Forrest & Forrest Pty Ltd v Wilson
[2016] WASCA 116 (S)
•2 SEPTEMBER 2016
FORREST & FORREST PTY LTD -v- WILSON [2016] WASCA 116 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 116 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:96/2015 | ON THE PAPERS | |
| Coram: | McLURE P NEWNES JA MURPHY JA | 2/09/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondents' costs of notice of intention and answer | ||
| B | |||
| PDF Version |
| Parties: | FORREST & FORREST PTY LTD STEPHEN McKENZIE WILSON YARRI MINING PTY LTD QUARRY PARK PTY LTD ONSLOW RESOURCES LTD |
Catchwords: | Costs Respondents filed answer No appearance by respondents on hearing of appeal Appeal dismissed Whether respondents entitled to costs Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FORREST & FORREST PTY LTD -v- WILSON [2016] WASCA 116 (S) CORAM : McLURE P
- NEWNES JA
MURPHY JA
- Appellant
AND
STEPHEN McKENZIE WILSON
First Respondent
YARRI MINING PTY LTD
Second Respondent
QUARRY PARK PTY LTD
Third Respondent
ONSLOW RESOURCES LTD
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ALLANSON J
Citation : FORREST & FORREST PTY LTD -v- WILSON [2015] WASC 181
File No : CIV 2054 of 2014
Catchwords:
Costs - Respondents filed answer - No appearance by respondents on hearing of appeal - Appeal dismissed - Whether respondents entitled to costs - Turns on own facts
Legislation:
Nil
Result:
Appellant to pay respondents' costs of notice of intention and answer
Category: B
Representation:
Counsel:
Appellant : On the papers
First Respondent : No appearance
Second Respondent : On the papers
Third Respondent : On the papers
Fourth Respondent : On the papers
Solicitors:
Appellant : Mizen & Mizen
First Respondent : No appearance
Second Respondent : All Mining Legal Pty Ltd
Third Respondent : All Mining Legal Pty Ltd
Fourth Respondent : All Mining Legal Pty Ltd
Case(s) referred to in judgment(s):
Nil
1 JUDGMENT OF THE COURT: On 7 July 2016, we dismissed an appeal by the appellant against a decision of Allanson J refusing judicial review of recommendations of a warden under the Mining Act 1978 (WA). The respondents, none of whom appeared on the hearing of the appeal, were given liberty to make any application for costs by 14 July 2016.
2 The second and fourth respondents have applied for an order for costs. No application has been made by the first or third respondent, both of whom gave notice at the outset of the appeal that they did not intend to take part in the appeal and would abide by the decision of the court.
3 The second and fourth respondents did, however, initially take an active part in the appeal. By their solicitors, they filed a notice of intention and, on 20 August 2015, following the filing of the appellant's case, they filed their answer which contained detailed written submissions in answer to the appellant's case.
4 In January 2016, however, those solicitors were granted leave to cease to be the solicitors acting for the second and fourth respondents. No other solicitors were appointed for the hearing of the appeal and the second and fourth respondents did not appear at the hearing.
5 The appellant opposes an order for costs. It contends that any entitlement to costs has been waived or that the second and fourth respondents have otherwise elected not to pursue any entitlement to costs. The appellant relies upon a letter, dated 1 February 2016, from the second, third and fourth respondents to the court and the absence of their appearance on the hearing of the appeal and the delivery of judgment.
6 In the letter, the second, third and fourth respondents said, relevantly:
3. By the orders of Newnes JA, the solicitors for the Respondents were given leave to cease acting in relation to these proceedings on 15 January 2016.
4. The Respondents are not currently in a position to instruct new solicitors in this matter and accordingly, I respectfully request that the application made by [the appellant] be heard on 9 February 2016 without the requirement for the Respondents to attend.
5. I confirm that the Respondents will abide by the decision of the Court in determining the application.
7 The appellant says that par 5 of the letter was unequivocal as to the intention of the second and fourth respondents to have no further role in the proceedings and the letter contained no reservation as to costs. Their intention to have no further role in the proceedings was confirmed by their non-appearance at the hearing of the appeal and upon the delivery of judgment. They cannot now seek an order for costs.
8 The general rule, embodied in O 66 r 1 of the Rules of the Supreme Court 1971 (WA), is that the successful party is entitled to an order for costs. The second and fourth respondents were successful: the appeal was dismissed. There is no reason they should not be entitled to an order for the costs they properly and reasonably incurred up to the point at which they ceased to take an active part in the appeal proceedings; that is, the costs of the notice of intention and of their answer. Nothing contained in the letter of 1 February 2016 or their subsequent non-participation in the appeal could be construed as a waiver of, or an election not to pursue, those costs.
9 There will be an order that the appellant pay the second and fourth respondents' costs of:
(a) the notice of intention; and
(b) the second and fourth respondents' answer;
to be taxed.
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