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
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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, 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.

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.

Forrest & Forrest Pty Ltd v Wilson

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

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