Dodd and Dodd Pty Ltd v Shire of Swan
[1999] WASC 206
DODD AND DODD PTY LTD -v- SHIRE OF SWAN [1999] WASC 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 206 | |
| Case No: | CIV:1352/1998 | 9 SEPTEMBER 1999 | |
| Coram: | MASTER SANDERSON | 9/09/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs subject to undertaking not to commence like action | ||
| PDF Version |
| Parties: | DODD AND DODD PTY LTD SHIRE OF SWAN |
Catchwords: | Practice and procedure Plaintiff seeking leave to discontinue action Costs on discontinuance Turns on its own facts |
Legislation: | Supreme Court Rules, O 23 r2(3) |
Case References: | Martin-Smith v Woodhead [1990] WAR 62 Armstrong v Boulton [1990] VR 215 ASC v Aust-Home Investments Ltd (1993) 44 FCR 194 Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 Donald Campbell & Co Ltd v Pollak [1927] AC 732 Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496 Heimann v Commonwealth of Australia (1941) 58 (NSW) 2 Merrett v Schuster [1920] 2 Ch 240 Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) [1987] 43 SASR 588 Morosi v Mirror News Papers Ltd [1977] 2 NSWLR 749 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 Telstra Corporation Limited v Australian Communications Authority, unreported; SCt of Vic; 30 June 1994 Theiss v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHIRE OF SWAN
Defendant
Catchwords:
Practice and procedure - Plaintiff seeking leave to discontinue action - Costs on discontinuance - Turns on its own facts
Legislation:
Supreme Court Rules, O 23 r2(3)
Result:
No order as to costs subject to undertaking not to commence like action
(Page 2)
Representation:
Counsel:
Plaintiff : Mr P D C Robinson
Defendant : Ms L E Rowley
Solicitors:
Plaintiff : Williams & Hughes
Defendant : McLeod & Co
Case(s) referred to in judgment(s):
Martin-Smith v Woodhead [1990] WAR 62
Case(s) also cited:
Armstrong v Boulton [1990] VR 215
ASC v Aust-Home Investments Ltd (1993) 44 FCR 194
Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496
Heimann v Commonwealth of Australia (1941) 58 (NSW) 2
Merrett v Schuster [1920] 2 Ch 240
Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) [1987] 43 SASR 588
Morosi v Mirror News Papers Ltd [1977] 2 NSWLR 749
SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283
Telstra Corporation Limited v Australian Communications Authority, unreported; SCt of Vic; 30 June 1994
Theiss v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
(Page 3)
1 MASTER SANDERSON: This is an application by the plaintiff for leave to discontinue proceedings against the defendant. The application is brought under O 23 r 2(3). The defendant does not oppose the plaintiff having leave to discontinue the action but submits that such leave be conditional upon undertakings not to commence an action of a similar nature at some time in the future and that the plaintiff pay the defendant's costs of the action.
2 By discontinuing the action, the plaintiff effectively concedes that it cannot succeed against the defendant and therefore the costs ought, in the normal circumstance, follow the event; that is to say, I think that it can be accepted as a general rule that in an application such as this, the plaintiff should pay the defendant's costs; but it is clear that there is a wide and unfettered discretion in relation to the question of costs and it has frequently been acknowledged that a court can take into account the circumstances of a particular case in reaching a decision as to whether or not the usual costs order is appropriate.
3 This action concerned a property in the defendant's local government area which was used by the plaintiff for the storage and sale of timber, including the sale of timber by auction. The plaintiff was under the misapprehension that the right to retail timber from the property - indeed, the right to store timber on the property - was the subject of a non-conforming use exception to the relevant town planning scheme. That misapprehension was engendered it would seem by correspondence from the defendant which at best could be regarded as confusing.
4 I can perhaps refer to a letter from the defendant to a firm of D J Allen and Associates dated 4 April 1995 which appears as an annexure to the affidavit of Christopher Damon Dodds sworn 3 April 1998. That letter appears to me to acknowledge that there was a non-conforming use right in relation to the property. It would appear that when the plaintiff initiated these proceedings, what it had in mind was to determine whether or not the non-conforming use extended to auctions, the plaintiff being of the understanding that there was a right to retail timber.
5 It now appears, and the plaintiff accepts, that there is no non-conforming use right in relation to this property at least so far as the sale of timber by auction is concerned; it may also be the case that, not only is there no right to auction timber from this property, but that there is no right to use the property for the storage and the retail sale of timber. The defendant, while setting out that position in some detail, appears to
(Page 4)
- have taken no steps to prevent the site being used at least for the storage and retailing of timber.
6 I doubt that much can be drawn from that fact, although it is perhaps worthy of acknowledgment. In the circumstances, it seems to me that the action taken by the plaintiff in initiating proceedings was not unreasonable. Furthermore, it seems to me that the process which was adopted was also one that, given there then state of knowledge, was appropriate. An originating summons procedure is for use in circumstances where there is no real factual dispute but a question of interpretation arises.
7 In Martin-Smith v Woodhead [1990] WAR 62, Kennedy J set out the use to be made of the originating summons procedure. Given the then state of knowledge of the plaintiff, they were doing nothing more than using what would be an appropriate procedure. Subsequently it became apparent that the non-conforming use right was in question and by May 1998 the matter had converted to an action on pleadings. It was also clear by that date that the plaintiff should have been aware that the question of the non-conforming use right was an issue.
8 To overcome that difficulty, the plaintiff expanded its claim to one based upon negligence, seeking damages presumably for misstatements made by the defendant's officers. As I said at the outset of these reasons, it is now conceded, by virtue of the fact that the plaintiff seeks to discontinue its action, that it would not have been successful in that action. Nonetheless, it seems to me that in circumstances created by the defendant, the plaintiff acted in a way that was reasonable.
9 That being the case, I am not satisfied that the usual order is appropriate and that the costs ought be paid by the plaintiff. Given the whole of the facts of this case, taking into account the volume of material which has been filed for and against the application, that the proper order is that each party should bear their own costs. In relation to the leave to discontinue, the defendant says that it ought not be put at risk of having to face a similar action at some stage in the future.
10 In my view, that is a correct analysis of the position. If anything, the position is compounded by the fact that the plaintiff is not the subject of an adverse costs order. This action is well advanced and the issues between the parties are clearly defined. The plaintiff appears to have taken the decision that for commercial reasons or otherwise it should not
(Page 5)
- proceed. If it should not proceed now, being possessed of all the facts, then it should not proceed in the future.
11 There will be an order that the plaintiff have leave to discontinue the action subject to an undertaking not to commence like action at any future date. Provided the undertaking is given and that it is in a form suitable to the defendant's solicitors, or failing agreement, to the Court, then there will be no order as to costs.
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