater proportion of her costs than the half to which she is entitled under subR(3)(c)(i). It does not dictate the manner in which that discretion should be exercised. The trial Judge, basing himself on a judgment for a lesser amount and therefore travelling a different route through these rules, also arrived at subR(4) and exercised the discretion it conferred. I agree with Priestley JA that this Court must now exercise this discretion for itself. Nevertheless in my view the trial URJ ROGERS v WENTWORTH (Handley JA) 9 Judge's reasoning remains relevant. The three matters which led him to exercise his discretion against making a more favourable order for the plaintiff which have been referred to by Priestley JA at p 6 and by Brownie AJA at pp 3-4 have not in my opinion been shown to be erroneous or irrelevant. I am not persuaded that in the first matter the trial Judge overlooked Mr Hegarty's statement and evidence because he referred to the plaintiff buttressing her case with proof of admissions by the defendant. There has been no criticism of the Judge's reliance on the second matter. The third matter concerns the significance of the jury's verdict. I agree with Priestley JA that it does not establish that the plaintiff s expectation of a greater recovery was unreasonable but with respect, I also agree with the trial Judge, that the size of the verdict should not be ignored. There are also other relevant considerations which were not referred to by the trial Judge. In August 1985, following his acquittal on a criminal charge based on the same allegations the respondent obtained leave to file a cross-claim seeking damages for malicious prosecution. On 2 September Roden J ordered that the claim and cross-claim be heard together. In the first trial which concluded on 20 December, 1985 the jury awarded damages of $571,000 on the cross-claim. On 8 April, 1994 Sully J ordered separate trials. The cross-claim therefore locked the plaintiff into the Supreme Court from 2 September, 1985 until 8 April, 1994. The hearing of her action was then fixed for 26 April although in the event the hearing did not commence until 14 June. I don't think that the plaintiff could have been expected at that stage to seek a remission of her action to the District Court. This would almost certainly have involved the loss of the early hearing date that she had in the Supreme Court. Moreover no such application was made by the defendant. This in itself cannot be a decisive consideration because the plaintiff brought her action in the Supreme Court and the cross-claim that this provoked was necessarily filed in the same Court. When the action was commenced the jurisdiction of the District Court was limited to $20,000. Under subR(3)(c)(ii) a plaintiff was entitled to three quarters costs if the amount recovered was between $6,000 and $7,500 and to full costs if the amount exceeded $7,500. Those amounts were fixed by provisions in the District Court Act and the Supreme Court rules which came into force in 1983. The plaintiff s judgment of $3,360 was substantially below the $6,000 threshold and very substantially below the upper limit of $20,000 on the jurisdiction of the District Court. The rules allowed a successful plaintiff a substantial margin below the $20,000 limit before imposing any costs sanction. The plaintiffs damages were "at large". She suffered no permanent physical injuries and had no claim for loss of earnings or medical or hospital expenses. The prospect of a substantial verdict was always going to depend on whether the jury awarded aggravated and exemplary damages. Sully J left claims for such damages to the jury but they must have been rejected. Inflation over the twelve years between the commencement of the proceedings and the second trial substantially eroded the value of the currency. If the amounts of $6,000, $7,500 and $20,000 fixed in 1983 were expressed in 1994 currency with equivalent purchasing power they would be substantially higher. On my calculations based on movements in the two consumer price indices for Sydney (1980-1 = 100, and 1989-90 = 100) the equivalent figures expressed in June 1994 dollars were $10,800, $13,500 and $36,000. A court can have regard to the accrued depreciation of the currency for some purposes. See O'Brien v McKean (1968) 118 CLR 540 at 545. I see no reason why a court should not do so when 10 UNREPORTED JUDGMENTS exercising a discretion such as this especially when the trial (albeit a second one) takes place some twelve years after proceedings were commenced. The verdict of the jury was awarded in "the money of the day", as was the pre judgment interest. The judgment should be compared with the upper limit of the District Court's jurisdiction at the time proceedings were commenced expressed in June 1994 dollars. Only in this way can like be compared with like. When this is done it can be seen that the judgment was for less than 10% of the limit of the District Court's jurisdiction. The trial Judge considered whether the case was "appropriate for litigation in the District Court" and held that it was because the issues of fact and law were straightforward. In my opinion it follows that the proceedings should have been commenced in that Court and therefore I would not make any order under subR(4). In the result the plaintiff is only entitled to half her costs. Brownie AJA The facts in relation to this matter are set out in the judgment of the Court of 12 September 1994, when we held that the amount of the judgment to which Ms Wentworth was entitled, consequent upon the verdict of the jury on the second trial, was $3,360. The further hearing of the appeal was then fixed for 5 October 1994, but on that day Mr Rogers did not appear. Evidence was led showing that the solicitor for Mr Rogers had said to the solicitor for Ms Wentworth words to the effect that since Ms Wentworth had no money, Mr Rogers did not intend to pursue his cross-claim, which was then still outstanding. Earlier, on 25 July 1994 the appeal of Mr Rogers had, by consent, been struck out as incompetent. His summons for leave to appeal should now be dismissed, since he has not appeared to argue it, and having regard to what his solicitor told Ms Wentworth's solicitor. Ms Wentworth sought an order that the cross-claim be dismissed, but we took the view that this application should be made to the Com.non Law Division, and we proceeded to hear submissions as to the other questions still to be decided, on the basis that the cross-claim was still on foot. The principal question now outstanding relates to the decision of Sully J that Mr Rogers pay half only of Ms Wentworth's costs. His Honour took the view that the proper amount for which judgment should be entered was $2,680. Since the proceedings had been commenced between 31 October 1980 and 31 March 1983, and the amount of the judgment was less than $3,000, R24(2)(c) of Pt52 applied, so that Ms Wentworth was not entitled to payment of her costs unless, it appearing to the Court that she had sufficient ground for commencing or continuing proceedings in the Court, the Court made an order for payment. His Honour examined the circumstances and concluded that at the time she commenced the action Ms Wentworth had sufficient reason for expecting that she would have received an amount in excess of $3,000; and he concluded that she was therefore entitled, without more, to one half of her costs, by force of R24(3)(c)(i). He then examined whether, within the meaning of R24(4) and (4A), she was entitled to the whole of her costs, or to more than half of them, and he concluded that she was not. The consequence of our decision of 12 September 1994 is that subR(3), (4) and (4A) apply. That is, although we have travelled by a different path to that followed by Sully J, we need to consider the subrules he considered. So far as relevant, subR(3), (4) and (4A) provide: URJ ROGERS v WENTWORTH (Brownie AJA) 11 "(3) Subject to subR(4), where, by or under the rules or any order of the Court, the plaintiff is entitled to his costs of any proceedings to which this rule applies, the amount of costs payable to him shall... where he recovers a sum more than $3,000 but not more than $6,000, be only a half of the whole amount... (4) In a case to which subR(3) applies, if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing the proceedings in the Court, the Court may order that the amount of costs payable to the plaintiff be some greater part or the whole of the amount which would be payable to him apart from that subrule. (4A) Without limiting the generality of subR(4), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule." Sully J rejected a submission that, since the plaintiff had reasonable grounds for expecting that she would recover more than $3,000, then, without more, she was therefore entitled to more than half her costs. He held that subR(4) gives the Court a discretion, when this factual basis is established, but there must be something more shown before a plaintiff is entitled to say that the discretion should be exercised in his or her favour. He then referred to the basic rationale of R24, of encouraging the litigation of claims in the District Court or the Local Court, when a given claim was within the jurisdiction of one of those courts, and the claim was capable of being justly and efficiently disposed of there. He said that he did not regard the present case as one where the Local Court was appropriate, and listed the considerations which, in his view, demonstrated that Ms Wentworth had not made good her claim to more than half of her costs: 1. The nature of the case: there was a vigorous conflict between the parties, but the issues to be resolved were "uniformly straight forward", and fundamentally a trial of credit as between Ms Wentworth and Mr Rogers, although there was some other evidence. 2. There were no complicated issues of law at the trial. There were one or two contested evidentiary points of substance, but not such as to be foreign to the experience of the District Court. 3. The verdict of the jury, for $2,000 in 1994, contradicted the plaintiffs reasonable expectation in 1982 that she might recover more than $3,000. This was of course the exercise of a judicial discretion, so that in order to succeed Ms Wentworth must show some error of fact or law, or the taking into account of some irrelevancy, or the failure to take into account something that was material: House v The King (1936) 55 CLR 499. As to the first of the three considerations listed by Sully J, Ms Wentworth pointed out that, after discharging the jury, his Honour paid tribute to the two senior counsel who had appeared for the respective parties at the second trial, and had done so without fee, saying that the trial had been "a difficult piece of litigation". This was said to have been inconsistent with what his Honour said, two days later, when giving judgment as to costs. I do not accept that this has been shown to be so: a piece of litigation can be "difficult" in various ways, including its being particularly hard fought, or its posing difficult questions of fact to decide, difficulties of an evidentiary kind, or difficult tactical questions for the advocates involved, without it following that the successful plaintiff ought to recover more than half of his or her costs, if he or she sues in this Court when 12 UNREPORTED JUDGMENTS the District Court would otherwise be appropriate. Additionally, what his Honour said was directed to a wholly different topic to that now in issue, and it should be seen in that context. The second of the considerations listed is not is issue now, but the third one is. According to Ms Wentworth's submissions, the verdict of the jury meant that the jury accepted her version of the facts, which had been in dispute. I do not consider that this inference can be drawn, from the material now before us. In her Statement of Claim, Ms Wentworth asserted that Mr Rogers "assaulted and beat the plaintiff by throwing her to the ground and kicking her, pushing her down, procuring the family dog to attack her, inserting a large rubber dildo in her vagina, inserting his penis in her anus and then inserting his penis in her vagina while the dildo was still inserted therein"; and that appears to have been her case at all times. The jury assessed her damages at only $2,000, and it is difficult, on that limited information, to draw the inference for which Ms Wentworth contends, that the jury accepted her version of the facts, in its entirety. During the course of the argument about costs, Sully J said: "The verdict of the jury clearly reflects I should have thought the directions given to the jury that proof of any one of the six nominated methods of assault set out in paragraph I of the Statement of Claim would be sufficient to entitle the plaintiff to a verdict of some kind. I should think it reasonable to infer that the verdict of the jury conveys a finding that the defendant did something to the plaintiff by way of an assault: I suspect by beating her and by sooling the dog on to her but did not do any of the more horrific things she alleged..." Later, when giving judgment on the costs question, he said: "In my opinion, it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification, the horrific descriptions given by the plaintiff of the acts to which she was allegedly subjected by the defendant. " In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate. Nobody sought that finding, but the comment underlines the difficulty involved in accepting the submission now advanced. Ms Wentworth submitted, at another point, that it is not permissible to go behind the verdict of the jury, citing McDonnell and East Ltd v McGregor (1936) 56 CLR 50, but, in effect, she now asks us to do that, and to infer that the jury did accept her case, in its entirety. To this point then, it has not been shown that Sully J erred in exercising his discretion. However Ms Wentworth advanced other submissions not advanced before his Honour. First, it was said that the case was a test case, as to whether rape or buggery within marriage was compensable. However, on the material before us, this question seems never to have been raised. To the contrary, Mr Rogers appears to have denied the allegations made against him on a purely factual basis. Secondly, it was said that Ms Wentworth was justified in suing in this Court in order to obtain vindication of her assertions, and she referred us to certain publicity relating to the proceedings, although formally there is no evidence as to this. Additionally, she referred to the seriousness of the matter from the point of view of both parties, the fact that the jury's verdict was unanimous, and to the course of the litigation. However, what I have said as to the measure of the damages awarded means that, in my view, she has not been able to show that her assertions were vindicated, except as to a relatively minor physical assault, that URJ ROGERS v WENTWORTH (Brownie AJA) 13 she has not shown that her serious allegations against Mr Rogers were made good, and neither the fact that the jury's verdict was unanimous, or the course of the litigation, is sufficient to justify the overturning of Sully J's exercise of discretion, whether considered alone or in conjunction with the other matters raised. Two further matters were raised, as to costs. First, it seems to have been overlooked by all concerned, when the costs question was argued before Sully J, that the second trial was a trial only of Ms Wentworth's claim, and not a trial of the cross-claim, and that the order of the Court of Appeal of 1987, that the costs of the first trial abide the result of the second trial, referred to a second trial of both claims. The order of Sully J therefore needs to be amended so that it is limited to the costs of Ms Wentworth's claim, as distinct from the cross-claim. The costs of the cross-claim will be a matter for the Common Law Division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought-not recover the whole of her costs in relation to the cross-claim. Secondly, Ms Wentworth asked for an order not sought from Sully J, that she have the costs of two counsel. This order is necessary because of the provisions of Pt52 R24(5), and because the amount of the verdict was less than $7,500. In all the circumstances, I consider that this order should be made, as to the second trial, and as to the Motion for separate trials of the claim and the cross-claim; and that Ms Wentworth be at liberty to apply to the Common Law Division for any further order she may be advised to seek to the same general effect. Both the second trial and the Motion mentioned were matters plainly appropriate for the briefing of two counsel, but on the material now before us, it is not possible to go further. Ms Wentworth also sought an order for costs on an indemnity basis in relation to the appeal and cross-appeal in relation to the proceedings on appeal, but I do not see anything at all in the evidence before us that would justify this unusual order. I propose the following orders: 1. Dismiss summons of Mr Rogers for leave to appeal, with costs. 2. Allow cross-appeal to the extent of: (a) substituting a judgment for the plaintiff for $3,360, in lieu of $2,680. (b) varying the order for costs made by Sully J on 24 June 1994, so as to limit it to being an order in relation to the costs of the action, as distinct from the cross-claim. (c) ordering that the plaintiff's costs include the costs of briefing two counsel in respect of the second trial of the plaintiffs action, and the Notice of Motion dated 23 March 1994. (d) referring the balance of the proceedings to the Common Law Division, to be dealt with in conformity with these reasons. 3. Order Mr Rogers to pay Ms Wentworth's costs of the cross-appeal. 4. Grant to Mr Rogers a certificate under the Suitors' Fund Act in respect of the cross-appeal. 5. Otherwise, cross-appeal dismissed. Since writing the above, I have had the opportunity of reading, in draft form, the judgment of Priestley JA. His Honour regards the question to be decided now as being, not whether Sully J was in error in exercising his discretion, but how the discretion should be exercised now, starting from a different factual position. 14 UNREPORTED JUDGMENTS If the question is whether Sully J was in error, then I do not think that he was. He proceeded on the basis that, upon his findings, and because of the operation of subR(2A), it was appropriate to treat the case as falling within subR(3), unless the exercise of discretion under subR(4) and (4A) led to a different conclusion. Whilst I agree with Priestley JA that it was not necessary to approach the case in this way, I consider that it was proper to do so. If one considers a case commenced when this case was commenced, R24 provides a pattern: a recovery of not more than $3,000 ordinarily attracts no costs order, a recovery of more than $3,000 but not more than $6,000 ordinarily attracts an order for only half costs, and a recovery of more than $6,000 but not more than $7,500 ordinarily attracts an order for only three quarters costs, but in each case the plaintiff might obtain some more favourable order. If a plaintiff in this category recovers less than $3,000, but also succeeds in obtaining the benefit of subR(2A), so that some order for costs is to be made, then I consider that ordinarily one might start with the proposition that those costs should be taken to be half costs, subject to the exercise of a discretion to make an order for the payment of some higher amount: a plaintiff who has recovered less than $3,000, and who has obtained the benefit of subR(2A), ought not, generally speaking, and without more, to be regarded as having a greater entitlement to costs than a plaintiff who has recovered more than $3,000 but not-more than $6,000. I am not persuaded that Sully J approached the question thinking that it was necessary, rather than proper, to start in this way. He found that subR(2A) applied, so that it was appropriate to make an order that the defendant pay the plaintiff some costs, and then he turned to consider what order for costs was appropriate, using the words quoted by Priestley JA. In any event, if I had to reconsider how the discretion should be exercised, I would agree with Sully J. It seems to me that in a case like this one, whilst, on his Honour's findings, the plaintiff had a reasonable expectation of recovering more than $3,000 - indeed, on his findings, more than $7,500 - the verdict of the jury means that this expectation must be weighed together with all the other circumstances, including the fact that the jury rejected the major part of her case, and I do not think she has made out a case for the proposition that the defendant ought to be ordered to pay more than half of her costs, when she failed in this sense. In this case, the existence of a reasonable expectation is the essential basis for the exercise of the discretion mentioned in subR(4) and (4A), but it must be weighed with all of the circumstances, including the jury's verdict, and I would not regard the reasonable expectation as being a sufficient basis for making the order the plaintiff seeks, even if the reasonable expectation was buttressed by the plaintiff's knowledge of, or belief in, the existence and availability of evidence which she reasonably expected to be accepted (that is, evidence of this description, and other than her own evidence), which must be taken (from the verdict) to have been rejected. There must be weighed not just the position of the plaintiff, with her disappointed but reasonable expectation, but also the position of the defendant, who successfully defended himself against the major part of the plaintiffs case, and in all the circumstances I do not see a justification for ordering him to pay the plaintiff's costs on the basis of a claim made against him, which was largely unsuccessful. URJ ROGERS v WENTWORTH (Brownie AJA) 15 A plaintiff who had a reasonable expectation of recovering more than $3,000, and who commenced an action in 1982, might have had that expectation because of the plaintiffs knowledge of support from a respectable witness, or a witness reasonably thought to be respectable. But if on the trial the plaintiff and/or that witness were disbelieved, then, it seems to me, more is required before it is just to order the defendant to pay the plaintiffs costs of unsuccessfully making that large claim - a claim which, in the relevant sense, the defendant has successfully defended. To put it another way, the reasonable expectation of obtaining more than $3,000 provides the occasion for the exercise of the discretion in favour of the plaintiff, but more is required, balancing the interests of the plaintiff and the defendant, before the discretion ought to be exercised. The fact that in this case there was on foot from 1985 to 1994 a cross-claim that was obviously a claim properly brought in this Court, does not seem to me to tip the scales in the plaintiff's favour. If, as I think follows from the jury's verdict, she should have sued in the District Court, then either the cross-claim would have been brought in the District Court, or there would have been separate proceedings brought by Mr Rogers in this Court. Additionally, if, as seems likely, the plaintiff obtains an order for the costs of the cross-claim, then she will recover a great deal of her costs on the basis appropriate to the cross-claim, whatever order is now made. 1. Dismiss the summons of Mr Rogers for leave to appeal, with costs. 2. Allow cross-appeal to the extent of: (a) substituting a judgment for the plaintiff for $3360, in lieu of $2680. (b) varying the order for costs made by Sully J on 24 June 1994, so as to limit it to being an order in relation to the costs of the action, as distinct from the cross-claim. (c) ordering that the plaintiff's costs include the costs of briefing two counsel in respect of the second trial of the plaintiff's action, and the notice of motion dated 23 March, 1994. (d) referring the balance of the proceedings to the Common Law Division, to be dealt with in conformity with these reasons. 3. Order Mr Rogers to pay Ms Wentworth's costs of the cross appeal. 4. Grant to Mr Rogers a certificate under the Suitor's Fund Act in respect of the cross-appeal. 5. Otherwise cross-appeal dismissed. No appearance for the appellant. The respondent appeared in person. Solicitors for the respondent: Russo and Partners.