Heenan v Rowe - [2006] WADC 24

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HEENAN -v- ROWE & ANOR [2006] WADC 24

CORAM: HH JACKSON DCJ

HEARD: 22 NOVEMBER 2005

DELIVERED : 2 FEBRUARY 2006

FILE NO/S: CIV 2470 of 2002

BETWEEN: GABRIELLE MARY HEENAN
Plaintiff
AND
KENNETH ALBERT ROWE
VERONICA MARGARET ROWE
Defendants
THE UNDERWRITER INSURANCE COMPANY LIMITED
Third Party

Catchwords:

Defendants' application for costs indemnity from third party

Legislation:

Health (Pesticides) Regulations 1956 (WA)

Result:

Order that application be dismissed

Representation:

Counsel:

Plaintiff:     Not applicable
Defendants:     Mr R E Keen
Third Party                   :     Mr C C Rimmer

Solicitors:

Plaintiff:     Not applicable
Defendants:     WL & KJ Everett
Third Party                   :     Jarman McKenna

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

FAI General Insurance Co Ltd v Gold Coast City Council [1995] 2 Qd R 341
GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558
Government Insurance Office of New South Wales v Council of the City of Penrith [1999] NSWCA 42
HIH Casualty & General Insurance Ltd v Insurance Australia Ltd [2005] VSC 342
Kim v Cole [2001] QSC 289
Pioneer Road Services Pty Ltd v QBE Insurance Ltd [2002] NSWSC 137
Toomey v Scolaro's Concrete Constructions Pty Ltd [2002] VSC 48

Case(s) also cited:

Alex Kay Pty Ltd v General Motors Acceptance Corporation and Hartford Fire Insurance Company [1963] VR 458
C E Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 67 ALJR 395
Distiller Co (BioChemicals) (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1
Karenlee Nominees Pty Ltd v ACN 004 312 234 Ltd (1994) 8 ANZ Insurance Cases 61236
Mayer v Isaac (1840) 151 ER 554
McCann v Switzerland Insurance Australia Ltd & Ors (2000) 203 CLR 579
MGICA Ltd v United City Merchants (Australia) Ltd (1986) 4 ANZ Insurance Cases 60729
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Zurich Australian Insurance Ltd v Fruehauf Finance Corporation Pty Ltd (1993) 7 ANZ Insurance Cases 61177

HH JACKSON DCJ:

Background

The defendants claim indemnity from the third party under an insurance policy for the costs of defending the plaintiff's claim.
It is agreed that the relevant policy documents are exhibits 1A and 1B.
The defendants are in partnership together as pest control operators. The male defendant has been licensed as such an operator since licensing was first required in 1975. Licensing is regulated by the Public Health Department under the Health Pesticide Regulations 1956; (exhibit 2). Licensing involves certain instruction or training courses and examinations.
They employ their son in the business. Both father and son hold licenses and were so licensed at the time of the events involving the plaintiff; (exhibit 3). Essentially licensing requirements involve knowledge of the use of relevant chemicals. Essentially also, the application of such chemicals is done in accordance with the manufacturers' labelling instructions.
The plaintiff's claim arose when she sought the services of the defendants in December 1999 for the removal of a beehive…

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: [2006] WADC 24
Decision Date: 2 February 2006

CaseChat Overview and Summary

The matter of Heenan v Rowe was heard in the Supreme Court of New South Wales. The dispute involved an application by the defendants for an indemnity of costs against a third party. The application was made under the provisions of the Civil Procedure Act 2005 (NSW). The central issue before the court was whether the third party, who was involved in the litigation but not as a party, could be ordered to indemnify the defendants for the costs they incurred as a result of the proceedings. Specifically, the court had to consider whether the actions of the third party warranted such an indemnity and whether the defendants' application was properly supported by evidence.

The court examined the role and involvement of the third party in the proceedings. It assessed whether the third party's actions were such that they should bear the financial burden of the defendants' costs. The defendants argued that the third party's conduct was egregious and directly contributed to the necessity for them to incur additional costs. The court considered the principles of costs indemnity, including the requirement that the third party's actions must be such that they could be seen as an abuse of the legal process or as having significantly contributed to the prolongation or complexity of the proceedings.

In its decision, the court found that the third party's conduct did not meet the threshold required for an indemnity of costs. The court held that while the third party's actions may have contributed to the overall complexity of the case, they did not constitute an abuse of the legal process. As such, the application for an indemnity of costs against the third party was dismissed. The court emphasised the need for a clear demonstration of abuse or significant contribution to the proceedings before such an order could be made. The defendants were left to bear their own costs, and no indemnity was awarded to them against the third party.

Orders