McCabe v Corporate Express Australia Ltd - [2013] WADC 149

McCABE -v- CORPORATE EXPRESS AUSTRALIA LTD [2013] WADC 149

Last Update: 29/10/2013

McCABE -v- CORPORATE EXPRESS AUSTRALIA LTD [2013] WADC 149
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 149
Case No:	CIV:1277/2009	Heard:	12 SEPTEMBER 2013
Coram:	DEPUTY REGISTRAR HEWITT	Delivered:	03/10/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SEAN FRANCIS McCABE CORPORATE EXPRESS AUSTRALIA LTD
Catchwords:	Practice and procedure Application for increase in scale of costs Consent judgment Power to increase scale
Legislation:	Legal Profession Act 2008 s 280 Workers Compensation and Injury Management Act 1981 s 87
Case References:	Feaver v Smith [2008] WADC 72 Lewandowski v Lovell (No 2) (Unreported; WASC; Library No 960310; 14 June 1996)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : McCABE -v- CORPORATE EXPRESS AUSTRALIA LTD [2013] WADC 149 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 12 SEPTEMBER 2013 DELIVERED : 3 OCTOBER 2013 FILE NO/S : CIV 1277 of 2009 BETWEEN : SEAN FRANCIS McCABE

Plaintiff

AND

CORPORATE EXPRESS AUSTRALIA LTD

Defendant

Catchwords:

Practice and procedure - Application for increase in scale of costs - Consent judgment - Power to increase scale

Legislation:

Legal Profession Act 2008 s 280
Workers Compensation and Injury Management Act 1981 s 87

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr P Lafferty

Defendant : Ms Kubacz

Solicitors:

Plaintiff : O'Halloran Legal

Defendant : Jackson McDonald

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

Feaver v Smith [2008] WADC 72
Lewandowski v Lovell (No 2) (Unreported; WASC; Library No 960310; 14 June 1996)

(Page 3)

1 DEPUTY REGISTRAR HEWITT: This matter was commenced by a writ filed on 1 May 2009. On 10 July 2009 a statement of claim was filed and on 1 August a defence to that statement of claim was filed. Thereafter a number of subpoenas were issued by the defendant but there appears to have been no further activity recorded on the file on the part of the plaintiff.

2 On 12 May 2011 the parties filed a consent dated 10 February 2011. That consent provided that the plaintiff's action against the defendant be dismissed and that the plaintiff's costs be taxed if not agreed. Thereafter nothing further happened until the defendant issued a chamber summons to force the plaintiff to file and serve a bill of costs for taxation. Orders were made on 14 January 2013 that such a bill be filed and served within 14 days of the order. Subsequently a further application by the defendant in the same terms returnable on 21 February was brought for reasons which are not obvious to me and that application was dismissed. Eventually on 18 February 2011 the plaintiff filed a bill of costs entitled 'draft plaintiff's bill of costs for taxation'. That bill came before the court for taxation on 3 April 2013, the taxation was adjourned and it was ordered that on or…

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 McCabe v Corporate Express Australia Ltd

Details

AGLC: McCabe v Corporate Express Australia Ltd [2013] WADC 149
Case: [2013] WADC 149
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Sean Francis McCabe brought an action against Corporate Express Australia Ltd for personal injury. The matter was settled by consent, and the plaintiff's action was dismissed with the defendant ordered to pay the plaintiff's costs. The plaintiff subsequently applied for a special costs order under s 280(2) of the Legal Profession Act 2008 on the grounds that the action was of unusual difficulty or importance. The court had to determine whether it had the power to grant the application, whether the application was made within a reasonable time, whether the plaintiff was estopped from pursuing the application, and whether the case was of unusual difficulty, complexity, or importance. The court found that it did not have the power to vary the consent order, the application was not made within a reasonable time, the plaintiff was estopped from pursuing the application, and the case was not of unusual difficulty, complexity, or importance. The application was dismissed.

The court also noted that the plaintiff's solicitor had issued accounts based on a costs agreement that appeared to infringe the prohibition in s 87(2) of the Workers' Compensation and Injury Management Act 1981. The court expressed concern that the application appeared to have been pursued for the benefit of the solicitor at the risk of the client. The court invited the parties to consider the impact of costs as a consequence of the application when making submissions in regard to costs.

Orders