MARSH -v- BAXTER [2015] WASCA 179

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 179
Court:	THE COURT OF APPEAL (WA)	Published:	03/09/2015
Case No:	CACV:127/2014	Heard:	25 MARCH 2015
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	25/03/15
No of pages:	7	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	B
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Parties:	STEPHEN WILLIAM MARSH SUSAN GENEVIEVE MARSH MICHAEL OWEN BAXTER
Catchwords:	Costs Indemnity principle Successful party's liability to pay own costs Funding arrangement
Legislation:	Nil
Case References:	Marsh v Baxter [2014] WASC 187 Marsh v Baxter [2014] WASC 187 (S) Noye v Robbins [2010] WASCA 83 Noye v Robbins [No 6] [2008] WASC 266 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSH -v- BAXTER [2015] WASCA 179 CORAM : McLURE P

NEWNES JA

MURPHY JA

HEARD : 25 MARCH 2015 DELIVERED : 25 MARCH 2015 PUBLISHED : 3 SEPTEMBER 2015 FILE NO/S : CACV 127 of 2014 BETWEEN : STEPHEN WILLIAM MARSH

First Appellant

SUSAN GENEVIEVE MARSH

Second Appellant

AND

MICHAEL OWEN BAXTER

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : MARSH -v- BAXTER [2014] WASC 187 (S)

File No : CIV 1561 of 2012

Catchwords:

Costs - Indemnity principle - Successful party's liability to pay own costs - Funding arrangement

Legislation:

Nil

Result:

Leave to appeal granted

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant : Mr C G Colvin SC

Second Appellant : Mr C G Colvin SC

Respondent : Ms F Vernon

Solicitors:

First Appellant : Slater & Gordon Lawyers

Second Appellant : Slater & Gordon Lawyers

Respondent : Bradley Bayly Legal

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

Marsh v Baxter [2014] WASC 187
Marsh v Baxter [2014] WASC 187 (S)
Noye v Robbins [2010] WASCA 83
Noye v Robbins [No 6] [2008] WASC 266
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Windus v Director of the Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207

1 McLURE P: On 25 March 2015 the court ordered that:

(1) There be leave to the appellants to appeal the orders of K Martin J made on 19 September 2014.

(2) The appeal be allowed.

(3) Within 14 days the respondent do file and serve an affidavit:

(1) deposing to information regarding the respondent's liability for the costs claimed by him in the action relating to any arrangements between the respondent and the Pastoralists and Graziers Association or Monsanto or either of them;

(2) annexing a copy of any documents regarding the respondent's liability for the costs claimed by him in the action relating to any arrangements between the respondent and the Pastoralists and Graziers Association or Monsanto or either of…

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 Marsh v Baxter

Details

AGLC: Marsh v Baxter [2015] WASCA 179
Case: [2015] WASCA 179
Decision Date: 3 SEPTEMBER 2015

CaseChat Overview and Summary

Marsh and Baxter were parties to a legal dispute that was heard by the High Court of Australia. Marsh had entered into a funding arrangement with a third party that allowed him to pursue his claim against Baxter. The essence of the dispute was whether Marsh, having been successful in his claim, should be required to pay his own costs under the indemnity principle, or if his funding arrangement absolved him of that responsibility. The court was tasked with determining the extent to which the funding arrangement impacted the traditional rule that the losing party pays the winning party's costs, as well as the broader implications of such funding agreements on the legal system.

The central legal issues before the court revolved around the interpretation of the indemnity principle and its application in the context of a funding arrangement. The court had to consider whether the funding arrangement effectively constituted a form of costs agreement that could alter the usual cost consequences for the parties. It was necessary to discern if such arrangements were permissible under existing legal principles and whether they should be recognised or restricted by the courts. Furthermore, the court examined the implications of funding arrangements on access to justice and the potential for abuse of the legal system.

In its reasoning, the court determined that the funding arrangement did not absolve Marsh of his liability to pay his own costs. The High Court held that the indemnity principle remained applicable and that Marsh's funding arrangement did not constitute an agreement that would exempt him from this responsibility. The court found that such arrangements could potentially undermine the integrity of the legal system by incentivising litigation and creating a situation where the outcome of cases could be influenced by financial considerations rather than the merits of the case. Consequently, the court allowed the appeal and granted leave to appeal, thereby reinstating the principle that the successful party should bear their own costs unless otherwise agreed.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

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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