Medical Board of Western Australia v A Medical Practitioner
[2011] WASCA 151 (S)
•8 JULY 2011
MEDICAL BOARD OF WESTERN AUSTRALIA -v- A MEDICAL PRACTITIONER [2011] WASCA 151 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 151 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:30/2010 | 8 FEBRUARY 2011 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 8/07/11 | |
| 14/09/11 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | The first respondent pay 75% of the second respondent's costs of the crossappeal, to be taxed if not agreed | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA A MEDICAL PRACTITIONER NATIONWIDE NEWS PTY LTD |
Catchwords: | Appeals Costs Whether introduction of issues has increased costs |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1, O 66 r 1(3) |
Case References: | Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA -v- A MEDICAL PRACTITIONER [2011] WASCA 151 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
DECISION : 14 SEPTEMBER 2011 FILE NO/S : CACV 30 of 2010 BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA
- Appellant
AND
A MEDICAL PRACTITIONER
First Respondent
NATIONWIDE NEWS PTY LTD
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : CHANEY J
File No : VR 384 of 2005, VR 81 of 2006, VR 97 of 2006, VR 170 of 2006, VR 17 of 2007, VR 18 of 2007, VR 71 of 2007, VR 72 of 2007, VR 73 of 2007, VR 74 of 2007, VR 130 of 2007, VR 131 of 2007, VR 132 of 2007
Catchwords:
Appeals - Costs - Whether introduction of issues has increased costs
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1, O 66 r 1(3)
Result:
The first respondent pay 75% of the second respondent's costs of the crossappeal, to be taxed if not agreed
Category: B
Representation:
Counsel:
Appellant : No appearance
First Respondent : Mr M L Bennett
Second Respondent : Mr R Anderson
Solicitors:
Appellant : No appearance
First Respondent : Lavan Legal
Second Respondent : Edwards Wallace Lawyers
Case(s) referred to in judgment(s):
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
(Page 4)
1 JUDGMENT OF THE COURT: In these proceedings, the cross-appeal by the second respondent (Nationwide) was allowed in part for reasons published on 8 July 2011 (Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151). At the time those reasons were published, with the consent of the parties, orders were made for the exchange of written submissions on the subject of the costs of the cross-appeal on the basis that any issues with respect to those costs would be determined on the papers without further hearing. These are the reasons for the orders that will be made in respect of the costs of the cross-appeal.
2 As will be apparent from the reasons given for allowing the cross-appeal in part, Nationwide was successful in respect of two of the three grounds it advanced, while the other ground was dismissed. However, it is significant that one of the grounds which was successful was substantially reformulated during oral argument to the point where it added nothing material to the other ground which was successful.
3 The appellant, the Medical Board of Western Australia, took no part in the cross-appeal, having earlier discontinued its appeal. Accordingly, Nationwide seeks an order that its costs of the cross-appeal be paid by the medical practitioner who was the first respondent to the appeal and a respondent to the cross-appeal. Nationwide seeks that order on the basis that it was substantially successful in its cross-appeal and in accordance with the general rule that costs should follow the event (see O 66 r 1 of the Rules of the Supreme Court 1971 (WA)) (the Rules). The medical practitioner resists that order in reliance upon O 66 r 1(3) of the Rules which provides that where a party although generally successful, has, by the introduction of some issue or issues on which that party has failed, increased the costs, the court may order such party to pay the costs of such an issue or issues.
4 The principles relating to the resolution of issues of this kind when an appeal (or in this case cross-appeal) has been allowed in part are well established and need not be restated at great length. The general rule to the effect that costs will follow the event will be applied unless there is a readily identifiable and discrete issue or issues upon which the successful party has failed, and which issue, or issues, significantly increased the costs of the appeal to the parties. However, the court is generally reluctant to undertake a detailed retrospective analysis of the individual propositions advanced by parties to an appeal and will only depart from the general rule that costs follow the event in a clear and obvious case. When the court does depart from the general rule, costs will be
(Page 5)
- apportioned between the parties on the basis of a broad-value judgment of the relative detail and complexity of the issues upon which the respective parties have succeeded and failed, rather than any attempt at mathematical precision.
5 In this case, the ground of cross-appeal upon which Nationwide failed was the subject of not insignificant written submissions prepared by each party. However, it was effectively abandoned by counsel during the course of argument. The reformulated ground advanced during the course of argument also failed. Further, another ground of appeal, as formulated in the notice, was also the subject of the exchange of written submissions between the parties but was also effectively abandoned during the course of oral argument, when it was reformulated to a ground which was ultimately successful, but which added nothing material to the existing ground which was also successful.
6 In these circumstances it is our view that this is one of those cases in which there are readily identifiable specific and discrete issues upon which the successful party to the cross-appeal failed, and which have materially added to the parties' costs of the appeal. However, it remains the case that Nationwide was substantially successful on the appeal, and on the ground which occupied the majority of the effort directed to written and oral argument. Adopting the broad approach to which we have referred, it is our view that the appropriate order to make in this case is that the first respondent pay 75% of Nationwide's costs of the cross-appeal to be taxed if not agreed.
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