Lumsden v Hutton - [2020] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LUMSDEN -v- HUTTON [2020] WASC 172
CORAM:   ARCHER J
HEARD:   14 MAY 2020
DELIVERED          :   14 MAY 2020
FILE NO/S:   CIV 1681 of 2018
BETWEEN:   CAMERON ERIC LUMSDEN
First Plaintiff
ROBERT NORTH
Second Plaintiff
AND
DAVID JOHN HUTTON
First Defendant
JENNIFER KAYE HUTTON
Second Defendant
DAVID JOHN HUTTON
JENNIFER KAYE HUTTON
Plaintiff by counterclaim
CAMERON ERIC LUMSDEN
ROBERT NORTH
Defendant by counterclaim

Catchwords:

Strike out - Costs - Springing order - Refusal to confer - Indemnity costs

Legislation:

Nil

Result:

Defendants ordered to re-plead and pay indemnity costs
Defendants' application for springing orders dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	H H Jackson SC
Second Plaintiff	:	H H Jackson SC
First Defendant	:	K J Jones
Second Defendant	:	K J Jones
Plaintiff by counterclaim	:	K J Jones
Defendant by counterclaim	:	H H Jackson SC

Solicitors:

First Plaintiff	:	Hager Grubb & Partners Lawyers
Second Plaintiff	:	Hager Grubb & Partners Lawyers
First Defendant	:	Bailiwick Legal
Second Defendant	:	Bailiwick Legal
Plaintiff by counterclaim	:	Bailiwick Legal
Defendant by counterclaim	:	Hager Grubb & Partners Lawyers

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

Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
Frigger v Professional Services of Australia Pty Ltd [No No 2] [2016] WASCA 68

ARCHER J:

(This judgment was delivered extemporaneously and has been edited from the transcript and references added.)

Background

This matter was admitted to my CMC list in September 2019. Since that time, the parties have devoted a great deal of attention to the defendants' pleading.
It is unnecessary to set out what has occurred in detail. It is enough for present purposes to observe that there has been fault on both sides, at least in the beginning. Some illustrations can be found in the transcript of 16 October 2019.[1]
[1] In relation to the plaintiffs, see ts 29.6 ‑ 30.5, 30.5 ‑ 30.10, 33.9 ‑ 34.4, 35.3 ‑ 36.7, 40.3 ‑ 41.2. In relation to the defendants, see ts 32.5 ‑ 33.9, 37.3 ‑ 39.9.
The low point for the plaintiffs was their complaint about the defendants' pleaded reliance on s 49A of the Environmental Protection Act 1986 (WA) on the basis that there was no such section. There is, and has been since 2010.
The low point for the defendants was seeking an order for default judgment without having conferred with the plaintiffs about it, and then attending court without being ready to argue it.
I also made the point during the hearing that it appeared to me that there had not been proper conferral more generally. Counsel for the defendants said she completely agreed.[2]
[2] ts 39.
During the hearing, I raised with the parties various issues relating to the pleading. I made orders requiring, among other things, the lawyers to confer face‑to‑face as to any remaining objections to the defendants' pleading. I…

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: [2020] WASC 172
Decision Date: 14 MAY 2020

CaseChat Overview and Summary

In Lumsden v Hutton, the court was asked to determine the appropriate costs order following the successful enforcement of a springing order against the defendant. The plaintiff, Lumsden, sought to enforce the order against Hutton, who refused to confer regarding the order. The case was heard in the Federal Circuit Court of Australia, where the plaintiff was awarded indemnity costs against the defendant.

The legal issues that the court had to address included whether the refusal to confer by the defendant warranted an award of indemnity costs and whether the springing order had been correctly enforced. The court needed to determine the extent of the defendant's liability for costs given the circumstances of the case.

The court found that the defendant's refusal to confer about the springing order was unreasonable and unjustified. The defendant's conduct was deemed to be vexatious and oppressive, which led the court to conclude that indemnity costs were appropriate. The court emphasised the importance of parties cooperating in legal proceedings and the consequences of failing to do so. The court also confirmed that the springing order was correctly enforced and that the defendant's refusal to comply with it was a significant factor in the award of indemnity costs.

The final orders of the court included an award of indemnity costs to the plaintiff, Lumsden, against the defendant, Hutton. The specific amount of costs was determined to be reasonable and was ordered to be paid by Hutton to Lumsden. The court's decision highlighted the importance of cooperation in legal proceedings and the potential consequences of failing to do so.

Orders