Major v Woodside Energy Ltd [No 3] - [2009] WASC 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 3] [2009] WASC 246

CORAM: LE MIERE J

HEARD: ON THE PAPERS

DELIVERED : 8 SEPTEMBER 2009

FILE NO/S: CIV 1186 of 2007

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD
Defendant

Catchwords:

Practice and procedure - Application for plaintiff to pay the defendant's costs associated with request for further and better particulars - Request made outside 30 day period - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 20 r 13(6)

Result:

Costs in the cause

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: No appearance
Defendant: No appearance

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

Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin (1997) 186 CLR 622

LE MIERE J:

Introduction

The defendant applied for an order that the plaintiff pay the defendant's costs associated with its request of 27 January 2009 for further and better particulars of the statement of claim. The plaintiff opposes that order and seeks orders that the defendant pay the plaintiff's costs of and associated with the application upon an indemnity basis. The court directed that it would determine the question of costs after considering affidavits filed by the parties and their written submissions.

Statement of claim

This action concerns three emails published by employees of the defendant in the course of their employment which the plaintiff alleges are defamatory of him. The plaintiff pleads that each of the emails give rise to imputations defamatory of him and which relate to his attitude and work performance. The first, second and third emails were sent by the Chief Executive Officer, the Director of Operations and the Engineering Services Manager of the defendant respectively.
In relation to each of the email publications it is pleaded that the defendant's employee published, in the course of his or her employment with the defendant, of and concerning the plaintiff the matters set out in the email. Three particulars are given of each publication. In [4(a)] it is pleaded that the first matter complained of was published electronically by email. In [4(b)] it is pleaded that the first matter complained of was published to certain named individuals. Paragraph 4(c) says that further particulars of the publication of the first matter complained of will be provided after discovery and interrogatories. Paragraphs 8 and 12 contain similar pleas in relation to the second and third matters complained of.
Paragraphs 16 ‑ 19 of the statement of claim concern the alleged republication of the matters complained of. I will set them out in full:
16.Furthermore, the first matter complained and/or, the second matter complained of were published in circumstances where it was the natural and probable consequence that all or parts of those matters complained of would be re‑published.
17.The first matter complained of has been republished various times since its publication.
Particulars of republication

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: [2009] WASC 246
Decision Date: 8 SEPTEMBER 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Major sought to recover costs from Woodside Energy Ltd. The case arose from an application by the defendant for the plaintiff to pay the defendant's costs associated with a request for further and better particulars. The request was made outside the 30-day period stipulated in the court rules. The central issue before the court was whether the plaintiff's refusal to provide the requested particulars was unreasonable and whether such refusal justified an order for costs in favor of the defendant.

The court needed to determine whether the plaintiff's refusal to answer the defendant's request for particulars was unreasonable and if such refusal warranted an order for costs in favor of the defendant. Additionally, the court had to consider the principles governing costs in compromised actions, particularly in interlocutory matters where one party's compliance might be more about avoiding further costs and delay than the merits of the request. The court referenced the case of Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin, which provided guidance on how courts should exercise their discretion in the absence of a hearing on the merits.

The court found that the plaintiff's refusal to answer the request for particulars was unreasonable, particularly as the defendant was entitled to the particulars. Given the circumstances, the court determined that the plaintiff's unreasonable refusal justified an order for costs in favor of the defendant. The court emphasized the importance of facilitating the resolution of interlocutory disputes by the parties themselves and highlighted that ordering costs against a party who voluntarily complies to avoid an interlocutory hearing could discourage such behavior.

The court ordered the plaintiff to pay the defendant's costs associated with the request for further and better particulars, reflecting the unreasonable nature of the plaintiff's refusal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Where an action is compromised before hearing, the parties having reached no agreement as to costs, the issue arises as to how the court should exercise its discretion in the absence of a hearing on the merits. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin (1997) 186 CLR 622 McHugh J said (omitting citations):In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. A court cannot try a hypothetical action between the parties: Australian Securities Commission v Aust‑Home Investments Ltd. To do so would burden the parties with the costs of a litigated action which by settlement or extra‑currial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action: Australian Securities Commission v Aust‑Home Investments …Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried …If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings (624 ‑ 625). The court is more likely to make a costs order in a compromised action where it finds that one party almost certainly would have succeeded had the matter reached judgment. In such a case the resolution of the action essentially vindicates the case advanced by one of the parties in the sense that one party has in effect capitulated to the other. In an interlocutory matter it will often be easier for a court to determine which party would likely have succeeded had the matter been argued. Often an interlocutory application will be resolved by one party acceding to the request of the other. However, caution must be exercised because the respondent to an interlocutory application may often comply fully or partly with the moving parties' request for the purpose of avoiding further cost and delay rather than because the moving party is entitled to the matters requested. It is in the public interest that the court should facilitate the resolution of interlocutory disputes by the parties themselves. If the court were to order costs against a party who avoids an interlocutory hearing by voluntarily complying with a request from his opponent that would discourage parties from making concessions which avoided interlocutory hearings. The defendant submits that it was entitled to the particulars and that the plaintiff unreasonably refused to answer the request for particulars. The defendant submits that the plaintiff acted unreasonably in initially refusing to answer the request for particulars.