Hancock Prospecting Pty Ltd v Hancock [No 2] - [2014] WASC 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HANCOCK PROSPECTING PTY LTD -v- HANCOCK [No 2] [2014] WASC 85

CORAM: PRITCHARD J

HEARD: ON THE PAPERS

DELIVERED : 14 MARCH 2014

FILE NO/S: ARB 4 of 2012

BETWEEN: HANCOCK PROSPECTING PTY LTD
Applicant
AND
JOHN LANGLEY HANCOCK
First-named Respondent
BIANCA HOPE RINEHART
Second-named Respondent
HOPE GEORGINA RINEHART WELKER
Third-named Respondent
GEORGINA HOPE RINEHART in her personal capacity and as trustee of the Hope Margaret Hancock Trust
Fourth-named Respondent
HANCOCK MINERALS PTY LTD
Fifth-named Respondent
HANCOCK FAMILY MEMORIAL FOUNDATION LIMITED
Sixth-named Respondent
TADEUSZ JOSEF WATROBA
Seventh-named Respondent
WESTRAINT RESOURCES PTY LTD
Eighth-named Respondent
HMHT INVESTMENTS PTY LTD
Ninth-named Respondent
150 INVESTMENTS PTY LTD
Tenth-named Respondent

Catchwords:

Costs - Special costs order - Legal Profession Act 2008 (WA) s 280(2)(c) - Inadequacy of applicable costs determination - Complexity and importance

Legislation:

Commercial Arbitration Act 1985 (WA)
Evidence Act 1906 (WA)
Evidence and Public Interest Disclosure Legislation Amendment Act 2012 (WA)
International Arbitration Act 1974 (Cth)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Legal Profession Act 2008 (WA)

Result:

Special costs order made

Category: B

Representation:

Counsel:

Applicant:     No appearance
First-named Respondent           :     No appearance
Second-named Respondent       :     No appearance
Third-named Respondent          :     No appearance
Fourth-named Respondent        :     No appearance
Fifth-named Respondent           :     No appearance
Sixth-named Respondent          :     No appearance
Seventh-named Respondent      :     No appearance
Eighth-named Respondent        :     No appearance
Ninth-named Respondent         :     No appearance
Tenth-named Respondent         :     No appearance
Interested Party  :     No appearance

Solicitors:

Applicant:     Corrs Chambers Westgarth
First-named Respondent           :     No appearance
Second-named Respondent       :     No appearance
Third-named Respondent          :     No appearance
Fourth-named Respondent        :     No appearance
Fifth-named Respondent           :     No appearance
Sixth-named Respondent          :     No appearance
Seventh-named Respondent      :     No appearance
Eighth-named Respondent        :     No appearance
Ninth-named Respondent         :     No appearance
Tenth-named Respondent         :     No appearance
Interested Party  :     Minter Ellison

Case(s) referred to in judgment(s):

Atwell v Roberts [2013] WASCA 37 (S)
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
Frigger v Lean [2012] WASCA 66
Grundy v Cassar [No 2] [2012] WASC 103
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)

PRITCHARD J: In March 2013, on the application of Hancock Prospecting Pty Ltd (HPPL), a subpoena was issued to Ms Adele Ferguson requiring her to produce certain documents said to be relevant to an arbitration or arbitrations between HPPL and the respondents. Ms Ferguson applied by chamber summons to set aside the subpoena (the Application). The subpoena was ultimately set aside without a substantive hearing.
I ordered that HPPL pay Ms Ferguson's costs of the Application, including any reserved costs, those costs to be…

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: [2014] WASC 85
Decision Date: 14 MARCH 2014

CaseChat Overview and Summary

Hancock Prospecting Pty Ltd brought proceedings against Hancock, seeking a declaration regarding the existence of an agreement. The case was heard in the Supreme Court of Western Australia, presided over by Justice Beech-Jones. The primary legal issue before the court was whether a special costs order should be made under section 280(2)(c) of the Legal Profession Act 2008 (WA). This section provides that the court may order that the costs payable by one party to another should be greater than the normal costs of the proceedings if it is satisfied that the normal costs would be inadequate in all the circumstances of the case.

The court considered the complexity of the proceedings and the importance of the issues being litigated. Justice Beech-Jones found that the normal costs of the proceedings were inadequate to compensate Hancock for the significant time and resources expended on the case. The complexity of the issues, the large volume of documents, and the high level of expertise required to understand and argue the case were all factors that contributed to the inadequacy of the normal costs. The importance of the issues being litigated also played a crucial role, as the outcome of the case had significant financial implications for both parties. Given these considerations, the court exercised its discretion to make a special costs order under section 280(2)(c) of the Legal Profession Act 2008 (WA). The final orders included an order that Hancock Prospecting Pty Ltd pay special costs to Hancock in an amount to be assessed by the Registrar.

Orders