ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 162 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:113/2013	Heard:	ON THE PAPERS
Coram:	McLURE P NEWNES JA EDELMAN J	Delivered:	8/10/14
No of pages:	6	Judgment Part:	1 of 1
Result:	First respondent to pay appellants' costs of application before primary judge to be taxed First respondent to pay appellants' costs of appeal to be taxed First respondent granted indemnity certificate under Suitors' Fund Act
Category:	B
PDF Version

Parties:	ACEBROOK CORPORATION PTY LTD INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION KELLY ANNE McEWAN DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE
Catchwords:	Costs Appeal not hypothetical Costs follow event Appeal on question of law of general application Suitors' Fund Act 1964 (WA), s 10(1) Indemnity certificate granted
Legislation:	Suitors' Fund Act 1964 (WA), s 10(1)
Case References:	Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 Richards v Faulls Pty Ltd [1971] WAR 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162 (S) CORAM : McLURE P

NEWNES JA

EDELMAN J

HEARD : ON THE PAPERS DELIVERED : 8 OCTOBER 2014 FILE NO/S : CACV 113 of 2013 BETWEEN : ACEBROOK CORPORATION PTY LTD

First Appellant

INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION

Second Appellant

AND

KELLY ANNE McEWAN

First Respondent

DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355

File No : CIV 1263 of 2012

Catchwords:

Costs - Appeal not hypothetical - Costs follow event - Appeal on question of law of general application - Suitors' Fund Act 1964 (WA), s 10(1) - Indemnity certificate granted

Legislation:

Suitors' Fund Act 1964 (WA), s 10(1)

Result:

First respondent to pay appellants' costs of application before primary judge to be taxed

First respondent to pay appellants' costs of appeal to be taxed
First respondent granted indemnity certificate under Suitors' Fund Act

Category: B

Representation:

Counsel:

First Appellant : Mr G R Hancy

Second Appellant : Mr G R Hancy

First Respondent : Mr M A Tedeschi

Second Respondent : Not applicable

Solicitors:

First Appellant : SRB Legal

Second Appellant : SRB Legal

First Respondent : Waterside Legal

Second Respondent : Not applicable

Case(s) referred to in judgment(s):

Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162
Richards v Faulls Pty Ltd [1971] WAR 129

1 JUDGMENT OF THE COURT: On 2 September 2014, this court allowed an appeal by the appellants against an order of Kenneth Martin J that a writ of certiorari issue to quash a decision of a delegate of the second respondent (the Director) under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act): Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162.

2 The Director, by his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASCA 162 (S)
Decision Date: 8 OCTOBER 2014

CaseChat Overview and Summary

Acebrook Corporation Pty Ltd brought proceedings against McEwan in the Supreme Court of Western Australia. The appellants sought an order that the first respondent, who was also the second respondent, pay the costs of the appeal and of the application before the primary judge. The parties had previously been involved in proceedings in the Supreme Court of Western Australia, which were settled. Acebrook Corporation and its directors brought proceedings against the first respondent in relation to the settlement of those proceedings. The first respondent had applied for indemnity costs under section 10(1) of the Suitors' Fund Act 1964 (WA). The application was dismissed by the primary judge. The appellants appealed against the dismissal of the application for indemnity costs. The central issue before the court was whether the appeal was not hypothetical and whether the indemnity certificate should be granted. The court held that the appeal was not hypothetical because it was a genuine appeal on a question of law of general application. The court also held that the first respondent was not a poor person within the meaning of the Act and therefore not entitled to an indemnity certificate. The appeal was dismissed, but the first respondent was granted an indemnity certificate under the Suitors' Fund Act 1964 (WA). The first respondent was ordered to pay the appellants' costs of the application before the primary judge to be taxed and the appellants' costs of the appeal to be taxed.

Orders

Orders of the court

First respondent to pay appellants' costs of application before primary judge to be taxed

First respondent to pay appellants' costs of appeal to be taxed

First respondent granted indemnity certificate under Suitors' Fund Act

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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