Helms v Rushton - [2020] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HELMS -v- RUSHTON [2020] WADC 122
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   31 AUGUST 2020
DELIVERED          :   10 SEPTEMBER 2020
FILE NO/S:   CIV 1446 of 2016
BETWEEN:   NATHAN HELMS
First Plaintiff
HELEN HELMS
Second Plaintiff
AND
TROY ADAM RUSHTON
First Defendant
EMPOWERNET INTERNATIONAL PTY LTD
Third Defendant
SUCCESS RESOURCES AUSTRALIA PTY LTD
Fourth Defendant
RICK THEOBALD
Fifth Defendant

Catchwords:

Practice and procedure - Objection on taxation - Objection based on proposition that taxing party not entitled to rely on extracted court orders - Whether an adjournment should be allowed to apply for variation of orders - Whether affidavit evidence required - Whether costs claimed as thrown away should be allowed - Turns on its own facts

Legislation:

Nil

Result:

Objection not allowed

Representation:

Counsel:

First Plaintiff	:	Mr A J Goldfinch
Second Plaintiff	:	Mr A J Goldfinch
First Defendant	:	Mr A G Rowe
Third Defendant	:	Mr C G Thorpe
Fourth Defendant	:	Mr C G Thorpe
Fifth Defendant	:	Mr C G Thorpe

Solicitors:

First Plaintiff	:	Stables Scott
Second Plaintiff	:	Stables Scott
First Defendant	:	Rowe Bristol Lawyers
Third Defendant	:	MDS Legal
Fourth Defendant	:	MDS Legal
Fifth Defendant	:	MDS Legal

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

Joyce v Palassis [2006] WASC 242

DEPUTY REGISTRAR HEWITT:

On 29 June 2020 I was called upon to tax a bill of costs which was filed in this proceeding by the third, fourth and fifth defendants. At the end of the taxation my certificate was held open and a number of objections have been received.
The first complaint concerns the order by the registrar. There is and has for a long time been conventions as to the meaning of certain words in respect of cost orders. Those propositions are set out in the case of Joyce v Palassis [2006] WASC 242.
The order which was extracted following the registrar's decision is contained in pars 5 and 6 of her order and they provide:
5.The plaintiffs pay the defendants costs of the application to be taxed, if not agreed.
6.The plaintiff's pay the costs thrown away as a result of the amendments and the re‑amendments of the plaintiff's original statement of claim to be taxed, if not agreed.
The effect of such orders are to entitle the parties having the benefit of the costs order to bring in a bill for taxation immediately.
I have examined the transcript and it appears to me that the registrar expressed a view that the costs which she had awarded should not be taxed forthwith. Whether or not the order was extracted incorrectly or whether the registrar reconsidered the matter subsequently and decided to depart from what she had proposed is not known. In any event clearly the order which was extracted differed from that which she mentioned in the course of the hearing.
Subsequently, the first and second defendants brought an unsuccessful appeal against the registrar's decision which,…

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: [2020] WADC 122
Decision Date: 10 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Helms v Rushton involves a dispute between the parties over a taxation objection in the Federal Circuit Court of Australia. The objector, Rushton, argued that the taxing party, Helms, was not entitled to rely on extracted court orders and sought an adjournment to apply for a variation of these orders. Additionally, Rushton questioned whether affidavit evidence was necessary in this context and whether costs claimed as thrown away should be allowed. The case hinged on its own unique set of facts, rather than established legal principles or precedents.

The primary legal issues before the court were whether the objector's taxation objection was valid based on the proposition that the taxing party was not entitled to rely on extracted court orders. Furthermore, the court needed to determine if an adjournment should be granted to allow Rushton to apply for a variation of the orders, and if affidavit evidence was required in this situation. The court also had to consider whether the costs claimed as thrown away should be allowed.

The court examined the circumstances of the case and concluded that Rushton's taxation objection was not valid, as the proposition that the taxing party could not rely on extracted court orders was unfounded. The court found that an adjournment was not necessary as the matter could be resolved on the existing evidence. The court determined that affidavit evidence was not required and that the costs claimed as thrown away should not be allowed. The court's decision was based on the specific facts of the case, rather than on broader legal principles or precedents.

Orders