Buckeridge v Walter
[2010] WASCA 134 (S)
•23 JULY 2010
BUCKERIDGE -v- WALTER [2010] WASCA 134 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 134 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:118/2009 | 23 APRIL 2010 AND ON THE PAPERS | |
| Coram: | McLURE P OWEN JA BUSS JA | 23/07/10 | |
| 19/10/10 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay 75% of the appellant's cost of appeal to be taxed Indemnity certificate refused | ||
| B | |||
| PDF Version |
| Parties: | LEONARD WALTER BUCKERIDGE JULIAN ALAN WALTER |
Catchwords: | Costs Costs of appeal Application for indemnity certificate Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3) Suitors' Fund Act 1964 (WA), s 10(a) |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162(S) Buckeridge v Walter [2010] WASCA 134 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) West Australian Newspapers Ltd v Elliott [2008] WASCA 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BUCKERIDGE -v- WALTER [2010] WASCA 134 (S) CORAM : McLURE P
- OWEN JA
BUSS JA
DECISION : 19 OCTOBER 2010 FILE NO/S : CACV 118 of 2009 BETWEEN : LEONARD WALTER BUCKERIDGE
- Appellant
AND
JULIAN ALAN WALTER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : JWH GROUP PTY LTD -v- BUCKERIDGE [No 3] [2009] WASC 271
File No : CIV 2566 of 2003
(Page 2)
Catchwords:
Costs - Costs of appeal - Application for indemnity certificate - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)
Suitors' Fund Act 1964 (WA), s 10(a)
Result:
Respondent to pay 75% of the appellant's cost of appeal to be taxed
Indemnity certificate refused
Category: B
Representation:
Counsel:
Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellant : Mallesons Stephen Jaques
Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162(S)
Buckeridge v Walter [2010] WASCA 134
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S)
West Australian Newspapers Ltd v Elliott [2008] WASCA 172
(Page 3)
1 McLURE P: These reasons relate to the costs connected with this court's decision in Buckeridge v Walter [2010] WASCA 134.
2 The appellant, who was successful in the appeal, seeks orders that the respondent pay the costs of the appeal and the costs below to be taxed. The respondent opposes orders in those terms. He seeks an order that the appellant pay 90% of the respondent's costs and the respondent pay 10% of the appellant's costs of both the appeal and the proceedings below. His fall back position is that the appellant pay four-fifths of the respondent's costs and the respondent pay one-fifth of the appellant's costs of both the appeal and the decision below.
3 The appeal was from orders made by Le Miere J striking out the appellant's Polly Peck defence in a defamation action. The primary judge struck out seven imputations. The appeal was limited to five imputations being those pleaded in [10A.1], [10A.2], [10A.3], [4B.2] and [4B.3]. The imputations in [4B.2] and [10A.2] were in the same terms, as were the imputations in [4B.3] and [10A.3]. Thus, there were three Polly Peck imputations in issue in the appeal. Moreover, it was possible to deal with the challenges to the imputations in [4B.2], [4B.3], [10A.2] and [10A.3] together because they were not materially different for analytical purposes.
4 The general rule is that the successful party will recover his costs (Rules of the Supreme Court 1971 (WA), O 66 r 1(1)). However, where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs, the court may order such party to pay the costs of such issue or issues (O 66 r 1(3)). The exercise of the power in O 66 r 1(3) should be approached broadly, and as a matter of impression, and without an attempt at mathematical precision which is likely to prove elusory: Amaca Pty Ltd v Moss [2007] WASCA 162(S) [6].
5 The legal issues and principles relevant to the disposition of the appeal relating to all the imputations largely overlapped. Further, most attention in both the written submissions and at the hearing was directed at [10A.1] which was the subject of three of the five grounds of appeal and on which the appellant succeeded. Although the appellant challenged the correctness of David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 and West Australian Newspapers Ltd v Elliott [2008] WASCA 172, that was done to preserve his position and little time was devoted to it in submissions (or in the reasons for judgment).
(Page 4)
6 I am satisfied that the appellant should have the costs of the appeal, reduced to 75% because of the time devoted solely to matters on which he failed.
7 I turn to the costs below. I would not interfere with the order made by the primary judge that the appellant pay the respondent's costs of and incidental to the application before him to be taxed. Six of the seven imputations struck out by the primary judge were either not challenged or unsuccessfully challenged. Following the appeal, it remained the case that the respondent was largely successful below. It is also relevant that the application which came before the primary judge was something of a moving feast, with the appellant amending his proposed defence from time to time. However, I am not persuaded that prior successful applications made by the respondent to earlier versions of a Polly Peck defence is a relevant matter. No doubt appropriate costs orders were made in relation to the prior applications, both at first instance and on appeal.
8 The respondent also seeks an indemnity certificate under s 10(a) of the Suitors' Fund Act 1964 (WA). This court has a discretion to grant an indemnity certificate where an appeal on a question of law succeeds. The discretion is to grant rather than refuse an indemnity certificate. Accordingly, the unsuccessful respondent must show some ground calling for the exercise of the discretion in his favour: Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) [4].
9 It may be accepted that the primary judge made an error of law. The primary issues on which this court differed from the primary judge was the scope of the imputation pleaded in [10A] and whether it was capable of arising from the words complained of. Those differences had relatively straightforward consequences in relation to grounds of appeal 2 and 3. Thus this is not a case involving a doubt about the law which should be applied but rather one which involved the application of well-understood legal principles to a particular imputation. Moreover, multiple interlocutory pleading skirmishes are the unfortunate by-product of defamation proceedings because they are often perceived to be of strategic importance. In all the circumstances, I would decline to grant to the respondent an indemnity certificate.
10 OWEN JA: I agree with McLure P.
11 BUSS JA: I agree with McLure P.
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