MERCER -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASC 124 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 124 (S)
Case No:	CIV:2597/2004	Heard:	12 - 23, 29 & 30 NOVEMBER 2007, 3, 12 & 13 DECEMBER 2007, 20 FEBRUARY 2008, 27 JANUARY 2009
Coram:	JENKINS J	Delivered:	30/06/08
Supplementary Delivered:	18/02/09
No of pages:	22	Judgment Part:	1 of 1
Result:	The defendant pay 65% of the plaintiffs' costs of the action Special costs orders made
Category:	B
PDF Version

Parties:	ROBERT WILLIAM MERCER RICHARD TAUNTON SAUNDERS MICHELLE JONNINE McALLISTER & CRAIG DOUGLAS McALLISTER as Executors of MABEL JOYCE PALMER WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Costs Compensation for land taken for a public work Identification of the party entitled to costs Relevance of Calderbank offer Relevance of failure of the successful party on certain issues Whether successful party is entitled to special costs orders
Legislation:	Land Administration Act 1997 (WA), s 211, s 223 (3), s 223(9) Legal Practice Act 2003 (WA), s 215 (2) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) Rules of the Supreme Court 1971 (WA), O 66 r 1
Case References:	Banno v Commonwealth of Australia (1993) 45 FCR 32 Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541 Cerini v McLeods (A Firm) [2004] WASC 45 Cerini v The Minister for Transport [2001] WASC 309 (S) Clifford v Shire of Busselton [2007] WASAT 89 Cretazzo v Lombardi (1975) 13 SASR 4 Downie v Sorell Council (2005) 141 LGERA 304 Duffy v The Minister for Planning [2002] WASC 201 Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 Mercer v Western Australian Planning Commission [2008] WASC 124 Minister for the Environment v Florence (1979) 21 SASR 108 Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 (S) Murdesk Investments Pty Ltd v Roads Corporation (2007) 155 LGERA 13 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439 Pastrello v Roads and Traffic Authority of New South Wales (2000) 110 LGERA 223 State of Tasmania v Effingham Pty Ltd (No 2) [2006] TASSC 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MERCER -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASC 124 (S) CORAM : JENKINS J HEARD : 12 - 23, 29 & 30 NOVEMBER 2007, 3, 12 & 13 DECEMBER 2007, 20 FEBRUARY 2008, 27 JANUARY 2009 DELIVERED : 30 JUNE 2008 SUPPLEMENTARY
DECISION : 19 FEBRUARY 2009 FILE NO/S : CIV 2597 of 2004 BETWEEN : ROBERT WILLIAM MERCER

RICHARD TAUNTON SAUNDERS

First Plaintiffs

MICHELLE JONNINE McALLISTER & CRAIG DOUGLAS McALLISTER as Executors of MABEL JOYCE PALMER

Second Plaintiffs

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Defendant

(Page 2)

Catchwords:

Costs - Compensation for land taken for a public work - Identification of the party…

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.

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Details

Case: [2008] WASC 124 (S)
Decision Date: 30 JUNE 2008

CaseChat Overview and Summary

The case of Mercer v Western Australian Planning Commission involved a dispute regarding compensation for land taken for a public work. The matter was heard in the Supreme Court of Western Australia, with the plaintiff, Mr. Mercer, seeking compensation for land compulsorily acquired by the defendant, the Western Australian Planning Commission. The primary issue before the court was whether Mr. Mercer was entitled to costs and, if so, the extent of these costs. The court was also required to consider the relevance of a Calderbank offer and the consequences of Mr. Mercer's failure on certain issues.

The court examined the relevant factors in determining the entitlement to costs, focusing on the Calderbank offer, which is an offer of settlement made without admission of liability. The court held that the Calderbank offer was relevant in assessing the overall conduct of the parties during the litigation process. Furthermore, the court considered whether Mr. Mercer's failure on certain issues impacted his entitlement to costs. Ultimately, the court found that the plaintiff was entitled to 65% of the costs of the action. The court also made special costs orders, considering the specific circumstances of the case.

In conclusion, the court ordered the Western Australian Planning Commission to pay 65% of Mr. Mercer's costs of the action. Additionally, the court made special costs orders to address the particular circumstances of the case. This decision highlights the importance of considering various factors, including Calderbank offers and the outcome of specific issues, when determining the entitlement to costs in disputes involving compulsory acquisition of land.

Orders

Orders of the court

The defendant pay 65% of the plaintiffs' costs of the action

Special costs orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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