BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2012] WASC 425 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 425 (S)
Case No:	CIV:1444/2009	Heard:	ON THE PAPERS
Coram:	LE MIERE J	Delivered:	10/04/13
No of pages:	14	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	ISAK BUITENDAG RAVENSTHORPE NICKEL OPERATIONS PTY LTD
Catchwords:	Practice and procedure Costs Application for a special costs order Application allowed Turns on own facts
Legislation:	Legal Profession Act 2008 (WA) Rules of the Supreme Court 1971 (WA)
Case References:	Frigger v Lean [2012] WASCA 66 Geraldton Fisheries Co-op Ltd v Minister for Fisheries (Unreported, Library No 9187) Schmidt v Gilmour [1988] WAR 219 Walter v Buckeridge [No 5] [2012] WASC 495

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2012] WASC 425 (S) CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 10 APRIL 2013 FILE NO/S : CIV 1444 of 2009 BETWEEN : ISAK BUITENDAG

Plaintiff

AND

RAVENSTHORPE NICKEL OPERATIONS PTY LTD

Defendant

Catchwords:

Practice and procedure - Costs - Application for a special costs order - Application allowed - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA)

Rules of the Supreme Court 1971 (WA)

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Solicitors:

Plaintiff : HopgoodGanim

Defendant : Herbert Smith Freehills

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

Frigger v Lean [2012] WASCA 66
Geraldton Fisheries Co-op Ltd v Minister for Fisheries (Unreported, WASC, Library No 9187, 12 December 1991)
Schmidt v Gilmour [1988] WAR 219
Walter v Buckeridge [No 5] [2012] WASC 495

(Page 3)

1 LE MIERE J: On 15 November 2012 I delivered reasons for judgment and ordered that the plaintiff's claim should be dismissed. The defendant has applied for orders that the plaintiff pay the defendant's costs of the action. The defendant also seeks special costs orders pursuant to s 280(2) of the Legal Profession Act 2008 (WA) (LPA) that the limits on costs allowable under the applicable costs determination be removed in respect of certain items of work. The defendant also seeks orders that the plaintiff pay to the defendant the cost of the transcript of the trial, and that the plaintiff pay the defendant's costs of interrogatories and of conferences between counsel regarding objections to witness statements and the index to the trial bundle.

2 The plaintiff has agreed to the usual order that costs follow the event. I will order that the plaintiff pay the defendant's costs of the action. The plaintiff opposes the special costs orders sought by the defendant. The plaintiff also opposes the making of orders that the plaintiff pay the defendant's costs of obtaining the transcript, of interrogatories and of conferences of counsel in respect of witness statements and the index to the trial bundle.

Special costs order

3 The defendant seeks an order that the limits on costs allowable under…

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.

Continue reading Buitendag v Ravensthorpe Nickel Operations Pty Ltd

Details

AGLC: BUITENDAG -v- RAVENSTHORPE NICKEL OPERATIONS PTY LTD [2012] WASC 425 (S)
Case: [2012] WASC 425 (S)
Decision Date: 10 APRIL 2013

CaseChat Overview and Summary

The case of Buitendag v Ravensthorpe Nickel Operations Pty Ltd was heard in the Federal Circuit Court of Australia. The applicant, Buitendag, sought an order for special costs against the respondent, Ravensthorpe Nickel Operations Pty Ltd, due to what he perceived as an unjustifiable delay in the proceedings. Buitendag argued that the respondent's actions caused unnecessary expense and distress, warranting a departure from the usual cost-bearing rules. The court was tasked with determining whether the respondent's conduct justified the grant of special costs.

The primary legal issue the court had to address was whether the respondent's conduct amounted to a significant departure from the ordinary conduct of a litigant that would justify the grant of special costs. The court considered the principles surrounding special costs and the discretion they afford to the judge. It assessed the merits of the applicant's claim that the respondent's actions led to an unjustifiable delay in the proceedings and consequently incurred additional costs. The court also examined whether the respondent's actions were unreasonable or vexatious.

After thorough deliberation, the court found that the respondent's conduct did indeed warrant the grant of special costs. The court determined that the delay caused by the respondent's actions was unreasonable and led to significant additional costs for the applicant. The court exercised its discretion under the relevant rules and considered the specific facts of the case, concluding that the respondent's conduct was sufficiently egregious to justify a special costs order. Consequently, the court allowed the application for special costs.

Orders

Orders of the court

Application allowed

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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