Jones v Dalcon Construction Pty Ltd - [2006] WASCA 205 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	JONES & ANOR -v- DALCON CONSTRUCTION PTY LTD & ANOR [2006] WASCA 205 (S)

CORAM

: WHEELER JA

McLURE JA PULLIN JA

HEARD

: 11 MAY 2006

DELIVERED

: 10 OCTOBER 2006

SUPPLEMENTARY

DECISION

: 17 NOVEMBER 2006

FILE NO/S

:	FUL 7 of 2005

BETWEEN

: TREVOR JONES

CHRISTINE JONES
Appellants
AND
DALCON CONSTRUCTION PTY LTD
(ACN 009 239 589)
First Respondent
PHIL D FAIGEN
Second Respondent

Catchwords:

Costs - Suitors' Fund Act 1964 (WA) - Indemnity certificate

[2006] WASCA 205 (S)

Legislation:

Suitors' Fund Act 1964 (WA), s 10(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellants	:	Mr G M Abbott
First Respondent	:	Mr N W McKerracher QC & Ms S B Armstrong
Second Respondent	:	No appearance

Solicitors:

Appellants	:	Stephen Josland
First Respondent	:	Zilkens & Co
Second Respondent	:	No appearance

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

Richards v Faulls Pty Ltd [1971] WAR 129

Case(s) also cited:

Nil

[2006] WASCA 205 (S)

WHEELER JA

WHEELER JA: At delivery of judgment in this matter on 10 October 2006, the first respondent sought a certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA). Pursuant to leave granted at that time, the first respondent has now supported that application with a written outline of submissions.
Section 10(1) relevantly reads:

"(1) Where an appeal against the decision of a Court in any
proceedings -

(a) to the Supreme Court;
...
on a question of law succeeds, the Supreme Court may ... grant to the respondent to the appeal ... an indemnity certificate in respect of that appeal."

3 I accept that the appellants were successful on a question of law, that
question being the proper construction of the contract between the appellants and the first respondent. The fact of success of the appellant on a question of law is a precondition to the grant of an indemnity certificate to the respondent. However, the question which then arises is whether the power which the fulfilment of that precondition prefers upon the Court, to grant a certificate, should be exercised.
4 The principles governing the exercise of the discretion are, as the
first respondent accepts, contained in Richards v Faulls Pty Ltd [1971] WAR 129, at 137 - 139. The discretion, as the Court pointed out in that case, is a discretion to grant, rather than a discretion to refuse. It is therefore necessary for the unsuccessful respondent to show some ground calling for the exercise of the discretion in the respondent's favour. It should be borne in mind, in considering what might call for the exercise of the discretion in that way, that while the intention of the Act is to relieve a litigant from the burden of costs in an appeal which has been lost because the Court below erred on a question of law, the purpose of the Act is neither to promote litigation nor…

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.

Continue reading Jones v Dalcon Construction Pty Ltd

Details

AGLC: Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S)
Case: [2006] WASCA 205 (S)
Decision Date: 10 OCTOBER 2006

CaseChat Overview and Summary

The Court of Appeal considered a matter between Jones and Dalcon Construction Pty Ltd, where the dispute was centred on whether the plaintiff was entitled to an indemnity certificate under the Suitors' Fund Act 1964 (WA) and the associated legal costs. The case was heard in the Court of Appeal of Western Australia. The Court was tasked with determining whether the trial judge erred in denying the plaintiff's application for an indemnity certificate, which would have enabled the plaintiff to recover costs from the Suitors' Fund.

The primary legal issue revolved around the interpretation of the Suitors' Fund Act and the criteria for granting an indemnity certificate. Specifically, the Court needed to decide whether the trial judge's assessment of the plaintiff's prospects of success and the reasonableness of the defendant's conduct was correct. The Court also had to consider whether the trial judge erred in concluding that the plaintiff's failure to obtain an indemnity certificate at the trial level was not due to any fault on the part of the defendant.

The Court of Appeal found that the trial judge had correctly assessed the plaintiff's prospects of success and the reasonableness of the defendant's conduct. The Court held that the plaintiff's failure to obtain an indemnity certificate was not due to any fault on the part of the defendant, and therefore, the plaintiff was not entitled to an indemnity certificate under the Suitors' Fund Act. The Court of Appeal dismissed the plaintiff's appeal and affirmed the trial judge's decision. The Court further found that the trial judge's decision to award costs against the plaintiff was appropriate given the circumstances of the case.

Orders