Le Brun v Joseph

[2008] WASCA 205

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LE BRUN -v- JOSEPH [2008] WASCA 205

CORAM:   PULLIN JA

HEARD:   15 AUGUST 2008

DELIVERED          :   8 OCTOBER 2008

FILE NO/S:   CACV 29 of 2007

BETWEEN:   GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN

Appellant

AND

NEVILLE PETER JOSEPH
First Respondent

JOANNE MARIE BESTED
Second Respondent

RUTH MARION KEARON
Third Respondent

MINISTER FOR HEALTH
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :McCANN DCJ

File No  :CIV 2643 of 2003

Catchwords:

Application to amend grounds of appeal - Whether next friend liable to pay the costs incurred by reason of amendment to the appellant's case

Legislation:

Nil

Result:

Costs order made against next friend

Category:    B

Representation:

Counsel:

Appellant:     Mr R I Viner QC

First Respondent           :     Mr S R Merrick

Second Respondent      :     Mr S R Merrick

Third Respondent          :     Mr G R Hancy

Fourth Respondent        :     Mr G R Hancy

Solicitors:

Appellant:     Friedman Lurie Singh & D'Angelo

First Respondent           :     Pynt & Partners

Second Respondent      :     Pynt & Partners

Third Respondent          :     Jackson McDonald

Fourth Respondent        :     Jackson McDonald

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

Dissidomino v Butcher Paull & Calder (A Firm) [2005] WASCA 210

Waugh v Royal Kings Park Tennis Club Inc [2007] WASCA 173

1. PULLIN JA:  This was an application which came on before me for leave to amend the appellant's grounds of appeal.  I granted leave to amend the grounds of appeal at a hearing on 15 August 2008.  The appellant has consented to an order that the appellant pay the respondents' costs thrown away by reason of amendments to the appellant's grounds of appeal, including reserve costs and costs thrown away by reason of amendment of the appellant's case, the draft chronology and the draft appeal book.  The only issue between the parties which was reserved for me to deal with on the papers was whether those costs should be paid by the next friend or not.

2. In Dissidomino v Butcher Paull & Calder (A Firm) [2005] WASCA 210, Wheeler JA, with whom Roberts Smith JA and Miller AJA agreed, said at [20] that the next friend is liable for all costs incurred in actions brought by an infant. In Farrell by next friend Waugh v Royal Kings Park Tennis Club Inc [2007] WASCA 173 [16], Buss JA stated that Wheeler JA's observation was not confined to an infant and applied to any person under a disability.

3. Buss JA also observed at [17] that it is 'well established that if the next friend has acted properly, he or she is entitled to an indemnity from the plaintiff or out of any fund to which the plaintiff is beneficially entitled'.

4. The appellant submits that the court should await the outcome of the appeal and that if the appeal succeeds 'it would be appropriate that the costs "thrown away" be paid by the appellant and not the next friend'.  What is set out above, reveals that that would  not be the appropriate order.  The appropriate order would be costs against the next friend.

5. In consequence, the order will be that:

   The appellant's next friend do pay the respondents' costs by reason of amendments to the appellant's case, including the reserve costs from the hearings on 7 December 2007 and 9 May 2008, together with all costs thrown away by reason of the amendments to the appellant's case, including the appellant's grounds of appeal, the appellant's submissions, the appellant's draft chronology and the appellant's draft appeal book indexes.