Golden Pig Enterprises Pty Ltd v O'Sullivan
[2021] WASC 396 (S)
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GOLDEN PIG ENTERPRISES PTY LTD -v- O'SULLIVAN [2021] WASC 396 (S)
CORAM: ALLANSON J
HEARD: 17 NOVEMBER 2021
DELIVERED : 26 NOVEMBER 2021
FILE NO/S: CIV 1318 of 2021
BETWEEN: GOLDEN PIG ENTERPRISES PTY LTD
Applicant
AND
JOHN FRANCIS O'SULLIVAN
Respondent
PETER JOHN CROCKER
First Other Party
GERARD VICTOR BREWER
Second Other Party
STEVEN LIONEL KEAN
Third Other Party
Catchwords:
Practice and procedure - costs - whether applicant should bear the costs of the separate representation of the other parties - turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Category: B
Representation:
Counsel:
| Applicant | : | D Banda |
| Respondent | : | No Appearance |
| First Other Party | : | D Chandler |
| Second Other Party | : | D Chandler |
| Third Other Party | : | C McKenzie |
Solicitors:
| Applicant | : | Bennett + Co |
| Respondent | : | State Solicitor's Office |
| First Other Party | : | Lawton Macmaster Legal |
| Second Other Party | : | Lawton Macmaster Legal |
| Third Other Party | : | McKenzie & McKenzie |
Case(s) referred to in decision(s):
HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79
In re Lyell [1941] VLR 207
Kidd v The State of Western Australia [2014] WASC 99
Kidd v The State of Western Australia [2016] WASCA 62
South Sydney District Rugby League Football Club Ltd v News Ltd [2001] FCA 384
Statham v Shephard (No 2) (1974) 23 FLR 244
Taylor v Owners — Strata Plan No 11564 (No 2) [2013] NSWCA 153
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] QSC 84
Treasury Wines Estates Limited v Maurice Blackburn Pty Ltd (No 2) [2021] FCAFC 38
ALLANSON J:
Introduction
At the delivery of judgment counsel for Golden Pig, the unsuccessful applicant, submitted, in effect, that the other parties could reasonably have shared legal representation and that Golden Pig should not be required to pay two sets of costs. Surprisingly, the other parties did not agree with that position and argued that they should each be entitled to their costs of the application.
The principles
Order 56 r 7 of the Rules of the Supreme Court 1971 (WA) sets out those persons against whom an order for costs may be made on an application for judicial review. Order 56 does not limit the principles to be applied in an application for costs.
Order 66 div 1 sets out general rules as to costs. Golden Pig does not dispute that costs should be awarded against it. Order 66 r 2 provides rules, in the absence of any special order, for specified circumstances, including:
(d) where several defendants defend an action separately and it appears that the defendants or any of them might have joined in their defence, the Court may allow only one set of costs to those defendants as to whom it appears a joint defence might have been conducted and separate costs to any other or others who in the opinion of the Court were properly separately represented.
The principle in O 66 r 2(d) - and equivalent rules in other jurisdictions - has been considered on many occasions. The other parties referred me to the decision of Beech J in Kidd v The State of Western Australia,[1] where his Honour referred to the frequently cited judgment of Woodward J in Statham v Shephard (No 2):
[T]he Court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. I would add to this basic proposition three provisos. In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary enquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. (See In re Lyell [1941] VLR 207).
Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation.
Thirdly, even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time.[2]
[1] Kidd v The State of Western Australia [2014] WASC 99, upheld in Kidd v The State of Western Australia [2016] WASCA 62 (S).
[2] Statham v Shephard (No 2) (1974) 23 FLR 244, 246 - 247. See, for example, South Sydney District Rugby League Football Club Ltd v News Ltd [2001] FCA 384; The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] QSC 84; [2009] Qd R 356; Taylor v Owners — Strata Plan No 11564 (No 2) [2013] NSWCA 153; HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79; Treasury Wines Estates Limited v Maurice Blackburn Pty Ltd (No 2) [2021] FCAFC 38.
In HP Mercantile Pty Ltd v Hartnett, the court observed:
The starting point is that it is common ground that there was no possibility of conflict on the questions of construction which were the only issues raised on appeal. It was possible and therefore ordinarily appropriate that all respondents be represented by the same legal practitioners. Another way of putting this is that the starting point is that it is reasonable for the unsuccessful appellant to bear only a single set of costs where the issues raised amongst the respondents to the unsuccessful appeal give rise to no possibility of conflict and can therefore be addressed by a single set of legal practitioners.
Thus, the ultimate question is not (as the respondents submit) whether they have acted reasonably, nor whether there has shown to be duplication. The question is whether it is reasonable for the unsuccessful litigant to bear more than one set of costs. This is the point made in the final sentence in the passage from [Taylor v Owners - Strata Plan No 11564 (No 2)]reproduced above. That in turn reflects the fact that ultimately, as Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: ‘underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.’[3]
[3] HP Mercantile Pty Ltd v Hartnett [13] - [14]. The sentence from Taylor v Owners - Strata Plan No 11564 (No 2) to which their Honours referred was: 'It might be added that, even if they did not duplicate costs, they would not necessarily obtain separate costs orders if the expense incurred was not one which should reasonably have been borne by the plaintiff'.
The proceedings
The proceedings were commenced by an application under O 56, filed 21 April 2021.
Order 56 r 3 provides that an applicant for judicial review must serve it by personal service on the decision maker (in this case the warden), and on any person who was a party to the proceedings in which the challenged decision was made. The other parties were objectors and parties to the proceedings before the warden. Pursuant to O 56 r 3, the application was required to be served on them.
A person served with the application may enter an appearance, or file and serve a notice that they do not intend to take part in the proceedings and will accept any order made by the court, other than as to costs.[4]
[4] O 56 r 4.
The other parties entered appearances. The warden also entered an appearance but filed a notice of his intention to abide the decision of the court.
The first and second other parties were represented by one counsel and firm of solicitors. The third other party was separately represented.
On 19 August 2021, by consent, I made orders for Golden Pig to give security for costs. The terms of that order do not assist with the issue now under consideration.
The first and second other parties filed one affidavit, confined to putting into evidence the transcript of proceedings before the warden.
The other parties filed separate written submissions and each appeared by counsel. In oral submissions at the hearing of the application, there was limited duplication. Counsel for the third other party largely adopted what had been said by counsel for the first and second other parties.
The application for judicial review raised two issues - whether Golden Pig's application did not comply with s 58 of the Mining Act 1978 (WA), and the relief available should the court find error. The interest of all other parties was confined to whether the warden had committed jurisdictional error or had otherwise erred in a manner that would attract relief. The issues raised give rise to no possibility of conflict between the other parties in these proceedings.
The other parties had been objectors in the proceedings before the warden. They are not, however, competing applicants in the sense of each applying for tenements in relation to the same land. There is no evidence of any ongoing relationship between them.
The question is not whether the other parties were properly joined as parties - Golden Pig was required to serve them under the rules. Nor is the question whether they were entitled to the representation of their choice, or whether they have acted reasonably. The question is whether the costs of their separate representation should reasonably be borne by the unsuccessful litigant and for the unsuccessful litigant to bear more than one set of costs.
I am satisfied that there was no possibility of conflict on the questions of construction which lay behind Golden Pig's allegation of jurisdictional error. The only other issue in the application was the availability of prerogative or declaratory relief.
Nothing before the court discloses any relationship between the other parties, or any other reason why they should remain at arms‑length in their response in these proceedings.
In my opinion the proper exercise of the court's discretion is to order the applicant to pay a single set of costs.
The form of the order, in the authorities to which I have had regard, is that the applicant is to pay the costs of the other parties as agreed or as assessed on the basis that the other parties are to be treated as having been represented by the same counsel and the same solicitors, with the intent that the other parties be allowed a single set of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
26 NOVEMBER 2021
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