James Point Pty Ltd v The Minister for Transport
[2015] WASC 323 (S)
•12 OCTOBER 2015
JAMES POINT PTY LTD -v- THE MINISTER FOR TRANSPORT [2015] WASC 323 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 323 (S) | |
| Case No: | CIV:2812/2011 | ON THE PAPERS | |
| Coram: | MARTINO J | 12/10/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | JAMES POINT PTY LTD THE MINISTER FOR TRANSPORT THE MINISTER FOR LANDS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Costs Application for summary judgment against plaintiff and to strike out statement of claim Amendment of statement of claim |
Legislation: | Nil |
Case References: | Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598 Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 James Point Pty Ltd v The Minister for Transport [2015] WASC 323 Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S) Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd (Unreported, WASCA, Library No 920347, 19 June 1992) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE MINISTER FOR TRANSPORT
First Defendant
THE MINISTER FOR LANDS
Second Defendant
THE STATE OF WESTERN AUSTRALIA
Third Defendant
Catchwords:
Costs - Application for summary judgment against plaintiff and to strike out statement of claim - Amendment of statement of claim
Legislation:
Nil
Result:
No order as to costs
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Hotchkin Hanly Lawyers
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Cases referred to in judgment:
Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21
James Point Pty Ltd v The Minister for Transport [2015] WASC 323
Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S)
Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd (Unreported, WASCA, Library No 920347, 19 June 1992)
1 MARTINO J: On 2 September 2015, I delivered my reasons for decision dismissing the application by the defendants for summary judgment and to strike out the statement of claim.1 On that day, I made directions for the filing of submissions as to costs of the application and directed that the costs be determined on the papers, unless I directed otherwise. Both the plaintiff and the defendants have submitted that the history of the action and an earlier action is relevant to the question of costs of the defendants' application. A brief chronology is as follows.
2 In 2003 the plaintiff commenced action CIV 2529 of 2003 against the same defendants concerning the same subject matter. On 27 September 2011 the plaintiff commenced this action by a writ of summons containing a statement of claim. On 25 October 2011 the action was admitted to the Commercial and Managed Cases List. On 22 December 2011 the plaintiff filed a substituted statement of claim. On 12 March 2012 the defendants filed a defence and a counterclaim. On 4 May 2012 the defendants filed an amended defence and counterclaim. On 8 June 2012 the plaintiff filed a reply and defence to the amended defence and counterclaim. On 23 October 2012 the plaintiff filed a further substituted statement of claim.
3 On 23 November 2012, in action CIV 2529 of 2003 and upon an undertaking made by the plaintiff attached to the order made that day, the plaintiff was given leave to discontinue CIV 2529 of 2003. The plaintiff's undertaking was in the following terms:
The plaintiff hereby undertakes to this Honourable Court and to the defendants that upon leave being granted to the plaintiff to discontinue these proceedings and these proceedings being discontinued the plaintiff will not commence or continue any proceedings in this court or any other court:
1. asserting any claims or cause of action pleaded in these proceedings; or
2. seeking against the defendants any of the relief claimed in these proceedings;
other than:
(a) as a claim presently pleaded by the plaintiff against the defendants in the Further Substituted Statement of Claim dated 23 October 2012 filed in Supreme Court action CIV 2812 of 2011; and
(b) in those proceedings, for relief limited to damages.
5 On 27 February 2014 the plaintiff filed a third substituted statement of claim. On 17 March 2014 the defendants filed a further re-amended defence and counterclaim to the third substituted statement of claim. On 1 August 2014 the plaintiff filed an amended reply and defence to the further re-amended defence and counterclaim filed on 17 March 2014.
6 On 26 September 2014 the defendants filed a chamber summons for summary judgment and to strike out the third substituted statement of claim.
7 On 16 December 2014 the plaintiff filed a minute of amended third substituted statement of claim and a minute of further re-amended reply and defence to the further re-amended defence and counterclaim.
8 The defendants' application of 26 September 2014 was listed for hearing on 19 December 2014. The application was not argued at that hearing. Further amendments to the statement of claim were to be made.
9 On 10 February 2015 the plaintiff filed an amended third substituted statement of claim. On 29 May 2015 the plaintiff filed a re-amended third substituted statement of claim. On 8 July 2015 the plaintiff filed a further re-amended third substituted statement of claim.
10 On 31 July 2015, the defendants' chamber summons dated 26 September 2014 was heard by me. I delivered my decision on 2 September 2015. When I delivered my decision, counsel for the plaintiff informed me that the plaintiff wished to amend the statement of claim.
11 The practice, procedure and interlocutory processes of the court have, as their goal, the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.2 Cases that require more intensive supervision are admitted to the Commercial and Managed Cases List. In this action, the practice, procedure and interlocutory processes of the court do not appear to have achieved the goal expressed in O 1 r 4A, even though the action has received supervision following its admission to the CMC List soon after it was commenced.
12 This action was commenced on 27 September 2011. The defendants' application for summary judgement and to strike out the statement of claim was filed three years after the action was commenced. It was followed by three amendments to the statement of claim. Four years after the action was commenced, after many amendments of the pleadings, case management hearings and the determination of an application for summary judgment and to strike out the statement of claim, the plaintiff contends that it has still not finalised its statement of claim.
13 In the submissions as to costs filed by the parties, each side has submitted that the other side is at fault.
14 The plaintiff submits that the defendants could have filed a pleading summons or an application to disallow an amendment to the statement of claim and that '[n]o reason has been given why the defendants did not (as they were at liberty to do) press sooner their concerns about the pleading of the critical allegation'.
15 The defendants point to the amendments made to the statement of claim before and after the filing of their application on 26 September 2014 and assert that the plaintiff would not have succeeded in resisting the defendants' application if it had not amended the statement of claim. The defendants also contend that the plaintiff 'proffers no explanation for failing to amend to introduce the new claim after the defendants brought the application, which may have avoided the need for the application' and that, prior to the defendants making their application, 'the plaintiff engaged in a long course of conduct in which it has resisted the limitation defence on incorrect grounds and changed its position so as to prolong resolution of the issue'.
16 The defendants' application was late. However, even if it had been earlier there would still have been delay. That is because the application was followed by three amendments to the statement of claim and the plaintiff's position is that it has not yet finalised its statement of claim.
17 The plaintiff concedes 'that the making of the [defendants'] application drew three amendments to the statement of claim following the chamber summons being issued on 26 September 2014'.
18 The defendants accept that 29 May 2015 'is the relevant point in time at which the defendants should be taken to have understood the plaintiff's new claim, and decided to persist with their application'. The defendants persisted with their application and were unsuccessful.
19 In Harrington v Greenwood Grove Estate Pty Ltd (No 2),3 where an application was not successful but had drawn amendments to the pleading before the application was heard, Slattery J took a 'practical view' that the costs orders that each party was entitled to 'balance out' and made no order as to costs.
20 In its submissions as to costs the plaintiff informed me that the parties 'agreed in conferral prior to the hearing on 2 September 2015 that the usual order be made in any event for the plaintiff to pay the defendants' costs incurred and thrown away by the plaintiff's three pleading amendments in response to the application'.
21 While I have regard to that agreement in the exercise of my discretion as to costs it does not bind the exercise of that discretion.
22 In Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm),4 Kenneth Martin J said that in the exercise of a discretion as to costs of an interlocutory application to determine an action summarily courts need to consider earlier authorities such as Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd5 and Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd6 in light of the modern practice of closer case management.
23 His Honour said at [9] that interlocutory disputation is strongly discouraged in the CMC List and an unsuccessful applicant on a CMC List application would expect, in the ordinary course,
to suffer a likely adverse exposure to some cost consequence arising from its failure on an application it has been responsible for pressing to curial determination.7
24 There are good reasons why the plaintiff should have the costs of the application from 29 May 2015, including costs of the hearing on 2 September 2015 which took almost a full day. Those reasons are that the plaintiff was successful in its resistance of the application and that the defendants persisted with their unsuccessful application when they understood the plaintiff's claim.
25 There are good reasons why the defendants should have the costs of the application prior to 29 May 2015, including the costs of the hearing on 19 December 2014 which did not proceed to argument and the costs thrown away by reason of the amendments to the statement of claim following the application. Those reasons are that the application drew those amendments, the amendments will have resulted in some additional costs and the application could not be argued until the defendants knew how the plaintiff wished to plead its claim.
26 I have decided that it is appropriate to take a practical view and balance out the matters to which I have referred by making no order as to costs. In doing so I have decided to make no order as to costs thrown away by reason of the amendments to the statement of claim following the application notwithstanding the agreement of the parties to which I have referred. That is because I have decided that it is preferable to take the practical view to balance matters by making no order as to costs.
1James Point Pty Ltd v The Minister for Transport [2015] WASC 323.
2Rules of the Supreme Court 1971 (WA) O 1 r 4A.
3Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598.
4Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S).
5Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd (Unreported, WASCA, Library No 920347, 19 June 1992).
6Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21.
7Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S) [9] (Kenneth Martin J).
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