MAITLAND-SMITH -v- PATH TRANSIT PTY LTD [2009] WASCA 46 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 46 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:158/2006	Heard:	18 AUGUST 2008
Coram:	MARTIN CJ McLURE JA LE MIERE AJA	Delivered:	3/03/09
Supplementary Delivered:	23/07/09
No of pages:	6	Judgment Part:	1 of 1
Result:	No order made in relation to second respondent's costs of the appeal
Category:	B
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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

HEARD : 18 AUGUST 2008 DELIVERED : 4 MARCH 2009 SUPPLEMENTARY
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

(Page 2)

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

(Page 3)

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

(Page 4)

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…

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 Maitland-Smith v Path Transit Pty Ltd

Details

AGLC: Maitland-Smith v Path Transit Pty Ltd [2009] WASCA 46 (S)
Case: [2009] WASCA 46 (S)
Decision Date: 4 MARCH 2009

CaseChat Overview and Summary

The case of Maitland-Smith v Path Transit Pty Ltd involved a legal dispute concerning costs incurred during an appeal. The parties involved were Maitland-Smith, the appellant, and Path Transit Pty Ltd, the respondent. The dispute arose from the appellant's attempt to challenge the costs order made against them by the lower court. The matter was heard in the Court of Appeal. The central issue before the court was whether the second respondent, who had not been a party to the original proceedings but joined the appeal of its own volition, was entitled to costs for their participation in the appeal. The court had to determine if the second respondent's involvement was justified under the circumstances, and whether the matter turned solely on their own facts.

The court examined the circumstances under which the second respondent had joined the appeal. It found that the second respondent had voluntarily elected to participate in the appeal, and that their involvement was not predicated on the same facts or issues as those contested between the original parties. The court concluded that the second respondent's participation was not warranted under the principles governing costs in appeals, as it did not substantially affect the outcome of the appeal. The court emphasised that the second respondent's decision to join the appeal was of its own volition and did not turn on the same facts as those at issue between the original parties. Consequently, the court ruled that the second respondent was not entitled to any costs for their participation in the appeal.

The court's decision was based on the principle that a party who joins an appeal on their own volition is not entitled to costs unless their participation significantly affects the outcome of the appeal. Given that the second respondent's involvement did not turn on the same facts as those contested between the original parties, the court found no basis for awarding costs to the second respondent. The court's reasoning was that the second respondent's decision to join the appeal was independent of the original dispute, and therefore, it did not justify an award of costs. The final orders of the court reflected this conclusion, making no order in relation to the second respondent's costs of the appeal.

Orders

Orders of the court

No order made in relation to second respondent's costs of the appeal

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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