Barr v Farrell
[2013] WASCA 211 (S)
•1 NOVEMBER 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | BARR -v- FARRELL [2013] WASCA 211 (S) |
| CORAM | : PULLIN JA |
NEWNES JA MURPHY JA
| HEARD | : | ON THE PAPERS |
| DELIVERED | : | 1 NOVEMBER 2013 |
| FILE NO/S | : | CACV 100 of 2012 |
| BETWEEN | : TANSY ANN BARR |
Appellant
AND
LOUISE FARRELL
First Respondent
ST JOHN OF GOD HEALTH CARE INC
Second Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : BOWDEN DCJ | ||
| Citation |
| ||
| File No |
|
[2013] WASCA 211 (S)
Catchwords:
Practice and procedure - Costs - Appeal against dismissal of application by appellant for extension of time - Appeal allowed - Whether order for costs against appellant at first instance should be disturbed - Whether appellant entitled to costs of appeal - Application by respondents under Suitors' Fund Act 1964 (WA)
Legislation:
Suitors' Fund Act 1964 (WA), s 10(1)
Result:
Respondents to pay appellant's costs of appeal
Certificate granted to each respondent under Suitors' Fund Act
Order for costs against appellant below not disturbed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance (on the papers) |
| First Respondent | : | No appearance (on the papers) |
| Second Respondent | : | No appearance (on the papers) |
Solicitors:
| Appellant | : | Bradley Bayly Legal |
| First Respondent | : | Clayton Utz |
| Second Respondent | : | DLA Piper |
Case(s) referred to in judgment(s):
Commonwealth of Australia v Smith [2005] NSWCA 478
Corruption and Crime Commission of Western Australia v Allen [2012]
WASCA 242 (S)
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Richards v Faulls Pty Ltd [1971] WAR 129
[2013] WASCA 211 (S)
JUDGMENT OF THE COURT
JUDGMENT OF THE COURT: On 10 September 2013, this court, by a majority, allowed an appeal against a decision of the District Court refusing an application by the appellant for an extension of time under s 41 of the Limitation Act 2005 (WA) to commence an action against the respondents.
2 The parties were given leave to file written submissions as to costs
and it was ordered that the question of costs be decided on the papers.
The parties' submissions have now been filed.3 The appellant submitted that notwithstanding the proceedings were
to seek the indulgence of an extension of time, the respondents should pay her costs of the appeal. In support of that contention, it was submitted, first, that the appellant had been successful on the appeal and that was a significant consideration under O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA); secondly, the respondents actively contested the application at first instance and on the appeal, ultimately unsuccessfully; thirdly, what was at stake was substantial, namely, the appellant's right to bring a claim for compensation for her injuries; and fourthly, the appellant required an extension of time, not through any fault of her own, but due to the fault of her former solicitors.
4 Although the submissions by the appellant (and indeed, the
respondents) appeared in places to be directed to costs at first instance, we do not understand the appellant to seek to disturb the order for costs the respondents obtained in the District Court. The only order sought is an order that the respondents pay the costs of the appeal.
5 It was submitted by the respondents, in substance, that ordinarily
where an application for an extension of time is successful the applicant will be ordered to pay the costs of the application, unless the respondent's conduct in opposing it was wholly unreasonable: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; Commonwealth of Australia v Smith [2005] NSWCA 478. There was nothing to take this case outside the ordinary rule. The respondents argued that their conduct in opposing the application both at first instance and on the appeal was not unreasonable, as evidenced by the fact that they were successful before the primary judge and this court was divided on the appeal. They sought an order that the appellant pay their costs of the appeal. The first respondent also sought an order that the appellant pay their costs below, although, as we have mentioned, the appellant does not appear to seek to disturb the existing order in the District Court in the respondents' favour. In the event the respondents were ordered to pay the appellant's costs,
[2013] WASCA 211 (S)
JUDGMENT OF THE COURT
they each seek a certificate under s 10 of the Suitors' Fund Act 1964
(WA).6 In case there should be any doubt about the position, it is appropriate
to say that we would not interfere with the order made by the primary judge that the appellant pay the respondents' costs of the application to the District Court.
7 It is trite law that the court has a very wide discretion as to costs,
albeit it is a discretion that must be exercised judicially. It is unnecessary to canvass the cases referred to by the parties. The assistance that can be gained from other cases is generally very limited because the way in which the discretion is exercised very much depends upon the particular facts and circumstances of the case. We accept, however, as a general proposition that where a party who is out of time successfully seeks an extension of time, ordinarily that party will not be entitled to an order for the costs of the application unless the conduct of the other party in opposing it was unreasonable. But beyond that we would not venture. Whether, for instance, the applicant should pay the costs, or whether the costs should be in the cause of the action, are matters which are so dependent upon the particular facts of the case that the expression of any general principle would have to be so qualified as to be of no practical utility. The guiding principle must always be what is appropriate to do justice in the particular circumstances of the case.
8 In the present case, it is accepted by the parties that no fault can be
attributed to the appellant or her former guardian personally for the failure to commence proceedings within time. It seems the responsibility lay with their former solicitor who had wrongly advised them as to the relevant limitation period. But the fact remains that the difficulty in which the appellant found herself had nothing to do with the respondents. Nor can it be said that the respondents' opposition to the application was unreasonable. Whether the appellant was entitled to an extension of time to bring a claim against the respondents turned on a question of construction of s 41 of the Limitation Act, a question which had not previously received judicial consideration and one on which ultimately this court was divided. In the circumstances, it was not unreasonable for the respondents to require the appellant to persuade the court that an extension of time could, and should, be granted. If the appellant was out of time because of her solicitor's negligence she may have remedies against the solicitor. But there is no reason why the respondents should have to bear their costs of the application.
[2013] WASCA 211 (S)
JUDGMENT OF THE COURT
9 The costs of the appeal, however, do not give rise to similar
considerations. On the appeal the appellant was not seeking to have the court exercise its discretion to overcome a difficulty in which she had found herself. At least in the present case, the considerations relevant to the costs of the appeal do not differ in any material respect from those in the ordinary run of appeals. There are no factors which should cause this court to depart from the usual rule that costs follow the event. We consider that the respondents, having unsuccessfully opposed the appeal, should pay the costs.
10 We might note in passing that a similar outcome was reached in Holt v Wynter, where the applicant was ordered to bear the costs of her (unsuccessful) application to the New South Wales District Court for an extension of time under the relevant limitation legislation but obtained an order for the costs of her successful appeal. The facts in Commonwealth of Australia v Smith were quite different to the present case.
It is necessary then to turn to the application by each respondent for a certificate under the Suitors' Fund Act.
Section 10(1) of the Act relevantly reads:
(1) Where an appeal against the decision of a Court in any
proceedings -
(a) to the Supreme Court; ... on a question of law succeeds, the Supreme Court may ... grant to the respondent to the appeal ... an indemnity certificate in respect of that appeal.
13 The appellant was successful on a question of law. The question is
whether the court should exercise its discretion to grant a certificate. The discretion is unfettered but it must be exercised judicially. Generally, it may be exercised where there is a question of law which might reasonably be resolved in different ways, 'so that in a sense the unsuccessful party may be thought to have suffered some "misfortune" owing to a doubt about the correct rule of law to be applied': Richards v Faulls Pty Ltd [1971] WAR 129, 138. A relevant consideration will be the degree to which the question of law involved was a question of general application, or whether it arose by reason of the particular facts of the case: Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S) [3].
[2013] WASCA 211 (S)
JUDGMENT OF THE COURT
14 In this case, the proper construction of s 41 of the Limitation Act involved a question of law of some general application rather than a question limited to the particular facts of the case. We would grant a certificate to the first respondent. We would also grant a certificate to the second respondent, on the basis, as we were informed, that it is a non-profit charitable organisation.
We would order:
(1) the respondents pay the appellant's costs of the appeal to be taxed;
and(2) the first and second respondents are each granted a certificate
pursuant to s 10(1) of the Suitors' Fund Act.
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