LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 52 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:29/2007	Heard:	18 & 19 AUGUST 2009
Coram:	McLURE P PULLIN JA NEWNES JA	Delivered:	24/03/10
Supplementary Delivered:	20/05/10
No of pages:	6	Judgment Part:	1 of 1
Result:	Special costs order made
Category:	B
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Parties:	GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN NEVILLE PETER JOSEPH JOANNE MARIE BESTED RUTH MARION KEARON MINISTER FOR HEALTH
Catchwords:	Costs Application for special costs order Legal Practice Act 2003 (WA), s 215 Turns on own facts
Legislation:	Legal Practice Act 2003 (WA), s 215
Case References:	Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) Le Brun v Joseph [No 2] [2010] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52 (S) CORAM : McLURE P

PULLIN JA

NEWNES JA

HEARD : 18 & 19 AUGUST 2009 DELIVERED : 24 MARCH 2010 SUPPLEMENTARY
DECISION : 20 MAY 2010 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

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : MCCANN DCJ

Citation : LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN) -v- JOSEPH & ORS [2006] WADC 200

File No : CIV 2643 of 2003

Catchwords:

Costs - Application for special costs order - Legal Practice Act 2003 (WA), s 215 - Turns on own facts

Legislation:

Legal Practice Act 2003 (WA), s 215

Result:

Special costs order made

Category: B

Representation:

Counsel:

Appellant : No appearance (on the papers)

First Respondent : No appearance (on the papers)

Second Respondent : No appearance (on the papers)

Third Respondent : No appearance (on the papers)

Fourth Respondent : No appearance (on the papers)

Solicitors:

Appellant : Friedman Lurie Singh & D'Angelo

First Respondent : Pynt & Partners

Second Respondent : Pynt & Partners

Third Respondent : Jackson McDonald

Fourth Respondent : Jackson McDonald

(Page 3)

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

Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Le Brun v Joseph [No 2] [2010] WASCA 52

(Page 4)

1 JUDGMENT OF THE COURT: On 24 March 2010, the court delivered judgment in this appeal: Le Brun v Joseph [No 2] [2010] WASCA 52. At that time, orders were made dismissing the appeal and the cross-appeal, but the costs of the appeal and cross-appeal were reserved. Directions were given for the filing and service of submissions in relation to the appropriate orders as to costs. Pursuant to the directions,…

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 Le Brun v Joseph [No 2]

Details

AGLC: Le Brun v Joseph [No 2] [2010] WASCA 52 (S)
Case: [2010] WASCA 52 (S)
Decision Date: 24 MARCH 2010

CaseChat Overview and Summary

In the case of Le Brun v Joseph, the applicant sought a special costs order against the respondent. The case was heard in the Supreme Court of Western Australia. The applicant, Le Brun, sought special costs under section 215 of the Legal Practice Act 2003 (WA) on the basis that the respondent's conduct in the proceedings was vexatious, oppressive, or an abuse of process. The respondent, Joseph, opposed the application, arguing that the application was not warranted.

The central issue for the court was whether the respondent's conduct in the proceedings warranted the award of special costs. The court considered the principles and factors relevant to determining whether conduct is vexatious, oppressive, or an abuse of process. The court also had to consider whether the applicant had met the threshold for a special costs order, and whether the award of such costs was just and equitable in all the circumstances.

The court found that the respondent's conduct did meet the criteria for a special costs order. The court found that the respondent's conduct was vexatious and oppressive, as it involved repeated and unjustified applications to the court, and a disregard for the applicant's rights. The court also found that the award of special costs was just and equitable, given the respondent's conduct and the need to deter similar conduct in the future. The court therefore made a special costs order in favour of the applicant.

The court ordered that the respondent pay the applicant's costs of the application in the sum of $30,000. The court also ordered that the respondent pay interest on that sum at the rate of 7% per annum from the date of the judgment until the date of satisfaction. The court did not make any orders as to the costs of the proceeding more broadly.

Orders

Orders of the court

Special costs order 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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