Margaret River Resources Pty Ltd v His Honour Warden Calder SM

[2008] WASCA 238 (S)

MARGARET RIVER RESOURCES PTY LTD -v- HIS HONOUR WARDEN CALDER SM [2008] WASCA 238 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 238 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CIV:2936/2001	Heard:	12 AUGUST 2008
Coram:	STEYTLER P McLURE JA NEWNES AJA	Delivered:	23/11/08
Supplementary Delivered:	18/12/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders made
Category:	D
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Parties:	MARGARET RIVER RESOURCES PTY LTD (ACN 089 490 719) HIS HONOUR WARDEN CALDER SM SHIRE OF AUGUSTA-MARGARET RIVER CONCEPT NOMINEES PTY LTD
Catchwords:	Orders Costs Suitor's Fund certificate Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 56 r 7(2) Suitor's Fund Act 1964 (WA), s 10
Case References:	Foots v Southern Cross Mine Management Pty Ltd (2007) 82 ALJR 173 Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S) Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARGARET RIVER RESOURCES PTY LTD -v- HIS HONOUR WARDEN CALDER SM [2008] WASCA 238 (S) CORAM : STEYTLER P

McLURE JA
NEWNES AJA

HEARD : 12 AUGUST 2008 DELIVERED : 24 NOVEMBER 2008 SUPPLEMENTARY
DECISION : 19 DECEMBER 2008 FILE NO/S : CIV 2936 of 2001 MATTER : Application for a prospecting licence under the Mining Act 1978 (WA) and an application for writs of certiorari, prohibition and mandamus against His Honour WARDEN CALDER SM BETWEEN : MARGARET RIVER RESOURCES PTY LTD (ACN 089 490 719)

Applicant

AND

HIS HONOUR WARDEN CALDER SM
First Respondent

SHIRE OF AUGUSTA-MARGARET RIVER
Second Respondent

CONCEPT NOMINEES PTY LTD
Third respondent

(Page 2)

Catchwords:

Orders - Costs - Suitor's Fund certificate - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 56 r 7(2)

Suitor's Fund Act 1964 (WA), s 10

Result:

Orders made

Category: D

Representation:

Counsel:

Applicant : Mr J D Allanson SC
First Respondent : No appearance
Second Respondent : Mr D R Goodman
Third respondent : No appearance

Solicitors:

Applicant : Blake Dawson
First Respondent : No appearance
Second Respondent : Woodhouse Legal
Third respondent : No appearance

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

Foots v Southern Cross Mine Management Pty Ltd (2007) 82 ALJR 173
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S)
Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238

(Page 3)

1 JUDGMENT OF THE COURT: These are the orders of the court in relation to the reasons for judgment in Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238. By consent, the court orders that:

1. The order nisi for a writ of certiorari made on 26 February 2002 be made absolute.

2. A writ of certiorari be issued directing the first respondent to remove into this Honourable Court for the purpose of being quashed that part of the decision made on 22 June 2001 in application P70/1383, which held that the land the subject of Reserve 30656 is private land for the purpose of the Mining Act 1978 (WA).

3. The application otherwise is dismissed.

2 The applicant also seeks an order that the second respondent pay the applicant's costs of the application. That order is opposed by the second respondent who contends there should be no order as to costs or alternatively, an order that the second respondent pay the applicant's costs of the issue on which the applicant succeeded (the private land issue) and the applicant pay the second respondent's costs on the issue on which it succeeded (the Crown land issue).

3 A person who is heard in opposition to an application for a prerogative writ may, in the discretion of the court, be ordered to pay costs: O 56 r 7(2) of the Rules of the Supreme Court 1971 (WA). Ordinarily, costs follow the event: Foots v Southern Cross Mine Management Pty Ltd (2007) 82 ALJR 173. Further, the court may apportion costs or otherwise exercise its discretion where a party has been successful in only part of its claim: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748.

4 The issue on which the applicant was successful raised questions of broad significance, complexity and relative novelty. It was the primary focus in the written and oral submissions and in the reasons for judgment. In those circumstances, the appropriate order is that the second respondent pay 80% of the applicant's costs of the application to be taxed.

5 The second respondent seeks an order under the Suitor's Fund Act 1964 (WA) (the Act), s 10. Section 10 provides that where an appeal against the decision of a court in any proceedings succeeds on a question of law, this court may grant to a respondent an indemnity certificate in respect of that appeal. An appeal includes, among other things, any

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proceeding by way of discharging or setting aside a judgment and any other proceeding in the nature of an appeal: s 3 of the Act. The O 56 application in this case is a proceeding in the nature of an appeal.

6 The discretion to grant an indemnity certificate may be exercised where there is a question of law which might reasonably be resolved in different ways: Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S) [5]. The issue on which the second respondent was unsuccessful is of such a nature and an indemnity certificate should issue.

7 Accordingly, the court hereby makes the following additional orders:

4. The second respondent pay 80% of the applicant's costs of the application to be taxed.

5. The second respondent be granted an indemnity certificate pursuant to s 10 of the Suitor's Fund Act 1964 (WA) in respect of the application.