Practice and procedure - Costs - Application for stay of taxation of bill of costs - Jurisdiction to order a stay
Practice and procedure - Costs - Indemnity principle - Successful party's liability to pay costs - Whether non-compliance with costs disclosure requirements under Legal Profession Act 2008 (WA) is relevant to a determination of liability for costs - Whether non-compliance with O 9A Rules of the Supreme Court 1971 (WA) is relevant to a determination of liability for costs - Turns on own facts
[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.
Continue reading Hancock Prospecting Pty Ltd v Hancock [No 3]
Hancock Prospecting Pty Ltd v Hancock [No 3] involved a legal dispute where Hancock Prospecting sought a stay of taxation of a bill of costs filed by the opposing party. The case was heard in the Supreme Court of Western Australia. The primary legal issues were whether the successful party was liable to pay the costs, and if non-compliance with certain legal provisions and costs disclosure requirements affected the liability for costs.
The court considered the indemnity principle in determining the liability for costs, which generally places the responsibility on the losing party. The court evaluated the relevance of non-compliance with the costs disclosure requirements under the Legal Profession Act 2008 (WA) and the Rules of the Supreme Court 1971 (WA) to the determination of liability. The court examined the case Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) to assess whether the absence of a retainer agreement between the party and their solicitors could absolve the party from paying the costs. The court concluded that in the absence of a retainer, the liability for costs could lie with another party, such as the union that had agreed to fund the legal costs.
The court ruled that the non-compliance with the costs disclosure requirements and the Rules of the Supreme Court did not affect the successful party's liability to pay costs. The court found that the successful party was indeed liable to pay the costs, despite the absence of a retainer agreement, as the union had agreed to fund the costs. The court denied the application for a stay of taxation of the bill of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The effect of the decision in Director of the Fair Work Building Industry Inspectorate v Abbott (No 7)[34] Marsh v Baxter (No 2) [2016] WASCA 51 [37] (the Court). HPPL placed considerable emphasis on the decision of Gilmour J in Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) (Abbott).[35] In Abbott, the Director of the Fair Work Building Industry Directorate had been ordered to pay the costs of the various respondents to that action, and subsequently sought a stay of the assessment of a bill of costs filed by one of the respondents, Mr Windus. The basis for the stay application was that no retainer existed between Mr Windus and each of two firms of solicitors which had acted for him in the action (Gibson & Gibson and Corser & Corser) so that Mr Windus was not liable to pay the legal fees those firms had incurred in acting on his behalf. Justice Gilmour held that Mr Windus was not liable to pay those fees, and consequently granted a stay of the assessment of the bill of costs.[35] Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) [2015] FCA 969. In so far as the fees charged by Gibson & Gibson were concerned, Gilmour J relied on a letter from Gibson & Gibson to Mr Windus' union, the AMWU (the letter of instructions) as evidence that Gibson & Gibson acted on the instructions of the AMWU, that the AMWU had agreed that it would fund the legal costs of each respondent to the action (including Mr Windus), that there was no evidence that Mr Windus had provided any letter of instructions to Gibson & Gibson, and that there was no evidence that he had authorised the AMWU to act on his behalf.[36] [36] Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) [2015] FCA 969 [43] ‑ [50], [55] (Gilmour J). Justice Gilmour concluded that the letter of instructions established that the liability to pay costs lay solely with the AMWU. That was so because the letter stated that if the AMWU decided not to continue to fund the legal costs, Gibson & Gibson may cease to act for each respondent, after providing that respondent with the opportunity to engage its services on terms in which that party would be responsible for his or her own legal costs.[37][37] Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) [2015] FCA 969 esp [58] ‑ [61] (Gilmour J). Justice Gilmour held that the conclusion that the AMWU was solely responsible for the costs charged by Gibson & Gibson was also supported by the evidence that all of that firm's invoices were sent to the AMWU (and some of those invoices referred to the AMWU as the 'client'), that Mr Windus himself acknowledged that the AMWU was responsible for paying his legal costs, and that Mr Windus had authorised the payment to the AMWU of any costs awarded to him because 'they were responsible for paying [his] legal costs'.[38] [38] Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) [2015] FCA 969 [62] ‑ [64] (Gilmour J).