Coffey LPM Pty Ltd v The Contaminated Sites Committee
[2014] WASC 504 (S)
•25 JUNE 2015
COFFEY LPM PTY LTD -v- THE CONTAMINATED SITES COMMITTEE [2014] WASC 504 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 504 (S) | |
| Case No: | GDA:4/2014 | ON THE PAPERS | |
| Coram: | CHANEY J | 25/06/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay fourth respondent's costs excluding costs related to notice of contention | ||
| B | |||
| PDF Version |
| Parties: | COFFEY LPM PTY LTD THE CONTAMINATED SITES COMMITTEE WA SEAFOOD EXPORTERS PTY LTD WESFARMERS KLEENHEAT GAS PTY LTD CALTEX AUSTRALIA PETROLEUM PTY LTD ATTORNEY GENERAL FOR WESTERN AUSTRALIA MINISTER FOR ENVIRONMENT |
Catchwords: | Costs Respondent adopting submissions of another party Successful party Notice of contention misconceived |
Legislation: | Contamination Sites Act 2003 (WA), s 77, s 78(2) Rules of the Supreme Court 1971 (WA), O 66 r 1 |
Case References: | BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 Coffey LPM Pty Ltd v Contaminated Sites Committee [2014] WASC 504 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE CONTAMINATED SITES COMMITTEE
First Respondent
WA SEAFOOD EXPORTERS PTY LTD
Second Respondent
WESFARMERS KLEENHEAT GAS PTY LTD
Third Respondent
CALTEX AUSTRALIA PETROLEUM PTY LTD
Fourth Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
MINISTER FOR ENVIRONMENT
Interveners
ON APPEAL FROM:
Jurisdiction : CONTAMINATED SITES COMMITTEE
Coram : J MALCOLM CP AND OTHERS
File No : CSC 19 of 2008
Catchwords:
Costs - Respondent adopting submissions of another party - Successful party - Notice of contention misconceived
Legislation:
Contamination Sites Act 2003 (WA), s 77, s 78(2)
Rules of the Supreme Court 1971 (WA), O 66 r 1
Result:
Appellant to pay fourth respondent's costs excluding costs related to notice of contention
Category: B
Representation:
Counsel:
Appellant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Interveners : No appearance
Solicitors:
Appellant : SRB Legal
First Respondent : No appearance
Second Respondent : DLA Piper
Third Respondent : Hardy Bowen
Fourth Respondent : Solomon Brothers
Interveners : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
1 CHANEY J: On 23 December 2014, I published reasons for my decision that the appeal in this matter should be dismissed.1
2 The fourth respondent was the only respondent which appeared in opposition to the appeal at the hearing of the matter. In doing so, it relied substantially upon the submissions made by the intervener in opposition to the application, save as to one point in respect of which it disagreed with the intervener's submissions. In addition, the fourth respondent made submissions in relation to contentions contained in a document entitled 'Notice of Contention' which it had filed in the proceedings in July 2014. On delivery of the decision, the fourth respondent sought an order for payment of its costs, and I directed that the question of dismissal of the fourth respondent's notice of contention and of payment of the fourth respondent's costs, and any costs related to the notice of contention was to be determined on the papers. The parties had subsequently filed written submissions on that question.
General principles concerning costs orders
3 Section 78(2) of the Contaminated Sites Act 2003 (WA) (CS Act) states that the court may make such order as to costs as it thinks fit in relation to an appeal. Section 77 of the CS Act, being the provision under which the appeal was brought, provides that 'an appeal is to be made in accordance with the rules of court of the Supreme Court'. Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) provides that costs are in the discretion of the court but, without limiting this general discretion, the court will generally order that the successful party to an action or matter recover its costs. This discretion must, of course, be exercised judicially.2
Parties' submissions
4 The fourth respondent submits that its contentions in the proceedings fall into three categories. The first was its opposition to the appeal generally. The second was a contention that, if any of the grounds of appeal were successful, the decision of the Contaminated Sites Committee (the Committee) should only be set aside in part, so as to leave intact the Committee's findings that the fourth respondent had no responsibility for remediation. The third category comprised the matters relied upon in the 'Notice of Contention'. It submits, correctly, that the second and third of those categories of contentions did not, in the event, fall for consideration in view of the dismissal of the appeal.
5 On that basis, the fourth respondent contends that, the appeal having been dismissed, it was a successful party to the appeal for the purposes of O 66 r 1.
6 The appellant opposes any order for costs in favour of the fourth respondent. It submits that the fourth respondent's 'Notice of Contention' was misconceived. It contends that the Court could never have had capacity to partially remit that matter to the Committee so that the second contention could not have been successful. Finally, the appellant contends that the fourth respondent's substantial opposition to the appeal consisted merely of supporting the submissions of the interveners other than in respect to one point in which it supported the appellant's position, being a point upon which the appellant did not ultimately succeed. On those bases, the appellant contends that no order for costs in the fourth respondent's favour should be made.
Misconception
7 I agree with the appellant's submission that the 'Notice of Contention' filed by the fourth respondent was misconceived. An appeal under s 70 of the CS Act is an appeal on a question of law. As I noted in the substantive decision in this matter, in an appeal of this nature the Court is neither required nor entitled to embark upon any review of the decision-making process of the Committee beyond that necessary to answer the appropriately identified question or questions of law.3
8 The fourth respondent was, however, entitled to appear at the hearing to oppose the appeal generally. It was a party to the appeal. Although the appeal was not directed to challenging the findings which absolved the fourth respondent from responsibility for remediation, the possibility of remission of the matter to the Committee had the potential to reopen all questions of liability for remediation, and thus the potential to prejudice the fourth respondent's position.
9 The fact that the fourth respondent, in substance, simply relied upon the contentions of the intervener does not deprive it of any entitlement to a favourable costs order. Directions were made in advance of the hearing requiring submissions to be filed first by the appellant, then by the intervener, and then by any of the respondents who wished to be heard on the appeal. There can be no criticism of the fourth respondent for simply adopting the intervener's submissions rather than covering the same ground in its own submissions.
10 The fact that the second and third respondents chose not to file submissions and further participate in the appeal did not oblige the fourth respondent to take the same course. Nor did the fact that it substantially adopted the intervener's submissions in opposition to the appeal deprive it of the entitlement to attend the hearing and make whatever oral submissions it wished in light of the submissions advanced orally by the appellant and the intervener.
11 I do not consider that the fact that the fourth respondent supported the appellant's arguments in relation to a discrete issue bears upon the question of costs. As it happened, it was not an issue which I found necessary to resolve, having regard to the basis upon which the relevant grounds of appeal were dismissed.
12 In the circumstances, the fourth respondent was a successful party in opposing the appeal. There should be an order that the appellant pay its costs. Those costs should not, however, include any costs in relation to the notice of contention which, as I have said, was misconceived.
13 There will be an order that the appellant is to pay the fourth respondent's costs, not including any costs in relation to the fourth respondent's notice of contention, to be taxed if not agreed.
1Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504.
2Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134].
3Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504 citing BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [46] (Martin CJ).
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