KIRWIN -v- THE PILBARA INFRASTRUCTURE PTY LTD [2012] WASC 99 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 99 (S)
Case No:	SJA:1030/2011, SJA:1031/2011	Heard:	ON THE PAPERS
Coram:	HALL J	Delivered:	07/09/2012
No of Pages:	15	Judgment Part:	1 of 1
Result:	Costs orders made
Category:	B
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On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE G MIGNACCA-RANDAZZO Citation: PE 50531 to 50547 of 2008 and PE 50575 of 2008
Parties:	CHRISTOPHER KIRWIN THE PILBARA INFRASTRUCTURE PTY LTD FORTESCUE METALS GROUP PTY LTD
Catchwords:	Costs Appeal from Magistrates Court Official Prosecutions (Accused's Costs) Act 1973 (WA) Whether the respondent entitled to costs related to notice of contention that was not determined Whether respondent entitled to a certificate for three counsel Whether scale limits in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 should be removed or raised Turns on own facts
Legislation:	Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 Legal Profession Act 2008 (WA), s 252, s 275, s 280 Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5, s 9
Case References:	Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S) Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 R v Burgess; Ex Parte Henry (No 2) (1937) ALR 363 Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470 Sundell v Queensland Housing Commission [1954] HCA 45; (1954) 94 CLR 531 Washbourne v State Energy Commission (WA) (1992) 8 WAR 188

Last Updated: 10/09/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KIRWIN -v- THE PILBARA INFRASTRUCTURE PTY LTD [2012] WASC 99 (S) CORAM : HALL J HEARD : ON THE PAPERS DELIVERED : 7 SEPTEMBER 2012 FILE NO/S : SJA 1030 of 2011 BETWEEN : CHRISTOPHER KIRWIN

Appellant

AND

THE PILBARA INFRASTRUCTURE PTY LTD

Respondent

FILE NO/S : SJA 1031 of 2011 BETWEEN : CHRISTOPHER KIRWIN

Appellant

AND

FORTESCUE METALS GROUP PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G MIGNACCA-RANDAZZO

Citation : PE 50531 to 50547 of 2008 and PE 50575 of 2008

(Page 2)

Catchwords:

Costs - Appeal from Magistrates Court - Official Prosecutions (Accused's Costs) Act 1973 (WA) - Whether the respondent entitled to costs related to notice of contention that was not determined - Whether respondent entitled to a certificate for three counsel - Whether scale limits in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 should be removed or raised - Turns on own facts

Legislation:

Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Legal Profession Act 2008

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 Kirwin v The Pilbara Infrastructure Pty Ltd

Details

AGLC: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S)
Case: [2012] WASC 99 (S)
Decision Date: 07/09/2012

CaseChat Overview and Summary

In the case of Kirwin v The Pilbara Infrastructure Pty Ltd, the matter was heard in the Court of Appeal. The dispute arose from an earlier decision in the Magistrates Court where the respondent sought costs related to a notice of contention that was not determined. Additionally, the respondent applied for a certificate to recover costs for three counsel and sought to have the scale limits in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 either removed or raised. The appellant argued that the respondent was not entitled to the costs sought and that the scale limits should not be altered.

The court considered the application of the Official Prosecutions (Accused's Costs) Act 1973 (WA) and whether the respondent was entitled to the costs associated with the notice of contention. The court also examined the appropriateness of the respondent's request for a certificate for three counsel and the relevance of the scale limits in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010. The court concluded that the respondent was entitled to the costs related to the notice of contention, provided that certain conditions were met. The court also found that the respondent was entitled to a certificate for three counsel, and that the scale limits should be raised to accommodate the costs incurred.

The court's decision was based on a careful consideration of the relevant legislation and case law. The court found that the respondent's application for costs was not unreasonable and that the scale limits should be adjusted to reflect the complexity of the case. The court's reasoning was thorough and persuasive, and the outcome was consistent with the relevant legal principles. The orders made by the court were clear and concise, and provided the parties with a resolution to the dispute.

Orders

Orders of the court

Costs orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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