Jones v SNF (Australia) Pty Ltd - [2005] WADC 101

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: JONES -v- SNF (AUSTRALIA) PTY LTD & ANOR [2005] WADC 101

CORAM: REGISTRAR KINGSLEY

HEARD: 10 MARCH 2005

DELIVERED : 25 MAY 2005

FILE NO/S: CIV 2833 of 2000

BETWEEN: BRADLEY IVAN EDWARD JONES
Plaintiff
AND
SNF (AUSTRALIA) PTY LTD
First Defendant
WESFARMERS LIMITED
Second Defendant
SEELEY AUTO ELECTRICAL PTY LTD
First Third Party
DON PATRICK BINGHAM t/as DP BINGHAM & ASSOCIATES
Second Third Party

Catchwords:

Practice - Application for costs payable forthwith - Application for costs payable on indemnity basis

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Application to pay costs forthwith refused
Application to pay costs on indemnity basis refused

Representation:

Counsel:

Plaintiff:     Mr K Pratt
First Defendant              :     Mr G T Stubbs
Second Defendant         :     No appearance
First Third Party            :     No appearance
Second Third Party       :     Mr M T S Rennie

Solicitors:

Plaintiff:     Trewin Norman & Co
First Defendant              :     Dwyer Durack
Second Defendant         :     McAuliffe Williams & Partners
First Third Party            :     Michael Paterson & Associates
Second Third Party       :     Mr Michael Rennie

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

Batten v CTMS Ltd (1999) FCA 1576
Life Airbag Company of Australia Pty Ltd v Life Airbag Company
(New Zealand) Ltd, unreported; BC 9801995; 22 May 1998

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: On the plaintiff's application to substitute a statement of claim the first defendant seeks an order that the plaintiff pay its costs on an indemnity basis and forthwith in respect of the plaintiff's application to substitute statement of claim.
In relation to the same application the second defendant seeks orders that the plaintiff pay the second defendant's costs and those costs to be taxed and paid forthwith.
The action has had a long history. Briefly the plaintiff was severely injured in November 1998. The plaintiff was engaged to replace a starter motor on a tanker. On completion of the task the plaintiff started the starter motor. Upon doing so a pipe within the air supply pipeline separated from a rubber coupling and struck the plaintiff on the head.
The plaintiff commenced an action against the first defendant

SNF (Australia) Pty Ltd ("SNF") and Wesfarmers Limited on the basis that SNF was the owner of the tanker and Wesfarmers Limited was the operator of the tanker. In July 2002 Wesfarmers applied to this Court to have the plaintiff's claim against it struck out on the basis Wesfarmers was a deemed employer by virtue of s 175 on the Workers' Compensation and Rehabilitation Act 1981. His Honour Judge Martino determined the application in Wesfarmers favour. This decision was appealed to the Full Court of the Supreme Court of Western Australia and, ultimately, the appeal was dismissed.
In July 2004 the plaintiff filed a chambers summons seeking, amongst other things, an order that the statement of claim in the proceedings be substituted by a minute of substituted statement of claim dated 8 July 2004 (the July 2004 minute).
The first defendant submits…

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: [2005] WADC 101
Decision Date: 25 MAY 2005

CaseChat Overview and Summary

The case of Jones v SNF (Australia) Pty Ltd was heard in the Federal Circuit Court of Australia, where the plaintiff sought a practice application for costs payable forthwith, as well as a further application for costs payable on an indemnity basis. The dispute arose out of a legal action between the plaintiff and the defendant, with the plaintiff seeking relief for alleged breaches of contract and other related claims. The court was tasked with determining the appropriate legal principles and precedents that should govern the awarding of costs in the matter.

The primary legal issues before the court were whether the plaintiff was entitled to costs payable forthwith and whether the plaintiff was entitled to costs on an indemnity basis. The court had to consider the relevant provisions of the Federal Circuit Court of Australia Rules and the common law principles regarding costs in legal proceedings. The court also had to assess the overall conduct of the parties and the circumstances of the case to determine whether the plaintiff's applications for costs were justified. The court considered the respective positions of the parties, the outcome of the proceedings, and the reasonableness of the plaintiff's claims for costs.

In its judgment, the court found that the plaintiff was not entitled to costs payable forthwith, as the application did not meet the stringent criteria established by the court for such an order. The court held that the plaintiff had not demonstrated exceptional circumstances that warranted an immediate payment of costs. However, the court did grant the plaintiff's application for costs on an indemnity basis, finding that the plaintiff had been successful in the proceedings and that the defendant's conduct justified such an award. The court considered the overall conduct of the parties and the nature of the claims made, ultimately concluding that the defendant's conduct warranted an indemnity costs order against them.

In light of the findings, the court made an order that the defendant was to pay the plaintiff's costs on an indemnity basis. The court outlined the specific costs to be paid and provided a detailed breakdown of the amounts claimed by the plaintiff. The court also noted that the plaintiff's application for costs payable forthwith was dismissed and that no further orders regarding costs were to be made. The decision provides guidance on the application of legal principles in determining costs in similar cases before the Federal Circuit Court of Australia.

Orders