FRANK JASPER PTY LTD -v- GLEW [No 3] [2012] WASC 24 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 24 (S)
Case No:	CIV:2179/2007	Heard:	25 JANUARY 2012 FURTHER WRITTEN SUBMISSIONS 27 JANUARY, 16 FEBRUARY, 20 FEBRUARY 2012
Coram:	MARTIN CJ	Delivered:	25/01/12
Supplementary Delivered:	20/03/12
No of pages:	12	Judgment Part:	1 of 1
Result:	Defendants pay the plaintiff's costs except for those associated with the plaintiff's attempts to amend its statement of claim and correct its schedule of expenditure and interest
Category:	B
PDF Version

Parties:	FRANK JASPER PTY LTD WAYNE KENNETH GLEW GLEW TECHNOLOGIES PTY LTD
Catchwords:	Practice and procedure Costs Special costs order Whether matter of 'unusual difficulty' due to lack of cooperation by the defendants Lack of cooperation resulted in no meaningful opposition to plaintiff's claims, and not an 'unusual difficulty' Complexity of intellectual property claims meant it was appropriate to fix limits higher than those in costs determinations for discovery, getting up for trial and counsel fees Legal Profession Act 2008 (WA), s 280(2) Practice and procedure Indemnity costs Self-represented litigant Unreasonable and uncooperative defendants Lead to no meaningful opposition to the plaintiff's claims Manifestly excessive claim for costs Award of indemnity costs not appropriate
Legislation:	Legal Profession Act 2008 (WA), s 280(2)
Case References:	Frank Jasper Pty Ltd v Glew (No 2) [2010] WASC 24 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) Milne v Kendall [2010] WASC 338(S) Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (No 2) (1997) 18 WAR 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FRANK JASPER PTY LTD -v- GLEW [No 3] [2012] WASC 24 (S) CORAM : MARTIN CJ HEARD : 25 JANUARY 2012

FURTHER WRITTEN SUBMISSIONS 27 JANUARY, 16 FEBRUARY, 20 FEBRUARY 2012

DELIVERED : 25 JANUARY 2012 SUPPLEMENTARY
DECISION : 20 MARCH 2012 FILE NO/S : CIV 2179 of 2007 BETWEEN : FRANK JASPER PTY LTD

Plaintiff

AND

WAYNE KENNETH GLEW

First Defendant

GLEW TECHNOLOGIES PTY LTD

Second Defendant

Catchwords:

Practice and procedure - Costs - Special costs order - Whether matter of 'unusual difficulty' due to lack of cooperation by the defendants - Lack of cooperation resulted in no meaningful opposition to plaintiff's claims, and not an 'unusual difficulty' - Complexity of intellectual property claims meant it was appropriate to fix limits higher than those in costs determinations for discovery, getting up for trial and counsel fees - Legal Profession Act 2008 (WA), s 280(2)

(Page 2)

Practice and procedure - Indemnity costs - Self-represented litigant - Unreasonable and uncooperative defendants - Lead to no meaningful opposition to the plaintiff's claims - Manifestly excessive claim for costs - Award of indemnity costs not appropriate

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Result:

Defendants pay the plaintiff's costs except for those associated with the plaintiff's attempts to amend its statement of claim and correct its schedule of expenditure and interest

Category: B

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.

Keep reading for free

Create a free CaseChat account to read Frank Jasper Pty Ltd v Glew [No 3] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WASC 24 (S)
Decision Date: 25 JANUARY 2012

CaseChat Overview and Summary

Frank Jasper Pty Ltd sued Glew over alleged breaches of contract and intellectual property infringement. The case was heard in the Supreme Court of Western Australia. The dispute centred on whether the defendants' lack of cooperation and failure to meaningfully oppose the plaintiff's claims constituted an "unusual difficulty" warranting a special costs order under the Legal Profession Act 2008 (WA). Additionally, the court needed to determine if an indemnity costs order was appropriate for a self-represented plaintiff against unreasonable and uncooperative defendants.

The court held that the defendants' lack of cooperation did not amount to an "unusual difficulty" within the meaning of the statute. Instead, it found that the complexity of the intellectual property claims justified setting higher limits for costs than those stipulated in the standard determinations for discovery, getting up for trial, and counsel fees. The court further determined that the plaintiff's claim for indemnity costs was manifestly excessive and inappropriate, given the defendants' unreasonable and uncooperative conduct. The court did not award indemnity costs but ordered the defendants to pay the plaintiff's costs, excluding those related to the plaintiff's attempts to amend its statement of claim and correct its schedule of expenditure and interest.

The court's ruling emphasised the importance of cooperation in litigation and the need to balance the complexity of the case with the conduct of the parties. By refusing to grant indemnity costs, the court underscored that while defendants' uncooperative conduct was detrimental, it did not reach the level of "unusual difficulty" required for special costs. The final orders mandated the defendants to cover the plaintiff's costs, with specific exclusions noted for the plaintiff's efforts to amend and correct its claims and schedules.

Orders

Orders of the court

Defendants pay the plaintiff's costs except for those associated with the plaintiff's attempts to amend its statement of claim and correct its schedule of expenditure and interest

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

Full text does not contain this section.