DOF Subsea Australia Pty Ltd v Rees [No 2]

[2025] WASC 101 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DOF SUBSEA AUSTRALIA PTY LTD -v- REES [No  2] [2025] WASC 101 (S)

CORAM:   HILL J

HEARD:   ON THE PAPERS

DELIVERED          :   7 APRIL 2025

FILE NO/S:   COR 188 of 2024

BETWEEN:   DOF SUBSEA AUSTRALIA PTY LTD

Plaintiff

AND

PAUL REES

Defendant

Catchwords:

Practice and procedure - Costs - Appropriate costs order following hearing of originating application - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA) O 66 r 1
Supreme Court Act 1935 (WA) s 37

Result:

The defendant pay the plaintiff’s costs of the application to be taxed if not agreed

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
Defendant	:	In person

Cases referred to in decision:

DOF Subsea Australia Pty Ltd v Rees [No 2] [2025] WASC 101

Frigger v Lean [2012] WASCA 66

Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126

HILL J:

1. On 28 March 2025, I delivered my reasons for decision on the application by the plaintiff to set aside the statutory demand served by the defendant.[1]

   [1] DOF Subsea Australia Pty Ltd v Rees [No 2] [2025] WASC 101 (Primary Reasons).

2. The plaintiff sought an order that the defendant pay its costs of the application to be taxed if not agreed.  As the defendant is a self-represented litigant and there were problems on the day with him hearing the court and the court hearing him, I gave the defendant the opportunity to provide the court with his submissions as to why this would not be the appropriate costs order by 3.00 pm that same day.

3. In the communication received by the court, the defendant did not oppose this order but requested that safeguards be imposed to ensure there was proportionality in any costs sought from him.[2]

   [2] Email from Mr Rees to the Associate to Hill J dated 28 March 2025.

What costs order should be made?

1. The court has a wide discretion in relation to the costs order that can be made.[3]  While this discretion is broad, it is not unfettered and must be exercised judicially.[4]

   [3] Supreme Court Act 1935 (WA) s 37.

   [4] Frigger v Lean [2012] WASCA 66 [53].

2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party.  The rationale for this general rule is that where a party has unjustifiably brought another party before the court, that party should be liable to compensate the other in costs.[5]

   [5] Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126 [62].

3. It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs.[6] 

   [6] Rules of the Supreme Court1971 (WA) O 66 r 1(1).

4. In this case, there can be no dispute that the successful party on the application is DOF Subsea.  DOF Subsea succeeded in obtaining orders to set aside the Statutory Demand.

5. At the hearing where reasons were delivered, the plaintiff initially sought an order for indemnity costs.  Because the plaintiff had not given notice of this proposed order to the defendant, I indicated that I would not make this order without affording the defendant an opportunity to file submissions.  The plaintiff withdrew the application and sought, instead, an order that the defendant pay the plaintiff's costs of the application to be taxed if not agreed.

6. Many of the issues raised by the defendant in his correspondence with the court raised concerns as to proportionality and fairness, including the number of legal practitioners involved in the matter on behalf of the plaintiff.  The defendant also requested an itemisation of the costs that are claimed.

7. In my view, none of the matters raised by the defendant are relevant to the question as to appropriate costs order to make.  In my view, these matters are relevant to what amount, ultimately, ought be allowed on a taxation of the costs.  The matters raised by the defendant can be raised at any assessment of the costs if the parties are unable to agree an amount for costs.

8. In my view, there is no reason to depart from the usual order as to costs.

Conclusion

1. For these reasons, the order for costs will be:

   1.The defendant pay the plaintiff's costs of the application to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KC

Associate to the Honourable Justice Hill

7 APRIL 2025