Pettit v Evolution Mining Limited [No 3]

[2018] WADC 47

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:

1. 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.

2. 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'.

3. 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.

4. The plaintiff's submissions comprise 19 pages of legal and factual argument.  I am grateful for their careful consideration of the matter.

5. In summary, the plaintiff submits that:

   1.He was partially successful in the appeal.

   2.The defendant failed to adequately confer.

6. 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.

7. 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.

8. 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