New South Wales Supreme Court CITATION : Eisenberg v Joseph [2001] NSWSC 1062 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10693/99 HEARING DATE(S) : 15 November 2001 JUDGMENT DATE : 15 November 2001 PARTIES : Karl Eisenberg (Plaintiff) Ronald Stanley Joseph (Defendant) JUDGMENT OF : Brownie AJ COUNSEL : P Newton (Plaintiff) GJ Nell/Ms F Rogers (Defendant) SOLICITORS : Hart & Spira (Plaintiff0 Terrett Lawyers (Defendant) CATCHWORDS : Action on foreign currency - No question of principle Brown Boveri (Australia) Pty Ltd v Baltic Shipping Company (1989) 15 NSWLR 448 CASES CITED : Macalpine v Macalpine (1958) P 35 Terrell v Terrell (1971) VR 155 DECISION : See paragraphs 41 and 43. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BROWNIE AJ THURSDAY 15 NOVEMBER 2001 10693/99 - KARL EISENBERG v RONALD STANLEY JOSEPH JUDGMENT 1 HIS HONOUR: The plaintiff, Dr Eisenberg, sues the defendant, Mr Joseph, upon a judgment obtained in an Austrian Court, namely the Innsbruck District Court. 2 Since the present plaintiff was the defendant in that case and the present defendant was the plaintiff in that case I will refer to them by their surnames. 3 Dr Eisenberg is a resident of Germany and Mr Joseph a resident of Australia. In 1991 they were both skiing in Austria. They collided and Mr Joseph was injured. He sued Dr Eisenberg in Austria and after various adventures the District Court delivered a judgment in favour of Dr Eisenberg holding that on the conflicting evidence before the Court Mr Joseph had not established his case. 4 Relevantly for present purposes the Court ordered Mr Joseph to pay Dr Eisenberg's costs assessed by the Court at 186,801.10 Austrian schillings. Mr Joseph did not pay that or any other sum to Dr Eisenberg. Ultimately Dr Eisenberg brought the present action. 5 In my judgment the plaintiff has established each of the elements necessary to entitle him prima facie to a judgment of this Court for the sum claimed, assessed in Austrian schillings. 6 Since the main questions that seem to separate the parties relate to interest and costs I will express my reasons relatively briefly. 7 The evidence comfortably demonstrates that the Innsbruck District Court had jurisdiction in the sense that it had jurisdiction to give a judgment against Mr Joseph. It was Mr Joseph who went to the Austrian Court to invoke its jurisdiction, claiming damages, and he instructed an Austrian lawyer to generally pursue the litigation. 8 The litigation was of a type that was within the ordinary jurisdiction of the Innsbruck District Court. In our language it was an action for damages for negligence for personal injuries. 9 The evidence also establishes that the judgment was a final and conclusive one. It may be Mr Joseph could have appealed from the judgment had events happened differently and it may be his appeal would have been successful, but he did not appeal and it is now too late to do so. In any event it seems to me that the judgment is a final and conclusive one, as that expression is understood in this branch of the law. 10 The judgment is also one for a fixed sum. To use our language again, it is in effect a judgment or an order that Mr Joseph pay to Dr Eisenberg the sum already mentioned. There is admittedly an identity of parties, the same two people having been parties to the Austrian action and to this action. 11 What is left by way of defence is a contention that the judgment of the Austrian Court ought not to be enforced in this Court because to do so would be contrary to natural justice. 12 After the accident occurred in 1991 the relevant Austrian authorities prosecuted Dr Eisenberg for what in Australia might be called inflicting grievous bodily harm by negligence and Dr Eisenberg was convicted of that offence. However, on the evidence now before me that conviction has no continuing significance for the purposes of the civil action later brought in the Innsbruck District Court. 13 In that litigation Mr Joseph claimed damages for negligence. Initially he obtained a judgment by default but that default judgment was set aside and the case appears to have proceeded as an ordinary contested case. 14 In 1993 Mr Joseph and his wife were present during a hearing of Mr Joseph's case in the Innsbruck District Court. The case seems to have been adjourned part heard and in 1994 the Court took evidence from Dr Eisenberg in Germany. In 1995 it gave judgment. 15 On the face of the judgment it was given after a public, oral hearing and the reasons for judgment appear to include a careful weighing up of a good deal of competing evidence leading to the conclusion that Mr Joseph had not discharged the onus of proof, to again express myself in Australian legal language. 16 The contention that there was a want of natural justice arises from a number of circumstances. First, the proceedings attended by Mr and Mrs Joseph in 1993 were conducted in German, a language with which Mr Joseph was not familiar. This circumstance does not, it seems to me, either by itself or in conjunction with the other circumstances relied upon, take the matter very far at all. He had the opportunity to have an interpreter present and he in fact had his lawyer present. Presumably his lawyer spoke fluent German. The matter may perhaps be best visualised by considering the position of an Australian Court where one of the litigants speaks German and not English but is represented by an Australian lawyer. 17 Secondly, Mr Joseph complains that his Austrian lawyer failed to do a number of things that should have been done with the consequence that he, Mr Joseph, did not know what was happening with his case in the Innsbruck District Court. His lawyer acted, it seems, on his own initiative and without either keeping Mr Joseph informed of developments or taking instructions from Mr Joseph. Mr Joseph did not even know of the fact that judgment had been given until it was too late for him to appeal. 18 Again, these matters do not seem to me to demonstrate that it would be contrary to natural justice to now enforce the Austrian Court judgment. 19 So far as the Austrian Court and Dr Eisenberg were concerned, at least on the face of the evidence now before me, Mr Joseph was represented at all relevant times by an Austrian lawyer. On the evidence the failure seems to have been that of Mr Joseph's Austrian lawyer and of nobody else. 20 I was referred to the decisions in Macalpine v Macalpine (1958) P 35 and Terrell v Terrell (1971) VR 155. In those cases the foreign judgment sought to be enforced was obtained without the unsuccessful party knowing of the existence of the proceedings. But that is not this case. 21 I conclude that the plaintiff is entitled to judgment. It seems appropriate to give a judgment in Austrian schillings. That currency best expresses the loss sustained by Dr Eisenberg, it represents the costs awarded to him by the Austrian Court, incurred, at least in the main, in Austria; see Brown Boveri (Australia) Pty Ltd v Baltic Shipping Company (1989) 15 NSWLR 448 at 464. 22 On the evidence of Dr Guertler, and particularly para. 9 of his affidavit of 23 December 1998, in the circumstances of this case interest runs for Austrian purposes on the Austrian Court judgment at 4 per cent per annum and I think it would be appropriate, generally speaking, to award interest at that rate from the date of judgment in the Austrian Court until the date of judgment in this Court. 23 Mr Joseph submitted that having regard to the delay which had occurred it was not appropriate to award interest for the whole of this period but I think that the appropriate approach to take is to treat Mr Joseph as having had the use since 1995 of what should now be seen to have been Dr Eisenberg's money. 24 As to costs, Mr Joseph relied upon the provisions of Pt 52A r 33, in particular srr 1 (d) and 2 (f)(ii). Relevantly these parts of the rule provide that a plaintiff claiming in debt or damages or for other money who might sue in another Court but sues in this Court and who recovers less than $225,000 is not entitled to costs unless this Court makes an order for payment, it appearing to the Court that the plaintiff had sufficient reason for commencing or continuing the proceedings in this Court. 25 Mr Joseph submitted, and I accept, that the proceedings to enforce the Austrian judgment are proceedings answering the description just mentioned. Dr Eisenberg did not contend to the contrary. 26 In his summons Dr Eisenberg claimed the amount I have mentioned expressed in Austrian schillings but made an alternative claim for $26,236.11. That is, it seems unlikely that he might ever have realistically hoped to have obtained a judgment for anything approaching $225,000. 27 Dr Eisenberg pointed to the fact that he was a foreign resident suing on a foreign judgment. This is so but it does not seem to me to be really significant for the purposes of the exercise of the discretion under the rule. More significantly, he pointed out that Mr Joseph had disputed his claim and continues to do so and to the conduct of Mr Joseph in obtaining an adjournment earlier at the expense of Dr Eisenberg in order that Mr Joseph might cross-examine Dr Guertler upon his affidavits and that until late yesterday afternoon Mr Joseph persisted with a requirement that Dr Guertler be available to give evidence by video link today. Whilst Mr Joseph's disappointment with the result of the Austrian litigation excites both understanding and sympathy his conduct in the defence of the present action does not. On the material before me no sensible basis has been shown justifying what seems to have been taking no more than quibbling points about the contents of Dr Guertler's affidavits. I should in fairness add there was apparently a change in counsel yesterday. 28 Looking at the matter overall, the whole purpose of Pt 52A r 33 is to deter small claims from being brought in this Court, except in what might for brevity be described as circumstances justifying an unusual order. 29 I do not think that Dr Eisenberg has crossed this threshold so that generally speaking it is not appropriate to make an order for costs in his favour. On the other hand, one can hardly condone what seems to have been the conduct of Mr Joseph in procuring the adjournment of the earlier hearing at the expense of Dr Eisenberg and then requiring Dr Guertler to be available for cross-examination today by video link, then withdrawing that requirement as recently as late yesterday afternoon, and then of taking objections to his affidavits which presumably, had the objection been upheld, would have been readily curable by some oral evidence by Dr Guertler. 30 In the circumstances, and subject to what counsel might now submit, I propose to vacate all previous orders for costs and to make no order for costs of the present proceedings with the result that each party will have to pay its own costs. 31 The exhibits may be returned immediately. (Submissions - re costs) 32 The defendant makes application for a special order for costs on the basis that a series of Calderbank offers were made. 33 The evidence tendered in relation to that application shows that by letter dated 9 October 2001 the defendant, Mr Joseph, made an offer to resolve the proceedings for $30,000 inclusive of costs. The following day that was clarified by expressing it as an offer of $25,000 for damages and interest and $5,000 for costs and there was some communication about that. 34 On 16 October the plaintiff, Dr Eisenberg, made a counter offer of $45,000, including costs and on 22 October the defendant, Mr Joseph, made a further offer of $34,000, including costs. There were later other offers. 35 For the reasons that I expressed earlier I think that I should approach the matter now on the basis that it is reasonable to assume that each party was going to be ordered to pay his own costs and that the earlier order for costs would be vacated. No doubt the matter was capable of being expressed in a variety of ways but that seems to me to be the approach that ought to have been adopted on both sides. 36 The offers which were made did not comply with Pt 22 of the rules, but by analogy to Pt 52A r 22 sr 6 the defendant, Mr Joseph, seeks an order for his costs on a party and party basis from 9 October onwards. 37 Generally speaking it seems to me that the thrust of the rules and the contemporary practice of the Court justify the view that such an order should be made, notwithstanding what I have said earlier. 38 I bear in mind the point that the offers made included costs and that when the plaintiff, Dr Eisenberg, asked the defendant, Mr Joseph, to apportion the costs some sort of rough and ready apportionment was made. But the reality, it seems to me, is that the parties had each to make decisions as best informed as they could manage it as to what the ultimate position would be, viewing the question of damages, if that's the right word, and costs together. 39 The one qualification which it seems to me must be made is that the defendant, Mr Joseph, continued to insist that the plaintiff's witnesses, or at least some of them, be available for cross-examination. I must say I am unmoved by the suggestion that the defendant ought not to pay for the costs of arranging for the evidence to be taken by video link. That was far cheaper than bringing Dr Guertler out from Austria to Australia to give evidence. 40 Weighing it all up, it seems to me I should make the following orders, which I do now make. 41 I vacate all previous orders for costs. I order the plaintiff, Dr Eisenberg, to pay the defendant's costs on a party and party basis from 9 October onwards, including all costs and disbursements incurred by or on behalf of the defendant in relation to the proposed cross-examination of any of the plaintiff's witnesses. 42 I order the defendant, Mr Joseph, to pay the plaintiff's costs incurred on and after 9 October 2001 in relation to bringing to Court, including giving evidence by video link, any witness in respect of whom on or after 9 October 2001 the defendant required the witness to be present for cross-examination. 43 I note the parties agree on the calculation of interest. I give judgment for the plaintiff for 234,746.70 Austrian schillings. 44 I make the orders for costs that I mentioned earlier. *********** Last Modified: 11/23/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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