Marina Boulevard Medical Services Pty Ltd v Henson [No 2]
[2023] WADC 12
•10 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MARINA BOULEVARD MEDICAL SERVICES PTY LTD -v- HENSON [No 2] [2023] WADC 12
CORAM: HERRON DCJ
HEARD: 14 DECEMBER 2022
DELIVERED : 10 FEBRUARY 2023
FILE NO/S: CIV 434 of 2022
BETWEEN: MARINA BOULEVARD MEDICAL SERVICES PTY LTD
Plaintiff
AND
WILLIAM LEONARD HENSON
Defendant
Catchwords:
Practice and procedure - Application for stay of proceedings as an abuse of process - Where one of two joint contracting parties not joined in the action - Whether an abuse of process - Whether joint contractor should be added as a party - Order 18 r 4(2) and O 18 r 6 Rules of the Supreme Court 1971 (WA)
Legislation:
Corporations Act 2001 (Cth), s 237, s 230
Rules of the Supreme Court 1971 (WA), O 18 r 4(a), O 18 r 6
Result:
Joint contracting party ordered to be added as a plaintiff and if not prepared to consent ordered to be added as a defendant pursuant to O 18 r 6(2)(b) Rules of the Supreme Court 1971 (WA)
Representation:
Counsel:
| Plaintiff | : | Mr T M Retallack |
| Defendant | : | Mr P G McGowan |
Solicitors:
| Plaintiff | : | Lawfield Legal Practice |
| Defendant | : | Lawmax Legal |
Case(s) referred to in decision(s):
Anglo Australian Resources N.L. v Bloom Financial Advice Pty Ltd [No 2] [2019] WASC 480
Australian Securities Ltd v Western Australian Insurance Co Ltd (1929) 29 SR (NSW) 571
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143
Dowell v Custom Built Homes Pty Ltd [2004] WASCA 171
Kendall v Hamilton [1874 - 1880] All ER Rep 932
King v Hoare (1844) 2 Dow & L 382; (1844) 14 LJ Ex 29; (1844) 13 M & W 494; (1844) 153 ER 206
Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88
Southern Cross Pipelines Australia Pty Ltd v Kenneth Comnios Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 149
WMC Resources Ltd v Southern Cross Pipelines Australia Pty Ltd & Ors [2002] WASCA 308
HERRON DCJ:
Introduction
This is an appeal from a decision of Principal Registrar McGivern delivered on 30 September 2022[1] in which she ordered that the action be stayed, having found that the action had been improperly commenced without leave pursuant to s 237 of the Corporations Act 2001 (Cth) (CA). That order was made in response to the defendant's chamber summons filed on 25 May 2022 seeking orders that:
1.The plaintiff's claim be struck out alternatively the stayed pending further orders;
on the grounds that:
2.Dr V Gopalan does not have authority of the plaintiff Trustee company Marina Boulevard Medical Services Pty Ltd ACN 126 461 970 to commence or conduct the proceedings without leave being sought under s.237 Corporations Act (Cth) and as such constitutes a derivative action commenced in contravention of that section.
3.Dr V Gopalan does not have the authority of the plaintiff Trustee company Marina Boulevard Medical Services Pty Ltd ACN 126 461 970 and or alternatively the Trustee company West Coast Medical Centres Pty Ltd ACN 607 934 001 to sign any contract ("GP Contract") on behalf of any of the companies; and
4.As a result the plaintiff does not have a reasonable or sustainable cause of action in the matter and it is an abuse of process to have commenced and to be allowed to maintain these proceedings
[1] Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88.
By an amended notice of appeal dated 18 October 2022 Marina Boulevard appeals the principal registrar's decision to stay the action as an abuse of process.
Background
The plaintiff's cause of action is in contract arising out of the sale by Dr Henson of a medical practice in Ocean Reef and an associated agreement, described as the 'GP Agreement', in which it is pleaded Dr Henson and Dr Gopalan, acting on behalf of both West Coast Medical Centres Pty Ltd (West Coast) and the plaintiff, Marina Boulevard, agreed that Dr Henson would work as a general medical practitioner at the Ocean Ridge Medical Centre for a term of two years commencing on 1 January 2021.[2] It is further pleaded that in breach of the GP Agreement Dr Henson failed to work the required number of hours, which was also a repudiation of the GP Agreement which was accepted by the plaintiff and West Coast who terminated the GP Agreement.[3]
[2] Amended statement of claim, par 7.
[3] Amended statement of claim, pars 11 - 16.
Before the principal registrar the application for a stay of the proceedings alleging an abuse of process was argued principally on the basis that Dr Gopalan did not execute the GP Agreement by or on behalf of Marina Boulevard. Further, that the action was improperly commenced by Dr Gopalan in Marina Boulevard's name without leave being sought pursuant to s 237 CA, and as a result the action commenced constituted an abuse of the court's processes.
As the principal registrar explained in her reasons for decision:[4]
In the course of the hearing, counsel for the defendant clarified that the juridical basis for the application is neither O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC) (striking out a pleading), nor O 16 r 1 RSC (summary judgement) - rather, the defendant relies on an exercise of the court's inherent power to prevent abuse of its processes.
(footnote omitted)
[4] Marina Boulevard Medical Services Pty Ltd v Henson [3].
It was common cause that the decision to commence the action in the name of Marina Boulevard was not taken by Marina Boulevard's board but by Dr Gopalan (who at the relevant time was a director of Marina Boulevard). It was accepted by the plaintiff that Dr Gopalan did not seek or obtain leave under s 237 CA to commence the action in the name of Marina Boulevard. However, by resolution dated 8 June 2022[5] the directors of Marina Boulevard, other than Dr Gopalan, confirmed on behalf of the company that they authorised and wished to continue with the action commenced without authority. Marina Boulevard relied on the subsequent ratification and adoption by it of Dr Gopalan's conduct in commencing the proceedings and in those circumstances submitted it was unnecessary to obtain leave pursuant to s 237 CA to commence the action.[6]
[5] Gopalan affidavit, 8 June 2022 - annexure VG-1.
[6] Marina Boulevard Medical Services Pty Ltd [17] and [24].
At [25] to [26] of her reasons, the principal registrar found:
25Contrary to the plaintiff's contention at [17(b)] above, even if the company's current board does ratify and adopt the action, that cannot cure the defect arising from Dr Gopalan's failure to obtain leave under s 237 CA before commencing it. That is because:
(a)s 236(3) CA expressly abolishes the general law in relation to commencing or intervening in proceedings on behalf of a company, which is fatal to any reliance by the plaintiff on the operation of the general law of agency;
(b)to the extent that the CA deals with ratification in this context, it is in s 239 CA, which provision is limited to dealing with the effect of ratification of a person's conduct:
(i)on the ability of a person to apply for leave, and to commence and intervene in proceedings with leave having been granted, under s 237 CA; and
(ii)on the determination of, and making orders in, proceedings commenced with leave or in an application for leave under s 237 CA; and
(c)it is apparent on the face of s 239 CA that that provision does not undermine, but is entirely consistent with, the need of a person to apply for leave to commence a derivative action under s 237 CA.
26I am satisfied and I find that the proceeding is a derivative action, improperly commenced.
At [28] she further found:
I am satisfied that the present action, having been improperly commenced without leave under s 237 CA, constitutes an abuse of the court's processes and, as such, should in the exercise of the court's inherent power be stayed pending further order.
The appeal
Although in its written submissions filed for the hearing before the principal registrar[7] the plaintiff referred to the resolution dated 8 June 2022 by which the directors of the plaintiff company other than Dr Gopalan ratified the actions of Dr Gopalan commencing the proceedings and wished to continue with the action, and submitted there was therefore no basis to assert that the action was a derivative action in breach of s 237 CA, no authorities were cited in support of that submission.[8]
[7] Plaintiff's submissions opposing defendant's application to strike out or stay proceedings filed 29 June 2022.
[8] Plaintiff's submissions opposing defendant's application to strike out or stay proceedings filed 29 June 2022, pars 2 - 4; Gopalan affidavit, 8 June 2022 - annexure VG-1.
In written submissions dated 6 December 2022 filed in the appeal hearing the plaintiff submitted:[9]
Whilst proceedings commenced in the name of a plaintiff without proper authority are a nullity and may be stayed at any time, it is also open at any time for the purported plaintiff to ratify and adopt the proceedings (refer - Anglo Australian Resources NL v Bloom Financial Advice Pty Ltd [No 2] [2019] WASC 480, per Hill.J at [29]‑[30] citing Massey (trading as Massey Bailey, Solicitors & Consultants) v Wales [2003] NSWCA 212 and Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in Liq) [2007] FCA 1221.
[9] Outline of submissions dated 6 December 2022, par 3.
Those authorities were not cited before the principal registrar and were not brought to her attention.
In Anglo Australian Resources N.L. v Bloom Financial Advice Pty Ltd [No 2][10] Hill J explained:
[10] Anglo Australian Resources N.L. v Bloom Financial Advice Pty Ltd [No 2] [2019] WASC 480 [28] ‑ [30].
28… If an act falls within the authority of directors, it is open for a properly constituted meeting of directors to ratify the act. However, a resolution passed at a meeting at which there is no quorum is a nullity. As such, there is nothing to ratify and any resolution purporting to be a ratification can only operate as a fresh decision.
29In Massey (trading as Massey Bailey, Solicitors & Consultants) v Wales, the NSW Court of Appeal considered whether a general meeting of shareholders can authorise the commencement of legal proceedings that had previously been commenced. Hodgson JA (with whom Meagher JA and Beasley JA agreed) held that where proceedings are commenced in the name of the plaintiff without proper authority, it is a nullity and can be stayed at any time. It is, however, open at any time to the purported plaintiff to ratify the act of the solicitor who started the action and to adopt the proceedings. When that has been done, in accordance with the ordinary law of principal and agent and in accordance with the ordinary doctrine of ratification, the defect in the proceedings as originally constituted is cured. Specifically, the NSW Court of Appeal held in that case that the general meeting of shareholders did not have power to ratify the commencement of legal proceedings; this decision concerned the management of the company which, pursuant to the articles of association, was vested in the directors.
30The issue was also considered by Finkelstein J in Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq). His Honour stated:
The usual course when a company is improperly made a plaintiff is to stay or dismiss the action and require the solicitor who purported to act for the company to pay the costs. The cases also show that the action though brought without authority is not a nullity in the sense that it is void ab initio without the possibility of subsequent ratification. To the contrary, it is well established that it is possible for the company to ratify the unauthorised act of the solicitor in bringing an action in its name without its actual or implied authority. And, because ratification is possible, a practice has developed that when an action is brought without authority it will not be stayed or dismissed forthwith, but the company will be permitted to convene a general meeting or a meeting of its directors to consider whether to adopt the action.
(citations omitted)
On the basis of those authorities Hill J found that it was open to the directors of the plaintiff company to ratify the act of solicitors in commencing the proceedings in the name of the plaintiff without authority.[11]
[11] Anglo Australian Resources N.L. v Bloom Financial Advice Pty Ltd [No 2] [32].
On the hearing of the appeal the defendant conceded, in my view properly, that on the basis of those authorities the plaintiff company, Marina Boulevard, had ratified the unauthorised act of Dr Gopalan in commencing these proceedings in the name of the plaintiff without authority and the resolution which was subsequently passed sufficiently manifested an intention to ratify the commencement of the proceedings and the authorisation of Dr Gopalan to represent the plaintiff company. Therefore the basis upon which principal registrar found the proceedings had been improperly commenced without leave pursuant to s 237 CA fell away. Although, because the appeal is a hearing de novo, it is unnecessary to establish error, it follows that the basis upon which the principal registrar ruled the commencement of the proceedings was an abuse of the court's processes was in error.
Accordingly, at the hearing on 14 December 2022 I set aside the order staying the proceedings.
Amended chamber summons
In those circumstances as the main basis upon which the defendant sought a stay of proceedings as an abuse of process fell away, the defendant, with leave and without opposition, amended its chamber summons to seek an order that the plaintiff's claim be stayed:
on the grounds that:
The proceedings have been brought and maintained on behalf of West Coast Medical Centres Pty Ltd not being a party to the proceedings.
In oral submissions Dr Henson emphasised that the GP Agreement on which the plaintiff's cause of action is based is alleged to have been entered into with Dr Henson acting on his own behalf and with Dr Gopalan acting on behalf of both the plaintiff and West Coast. It is pleaded Marina Boulevard is a 100% owned subsidiary of West Coast.[12] West Coast is the trustee of a unit trust known as West Coast Medical Centre Unit Trust (WCMCUT) and in that capacity West Coast is the owner of 100% of the shares in Marina Boulevard and also 100% of the units in the WCMCUT.[13]
[12] Amended statement of claim, par 1(d).
[13] Amended statement of claim, pars 2(b), 2(c) and 2(d).
Paragraphs 7 to 9 of the amended statement of claim plead:
7.In or about December 2020, the defendant acting on his own behalf, and Dr Gopalan acting on behalf of both West Coast and the plaintiff agreed in writing upon the terms of an engagement for the defendant to work as a general medical practitioner at the ORMC for a term of 2 years commencing on 1 January 2021 ("GP Agreement").
Particulars
The terms of the GP Agreement are evidenced by an undated type written letter of engagement entitled "Letter of Engagement: West Coast Medical Group", and bearing references on the face of the document to "West Coast Medical Group" an address at "81 Marina Blvd Ocean Reef, WA 6027 Ph 9307 5344" and "ABN 43623033809" which was signed and annotated by the defendant (with the words "Ocean Reef Medical Centre") on 11 December 2020, and countersigned by Dr Gopalan on 14 December 2020.
8.On a proper construction of the GP Agreement the references on the face of the document to "West Coast Medical Group", the address at 81 Marina Boulevard and the "ABN 43623033809" and the defendant's annotation of the words "Ocean Reef Medical Centre", meant and included both West Coast as ultimate owner of the companies within the West Coast Medical Group and the plaintiff as the legal owner of the ORMC.
Particulars
a)As regards the plaintiff, the specified address of 81 Marina Boulevard Ocean Reef was both the address of the Ocean Reef Medical Centre owned and operated by the plaintiff as pleaded in paragraph 1(c) above, and the Registered Office and Principal Place of Business of the plaintiff as pleaded in paragraph 1(a) above;
b)As regards West Coast, the specified ABN 43623033809 was registered in respect of a business name "The Trustee for the West Coast Medical Centres Unit Trust" and registered to West Coast in that capacity as pleaded in paragraph 2(e) above;
c)The matters particularized in subparagraphs (a) and (b) above were known to both the defendant and Dr Gopalan at the time when they signed the GP Agreement.
9.Further and/or in the alternative, by reason of the matters pleaded at paragraphs 3 and 4 above, at the time of negotiating for and entering into the GP Agreement:-
a)the defendant knew (and it was the common understanding of the parties) that Dr Gopalan was negotiating for and on behalf of West Coast as ultimate owner of the companies within the West Coast Medical Group and for the plaintiff as the legal owner of the ORMC, and
b)the defendant knew each of the matters pleaded at paragraphs 1 and 2 hereof.
(underlining of amendments omitted)
Dr Henson submits that because it is pleaded one of the contracting parties is West Coast, it is impermissible to proceed with the action where one of the contracting parties is not a party to the proceedings and, for that reason, the proceedings constitute an abuse of the court's processes and should be stayed. Although the pleaded causes of action purport to be brought on behalf of both the plaintiff and West Coast, West Coast is not, it is submitted, as it ought to be, joined as a second plaintiff.
Dr Henson points to the resolution of the directors of West Coast by which it resolved to ratify and adopt the GP Agreement and authorise West Coast to be joined to the proceedings as the second plaintiff.[14] Although the resolution is undated it was signed by Dr Sauzier on 3 June 2022 and Dr Pravhakar on 7 June 2022.[15] Despite those resolutions, and despite the matter being a live issue since the filing of the defence on 4 March 2022, West Coast has not been joined as a second plaintiff in the action.
[14] Gopalan affidavit, 8 June 2022 - annexure VG-2.
[15] Gopalan affidavit, 8 June 2022, par 48.
At the appeal hearing before me on 14 December when pressed, counsel for the plaintiff said that a final decision as to whether West Coast would be joined as a second plaintiff had not been made because circumstances have changed arising out of matters raised by the defendant including the authority of West Coast to enter into a contract for more than 24 months.[16] Counsel maintained that it was not an abuse of process for Marina Boulevard to maintain the action without the other contracting party, West Coast, being joined as a second plaintiff.[17] It was submitted that on the pleaded case a claim is not maintained on behalf of West Coast.[18]
[16] ts 37.
[17] ts 39.
[18] ts 46 - ts 47.
Neither counsel was able to cite authority relevant to the submission made by the defendant that as a matter of principle all contracting parties to a contract which is sued upon must be joined as parties in the action. I therefore ordered the parties to file supplementary written submissions addressing that specific issue.
In accordance with those orders, written supplementary submissions were filed by Dr Henson on 19 December and by Marina Boulevard on 21 December.
The law
In Australian Civil Procedure,[19] the learned author states:
[9.10]… All parties who are necessary and proper for the resolution of the dispute should be before the court. The Judicature principle ordains the resolution of all matters of dispute in the same proceeding.
…
[9.20]… Where the plaintiff claims relief to which any other person is liable jointly with the plaintiff, all such persons must be joined as plaintiffs. In the case of joint contractors, a person who will not consent to join in as a plaintiff is joined as a defendant.
…
[9.30]Joint contractors must all join in a proceeding for it to be properly constituted: Australian Securities Ltd v Western Australian Insurance Co Ltd(1929) 29 SR (NSW) 571.
A failure to join all the contractors as parties to a proceeding affords the defendant a defence, or at least grounds for a stay, until all parties to the contract become parties to the proceeding. Lying behind this principle is that a breach of a joint contract gives rise to only one cause of action: Kendall v Hamilton (1879) 4 App Cas 504. So that no rights are lost by the entry of judgment in respect of only some of the contracting parties, all of the joint contractors must be parties to the proceeding.
(footnotes omitted)
[19] Australian Civil Procedure, Cairns Bernard (12th ed, 2019), [9.10] - [9.30].
Australian Securities Ltd v Western Australian Insurance Co Ltd[20] concerned a motor vehicle insurance policy for loss and damage caused to a motor vehicle in which the plaintiff company and other persons had entered into an insurance contract with the defendant company. The defendant had objected that the relief sought by the plaintiff was in relation to a joint agreement which it had entered into with others and was not an agreement upon which it was entitled to sue severally. Ferguson ACJ (with whom James J & Hammond AJ agreed) said that the resolution of the issue depended upon whether as a matter of construction the agreement was a joint or several agreement.[21] He held that as a matter of construction there was an agreement that in consideration of the payment of a premium, which was to be paid by the insureds jointly, the defendant insurer would pay for the loss or damage to the motor vehicle. He held:[22]
… It seems to me that that is a covenant with the people who paid the premium, and it is a covenant with them jointly, and therefore they must sue jointly. So far as the covenant to repair is concerned, Mr. Stuckey admits that that is a covenant with them jointly, and I cannot see any distinction between that and the covenant to pay. The defendant company was bound to pay the people with whom they contracted. So far as their rights between themselves are concerned, that is a matter of their own concern, with which the defendants have nothing to do. …
(emphasis added)
[20] Australian Securities Ltd v Western Australian Insurance Co Ltd (1929) 29 SR (NSW) 571.
[21] Australian Securities Ltd v Western Australian Insurance Co Ltd (572).
[22] Australian Securities Ltd v Western Australian Insurance Co Ltd (572) - (573).
Although Kendall v Hamilton[23] concerned whether a creditor successfully suing in contract two joint debtors could later take further action against a third joint debtor, relevant to the current issue of whether all co-contractors must be joined as plaintiffs, referring to King v Hoare[24] Lord Blackburn said:[25]
… The basis of the judgment was that an action against one on a joint contract was an action on the same cause of action as that in an action against another of the joint contractors or in an action against the all the joint contractors on the same contract. From very early times it was the law that a contract was an entire thing, and that, therefore, all who were parties to the contract must, if alive, join as plaintiffs, and must be joined as defendants.
If this was not done there must be a plea in abatement …
… But there was a long controversy whether the plea in abatement was the only way in which the object could be raised. If on the evidence it was proved that the contract was joint, it was thought that there was a variance between the proof of a joint contract with the parties to the action and someone not a party to the action and still alive, and the allegation in the declaration which, it was thought, must be taken to be an allegation of a contract between the parties to the action and not others, and consequently that there should be a nonsuit or verdict for the defendant on the ground of variance. This, it has now been settled, is the law in cases where the objection is the non-joinder of a plaintiff, and consequently the non-joinder co-contractor as plaintiff was never in modern times pleaded in abatement and it was long thought by many that the same course was open to a defendant. …
(emphasis added)
[23] Kendall v Hamilton [1874 - 1880] All ER Rep 932.
[24] King v Hoare (1844) 2 Dow & L 382; (1844) 14 LJ Ex 29; (1844) 13 M & W 494; (1844) 153 ER 206.
[25] Kendall v Hamilton (950).
An 'abatement of action' was formerly a suspension or termination of proceedings in an action for want of proper parties or owing to a defect in the writ or service.[26]
[26] Osborne's Concise Law Dictionary, definition 'abatement of claim' (formally abatement of action).
In Dowell v Custom Built Homes Pty Ltd EM Heenan J said:[27]
88The established rule is that where an action is founded on a contract made by several persons jointly, they must all, if living and entitled to sue thereon, join in the action as co‑plaintiffs and if any of them does not consent to be so joined as a plaintiff he must be made a defendant - RSC O 18 r 4(2). This is the position where the joint contractors or some of them initiate the action as plaintiffs. However, if a contract is made by two or more persons jointly and severally, the plaintiff may sue all of them jointly, or any one of them separately or may in the same action claim against all of them jointly and, in the alternative, against each of them separately - RSC O 18 r 4(3) and Payne v British Time Recorder Co [1921] 2 KB 1. If one plaintiff, under a contract involving joint and several liability, decides to proceed against only one or some of those alleged to be liable under the contract the court may, on the application of that defendant, stay the proceedings until the other persons so liable are added as defendants - RSC O 18 r 4(3). No such application was made in this case. Whether a contract is joint, or joint and several, or several is a matter of construction which often can be difficult. In the present case, where the role of the Greens as parties to the contract was not raised, this adds a further level of difficulty.
89The provision in the Rules that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party - RSC O 18 r 6(1) has not altered the legal principles with regard to parties to actions and does not remove the need to have all the proper parties necessary for determining the point at issue before the court: Kendall v Hamilton (1879) 4 App Cas 504; A G v Pontypridd Water Works Co [1908] 1 Ch 388 Performing Right Society v London Theatre of Varieties [1924] AC 1 and Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 at 133, so that if the Greens were joint contractors with the respondent, rather than several or joint and several contractors, their absence from these proceedings would be a formidable difficulty. However, as it seems to be clear, beyond any doubt, that the interests, rights and obligations of the Greens under this "agreement" if it was (contrary to the finding of the learned trial Judge) complete were interests, rights and obligations which were separate and distinct from those of the respondent, Custombuilt Homes Pty Ltd. Indeed, this emerges from the analysis already set out. In that case, despite their absence from the proceedings, it is possible to deal with the matter with regards to the rights of the parties actually before the court. This is the course which should be preferred, if at all possible, where, as here, the action has proceeded to trial without objection as to parties: Re Harrison [1891] 2 Ch 349 and Hall v Heward [1886] 32 Ch D 430. Whether this is, indeed, possible especially in the light of the cross‑appeal is a matter which will require further attention
(citations omitted)
(emphasis added)
[27] Dowell v Custom Built Homes Pty Ltd [2004] WASCA 171 [88] - [89].
In Southern Cross Pipelines Australia Pty Ltd v Kenneth Comnios Michael Western Australian Independent Gas Pipelines Access Regulator[28] EM Heenan J in considering an application by a non‑party to be joined as a defendant to an action pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 18 r 6(2) noting that in some jurisdictions, but not in Western Australia, the rule had been amended to give greater power to join a non-party to an action, said:[29]
Regardless of its form in any particular jurisdiction, the rule does not in any way affect the necessity to have before the court the proper parties necessary for determining the point in issue - Australian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119; Kendall v Hamilton (1879) 4 App Cas 504; and AG v Pontypridd Waterworks Co [1908] 1 Ch 388. Consequently, on any such application it is necessary to determine whether or not the proposed intervenor who wishes to be joined has an interest which makes it necessary for him to be before the court for the effectual and complete determination and adjudication of all matters in dispute in the cause.
(emphasis added)
[28] Southern Cross Pipelines Australia Pty Ltd v Kenneth Comnios Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 149.
[29] Southern Cross Pipelines Australia Pty Ltd v Kenneth Comnios Michael Western Australian Independent Gas Pipelines Access Regulator [7].
Although the decision to refuse the application by an external party, WMC Resources Ltd, to be joined as an additional defendant was refused, it was successfully appealed.[30] However, the O 18 r 6(2) issue was not dealt with in the appeal and EM Heenan J's summary of the legal principles was not challenged.
[30] WMC Resources Ltd v Southern Cross Pipelines Australia Pty Ltd & Ors [2002] WASCA 308.
In Belgravia Nominees Pty Ltd v Lowe Pty Ltd,[31] which primarily concerned whether, following dissolution of a partnership, s 49 of the Partnership Act 1895 (WA) is the exclusive source of a partner's right to bring proceedings to recover partnership property and whether it was necessary that both former partners be joined in proceedings, Murphy JA explained, relevant to the issues in these proceedings, the history of the law regarding the joinder of joint contracting parties to an action and the background to the introduction of O 18 r 4(2) RSC:[32]
[31] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143.
[32] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [44] - [51].
44Prior to the Judicature Act of 1873, the old common law rule was that generally speaking, one joint promisee could not join another joint promisee as co‑plaintiff in an action against a defendant promisor, unless the other joint promisee consented. In the absence of the joint promisee's joinder, the action was not properly constituted and could not be maintained at law.
45The practice of Chancery, on the other hand, was that where a covenantor covenanted with two persons jointly, and one of the two joint covenantees refused to sue at law, the court would allow one covenantee to sue the covenantor, making the co‑covenantee a party to the action. The basis for the practice was that Chancery treated the co‑covenantees as trustees for themselves and each other, and Chancery would not allow a co‑covenantee to refuse to join in an action into which, in all honesty, he was bound to join for the benefit of both.
46Since the Judicature Act of 1873, an action was not to be defeated by the non‑joinder of the parties. Following the influence of Chancery, the old common law rule was superseded. The position at law emerged that a joint promisee could be allowed to join his or her co‑promisee in an action, contrary to the wishes of the co‑promisee. Generally, this required the plaintiff joint promisee, to indemnify the co‑promisee as to his or her costs, and if the co‑promisee still refused to be joined as a plaintiff, then the co‑promisee could be added as a defendant.
47With reference to that practice, in Johnson, Younger LJ observed that:
[T]he statement of claim also contains a claim against the defendant company for breach of contract made by them with two joint contractors, of whom the plaintiff is one; and the other joint contractor having refused to join in the action the plaintiff has added him as a defendant in respect of that claim. The question then arises as to the circumstances in which one of two joint contractors is entitled to maintain an action in that form. Now I think it is clear that he has no absolute right to do so, and that he is only allowed to take that course as a matter of privilege and upon terms. What then are the terms on which that privilege is to be enjoyed? Speaking for myself I should prefer not to say that the condition of his being allowed to join the other joint contractor as a defendant is that he shall have offered him an indemnity against costs if he will allow the use of his name as plaintiff, but to state the principle rather more widely, and say that before joining his co‑contractor as a defendant he must first have exhausted all reasonable means of obtaining his consent to being joined as plaintiff. No doubt in ninety‑nine cases out of a hundred one of those reasonable means is the offer of an indemnity, and the absence of such an offer unexplained would in these cases be a reason for saying that the action was not properly constituted if the co‑contractor was joined as a defendant. But in the hundredth case, and the present case is an instance, where the co‑contractor is alleged in breach of his duty to the plaintiff to have colluded with the other party to the contract and procured a breach of it, it would not be reasonable to require the plaintiff to offer him an indemnity as a condition of being allowed to join him as a defendant. (emphasis added)
48The italicised part of that passage was cited with approval by Needham J in Rajski v Computer Manufacture & Design Pty Ltd.
49This practice of having a joint promisee added as a defendant eventually became embodied in the English rules of court in 1962. In this State, the local equivalent is O 18 r 4(2) of the Rules of the Supreme Court 1977 (WA), which provides:
Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this subrule, be made a defendant.
This subrule shall not apply to a probate action.
50The general effect of such a rule is that the unwilling plaintiff who is jointly entitled to the relief must be joined as a defendant subject to the power of the court to give leave to the contrary. It will generally be relevant, on an application to the court under the rule, to consider whether the plaintiff has first sought to obtain the consent of the other person to join in the action as a co‑plaintiff, on the basis of offering him or her an indemnity as to costs. But, the unwilling plaintiff need not necessarily be offered an indemnity as to costs before being so joined.
51Order 18 r 4(2), as a rule relating to joinder, should be interpreted liberally so as to permit joinder of parties whenever reasonably possible.
(citations omitted)
(emphasis added)
McLure P said:[33]
Thus, the partnership's accrued rights to take action against Lowe for breach of the agency agreement and to recover the statutory debt are held jointly by Belgravia and Penhurst. Under O 18 r 4(2) of the Rules of the Supreme Court 1971 (WA) (the Rules), Penhurst must be joined as a plaintiff with its consent, or absent its consent, made a defendant. That rule applies where the plaintiff in any action claims relief to which any other person is entitled jointly with him.
[33] Belgravia Nominees Pty Ltd [11].
Order 18 r 4(2) RSC reads:
(2)Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this subrule, be made a defendant.
This subrule shall not apply to a probate action.
Order 18 r 6 RSC reads:
6. Misjoinder and nonjoinder of parties
(1)No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.
(3)An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.
Analysis
I accept on the basis of those authorities that as a matter of principle joint contracting parties, who are jointly entitled to the relief sought, should each be joined in the action, so that all the necessary parties are before the court for the issues in dispute to be determined. That principle is now reflected in O 18 r 4(2) RSC and O 18 r 6(2).
I accept that from the way in which Marina Boulevard pleads its cause of action against Dr Henson it has a very close relationship with West Coast. West Coast owns Marina Boulevard. Dr Gopalan acted on behalf of both West Coast and Marina Boulevard in entering into the GP Agreement with Dr Henson.[34] West Coast is the ultimate owner of the companies within the West Coast Medical Group.[35]
[34] Amended statement of claim, par 7.
[35] Amended statement of claim, par 8.
I have referred earlier to pars 7 to 9 of the amended statement of claim.[36]
[36] [18] above.
In my view, from the way in which the plaintiff pleads its cause of action the court will be required to properly construe the terms of the GP Agreement, including who are the contracting parties, and because it is pleaded West Coast is the ultimate owner of the companies, including the plaintiff company Marina Boulevard, it is necessary that West Coast be joined in this action as a second plaintiff. Its presence before the court is necessary to ensure that all matters in dispute in the action be effectively and completely determined and adjudicated upon. Therefore, West Coast ought be joined as a second plaintiff in the action. If West Coast does not consent to be joined as a second plaintiff it must be joined as a defendant.
Indeed, in its supplementary written submissions Marina Boulevard accepts that in light of the issues likely to arise in construing the GP Agreement (which may involve determination of issues affecting rights and obligations of West Coast) there are grounds upon which the court could reasonably consider that pursuant to O 18 r 6(2)(b) it is open for the court on its own motion to order that West Coast be joined as a second plaintiff to the action.[37] Marina Boulevard says that it is not opposed to West Coast being joined as a second plaintiff[38] but then submits:[39]
If, as the defendant contends in his supplementary submissions at [23], a joinder of West Coast pursuant to Order 18 Rule 6 (2) is necessary to prevent prejudice to the defendant, and to ensure (as the defendant asserts is necessary) that all joint contractors are before the Court, then that could be achieved without the need for a further application (and the attendant costs and delays) if the Court was prepared to make the order on its own motion.
[37] Plaintiff's supplementary submissions on appeal, par 9.
[38] Plaintiff's supplementary submissions on appeal, par 16.
[39] Plaintiff's supplementary submissions on appeal, par 17.
It is, with respect, a confusing submission. It begs the question of why, especially given the close relationship between Marina Boulevard and West Coast, who are both represented by Dr Gopalan, why West Coast does not simply apply pursuant to O 18 r 4 to be joined as a second plaintiff in the action.
I have formed the view that it is necessary that West Coast, as a joint contractor to the GP Agreement and as the owner of Marina Boulevard, must be joined as a second plaintiff in this action so that all issues which might arise in any trial can be fully addressed. With a view to seeking to avoid any further interlocutory applications and disputes regarding this issue I am of the view it is appropriate that pursuant to O 18 r 6(2)(b) West Coast be ordered to be added as a party because its presence 'is necessary to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon'. As I earlier said,[40] if West Coast does not consent to being added as a second plaintiff it should be joined as a defendant.
[40] [38] above.
However, because the question of the court exercising its power pursuant to O 18 r 6(2)(b) was not the subject of any detailed submissions on the appeal hearing, I grant the parties leave to make further submissions. If the parties do not seek to be further heard, I direct that the parties file an agreed minute of proposed orders, to reflect these reasons, to be settled by me. If an agreed minute cannot be reached, I direct the parties to file individual minutes and any further brief written submissions in support of their respective minutes of proposed orders and I will determine the matter on the papers.
I will also hear the parties further as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
9 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MARINA BOULEVARD MEDICAL SERVICES PTY LTD -v- HENSON [No 2] [2023] WADC 12 (S)
CORAM: HERRON DCJ
HEARD: ON THE PAPERS
DELIVERED : 22 MARCH 2023
FILE NO/S: CIV 434 of 2022
BETWEEN: MARINA BOULEVARD MEDICAL SERVICES PTY LTD
Plaintiff
AND
WILLIAM LEONARD HENSON
Defendant
Catchwords:
Costs - Application for stay of proceedings - Plaintiff ordered to join a non‑party - Whether defendant entitled to costs of the application
Legislation:
Corporations Act 2001 (Cth), s 237
District Court of Western Australia Act 1969 (WA), s 64
Rules of the Supreme Court 1971 (WA), O 18 r 6(2)(b), O 66 r 1, O 66 r 48
Result:
Order that costs of the application be in the cause
Representation:
Counsel:
| Plaintiff | : | Mr T M Retallack |
| Defendant | : | Mr P G McGowan |
Solicitors:
| Plaintiff | : | Lawfield Legal Practice |
| Defendant | : | Lawmax Legal |
Case(s) referred to in decision(s):
Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88
Marina Boulevard Medical Services Pty Ltd v Henson [No 2] [2023] WADC 12
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
HERRON DCJ:
For reasons I published in Marina Boulevard Medical Services Pty Ltd v Henson [No 2][41] I ordered that pursuant to O 18 r 6(2)(b) Rules of the Supreme Court 1971 (WA) (RSC) West Coast Medical Centres Pty Ltd (West Coast) be added as a plaintiff to these proceedings. The parties were unable to agree the appropriate order as to costs and programming orders were made for the parties to file written submissions relevant to the issue of costs together with any materials relied upon in support of its submissions as to costs.
[41] Marina Boulevard Medical Services Pty Ltd v Henson [No 2] [2023] WADC 12.
Pursuant to those orders the plaintiff has filed written submission dated 17 February 2023 together with an affidavit sworn by the plaintiff's solicitor, Timothy Mark Retallack, on 17 February 2023. The defendant has filed written submissions dated 24 February 2023 together with an affidavit affirmed by the defendant's solicitor, Donald John Smart, on 24 February 2023.
In brief, the plaintiff submits that the costs of the defendant's application to stay the proceedings, and of the appeal, be costs in the cause. The defendant submits the plaintiff should be ordered to pay his costs of the application and of the appeal in any event.
For the reasons which follow, I order the costs of the application, including costs of the hearing before the Principal Registrar on 19 August 2022 and the costs of the appeal on 14 December 2022, including the submissions as to costs, be costs in the cause.
General rules as to costs
By O 66 r 1 RSC:
1.General rules as to costs
(1)Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.
(2)If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
(3)Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.
Also, O 66 r 48 RSC provides:
48.Costs of motion etc. follow event
(1)Unless the Court otherwise orders, the costs of a motion or application in an action shall be deemed to be part of the costs of the action of the party in whose favour the motion or application is determined unless the motion or application is unopposed.
(2)When the motion or application is unopposed, the costs of both parties shall be deemed to be part of their costs of the action, unless the Court otherwise orders.
Further, by s 64 District Court of Western Australia Act 1969 (WA):
64.Costs of action or proceeding
(1)Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event.
…
(3)Subject to this Act, a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court has.
In Strzelecki Holdings Pty Ltd v Jorgensen,[42] the Court of Appeal explained the court's wide discretion in respect of the awarding of costs as follows:
48… Subject to any inconsistency between the District Court Rules 2005 (WA) and the Rules of the Supreme Court 1971 (WA) (RSC), the RSC apply to and in respect of any case in the District Court. The Supreme Court has a wide discretion to award costs in respect of all proceedings in the Court. Despite its breadth, the discretion to award costs is not unfettered, and must be exercised judicially.
49Without limiting the Court's wide discretion as to costs, the starting point in relation to the award of costs under the RSC is that the Court will generally order that the successful party to the action or matter recover their costs. It was incumbent on Strzelecki, as the unsuccessful party, to satisfy the primary judge that there were good reasons why it should not pay the Jorgensens' costs.
50What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. In the present case, Strzelecki did not contend that the issues raised by the Jorgensens, and on which they were unsuccessful, were raised unreasonably or improperly.
51Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well‑recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.
52Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others.
[42] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] - [52].
The parties' submissions
It is evident from the affidavits and submissions filed by each of the parties that there are areas of strong disagreement between them, both as to the history of how the litigation has been conducted and as to the basis upon which the defendant's application for a stay was brought, including the merits of the application.
The defendant submits that the issues which were addressed by his application for a stay originated from the defence he filed on 4 March 2022 pleading that the action commenced by Dr Gopalan was commenced without the authority of the plaintiff company and if there was an authorisation, it was invalid, that is, it was a derivative action commenced without the leave of the court. No timely action, it is submitted, was taken by the plaintiff to address that issue, necessitating the defendant's application filed on 25 May 2022. It is also submitted that notwithstanding the basis of the Principal Registrar's decision to grant the stay, it remained a live issue that the action could not proceed without West Coast being joined as a party to the action.
It is further submitted by the defendant that his persistence with the application to stay the proceedings was reasonable in circumstances where the plaintiff had not joined West Coast in the proceedings and had not finally determined whether it would join West Coast.
The plaintiff says it neither declared an intention to persist with the proceedings without joining West Coast as a plaintiff, nor refused to join West Coast as a party to the action. The plaintiff points to the exchange of correspondence between the solicitors[43] in which the plaintiff proposed that West Coast be joined as a party to the proceedings, to which the defendant indicated he opposed such an application because of the purported lack of authority for commencement of the proceedings and also because, by its shareholder's agreement, West Coast was unable to enter into a contract for a term exceeding 12 months without a special resolution being passed at a shareholder's meeting, which did not happen. The GP agreement upon which the plaintiff sues is a contract for a period of 24 months which, it is submitted, required the approval of shareholders by the passing of a special resolution at a shareholder's meeting.
[43] Annexed to Mr Retallack's affidavit of 17 February 2023.
The plaintiff submits that as the lack of authority for commencement of the proceedings had been resolved by 8 June 2022, when the two directors other than Dr Gopalan, ratified the actions of Dr Gopalan to commence the proceedings, the reason relied upon for persisting with the application for a stay before the Principal Registrar was not justified. The plaintiff submits that the issues raised by the defendant's application and the basis upon which the application was brought developed and changed during the course of the hearing before the Principal Registrar and at the appeal hearing and that neither party has been so clearly successful that there should be an award of costs in favour of a party. The plaintiff maintains it had not made a final decision as to whether to join West Coast as a party to the proceedings at the time of the hearing of the appeal in December, largely because it understood the defendant would oppose the joining of West Coast to the proceedings. The plaintiff refers to the exchange of email correspondence between the solicitors in April 2022[44] in which Mr Retallack advised he intended to add West Coast to the action and enclosed a draft proposed amended statement of claim, to which the defendant's solicitor, Mr Smart, responded there was not a maintainable cause of action because of the pleaded lack of authority issue pursuant to the Corporations Act 2001 (Cth). The plaintiff also refers to the defendant's written submissions filed in the appeal by which it is submitted that ratification of West Coast being joined as a party would be ineffective because West Coast had not acted in accordance with its shareholder's agreement in entering into the GP agreement.
[44] Annexed to Mr Retallack's affidavit of 17 February 2023.
Findings
I conclude the appropriate order for costs is that the costs of the application for a stay and of the appeal be in the cause. In my view the basis upon which the application was brought has developed and changed over the course of the hearing of the application. As was made clear by the Principal Registrar in her reasons for decision,[45] the issue raised by the defendant's application was refined to whether the action was a derivative proceeding, which the Principal Registrar accepted it was and was the reason why she stayed the action as an abuse of the court's processes. From the written submissions filed for the appeal,[46] the defendant still seemed to maintain the action ought be stayed because it was a derivative action. However, at the hearing of the appeal, the defendant conceded the initial defect in the proceedings, being the pleaded lack of authorisation for commencement of the District Court action, had been cured by the later (June 2022) ratification of Dr Gopalan's actions in commencing the proceedings. Indeed, by the time of the hearing before the Principal Registrar on 19 August 2022 the lack of authorisation was no longer an issue because of the resolution dated 8 June 2022 ratifying and adopting the commencement of the District Court action by Dr Gopalan. It was conceded, properly in my view, that the purported lack of authority was no longer a basis upon which the application for a stay could be granted. Until then, the lack of authorisation as a basis for the stay application had been maintained. By its terms, the defendant's application for a stay was principally brought on the basis of the lack of authority and that the District Court proceedings were a derivative action commenced in contravention of s 237 of the Corporations Act. The application for a stay did not clearly identify a ground for the application as the failure to join West Coast in the proceedings.
[45] Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88.
[46] Outline of defendant's submissions, 9 December 2022.
Hence, at the hearing of the appeal the defendant amended the grounds of appeal to refine the basis of the application to be that West Coast, which was a party to the GP agreement, had not been joined as a plaintiff in the proceedings. Notwithstanding the defendant's submission to the contrary I am of the view that if it had been made clear at the outset that that was the basis upon which the application was brought, but the defendant reserved his position that West Coast was not authorised to enter into the GP agreement for a period of 24 months because it had not obtained a special resolution at a shareholder's meeting to enter into such a contract, it is likely West Coast would have been joined to the proceedings and the application for a stay would have been unnecessary. I have reached that view despite the equivocation of the plaintiff's counsel at the appeal hearing about whether it was intended to join West Coast as a plaintiff to the proceedings.
In my view this is a matter in which both parties have been partly successful in that the plaintiff successfully opposed the application for a stay based upon the court action being a derivative action, but the defendant has also been successful in having West Coast joined as second plaintiff to the action. This is not a matter in which it can be readily be discerned that one party was more successful than the other. Nor is it a matter where it can readily be determined that there were discrete and severable issues on which a generally successful party failed and which added to the cost of a proceedings in a significant and readily discernible way.[47] Whether West Coast was authorised to enter into the GP agreement and whether that is relevant to a proper construction of the GP agreement remains an issue between the parties which will need to be determined at trial and no doubt will be the subject of evidence adduced at trial.
[47] Strzelecki Holdings Pty Ltd v Jorgensen [51].
I have therefore reached the view that it is too difficult to separate the different issues which emerged during the conduct of the defendant's application for a stay and that therefore the appropriate order for the costs is that the costs of the application, including the costs of the appeal, be costs in cause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
20 MARCH 2023
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