Maitland-Smith v Path Transit Pty Ltd
[2009] WASCA 46 (S)
•4 MARCH 2009
MAITLAND-SMITH -v- PATH TRANSIT PTY LTD [2009] WASCA 46 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 46 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:158/2006 | 18 AUGUST 2008 | |
| Coram: | MARTIN CJ McLURE JA LE MIERE AJA | 3/03/09 | |
| 23/07/09 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | No order made in relation to second respondent's costs of the appeal | ||
| B | |||
| PDF Version |
| Parties: | JOHN FREDERICK MAITLAND-SMITH PATH TRANSIT PTY LTD INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Costs Party joined on appeal Party sought, of its own volition, to participate in appeal Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA) Workers' Compensation and Injury Management Act 1981 (WA) |
Case References: | Maitland-Smith v Path Transit Pty Ltd [2009] WASCA 46 Path Transit Pty Ltd v Insurance Commission of Western Australia [2009] WASCA 47 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAITLAND-SMITH -v- PATH TRANSIT PTY LTD [2009] WASCA 46 (S) CORAM : MARTIN CJ
- McLURE JA
LE MIERE AJA
DECISION : 23 JULY 2009 FILE NO/S : CACV 158 of 2006 BETWEEN : JOHN FREDERICK MAITLAND-SMITH
- Appellant
AND
PATH TRANSIT PTY LTD
First Respondent
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Respondent
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ON APPEAL FROM:
For File No : CACV 158 of 2006
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : MAITLAND-SMITH -v- PATH TRANSIT PTY LTD & ANOR [2006] WADC 188
File No : CIV 137 of 2003
Catchwords:
Practice and procedure - Costs - Party joined on appeal - Party sought, of its own volition, to participate in appeal - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
No order made in relation to second respondent's costs of the appeal
Category: B
Representation:
Counsel:
Appellant : Mr D R Williams QC & Mr K J Bradford
First Respondent : Mr J G Staude
Second Respondent : Mr C L Zelestis QC & Mr M D Howard
Solicitors:
Appellant : Bradford & Co
First Respondent : Cahill Billington
Second Respondent : Talbot Olivier
Case(s) referred to in judgment(s):
Maitland-Smith v Path Transit Pty Ltd [2009] WASCA 46
Path Transit Pty Ltd v Insurance Commission of Western Australia [2009] WASCA 47
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1 MARTIN CJ: On 4 March 2009, for reasons published on that date (Maitland-Smith v Path Transit Pty Ltd [2009] WASCA 46), this court made orders dismissing the appeal, allowing the respondent's cross-appeal, setting aside the finding of the trial judge to the effect that the appellant's injury on 7 October 2000 was caused by the first respondent's breach of duty and ordering that the appellant pay the first respondent's costs of the appeal and the cross-appeal to be taxed. Because there was contention in relation to the orders appropriately made in respect of the second respondent's costs of the appeal, directions were made for the exchange of written submissions on that subject, on the basis that that issue would be determined on the papers without further hearing. No party objected to that course, and written submissions have now been exchanged.
2 This appeal (CACV 158 of 2006) was heard at the same time as matter CACV 6 of 2007 between Path Transit Pty Ltd (Path Transit) and the Insurance Commission of Western Australia (the Commission). For reasons also published on 4 March 2009 (Path Transit Pty Ltd v Insurance Commission of Western Australia [2009] WASCA 47), the court refused Path Transit's application for an extension of time within which to appeal.
3 The context for the present issue with respect to the second respondent's costs of this appeal is provided by the reasons given in both matters, which should be read with these reasons.
4 Put very simply, that context is as follows. Mr Maitland-Smith sued his employer, Path Transit, claiming damages for personal injury. Path Transit joined the Commission as a third party, claiming indemnity from the Commission in respect of any damages it was ordered to pay Mr Maitland-Smith pursuant to a statutory policy of insurance provided pursuant to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
5 Mr Maitland-Smith's claim was dismissed by the trial judge, notwithstanding his finding that Path Transit had been negligent (which finding was set aside on appeal), because of his conclusion that the Workers' Compensation and Injury Management Act 1981 (WA) precluded Mr Maitland-Smith's claim because of constraints on awards of damages in Div 2 of Pt IV. Further, although such constraints do not apply to damages to which the Motor Vehicle (Third Party Insurance) Act applies, the trial judge concluded that the Motor Vehicle (Third Party
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- Insurance) Act did not apply to the injuries suffered by Mr Maitland-Smith.
6 The trial judge also expressed the opinion, in obiter, that if he had concluded that Mr Maitland-Smith's claim should be allowed, he would nevertheless have denied Path Transit's claim for indemnity from the Commission because of Path Transit's breach of a condition of the statutory policy of insurance.
7 Mr Maitland-Smith (in matter CACV 158 of 2006) appealed against the dismissal of his claim against Path Transit. Path Transit applied (in matter CACV 6 of 2007) for an extension of time within which to appeal from the conclusion of the trial judge to the effect that it would be denied indemnity from the Commission even if Mr Maitland-Smith's appeal was allowed.
8 In matter CACV 158 of 2006, Mr Maitland-Smith did not join the Commission as a party to the appeal. There was, of course, no reason for him to do so, as he has no direct claim against the Commission. To the extent that there was an issue between Path Transit and the Commission with respect to the obligation of the Commission to indemnify Path Transit under the statutory policy, that issue was covered by Path Transit's application for an extension of time within which to appeal from the decision of the trial judge.
9 However, the Commission sought to be joined as a party to this appeal, on the basis that it had an interest, and wished to be heard on the subject of the scope of the statutory policy, which was essentially the issue which lay at the heart of Mr Maitland-Smith's appeal. Neither Mr Maitland-Smith, nor Path Transit opposed the Commission's application to be joined as a party to the appeal, and orders were made joining it as the second respondent.
10 The question is which, if any, party should pay the Commission's costs of this appeal. Mr Maitland-Smith and the Commission submit that Path Transit should pay those costs. Path Transit opposes those submissions.
11 Significant to the resolution of these competing submissions is the observation that neither Mr Maitland-Smith nor Path Transit sought to join the Commission as a party to this appeal. Nor were any legal rights or obligations of the Commission to be directly determined by this appeal - the obligation of the Commission to indemnify Path Transit would have been determined in matter CACV 6 of 2007, if Path Transit had been
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- granted an extension of time (although such a determination would only have been appropriate if Mr Maitland-Smith had succeeded in his appeal). Rather, the Commission sought, of its own volition, to participate in this appeal because of its indirect interest in the construction and effect of the statutory policy of insurance. It is also pertinent to observe that the Commission has been awarded its costs of responding to Path Transit's application to extend time within which to commence an appeal, and will, to that extent, be compensated for costs properly incurred in responding to that application.
12 In those circumstances, there is no basis for ordering either Path Transit or Mr Maitland-Smith to pay the Commission's costs of its participation in this appeal. To the extent that it was obliged to act to protect the determination that it would not have to indemnify Path Transit, it is protected by the costs order made in its favour in matter CACV 6 of 2007. To the extent that it incurred any further costs by reason of its participation in this appeal, those costs were incurred of its own volition, and should be borne by it.
13 For these reasons, I would make no order in relation to the Commission's costs of the appeal.
14 McLURE JA: I would also decline to make any order in relation to the Commission's costs of the appeal. The Commission sought an order that the first respondent pay its costs. The position taken by the Commission at the hearing of the appeal was that it had no role to play in the appeal unless the first respondent was challenging the trial judge's finding that the first respondent was not entitled to indemnity under the statutory insurance policy because of a breach of warranty. No such challenge was made by the first respondent in the appeal. As the Commission did not resile from its stated position, it is unnecessary to determine its correctness. I reserve my position on that issue. In the circumstances I see no justification for making an award of costs against the first respondent in this appeal.
15 LE MIERE AJA: I agree with the Chief Justice.
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