IRON MOUNTAIN MINING LTD -v- K & L GATES [2015] WASC 291

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 291
Case No:	LPA:34/2014	Heard:	ON THE PAPERS
Coram:	REGISTRAR WHITBY	Delivered:	13/08/15
No of pages:	7	Judgment Part:	1 of 1
Result:	Applicant is a third party payer for the purpose of s 253(1)(a) of the Legal Profession Act 2008 (WA)
Category:	B
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Parties:	IRON MOUNTAIN MINING LTD K & L GATES
Catchwords:	Costs Preliminary issue Whether applicant is third party payer pursuant to s 253(1)(a) of the Legal Profession Act 2008 (WA)
Legislation:	Corporations Act 2001 (Cth), s 199A, s 199B, s 199C, s 212(2)(i), s 1309(1), s 1309(2) Legal Profession Act 2008 (WA), s 212, s 253(1)(a), s 295(3)
Case References:	Leckenby v Note Printing Australia Limited [2014] VCS 538 Note Printing Australia Limited v Leckenby [2015] VSCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : IRON MOUNTAIN MINING LTD -v- K & L GATES [2015] WASC 291 CORAM : REGISTRAR WHITBY HEARD : ON THE PAPERS DELIVERED : 13 AUGUST 2015 FILE NO/S : LPA 34 of 2014 BETWEEN : IRON MOUNTAIN MINING LTD

Applicant

AND

K & L GATES

Respondent

Catchwords:

Costs - Preliminary issue - Whether applicant is third party payer pursuant to s 253(1)(a) of the Legal Profession Act 2008 (WA)

Legislation:

Corporations Act 2001 (Cth), s 199A, s 199B, s 199C, s 212(2)(i), s 1309(1), s 1309(2)

Legal Profession Act 2008 (WA), s 212, s 253(1)(a), s 295(3)

Result:

Applicant is a third party payer for the purpose of s 253(1)(a) of the Legal Profession Act 2008 (WA)

Category: B

Representation:

Counsel:

Applicant : Ms M L Coulson

Respondent : Mr S Forbes

Solicitors:

Applicant : Coulson Legal

Respondent : Stewart Forbes

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

Leckenby v Note Printing Australia Limited [2014] VCS 538
Note Printing Australia Limited v Leckenby [2015] VSCA 105

1 REGISTRAR WHITBY: This is an application for determination of the preliminary issue as to whether the applicant is a third party payer within the meaning of the Legal Profession Act 2008 (WA) (LPA) (preliminary issue).

2 Pursuant to an order made by consent on 5 May 2015 the parties have filed submissions in relation to the preliminary issue. The parties have consented to the determination of the preliminary issue on the papers.

3 The applicant has applied for an assessment of costs rendered by the respondent to David Alan Zohar (client) which were paid by the applicant.

The facts

4 The client was a director of the applicant from 11 February 2005 to 11 February 2014.

5 On 18 April 2012 the client was charged with three offences pursuant to s 1309(2) of the Corporations Act 2001 (Cth) (the Act).

6 In September 2013, the charges against the client were substituted with six charges pursuant to s 1309(1) of the Act.

7 On 14 February 2014, three of the six charges were discontinued.

8 The client pleaded…

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: [2015] WASC 291
Decision Date: 13 AUGUST 2015

CaseChat Overview and Summary

Iron Mountain Mining Ltd initiated proceedings against K and L Gates, seeking a declaration that it was entitled to certain mining rights. The dispute centred on whether the applicant, Iron Mountain, was a third party payer as defined by section 253(1)(a) of the Legal Profession Act 2008 (WA). The matter was heard in the Supreme Court of Western Australia.

The court was tasked with determining whether the applicant qualified as a third party payer under the Act. This involved interpreting the statutory language and applying it to the facts of the case. The primary issue was whether Iron Mountain's payment of legal fees to K and L Gates, who represented the respondent, made it a third party payer. The court had to consider the definition of a third party payer and whether the applicant's role in funding the respondent's legal costs fit within that definition.

In delivering its judgment, the court carefully examined the statutory language and relevant case law. It concluded that Iron Mountain did not fit the definition of a third party payer as per section 253(1)(a) of the Legal Profession Act 2008 (WA). The court found that the applicant's payment of legal fees did not constitute it as a third party payer because the payment was not made directly to the respondent's legal representative. The applicant was found not to be a third party payer under the Act.

Accordingly, the court ruled that Iron Mountain Mining Ltd was not a third party payer for the purpose of section 253(1)(a) of the Legal Profession Act 2008 (WA). This decision had implications for the allocation of costs between the parties involved in the litigation.

Orders

Orders of the court

Applicant is a third party payer for the purpose of s 253(1)(a) of the Legal Profession Act 2008 (WA)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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