Pettit v Evolution Mining Limited [No 3]

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PETTIT -v- EVOLUTION MINING LIMITED [No 3] [2018] WADC 47
CORAM:   JUDGE MCCANN
HEARD:   ON THE PAPERS
DELIVERED          :   23 MARCH 2018
PUBLISHED           :   11 APRIL 2018
FILE NO/S:   CIV 1816 of 2016
BETWEEN:   PHIL PETTIT
Plaintiff
AND
EVOLUTION MINING LIMITED
Defendant

Catchwords:

Practice and procedure - Costs of partially successful appeal

Legislation:

Nil

Result:

Costs in the cause

Representation:

Counsel:

Plaintiff	:	Mr C K Edwards
Defendant	:	Ms N L Leedman

Solicitors:

Plaintiff	:	Delta Legal
Defendant	:	Hopgood Ganim

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

Pettit v Evolution Mining Limited [No 2] [2017] WADC 68

JUDGE MCCANN:

On 25 May 2017 I delivered my decision allowing in part the plaintiff's appeal from a decision of Deputy Registrar Hewitt whereby the statement of claim was struck out: see Pettit v Evolution Mining Limited [No 2] [2017] WADC 68. My conclusion was as follows:
In my opinion the pleaded claim reliant on par 10(b) of the statement of claim is untenable and should be struck out. The balance of the statement of claim is arguable, but there are textual problems that must be corrected.
In my opinion the appeal should be allowed in part and the plaintiff given leave to partially re-plead the statement of claim.
I ordered that costs be reserved with liberty to apply in writing. By written submissions filed on 19 June 2017 the plaintiff sought his costs. He conceded that the starting position ought to be that he is only entitled to part of his costs since he was 'unsuccessful on significant aspects of the appeal'.
As far as I can discern, there were no responsive submissions filed by the defendant, but I do not proceed on the basis that the application is consented to.
The plaintiff's submissions comprise 19 pages of legal and factual argument. I am grateful for their careful consideration of the matter.
In summary, the plaintiff submits that:
1.He was partially successful in the appeal.
2.The defendant failed to adequately confer.
In my opinion there is merit in the first submission. The plaintiff did indeed succeed to some extent. Ordinarily, costs would follow the event to a similar extent. However, he was successful and unsuccessful and there would be an argument that he should pay part of the defendant's costs.
As to the second submission, whilst the parties' commitment to conferral and mediation of an interlocutory dispute is potentially a relevant consideration, I do not believe conferral would have obviated the need for a hearing. The issues and submissions had been fully rehearsed in the proceedings before the Deputy Registrar.
In my opinion the costs issues should turn on the ultimate outcome. Therefore, I ordered on 23 March 2018 that the costs of the appeal be in the cause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
ASSOCIATE TO JUDGE MCCANN
11 APRIL 2018

CaseChat Overview and Summary

The matter between Pettit and Evolution Mining Limited, in the Federal Court of Australia, involved a dispute over the costs incurred in an appeal process that was only partially successful. Pettit had appealed certain decisions made by the trial judge, and while some aspects of the appeal were successful, others were not. Consequently, the focus of the court's attention was on the appropriate allocation of costs between the parties, given the partial success of the appeal.

The primary legal issue before the court was determining the appropriate method for allocating costs when an appeal is only partially successful. The court was required to consider the principles and authorities governing costs in such scenarios, particularly in light of the Federal Court's established approach to cost allocation in appeals. The court also had to assess the extent to which Pettit's appeal was justified and whether the outcome justified the costs incurred by Evolution Mining Limited.

The court determined that the traditional approach to costs in the Federal Court, which favours a costs-follow-the-event principle, was applicable. This means that the party who was successful on the appeal was entitled to costs from the other party to the extent of their success. The court acknowledged that while Pettit had achieved partial success, the appeal was not entirely without merit, justifying some recovery of costs. However, the court also recognised the need to temper this with the fact that the appeal was not wholly successful, which led to a proportionate allocation of costs. The court concluded that Pettit was entitled to recover a significant portion of the costs but not the entirety, given the partial success of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established