Ives v The State of Western Australia [No 4]

[2011] WASC 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   IVES -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2011] WASC 148

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   2 JUNE 2011

FILE NO/S:   CIV 1069 of 2010

BETWEEN:   BENJAMIN WILLIAM IVES

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Costs - Interlocutory applications

Legislation:

Nil

Result:

Orders given

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     In person

Defendant:     State Solicitor for Western Australia

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

Nil

1. LE MIERE J:  The defendant has applied for orders that the plaintiff pay the defendant's costs of various applications.  I will deal with each in turn.

Defendant's chamber summons filed 15 April 2010 to strike out statement of claim

1. The defendant applied for orders that the plaintiff's statement of claim be struck out on the grounds that it reveals no reasonable cause of action, is scandalous, frivolous and vexatious and may prejudice, embarrass or delay the fair trial of the action and that the action be dismissed.  I delivered written reasons for judgment on 3 September 2010.  I found that the statement of claim disclosed no reasonable cause of action.  However, on 5 July 2010, that is after the hearing of the defendant's application that the statement of claim be struck out and the action dismissed but before publication of my reasons, the plaintiff filed an amended statement of claim dated 5 July 2010.  I found that the plaintiff's statement of claim was amended in accordance with his amended statement of claim of 5 July 2010 and thereafter the plaintiff's statement of claim of 7 April 2010 ceased to have any effect.  In those circumstances I did not make any order striking out the statement of claim.  However, the defendant was substantially successful in its application.  The general rule is that costs should follow the event.  The plaintiff should pay the defendant's costs of the application.

2. Practice Direction 4.7.1 [3] provides that as a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date.  This is an appropriate case for applying the general rule.  Paragraph 8 of the Practice Direction provides that judicial officers can be expected, in the usual run of routine matters, to fix the costs payable by reference to the Schedule attached to the Practice Direction.  This is an appropriate case for following that course.  The costs which should be ordered in accordance with the Schedule are as follows:

Item No	Item Description	Allowance
2.1	Chamber summons and O 59 r 9 memorandum	$396
2.7	Appearance in judge's chambers (brief)	$352

2.2	Affidavit in support	$297
2.4	Special appointment (preparing and lodging submissions and authorities, preparation, attending on hearing, reporting)	$1,782
2.8	Appearance before judge in the CMC List (3 September 2010)	$440
Total	$3,267

Defendant's chamber summons dated 30 July 2010 and filed 2 August 2010 to strike out the amended statement of claim dated 5 July 2010

1. The defendant applied to strike out the plaintiff's amended statement of claim dated 5 July 2010 on the grounds that it reveals no reasonable cause of action, is scandalous, frivolous and vexatious and may prejudice or delay the fair trial of the action and that the action be dismissed.  Before the application was determined the plaintiff applied, on 2 September 2010, to amend his statement of claim in accordance with a document dated 2 September 2010 and entitled 'Minute of Proposed Changes to the Plaintiff's Statement of Claim'.  However, before that application was determined the plaintiff forwarded to the court and the defendant a further proposed amended statement of claim dated 17 September 2010 and entitled 'Minutes of Proposed Changes to the Plaintiff's Statement of Claim'.  I dealt with the defendant's application and the plaintiff's applications together.  On 1 December 2010 I delivered reasons for judgment in which I determined that the plaintiff should have leave to file a statement of claim substantially in the terms set out in the judgment.  I further determined that the plaintiff should pay the defendant's costs of the plaintiff's application to amend his statement of claim.  The plaintiff should also pay the defendant's costs of its application to strike out the amended statement of claim dated 5 July 2010.

2. This is an appropriate case to fix the costs and order that they be paid forthwith in accordance with the Practice Direction.  The appropriate costs are:

Item No	Item Description	Allowance
2.1	Chamber summons and O 59 r 9 memorandum	$396
2.7	Appearance in judge's chambers (brief) 6 August 2010	$352
2.4	Special appointment (preparing and lodging submissions and authorities, preparation, attending on hearing, reporting)	$1,782
2.7	Appearance in judge's chambers (brief) 1 December 2010	$352
Total	$2,882

Plaintiff's summons filed 14 May 2010

1. The plaintiff applied for various orders including orders that the defendant provide certain information and comply with a discovery request.  The matter was the subject of brief hearings and eventually was not proceeded with by the plaintiff.  The plaintiff should pay the costs.  In accordance with the general rule, the costs should be fixed and payable forthwith.  The defendant seeks costs of $1,000.  Having regard to the Schedule attached to the Practice Direction, that is a reasonable amount.

Plaintiff's application dated 2 September 2010 to amend statement of claim

1. This application was dealt with together with the defendant's summons dated 30 July 2010 and filed on 2 August 2010 to strike out the amended statement of claim dated 5 July 2010.  I have already dealt with the costs of that application.  It is not appropriate that there be any further order for costs.

Plaintiff's summons dated 26 July 2010 to amend statement of claim

1. This application was dealt with together with the defendant's chamber summons filed 15 April 2010 to strike out the statement of claim.  It is not appropriate to make any separate order for costs in relation to that matter.

Plaintiff's summons filed 7 July 2010 to amend statement of claim

1. This summons was dismissed on 6 August 2010.  The plaintiff should pay the defendant's costs of the summons.  In accordance with the general rule, the costs should be fixed and payable forthwith.  There was only one appearance in court on this matter, on 6 August 2010 when the summons was dismissed.  The costs should be fixed in the sum of $440 in accordance with Item 2.8 of the Schedule attached to the Practice Direction.

Plaintiff's summons 6 August 2010 to dismiss the defendant's summons filed 2 August 2010

1. This summons came on for hearing on 6 August 2010.  It was dismissed after argument.  The plaintiff should pay the defendant's costs.  In accordance with the general rule the costs should be fixed and payable forthwith.  The appropriate amount is $440 in accordance with Item 2.8 in the Schedule attached to the Practice Direction.

Orders

1. The defendant should bring in a minute of proposed orders to give effect to these reasons.