Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd (No 2) [2014] NSWCA 397 Hearing dates: On the papers Decision date: 21 November 2014 Before: Meagher JA; Barrett JA; Emmett JA Decision: 1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014. 2. In lieu of those orders, order: (a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000. (b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500. (c) Judgment for Allied against RFI on the second cross claim in the sum of $2,186,406.62 ("the recovery sum"). (d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76. (e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above. 3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division. 4. The Court, with the consent of the parties, makes the following notations: (a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge. (b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court. (c) RFI has paid to Allied the sum of $1,857,803.56 in partial satisfaction of the second cross claim. (d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum. 5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - costs - whether costs should be apportioned to separate issues - no matter of principle Cases Cited: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Category: Costs Parties: Carmel Grima (Appellant) RFI (Aust) Pty Ltd t/as Regen Foam (First Respondent) Allied Overnight Express Pty Ltd (Second Respondent) Representation: Counsel: E G Romaniuk SC/S J Maybury (Appellant) M T McCulloch SC/JC Chapman (First Respondent) J P Guihot (Second Respondent) Solicitors: Edwards Michael Lawyers (Appellant) Walker Hodges & Co (First Respondent) HWL Ebsworth Lawyers (Second Respondent) File Number(s): CA 2014/46322 COSTS 1THE COURT: Reasons for judgment in this matter were published on 3 October 2014: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345. 2In both the Common Law Division and this Court, there were three parties. Mr Grima brought a negligence action against RFI (Aust) Pty Ltd ("RFI") claiming damages for personal injury. RFI filed a cross-claim against Mr Grima's employer ("Allied") alleging negligence on its part and claiming indemnity or contribution should RFI be found liable to Mr Grima. The primary judge found that both RFI and Allied were guilty of negligence and apportioned responsibility between them equally. The primary judge did not uphold a claim by RFI that Mr Grima was guilty of contributory negligence. 3Mr Grima brought an appeal against both RFI and Allied. RFI brought a cross-appeal against Allied alone. Mr Grima challenged the primary judge's finding that Allied was negligent. In the alternative, he challenged the primary judge's apportionment of responsibility between RFI and Allied. Mr Grima was unsuccessful in his challenge to the primary judge's finding of negligence by Allied but succeeded in his challenge on the apportionment issue. This Court concluded that responsibility should be apportioned 75 per cent to RFI and 25 per cent to Allied. 4Also before this Court was the question whether the primary judge had correctly rejected the claim that Mr Grima had been guilty of contributory negligence. That finding was upheld. 5The cross-appeal was dismissed with costs. The appeal was allowed in part and directions were made for the parties to attempt to agree the terms of orders necessary to implement this Court's decision and also for the filing of written submissions on costs. 6The parties have formulated orders that are, in all respects but one, acceptable to all of them. The issue on which there is lack of agreement is whether Mr Grima is entitled to interest as against RFI. Mr Grima and RFI accept that additional factual findings are essential on that matter. That being so, they propose either that this Court make directions for the preparation of a statement of agreed facts (or, failing that, the filing and service of further affidavits) and the filing of written submissions with a view to determination of the matter by this Court; or alternatively, that the question of interest be remitted to the Common Law Division for determination. 7The former course is impracticable unless there is certainty that the facts can be agreed. The task of receiving further affidavit evidence and, as necessary, oral evidence upon cross-examination of deponents can be performed with much greater efficiency before a single judge. The latter course will therefore be ordered. 8It remains to deal with the matter of the costs of the appeal. On publication of its reasons, the Court ordered that RFI pay Mr Grima's costs of the cross-appeal brought by RFI against him and that the costs of the appeal be reserved pending the further submissions which have now been filed. 9In this Court, Allied filed a submitting appearance save as to costs. Its position is that there should be no costs order either in its favour or against it. Neither of the other parties suggests otherwise. The real issue is as to costs as between Mr Grima and RFI. 10In relation to that matter, the starting point is that Mr Grima, by reason of his successful challenge to the 50/50 apportionment of responsibility made by the primary judge, succeeded in recovering substantially more as against RFI than had been awarded at trial. Mr Grima contends that, on the basis that costs ordinarily follow the event, RFI should be ordered to pay his costs of the appeal. 11RFI's response is that an important component of Mr Grima's case on appeal (and one on which he was not successful) was that negligence of Allied had not been causative of his loss. RFI submits that the primary judge's finding on that matter should not have been challenged, that a departure from the usual costs rule is therefore warranted and that Mr Grima should be awarded 50 per cent of the costs of the appeal. Given the existing order that Mr Grima should have his costs of the cross-appeal against RFI, such an order would cause him to recover 75 per cent of his Court of Appeal costs overall. 12Where there are multiple issues, the court generally does not attempt to differentiate between them for costs purposes unless a particular issue or group of issues is dominant or clearly separable. That is not the case here. The realistic assessment is that questions about the liability and responsibility of RFI and Allied were relevant to numerous aspects of what was, in a real sense, a single controversy. The circumstances are not such that any particular issue can realistically be treated as dominant or clearly separable. 13In relation to the costs of the appeal, therefore, the order will be that RFI pay Mr Grima's costs. 14Because of an anomalous system of numbering of the orders at first instance, as entered, those orders should be set out again, with numbering corrected: "1. Verdict and judgment for the plaintiff against the defendant in the sum of $3,040,000 ('Judgment Sum'). 2. The defendant to pay the plaintiff's costs as agreed or assessed. 3. Verdict and judgment for the defendant on the first cross-claim against the cross-defendant, Allied Overnight Express Pty Limited ('Allied'), in the sum of $165,000. 4. The defendant to bear its own costs of the first cross claim. 5. Verdict and judgment for Allied (second cross-claimant) on the second cross-claim against the defendant in the sum of $2,022,803.65 ('Recovery Sum'). 6. The defendant to pay Allied the sum of $312,443.43, being the interest accrued on the Recovery Sum. 7. The defendant to pay Allied its costs thrown away, on a party-party basis, as incurred on 20 and 21 August 2013, as agreed or assessed, and otherwise, Allied to bear its own costs of the second cross claim. 8. The defendant is entitled to deduct the sum of $165,000 from the Recovery Sum, in satisfaction of the judgment in its favour against Allied. 9. Payment of the Judgment Sum and the Recovery Sum are payable within 28 days from the date these Consent Orders are entered, after which time interest on any outstanding amounts yet to be paid will begin to accrue, and calculated pursuant to section 101 of the Civil Procedure Act 2005 (NSW)." 15The following orders were made by this Court on 13 October 2014: "1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Direct that the parties within fourteen days bring in agreed short minutes of orders varying the orders made in the Common Law Division on 10 February 2014 in such manner as is necessary to reflect a 75 per cent / 25 per cent apportionment of responsibility between the first respondent and the second respondent consistently with the reasons of this Court 4. Costs of the appeal brought by notice of appeal filed on 13 February 2014 are reserved for future decision. 5. Direct that the parties promptly exchange written submissions (limited, in each case, to three pages) on the orders that should be made with respect to the costs of the appeal brought by notice of appeal filed on 13 February 2014 and that all such submissions be filed within fourteen days. 6. The cross-respondents' costs of the cross-appeal brought by notice of cross-appeal filed on 26 May 2014 be paid by the cross-appellant." 16The Court now makes, in addition to those of 13 October 2014, the following orders which, as to 1, 2 and 4, are agreed by the parties to be appropriate to give effect to the Court's decision: 1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014. 2. In lieu of those orders, order: (a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000. (b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500. (c) Judgment for Allied against RFI on the second cross claim in the sum of $2,186,406.62 ("the recovery sum"). (d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76. (e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above. 3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division. 4. The Court, with the consent of the parties, makes the following notations: (a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge. (b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court. (c) RFI has paid to Allied the sum of $1,857,803.56 in partial satisfaction of the second cross claim. (d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum. 5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied. ********** Amendments 26 November 2014 - Quote mark added to ("Allied") Amended paragraphs: 2 26 November 2014 - The second "either" is deleted. The letter "s" is added to the word "fact" and the word "or" is added before the words "alternatively, that the question" Amended paragraphs: 6 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2014