Monaveen Pty Ltd v ABB Service Pty Ltd

[2007] WASCA 273 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	MONAVEEN PTY LTD -v- ABB SERVICE PTY LTD [2007] WASCA 273 (S)

CORAM : MARTIN CJ

WHEELER JA

PULLIN JA

HEARD	:	5 NOVEMBER 2007
DELIVERED	:	20 DECEMBER 2007
SUPPLEMENTARY
DECISION	:	14 MAY 2008
FILE NO/S	:	CACV 64 of 2007
BETWEEN	:	MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) Appellant
AND
ABB SERVICE PTY LTD Respondent
ON APPEAL FROM:
Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA

Coram	: TEMPLEMAN J
Citation	:  MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) -v- ABB SERVICE PTY LTD (formerly known as ABB Engineering Construction Pty Ltd) [2006] WASC 263 (S)
File No	:  CIV 2302 of 1998
Catchwords:

Practice and procedure - Costs - Protracted interlocutory proceedings at first instance - In what circumstances is it appropriate for each party to bear its own costs

Legislation:

Rules of the Supreme Court (WA), O 66 r 1

Result:

The parties bear their own costs of the respondent's application to dismiss the
appellant's claim for want of prosecution

The parties bear their own costs of the appeal

Category: B

Representation:

Counsel:

Appellant	:	Mr G H Murphy SC
Respondent	:	Mr K J Martin QC & Ms R J Lee

Solicitors:

Appellant	:	Talbot Olivier
Respondent	:	Minter Ellison

[2007] WASCA 273 (S)

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

Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008]

WASCA 23 (S)

Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) [2004] WASC 5
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

JUDGMENT OF THE COURT [2007] WASCA 273 (S)

1. JUDGMENT OF THE COURT: By a decision published on 20 December 2007, this Court granted Monaveen Pty Ltd (Monaveen) leave to appeal from the decision of the primary judge dismissing its claim against ABB Service Pty Ltd (ABB) for want of prosecution, and upheld that appeal (Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273). The Court dismissed ABB's application to dismiss Monaveen's claim for want of prosecution and directed that the case be entered into the Commercial and Managed Cases List.

2              The parties have been unable to agree in respect of the appropriate

orders to be made in relation to the costs of ABB's application to dismiss Monaveen's claim for want of prosecution and in relation to the costs of the appeal. Directions have been made for the exchange of written submissions in relation to those costs.

3              Monaveen submits that ABB should be ordered to pay its costs of the

application for an order dismissing the action for want of prosecution and of the appeal. Monaveen further submits that it should have a certificate for Senior Counsel in respect of the appeal. Differing views as to the appropriateness of the court determining the question of whether an allowance should be made for second or senior counsel were expressed by each member of the court in Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23 (S). In that case, Le Miere AJA expressed the view that the court should never undertake that determination, but should leave the matter to the taxing officer. Pullin JA was of the view that the court should only make such a determination in a rare and exceptional case, whereas Buss JA was of the view that the court should generally determine the question when asked to do so. There therefore appears to be majority support for the proposition that the court should (at least generally) leave the question to the taxing officer, and there is no reason why that course should not be followed in this case.

1. ABB submits that each party should bear its own costs of the application to dismiss for want of prosecution and of the appeal.

The application to dismiss for want of prosecution

5              The circumstances that gave rise to ABB's application to dismiss

Monaveen's claim for want of prosecution have been recounted in the decision of this Court. It is unnecessary to repeat that history in these reasons. Pertinent features of the history include the fact that Monaveen survived an application to dismiss its claim for want of prosecution in a decision delivered on 22 January 2004 (Monaveen Pty Ltd (Receivers

JUDGMENT OF THE COURT [2007] WASCA 273 (S)

and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) [2004] WASC 5). Notwithstanding that application, Monaveen procrastinated in its further pursuit of its claim. That procrastination was the cause of ABB's subsequent application to dismiss the claim for want of prosecution. In a very real sense, Monaveen's delay was the cause of that application being made. In the circumstances, ABB's application was reasonably made. The primary judge described the question of whether the proceedings should be dismissed for want of prosecution as 'borderline'. That characterisation was apt, although in the result, this Court disagreed with the trial judge as to the particular side of the line upon which the application fell.

The appeal

6              Because Monaveen's delay was the substantive cause of ABB's

application to dismiss the claim for want of prosecution, the appeal can also be described as a consequence of that delay. Further, Monaveen advanced eight written grounds of appeal, but upon the hearing of the appeal, coalesced those grounds into three substantive propositions. Two of those propositions were successful. The manner in which Monaveen prosecuted the appeal added to the costs incurred by ABB.

Conclusion

7              The Court has a wide discretion in respect of the costs of proceedings

before the Court. However, ordinarily that discretion will be exercised so that the successful party recovers his or her costs (Rules of the Supreme Court, O 66 r 1).

8              In this case, Monaveen was ultimately the successful party in relation

to ABB's application to dismiss its claim for want of prosecution, and was the successful party on appeal. However, its conduct, and in particular, its delay, was in a very real sense the cause of those proceedings and the manner in which it prosecuted the appeal increased ABB's costs of responding to that appeal.

9              Viewed at a more general level, that the application to dismiss

Monaveen's claim for want of prosecution, and the appeal from that application are symptomatic of the manner in which both parties to these proceedings have previously conducted the preparation of this case for trial. On both sides, there has been an entirely inappropriate focus upon procedure and form, and insufficient attention given to identifying and resolving the substance of their dispute. It seems to us that the costs

JUDGMENT OF THE COURT [2007] WASCA 273 (S)

incurred by the parties in relation to the proceedings now under consideration are part of the costs they have both incurred by reason of the approach which each has taken to the preparation of these proceedings for trial. Accordingly, in the circumstances of this case, which we would hope are unusual, the proper order is that the parties should bear their own costs of ABB's application to dismiss Monaveen's claim for want of prosecution, and the costs of the appeal, because those costs are the consequence of the way each of them has approached the preparation of the case for trial.