Ives v WA Police Service [No 2]
[2011] WASC 149
•2 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- WA POLICE SERVICE [No 2] [2011] WASC 149
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 2 JUNE 2011
FILE NO/S: CIV 2382 of 2009
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
WA POLICE SERVICE
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
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 dated 16 December 2009 to strike out statement of claim
By chamber summons dated and filed on 16 December 2009, the defendant applied to strike out the statement of claim on the grounds that it reveals no reasonable cause of action, is scandalous, frivolous or vexatious and may prejudice, embarrass or delay the fair trial of the action and that the action be dismissed.
The application came on for hearing on 28 January 2010. On that date I ordered that the statement of claim be struck out on the ground it may prejudice, embarrass or delay the fair trial of the action and granted the plaintiff leave to file and serve a minute of proposed amended statement of claim on or before 1 March 2010. I ordered the plaintiff to pay the defendant's costs of the application. There was a further appearance before the court on 4 March 2010. However, that should properly be regarded as a general directions hearing and the costs of that appearance should not form part of the costs of the summons of 16 December 2009. There was a further hearing on 1 April 2010. Again, the costs of that appearance should not be regarded as part of the costs of the summons of 16 December 2009.
In accordance with the general rule set out in Practice Direction 4.7.1 the costs should be fixed and payable forthwith. A reasonable allowance is $1,782, being the amount allowed for under Item 2.9 of the Schedule attached to Practice Direction 4.7 plus $352 in accordance with Item 2.7. That is a total of $2,134.
Defendant's chamber summons dated 12 March 2010 to dismiss the action
By chamber summons dated and filed on 12 March 2010 the defendant applied for an order that the action be dismissed on the grounds that the plaintiff failed to comply with the order of the court made on 28 January 2010 that he serve a proposed amended statement of claim on the defendant by 1 March 2010. The summons came on for hearing on 1 April 2010. I then ordered that the action be dismissed and judgment be entered for the defendant with costs unless on or before 4 May 2010 the plaintiff filed and served a minute of proposed amended statement of claim. I ordered that the plaintiff pay the costs of the application.
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 to apply the general rule. I will fix the costs and order them to be paid forthwith.
The defendant seeks costs in the sum of $1,500 plus disbursements of $270 for filing fees. Having regard to Item 2.9 in the Schedule attached to Practice Direction 4.7.1 that is a reasonable amount and I so order.
Plaintiff's summons dated 3 May 2010 to extend time to serve statement of claim
By a chamber summons dated and filed on 3 May 2010 the plaintiff sought an order that the springing order against the plaintiff requiring the plaintiff to file and serve a statement of claim by 4 May 2010 be extended by 12 calendar days. On 4 May 2010 I ordered that the time for the plaintiff to file and serve a minute of proposed amended statement of claim be extended to 17 May 2010. I ordered that the plaintiff pay the defendant's costs of the plaintiff's application to extend the time.
This is an appropriate case to apply the general rule referred to in Practice Direction 4.7.1 that 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. The defendant seeks costs in the sum of $750. That is a reasonable sum and I will so order.
Defendant's chamber summons dated 26 July 2010 to dismiss the action
By a chamber summons of 26 July 2010 the defendant sought orders that leave for the plaintiff to amend the statement of claim in accordance with a minute of proposed changes to the plaintiff's statement of claim dated 19 July 2010 be denied and that the action be dismissed.
I delivered reasons for decision on 1 December 2010. I ordered that the defendant's application be dismissed. However, for the reasons set out I ordered that the plaintiff pay the defendant's costs of its application that the action be dismissed.
This is an appropriate case to apply the general rule referred to in Practice Direction 4.7.1 that where an order for costs is to be made against a party in interlocutory proceedings the costs should be fixed and ordered to be paid forthwith or by a particular date. The defendant seeks costs in the sum of $1,500 together with disbursements of $270 for a filing fee. That is a reasonable sum and I will order that the costs be fixed in the sum of $1,770 and be paid forthwith.
Orders made on courts own motion dated 15 September 2009
A number of directions hearings have taken place pursuant to the court's own motion dated 15 September 2009. On many of those occasions I ordered that costs be in the cause or that there be no order as to costs. In respect of the hearing on 25 May 2010 I have already fixed the costs. It is not appropriate to fix the costs or make any further order in relation to the costs of the further hearings.
Orders
The defendant should bring in a minute of proposed orders to give effect to these reasons.
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