Kirkpatrick v Kotis [2005] NSWSC 178

New South Wales Supreme Court

CITATION : Kirkpatrick v Kotis [2005] NSWSC 178

HEARING DATE(S) : 9 March 2005

JUDGMENT DATE : 9 March 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Plaintiff to pay defendant's cost, excluding costs connected with drawing of defendant's affidavits

CATCHWORDS : PROCEDURE - costs - application for contempt - applicant succeeds on some issues but fails to prove one essential ingredient of charge - whether appropriate to apportion costs to reflect plaintiff's success on those issues - effect of defendant leading plaintiff to believe he would be calling evidence given by affidavit, then resiling from that stance - effect of plaintiff having available evidence which went to the element of the charge which it failed to make out, but which evidence was rejected in circumstances where its relevance to that element was not relied upon

Supreme Court Act 1970 LEGISLATION CITED : Supreme Court Rules 1970

Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 Kirkpatrick v Kotis [2004] NSWSC 1265 CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72 Witham v Holloway (1995) 183 CLR 525

Benjamin David Kirkpatrick - Plaintiff PARTIES : Michael Kotis - Defendant

FILE NUMBER(S) : SC 4369/04

C J Bevan - Plaintiff COUNSEL : T S Hale SC - Defendant

John Carmody & Co - Plaintiff SOLICITORS : Bartier Perry - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

WEDNESDAY 9 MARCH 2005

4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS JUDGMENT – Ex Tempore (Revised 9 March 2005) 1 HIS HONOUR: This is an application for costs concerning a contempt charge in which I delivered judgment on 23 December 2004: Kirkpatrick v Kotis [2004] NSWSC 1265. The charge alleged contravention of an interlocutory injunction. The charge was dismissed, for the principal reason that it had not been established that the man actually doing excavation work on the defendant's land was the defendant's servant or agent. 2 The defendant seeks costs of the contempt hearing, on the usual principle that costs should follow the event, Part 52A Rule 11 Supreme Court Rules; Oshlack v Richmond River Council (1998) 193 CLR 72. 3 The plaintiff says that there should be no order as to costs. The first reason is because both parties had a degree of success in the judgment. It is true that there were several ingredients of the charge which were litigated, and concerning which the plaintiff succeeded. As well, there were some questions of law which related to the charge, concerning which the plaintiff succeeded. In particular, the plaintiff succeeded in establishing that construction of the consent orders (and the orders in question here were consent orders) should be undertaken by reference to the surrounding circumstances, that the consent orders were, with one exception, sufficiently clear and unambiguous, that the activity which was being carried out on the defendant's land amounted to excavation, that there was a requirement for underpinning at the western underpinning site, and that the vibration monitor had, initially, not been located in the spot where the orders required it to be placed. All of that success led nowhere, however, when the plaintiff was unable to establish that the person who was acting, in carrying out the excavation on 9 and 10 September was either the defendant, or a servant or agent of the defendant. 4 Thus, the success which the plaintiff had is success in establishing some elements of the charge of contempt, and success in establishing some legal propositions relevant to success of the charge of contempt. That is, in my view, not enough to take the case out of the principle that costs follow the event. While there are some circumstances where, when a litigant has succeeded only upon a portion of his claim, he can be deprived of costs of that part on which he has failed, and as well in some circumstances even failure on an issue in proceedings can result in a costs order against the person who loses that issue (Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748), the fundamental principle that costs should follow the event is undermined if costs orders are made by reference to issues which do not amount in themselves to separate causes of action or charges. The type of success which the plaintiff had is not enough to make it appropriate to apportion costs by reference to issues. 5 The second matter that the plaintiff points to is that the defendant lead the plaintiff to expect, for quite some time before the hearing, that the defendant would be calling evidence, and that that evidence would be given by affidavit. In the course of pre-trial preparation, the defendant filed numerous affidavits. At the time that it obtained an order for the expedition of the hearing, on 8 October 2004, it also obtained leave to file further affidavits. The first indication that the defendant might not read those affidavits came on 4 November 2004, when the defendant's solicitor wrote to the plaintiff's solicitor saying: "Having regard to the nature of the proceedings the defendant will not be able to determine which of the affidavits that he will read or what evidence that he will call until after the plaintiff has closed his case." 6 While there were various lists of affidavits intended to be read supplied, pursuant to Court directions, by the defendant to the plaintiff, from at least the time of a directions hearing before me on 15 November the defendant was making quite clear that, in light of the decision in Witham v Holloway (1995) 183 CLR 525, it was treating the case as a quasi criminal one, might not give evidence at all, and, if it did give evidence, might give that evidence orally rather than by affidavit. 7 That change of tack on the part of the defendant did not cause the plaintiff to apply for an adjournment of the hearing (which was fixed to start on 18 November), nor to issue any subpoenas. 8 In these circumstance, probably after 4 November, and certainly after 15 November, the plaintiff could not proceed in the confident expectation that witnesses would be called by the defendant, who would be available to be cross-examined. Indeed, even before those dates, the service of affidavits and identification, pursuant to court directions, of the affidavits proposed to be led was no representation or guarantee by the defendant that the deponents of those affidavits would actually be called at the trial, or the affidavits read. 9 The plaintiff failed, at the trial, to have received in evidence material which showed excavation occurring on the site after 10 September 2004. This was because the charge related to excavation on 9 and 10 September 2004, and no basis upon which evidence of later conduct might be admissible was put. 10 It is submitted by the plaintiff that if that evidence had been admitted, a photograph would have gone into evidence, which showed the defendant standing at the brink of the land while excavation was going on. I have looked at the photograph in the working copy, though not the original, and it is far from clear to me that the person depicted is the defendant. However, even if it was, or even if evidence was available to independently establish that this person was the defendant, the fact remains that that means of making the evidence of conduct after 10 September relevant was not put forward at the trial. 11 The charge which the plaintiff made is one which begins with the words, "On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works....". This formulation of the charge correctly recognised that a fundamental part of the contempt alleged was that it was the defendant, by himself, his servants or agents, who was carrying out the action on 9 and 10 September 2004, rather than it being someone else who was acting. 12 It was risky for the plaintiff to approach a case which has some elements of a criminal trial in it on the assumption that it could fail to prove from its own evidence an element of the charge, and be able to make it out by cross-examining witnesses of the defendant. 13 For these reasons, it seems to me appropriate that the plaintiff ought pay certain costs of the defendant connected with the hearing. 14 There is one category of costs which, however, the plaintiff should not have to pay. If the defendant wanted to have the luxury of preparing affidavits, and then to change his mind about whether they would be relied upon, I do not see why the plaintiff should pay for that. 15 The defendant says that, the affidavits having been prepared, it was of some use to the plaintiff to know in advance what evidence would be lead, if any was lead, as that could assist in cross-examination. That seems to me to be right. It leads to the conclusion that I ought not make the defendant pay the plaintiff's costs of dealing with those affidavits. However, I remain of the view, notwithstanding that limited use which the service of the affidavits had, that the plaintiff should not be required to pay the defendant's costs of preparing them. 16 I order the plaintiff to pay the defendant's costs of the notice of motion to commit for contempt, excluding those costs connected with the drawing of the defendant's affidavits. 17 The plaintiff also seeks an order under section 95 Supreme Court Act 1970, for payment of interest on costs. There is evidence that the defendant has paid certain legal costs connected with the contempt application already. 18 Section 95(4) Supreme Court Act 1970 allows the Court to order that interest be paid on costs, at the prescribed rate under Schedule J of the Supreme Court Rules 1970, from the date when the amounts in respect of the costs were paid. Given that the purpose of such an order is to compensate a successful party for being out of his money, in a similar way to pre-judgment interest under section 94, it is appropriate to make such an order in the present case. That does not, of course, relieve the defendant from the need to establish the appropriate quantum of any costs which are payable. 19 I order that the plaintiff pay interest on any costs which he is required to pay, at the rate under Schedule J Supreme Court Rules 1970, from the date or dates when an amount in respect of such costs was actually paid. In case there is any doubt, the costs of this application for costs are themselves part of the costs of the notice of motion charging contempt. **********