FORREST & FORREST PTY LTD -v- WILSON [2016] WASCA 116 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 116 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:96/2015	Heard:	ON THE PAPERS
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	2/09/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant to pay respondents' costs of notice of intention and answer
Category:	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

HEARD : ON THE PAPERS DELIVERED : 2 SEPTEMBER 2016 FILE NO/S : CACV 96 of 2015 BETWEEN : FORREST & FORREST PTY LTD

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,…

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.

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Details

Case: [2016] WASCA 116 (S)
Decision Date: 2 SEPTEMBER 2016

CaseChat Overview and Summary

The parties to the appeal were Forrest & Forrest Pty Ltd, the appellant, and Wilson, the respondent. The dispute arose from an initial proceeding in which the respondent filed an answer in response to the appellant's originating process. The appellant then appealed to the court, however, the respondent did not appear on the hearing of the appeal. The central issue before the court was whether the respondent was entitled to the costs of the notice of intention to appeal and the answer, given that they did not appear on the hearing of the appeal.

The court considered whether the respondent was entitled to costs in light of their failure to appear on the hearing of the appeal. It was noted that, generally, the court has discretion to order costs in favour of a party who has not appeared on the hearing of an appeal. However, the court must also consider the particular circumstances of the case in exercising this discretion. The court found that, in this instance, the respondent had filed an answer and a notice of intention to appeal, and had thus taken steps to participate in the proceedings. The court held that the respondent was therefore entitled to the costs of the notice of intention to appeal and the answer, as they had taken action to participate in the proceedings despite their failure to appear on the hearing of the appeal.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the notice of intention to appeal and the answer. The court found that the respondent had taken steps to participate in the proceedings by filing an answer and a notice of intention to appeal, and that the appellant had not demonstrated any special circumstances that would warrant a deviation from the usual rule regarding costs. The court held that the respondent was therefore entitled to the costs of the notice of intention to appeal and the answer, and ordered the appellant to pay these costs.

Orders

Orders of the court

Appellant to pay respondents' costs of notice of intention and answer

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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