Priolo v Nguyen [No 2] - [2023] WASC 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PRIOLO -v- NGUYEN [No 2] [2023] WASC 219
CORAM:   VANDONGEN J
HEARD:   11 MAY 2023
DELIVERED          :   20 JUNE 2023
FILE NO/S:   CIV 1453 of 2021
BETWEEN:   ANTHONY PRIOLO
MARIA ROSALIE PRIOLO
First Plaintiffs
AND
KHANH HOANG NGUYEN
First Defendant
NONNII CONSTRUCTION PTY LTD
Second Defendant
CIVCON CIVIL & PROJECT MANAGEMENT PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Costs - Application for costs thrown away - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

First Plaintiffs	:	M Pullen
First Defendant	:	N W Kalmund
Second Defendant	:	N W Kalmund
Third Defendant	:	N W Kalmund

Solicitors:

First Plaintiffs	:	Bennett
First Defendant	:	Hotchkin Hanly
Second Defendant	:	Hotchkin Hanly
Third Defendant	:	Hotchkin Hanly

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

Ashwin v Minara Resources Ltd [No 2] [2010] WASC 330
Brookvista Pty Ltd v Meloni [2009] WASCA 180
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Edgen Murray Pte Ltd v Clough Projects International Pty Ltd [2009] WASC 402
Hampton Transport Services Pty Ltd v Crushing Services International Pty Ltd [2018] WASC 54
Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Priolo v Nguyen [2022] WASC 290
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Saraceni v Mentha [No 2] [2021] WASC 192 (S)
Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S)
Simmons v Love [No 2] [2016] WASC 167
Strahan v Brennan [2014] WASC 190
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

VANDONGEN J:

Introduction

The defendants have appealed against a decision that was made by a registrar of this court. The registrar refused the defendants' application for an order that the plaintiffs pay their costs that were thrown away by reason of amendments that were made to the statement of claim that was filed in this matter on 8 July 2022. The appeal was brought pursuant to O 60A r 4 of the Rules of the Supreme Court 1971 (WA) (Rules).
The essential issue raised by the appeal is whether, after conducting a 'new hearing of the matter that was before the registrar', as required by O 60A r 6 of the Rules, this court should make the order that was originally sought by the defendants.

Procedural history

The plaintiffs are the owners of a home in Dalkeith. The first and second defendants own an adjoining property. The first defendant is a registered builder and through the third and fourth defendants he undertook construction works on his property. In May 2021 the plaintiffs commenced proceedings against the defendants. The nature of those proceedings was explained by Master Sanderson in connection with a previous interlocutory dispute in this matter:
The plaintiffs have a raft of complaints about the way the building on the first and second defendants' land was constructed. Claims are brought for nuisance, negligence and trespass. The statement of claim seeks damages, but those damages are not quantified. The plaintiffs also seek injunctions forcing the defendants to remove any sand or other material unlawfully on the plaintiffs' land or, alternatively, an injunction requiring the defendants to construct a retaining wall between the two properties.[1]
[1] Priolo v Nguyen [2022] WASC 290 [2].
In late 2022 the parties began conferring about the statement of claim that was filed in July 2022, and in correspondence sent to the court in September 2022 the defendants foreshadowed a strike‑out application. That application was then made in early November 2022.
On 29 September 2022, in an apparent effort to deal with a potential strike‑out application, the plaintiffs provided the defendants with a draft amended statement of claim. According to the defendants, their lawyers were then required to expend time and resources reviewing that draft.
The plaintiffs filed two amended statements of claim between November 2022 and January 2023. The first, in the form of a substituted statement of claim, was filed on 2 December 2022. The second, an amended statement of claim, was filed a few weeks later, on 16 December 2022. This document was filed because the document filed on 2 December 2022 had not been signed by counsel.
In accordance with a direction that was given by the court, on 18 January 2023 the plaintiffs also filed an amended statement of claim that showed the changes that had been made when compared to the original statement of claim.
All the amendments to the statement of claim were made without the leave of the court, in accordance with O 21 r 3(1) of the Rules.
The defendants say that the substituted statement of claim and, I infer, the versions of that document that were subsequently filed on 16 December 2022 and 18 January 2023, represented an abandonment of the original statement of claim and the draft that had been provided in September 2022. Accordingly, the defendants submit that the work done in relation to those versions of the statement of claim was wasted and an order should be made requiring the plaintiffs to pay the defendants' costs thrown away.
On 7 December 2022 the defendants filed an amended strike‑out application, and sought orders striking out the substituted statement of claim in its entirety or, in the alternative, specific paragraphs of that document. The defendants also sought an order that the plaintiffs pay the defendants' costs thrown away by reason of the amendments that were made to the statement of claim. That proposed order was in the following terms:
The plaintiffs pay the first, third and fourth defendants' costs thrown away by reason of the amendments made to the plaintiffs' statement of claim by the filing of the substitute statement of claim dated 2 December 2022.
In the penultimate paragraph of the defendants' written submissions that were filed in support of the strike‑out application, the defendants made the following submission:
There is no reason why costs of this application should not follow the event, and irrespective of the outcome of this application the defendants are entitled to their costs thrown away by reason of the amendments made by the [statement of claim dated 2 December 2022] to the first statement of claim dated 8 July 2022.
On 24 January 2023, a registrar heard the defendants' strike‑out application. Later that day the registrar struck out several paragraphs in the statement of claim and gave the plaintiffs leave to replead. Unfortunately, there is no audio recording, and therefore no transcript, of what was said at that hearing.
The registrar made an order that the parties were to confer about the date on which a re-pleaded statement of claim was to be filed. However, as at the date of these reasons, no further version of the statement of claim has been filed.
It is not in contention that the plaintiffs opposed an order being made that the defendants be awarded their costs thrown away by reason of the amendments made to the original statement of claim. It is also common ground that the defendants did not rely on any affidavit evidence in support of such an order being made.
On 24 January 2023 the registrar made orders that required the defendants to file the form of the costs order that was sought, and for the parties to file written submissions, with a view to dealing with the question of whether the defendants were entitled to their costs thrown away on the papers. The registrar also ordered that she would 'determine the question of whether [costs thrown away] are payable as a preliminary issue'.[2]
[2] Order 2 of orders made by the registrar on 24 January 2023.
In accordance with the registrar's orders, on 31 January 2023 the defendants filed a form of order sought. The form of the order sought was in the following terms:
The plaintiffs pay the defendants' costs thrown away by reason of the amendments made to the plaintiffs' Statement of Claim dated 8 July 2022 by the filing of the Substituted Statement of Claim dated 2 December 2022, further or alternatively, the Amended Statement of Claim dated 18 January 2023, fixed in the sum of $17,842.
At a case management conference that took place on 2 March 2023 the registrar refused the defendants' application for an immediate costs order for fixed costs thrown away. In so doing the registrar answered a preliminary question, formulated as:
Where the plaintiffs amend a statement of claim indorsed on the writ,[3] as of right as to that first amendment, are the defendants entitled to costs for fixed costs thrown away forthwith under the Rules?
in the negative.
[3] This was inaccurate as the statement of claim was not indorsed on the writ.
The registrar also made an order that the plaintiffs are to pay the defendants' costs of and occasioned by any amendment to the substituted statement of claim that was filed on 2 December 2022 and the amended statement of claim that was filed on 18 January 2023 'in the cause, in any event'. Further, an order was made that the defendants were to pay the plaintiffs' costs of the application for costs thrown away in any event.
The defendants now appeal from the registrar's decision pursuant to O 60A r 4 of the Rules.

Grounds of Appeal

The defendants initially relied on 4 grounds of appeal. However, the defendants subsequently sought leave to amend the appeal notice to add a further ground of appeal in terms of the minute of proposed amended notice that is annexure 'ADR-13' to the affidavit of Ashley David Roberts, sworn 15 March 2023.
The plaintiffs did not object to the amendment of the appeal notice and had the opportunity to make submissions in relation to all the grounds of appeal upon which the defendants sought to rely. Accordingly, I would grant the defendants leave to amend the appeal notice.
The grounds of appeal (as amended) are in the following terms:
The Registrar erred in refusing the defendants' application for costs thrown away for reasons that:
(a)no 'as of right' entitlement to such an order exists, where the defendants did not contend that such an entitlement existed and, rather, sought that the Court exercise its discretion to order the plaintiffs to pay the defendants' costs thrown away by reason of the amendments to their statement of claim;
(aa)further or alternatively, the defendants were not entitled to such an order because Order 66 rule 3(1) of the Rules of the Supreme Court 1971 (WA) entitles the defendants to their costs of an occasioned by the amendment to the statement of claim, when the operation of that rule does not limit or fetter the Court's discretion to order one party to pay another party's costs thrown away;
(b) further or alternatively, the plaintiffs had amended a statement of claim indorsed on the writ, where the plaintiffs' statement of claim was not indorsed on the writ;
(c) further or alternatively, the amendments made to the statement of claim were the first amendments made by the plaintiffs, which consideration was irrelevant to whether the plaintiffs had in fact caused the defendants to incur wasted costs, and whether they ought to pay those wasted costs; and
(d) further or alternatively, the plaintiffs did not require leave to amend their statement of claim, where the amendments made without leave substantially altered the plaintiffs' case, thereby causing the defendants to incur wasted costs.
None of the grounds of appeal concern the registrar's order that the defendants pay the plaintiffs' costs of the application for costs thrown away. At the hearing of the appeal, counsel for the defendants confirmed that his clients did not seek to disturb that order.[4]
[4] Transcript 11 May 2023, 50.

Relevant legal principles

Order 60A r 4(1) of the Rules provides that '[a] party who is dissatisfied with an order or decision of a registrar may appeal from it'. Pursuant to O 60A r 6 of the Rules, an appeal from a registrar 'is to be by way of a new hearing of the matter that was before the registrar'.
In Priority Networking Pty Ltd v Peterson [2018] WASC 36 [27] ‑ [28], Le Miere J construed the right of appeal from a decision of a registrar pursuant to O 60A, by reference to a decision that he had previously made in CVW Group Holdings Pty Ltd v Addison [2011] WASC 267, as follows:
What then is the precise scope of an appeal under O 60A? In CVW, I construed the right of appeal from a decision of a registrar as follows, and I adopt those comments in the present case:
'The appeal from a registrar to a judge is not a hearing anew as if there had been no hearing before, and decision by, the registrar. That is apparent from O 60A r 5 which requires an appeal to be commenced by filing a notice of appeal and for the notice of appeal to state, amongst other things, the grounds of the appeal. … The appeal may be on the evidence before the registrar or as supplemented by any further evidence the judge admits. The appeal from a registrar to a judge is a hearing de novo in the sense that the powers of the court on appeal are exercisable not only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. On an appeal from a registrar the court may exercise its powers regardless of error [17].'
The Court may exercise its powers regardless of error. Nevertheless, the appealing party must identify the grounds of the appeal. That is expressly required by O 60[A] r [5](3)(b).
I would only add that although an appeal brought pursuant to O 60A r 4(1) is an appeal against an order or decision made by a registrar, it is important to identify the 'matter that was before the registrar' per O 6A r 6. This is because it is that 'matter' that defines the scope of the 'new hearing' that must be conducted on an appeal.

Evidence

The defendants sought to rely on several affidavits at the hearing of the appeal, namely, three affidavits sworn on 9 March 2023 (First Roberts Affidavit), 15 March 2023 (Second Roberts Affidavit) and 6 April 2023 (Third Roberts Affidavit) respectively, by Ashley David Roberts, a solicitor employed by the firm of solicitors acting on behalf of the defendants.
The First Roberts Affidavit explains the history of the proceedings that took place before the registrar. Some of that evidence was obviously required in order to overcome the unfortunate fact that there appears to be no audio recording of the hearing of the defendants' strike‑out application that took place on 24 January 2023.
Mr Roberts also referred to a table attached to the defendants' written submissions, which contains what is described as a preliminary assessment of the costs thrown away by reason of the plaintiffs' amendments to its pleadings.
The Second Roberts Affidavit attaches a copy of the transcript of the proceedings before the registrar that took place on 2 March 2023.[5]
[5] It also attached a copy of a minute of a proposed amended notice of appeal.
The Third Roberts Affidavit sets out a detailed history of the conferral that occurred between the parties in relation to the statement of claim in the lead up to the strike‑out application. It also includes a draft bill of costs in taxable form of the costs the defendants say were thrown away by reason of the plaintiffs' amendments to the original statement of claim.
The plaintiff sought to rely on a short affidavit of Briony Marian Whyte, a solicitor employed by the firm of solicitors who act on behalf of the plaintiffs, sworn 4 May 2023. In that affidavit Ms Whyte annexes an email chain evidencing certain communications between the parties and the registrar in the lead-up to the hearing that took place on 2 March 2023.
The defendants do not object to the affidavit of Ms Whyte, and the plaintiffs do not object to the Second Roberts Affidavit. The plaintiffs do, however, object to the whole of the First and the Third Roberts Affidavits.

Plaintiffs' objections to the Roberts Affidavits

The plaintiffs raise objections to some specific paragraphs of the First Roberts Affidavit, and three more general objections. In order to properly understand the plaintiffs' objections, it is necessary to reproduce the First Roberts Affidavit:
1.I am a solicitor employed by Hotchkin Hanly Lawyers, the solicitors for the defendants. Together with, and under the supervision of, Nick Kalmund, a partner of Hotchkin Hanly, I have the day-to-day conduct of this matter on behalf of the defendants.
2.I am authorised to swear this affidavit in support of the defendants' appeal from the order of Registrar Whitbread made 2 March 2023 refusing the defendants' application for costs thrown away by reason of the plaintiffs' filing of a substituted statement of claim.
3.The facts in this affidavit are true and correct to my own knowledge except where stated otherwise, in which case they are true and correct to the best of my knowledge, information, and belief, and the source of my knowledge, information and belief is stated.
Procedural history
4.On 8 July 2022, the plaintiffs filed and served their statement of claim.
5.On 2 November 2022, the defendants filed and served an application to strike out the entirety, alternatively parts, of the plaintiffs' statement of claim (Strike Out Application).
6.On 3 November 2022, and by consent of the parties, Registrar Whitbread made orders programming the filing of written submissions for the Strike Out Application. By those orders, the defendants were required to file their submissions on 7 December 2022.
7.On 2 December 2022, three business days before the defendants were due to file their submissions, the plaintiffs filed and served a substituted statement of claim (SSOC). Subsequently, the Registrar directed the plaintiffs to file an amended statement of claim which distinguished the alterations in the SSOC from the original document, as required by Order 21 rule 9 of the Rules of the Supreme Court 1971 (WA). That was filed by the plaintiffs on 18 January 2023, and is folio 68 of the Court's record.
8.On 7 December 2022, the defendants filed and served an amended Strike Out Application, seeking orders striking out the SSOC in its entirety, alternatively specific parts of the SSOC. By the amended Strike Out Application, the defendants also sought an order requiring the plaintiffs to pay their costs thrown away by reason of the filing of the SSOC.
9.The amended Strike Out Application was folio 60 on the Court's electronic file for the action but, at the time of swearing this affidavit, I am unable to view it on the eCourts Portal. A copy of the amended Strike Out Application is attached to this affidavit and marked 'ADR-8'.
10.Subsequently, the defendants filed a re-amended minute of orders sought on the Strike Out Application, withdrawing their application for an order that, upon the striking out of the SSOC in its entirety, there be judgment for the defendants.
Hearing of the Strike Out Application
11.On 24 January 2023, the Strike Out Application was heard before Registrar Whitbread.
12.Mr Kalmund appeared as Counsel for the defendants. I instructed Mr Kalmund at the hearing. Dr Hannes Schoombee appeared as Counsel for the plaintiffs.
13.On 8 February 2023, the solicitors for the plaintiffs sent me and Mr Kalmund a copy of an email from the Supreme Court, advising that a transcript of the Strike Out Application could not be prepared because there was no recorded audio of the hearing. A copy of that email is attached to this affidavit and marked 'ADR-9'.
14.The Strike Out Application was heard at 10.30am on 24 January 2023. At the conclusion of the hearing, the Registrar adjourned the Application until later that afternoon to deliver reasons.
15.At 2.15pm on the same day, the Registrar delivered ex tempore reasons partially granting the Strike Out Application.
16.The Registrar then heard from the parties on the defendants' application for an order requiring the plaintiffs to pay their costs thrown away by reason of the filing of the SSOC.
17.One issue the subject of the submissions made in relation to the application was the plaintiffs' complaint that no evidence had been filed in support of the order sought by the defendants. Mr Kalmund, on behalf of the defendants, submitted that no evidence had been filed in respect of the order sought because whether any wasted costs thrown away had in fact been incurred and, if so, the quantum of those costs were matters for a taxing officer, once an order for costs thrown away was made.
18.In response, the Registrar observed that such an approach was not helpful because the key issues would be left to be resolved and determined by another person. In response, Mr Kalmund informed the Registrar that the defendants would be content to amend the order sought by their re-amended minute to seek an order for costs thrown away in a fixed sum, and that the defendants would, in that event, file evidence in support of their application for a fixed costs order.
19.Another issue the subject of the parties' oral submissions was whether an order for costs thrown away should be made in circumstances where the plaintiffs had amended, and were permitted to amend, their statement of claim without leave. Dr Schoombee, on behalf of the plaintiffs, submitted that the defendants should not have their costs thrown away when the plaintiffs had availed themselves of an entitlement under the Rules to amend their pleading without leave.
20.The Registrar informed the parties that she wanted to determine that point as a preliminary issue, and before the defendants were put to the cost of putting on evidence in support of an application for fixed costs thrown away.
21.The Registrar then made orders requiring the defendants to file the form of the order they sought as to costs thrown away, requiring the parties to file written submissions, and for the preliminary issue to be determined on the papers unless otherwise ordered.
Submissions on the application
22.On 31 January 2023, and pursuant to the Registrar's orders, the defendants filed the form of the order they sought for costs thrown away, together with their submissions on what they understood to be the preliminary issue to be determined by the Registrar.
23.On 7 February 2023, the plaintiffs filed their submissions on the preliminary issue.
24.Upon receiving the plaintiffs' submissions, Mr Kalmund sent an email to the Registrar's Associate, observing that there appeared to be a dispute between the parties about the preliminary issue to be determined. In response, the Registrar's Associate informed the parties that the preliminary issue concerned the question of whether a party is entitled to their costs thrown away in circumstances where leave is not required to amend a pleading. A copy of this email chain is attached to this affidavit and marked 'ADR-10'.
Hearing before the Registrar on 2 March 2023
25.At a case management conference on 2 March 2023, the Registrar delivered ex tempore reasons refusing the defendants' application for costs thrown away. A copy of the orders made by the Registrar in refusing the application is attached to this affidavit and marked 'ADR-11'.
26.At the time of swearing this affidavit, the defendants have requested but are yet to receive the transcript of the Registrar's ex tempore decision. Upon receiving the transcript, the defendants will adduce into evidence on this appeal a copy of the transcript.
Quantum of costs thrown away
27.[The defendants conceded that this paragraph was not admissible].
28.The defendants' submissions appended a table containing their preliminary assessment of the costs thrown away to which the defendants would be entitled under the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA) (the Scale).
29.I prepared this table. Although it is not in the form of a bill of costs, in preparing the table I had regard to the relevant Scale items and limits, and prepared the table on the basis that the defendants' wasted costs would be taxed pursuant to item 27 of the Scale.
30.The defendants require leave before adducing evidence of the conferral communications which caused them to incur some of the wasted costs. The defendants intend to confer with the plaintiffs regarding the grant of leave.

Specific objections

In relation to the plaintiffs' specific objections to the First Roberts Affidavit, many were not maintained or were ultimately conceded by the defendants.[6] The objections that remained concerned four paragraphs,[7] which the plaintiffs submitted were inadmissible because they are conclusionary in nature, they amount to submissions, or they do not state the source of the deponent's knowledge, information or belief.
[6] The defendants conceded that paragraph 27 of the First Roberts Affidavit was inadmissible. I have not taken that paragraph into account.
[7] Paragraphs 17 - 20 of the First Roberts Affidavit.
The plaintiffs' specific objections concern paragraphs 17 - 20 of the First Roberts Affidavit. In my view those objections should be rejected. The evidence is plainly admissible. Contrary to the plaintiffs' submissions, the evidence in paragraphs 17 - 20 is not conclusionary and does not amount to submissions. It is evidence of Mr Roberts' own observations of what occurred at the hearing of the strike‑out application that took place on 24 January 2023. Further, the source of Mr Roberts' knowledge is obvious. He was present during the hearing.
As will later be seen from my summary of the plaintiffs' submissions in support of the objections to the whole of the First and Third Roberts Affidavits, the plaintiffs' objections are directed at the defendants' attempts to adduce evidence of the costs that the defendants say were in fact thrown away because of amendments made to the statement of claim. The common theme of those submissions is that the defendants should not be permitted to rely on that evidence because it was not before the registrar.
I can understand why the plaintiffs object to the whole of the Third Roberts Affidavit, and to the evidence that appears at paragraphs 27 ‑ 29 of the First Roberts Affidavit, on that basis. It is obvious that none of that evidence was before the registrar. However, it is difficult to understand why the plaintiff objected to the whole of the First Roberts Affidavit.
In my view there is nothing objectionable about the evidence that appears at paragraphs 1 - 26 of the First Roberts Affidavit. The evidence in those paragraphs is relevant because, in circumstances in which there is no audio recording of what took place before the registrar on 24 January 2023, it enables this court to properly understand the background to the appeal, the scope of 'the matter that was before the registrar', and the nature of the arguments that were relied on by the parties before the registrar.

General objections

The plaintiffs submit that the evidence at paras 28 - 30 of the First Roberts Affidavit, and the whole of the Third Roberts Affidavit, should not be admitted in evidence, for three reasons.
Firstly, because 'the matter that was before the registrar' was an application by the defendants for costs thrown away 'as of right', the defendants should be limited to that 'matter' at the new hearing. It follows that I should not admit any additional evidence that was not before the registrar.
Secondly, the plaintiff submits that the defendants should be estopped from being able to rely on evidence and arguments that they could have relied on before the registrar but chose not to because that would amount to an abuse of process. In that regard the plaintiffs rely on the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (Anshun).
Thirdly, the plaintiffs submit that case management principles in O 1 r 4A and r 4B of the Rules should lead me to decide that as the defendants chose not to adduce evidence in pursuit of an 'as of right' application for costs thrown away, the defendants should not be allowed to rely on that evidence on appeal because it will unreasonably add to delay, will be unjust, inefficient and add costs.
I do not accept any of the plaintiffs' objections.
As I have already noted, the plaintiffs submit that the 'the matter that was before the registrar', for the purposes of O 60A r 6 of the Rules, was limited to what the plaintiffs describe as an application for costs thrown away 'as of right'.[8] As I understand it, by using the expression 'as of right', the plaintiffs submit that the defendants' application for costs thrown away that was before the registrar was one that the defendants chose to make without any evidence in support, based on a claimed entitlement to such an order by reason of the amendments that were made to the statement of claim. Accordingly, the plaintiffs submit, the defendants cannot now rely on evidence in support of their appeal (even though it is an appeal by way of a new hearing) because that would then involve the court considering a different 'matter', namely, whether it should exercise a discretion to make an order that the plaintiffs pay the defendants' costs thrown away.
[8] Plaintiffs' written submissions [17].
The plaintiffs appear to base their submission on the fact that the application for costs that was before the registrar was constituted by one order that appeared in the minute of proposed orders that was filed by the defendants in relation to the strike‑out application. Further, the plaintiffs refer to the fact that this application was supported by a submission that appeared right at the end of the defendants' written submissions that were filed in the strike‑out application, to the fact that no authorities were cited, and to the fact that the defendants did not file any evidence in support of the application.[9]
[9] Written submissions filed on 7 February 2023 (folio 74) [6] - [12].
However, contrary to the plaintiffs' submissions, I am of the view that the defendants did not make an application for their costs thrown away based on some form of 'as of right' entitlement.
Having regard to the chronology of the proceedings that took place before the registrar as set out in the First Roberts Affidavit, and in light of the steps that were taken by the defendants, I find that the defendants sought to have the registrar exercise her discretion to make an order that the plaintiffs pay the defendants' costs thrown away by reason of amendments that had been made to the statement of claim.
According to what is set out at paras 1 - 26 of the First Roberts Affidavit, which was both uncontradicted and unchallenged on the appeal, after the registrar delivered her reasons in relation to the defendants' strike‑out application, she then heard submissions from both parties about whether she should make an order requiring the plaintiffs to pay the defendants' costs thrown away. One issue that was the subject of submissions was the plaintiffs' complaint that no evidence had been filed in support of the application for costs. Counsel for the defendants responded that no evidence had been filed because the question of whether any costs thrown away had in fact been incurred and, if so, the quantum of those costs, were matters for a taxation officer after an order for costs thrown away was made.
In my view this demonstrates that counsel for the defendants was of the view that evidence was not required to support an application for costs thrown away, and that evidence would only be required if an order was made and then only for the purposes of any taxation that may then occur. This is entirely consistent with counsel not unreasonably having formed the view that the question of whether an order for costs thrown away should be made was a matter that was properly to be determined in the exercise of the registrar's discretion, in the light of her own appreciation of the extent to which amendments had been made to the statement of claim and without the need for any evidence.
The First Roberts Affidavit demonstrates that, when faced with submissions that suggested that there might need to be a taxation, the registrar was concerned to avoid creating work for another court officer. This then prompted counsel for the defendants to indicate that his clients would be content to seek an order for costs thrown away in a fixed sum, and that the defendants would, in that event, file evidence in support of that order so that it could be finally determined by the registrar without the need for taxation.
According to Mr Roberts, there was a further issue that was raised during the hearing before the registrar. The plaintiffs' counsel submitted that the defendants should not be awarded their costs thrown away because the plaintiffs had availed themselves of an entitlement under the rules to amend their pleading without leave.[10] It seems as though the plaintiffs' counsel may have been attempting to distinguish the defendants' application for costs from a situation in which a party is seeking the indulgence of a court, where the general rule is that party will be required to pay the costs of the application, including costs thrown away.[11]
[10] Pursuant to O 21 r 3(1) of the Rules.
[11] Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S) [25].
It was this submission that then prompted the registrar to decide that she wanted to determine a preliminary issue, and to do so before the defendants were required to put on evidence in support of the application for costs thrown away. It was in that context that the registrar made orders requiring the defendants to file the form of order they sought as to costs thrown away and requiring the parties to file written submissions so that the preliminary issue could be determined on the papers.
The registrar's order in which the preliminary issue was formulated was in the following terms:
The Registrar to determine the question of whether such costs are payable as a preliminary issue.
The defendants then filed the form of order that they sought for costs thrown away, together with their written submissions. That order was in the following terms:
The plaintiffs pay the defendants' costs thrown away by reason of the amendments made to the plaintiffs' Statement of Claim dated 8 July 2022 by the filing of the Substituted Statement of Claim dated 2 December 2022, further or alternatively, the Amended Statement of Claim dated 18 January 2023, fixed in the sum of $17,842.
I pause to note that neither the preliminary issue, nor the terms of the order sought, in any way suggest that the defendants were applying for costs thrown away on the basis they were entitled to such an order 'as of right'.
The defendants subsequently filed written submissions. Unsurprisingly, the focus of those submissions was on the issue that had been raised by the plaintiffs' counsel, namely, whether amendments made to a statement of claim without leave can result in an order for costs thrown away.[12] Those submissions make it clear that the defendants' application for costs thrown away was not based on any entitlement 'as of right'. The defendants expressly submitted that regardless of whether amendments had been made to the statement of claim without leave, it was in the interests of justice that the court exercise its discretion to order the plaintiffs to pay the defendants' wasted costs.
[12] The defendants' written submissions also dealt with an issue about whether the plaintiffs should pay the costs incurred in relation to reviewing the statement of claim and conferring with the plaintiff about a strike‑out application.
It is also important to appreciate that when the defendants' counsel eventually appeared before the registrar on 2 March 2023, he reiterated that the defendants' application sought the exercise of the court's discretion to order costs thrown away as a result of amendments that had been made to the statement of claim without leave. At one point the defendants' counsel said:
We don't apply as of right. We say the court ought to exercise its discretion. The original request was for any costs thrown away, the word 'any' being critical because then the taxing officer would determine whether costs thrown away were reasonably incurred or not. There was a discussion about the fact that that's better determined by you, Registrar, and then a process for dealing with this question of whether the fact that leave to amend was required - was not required means that we shouldn't have our costs thrown away. So we saw the preliminary issue in the exact converse, that whether the mere fact that whenever an amendment can be made without leave, then a party ought to wear any wasted costs. And there's no authority for that proposition and the proposition is that the amenability does not warrant visiting the other party with those wasted costs. So we did seek the exercise of the discretion and my concern is that the preliminary issue as it's determined suggests that there has been no consideration of whether the discretion ought to be exercised or not.[13]
[13] Transcript 2 March 2023, 12 - 13.
He also made the point that no evidence had been filed in support of the application because the registrar had made an express direction that the defendants were not to file any evidence.[14]
[14] Transcript 2 March 2023, 8 - 9.
What then was 'the matter that was before the registrar'?
With the greatest of respect to everyone concerned, what occurred after the defendants had filed their written submissions on the preliminary issue suggests that the parties and the registrar all had different views about the terms and scope of the preliminary issue that was to be determined, and this was reflected in the arguments that were put by the parties, and in the registrar's decision.
As demonstrated above, the defendants applied for an order for their costs thrown away by reason of the amendments that were made to the statement of claim and sought the exercise of the court's discretion to make that order. However, the defendants understood that the registrar wished to determine a preliminary issue about whether they were entitled such an order in circumstances in which the plaintiff had made the amendments without leave, pursuant to O 21 r 3(1) of the Rules.
The plaintiffs written submissions on the preliminary issue that were filed on 7 February 2023 show that they had a very different understanding about the preliminary issue the registrar wanted to determine. In those submissions the plaintiffs adopted essentially the same position they have taken on appeal, arguing that the defendant's application for an order for costs thrown away was an application based on an entitlement to such an order 'as of right'. The plaintiffs submitted that as there was no such entitlement the application must be dismissed.
On 9 February 2023, after having received the plaintiffs' written submissions, the defendants' solicitors wrote to the registrar's associate and advised that it appeared to them that there was disagreement between the parties regarding the preliminary issue to be determined. The defendants' solicitors requested that the matter be relisted for directions in relation to the application for costs thrown away in the preliminary issue to be determined.
In response, the plaintiffs' solicitors wrote to the registrar's associate on 9 February 2023. In their correspondence they expressed the view that the defendants misunderstood the plaintiffs' submissions, and that the preliminary issue as specified in the orders that were made on 24 January 2023 can and should be determined on the papers.
The registrar's associate then responded to both parties by email on 9 February 2023 in the following terms:
Dear Practitioners,
The Registrar has instructed me to write to you as follows.
By way of clarification, the Registrar's clear indication at the hearing on 24 January 2023 was that she intends solely to deal with a confined preliminary issue that is, whether, if the leave of the Court is not required to make an amendment to a pleading, the other party (parties) are entitled to an order for costs thrown away as a consequence of the amendment. The question solely relates to the interpretation of the relevant parts of the Supreme Court Rules 1971 (WA). No other matters will be addressed at the next hearing, so no evidence is required.
In so far as the submissions filed by the plaintiffs go beyond that issue such arguments will not be addressed at the hearing listed on 2 March 2023. If the answer to the preliminary question was to be that there is an entitlement to costs thrown away then the issue of whether there are any such costs (and, if so, quantification) will be dealt with at a further hearing.
It can be seen that the preliminary issue was expressed in narrower terms in this email when compared to the way in which it was expressed in the orders made on 24 January 2023. One possible reading of the associate's email is that the preliminary issue that the registrar was intending to answer was whether, based on the Rules, it was open to make an order for costs thrown away, in circumstances in which the amendments that were made to the statement of claim were made without the need to obtain the leave of the court. Further, the email also suggested that if the registrar found that it was open to make such an order in those circumstances then the issue of whether there are any such costs, and the amount of such costs, would be dealt with at a further hearing, presumably with the benefit of evidence.
It is also possible to read the associate's email as suggesting that to the extent that the plaintiffs had made submissions that went beyond that issue, they would not be addressed at the hearing that was then listed on 2 March 2023.
Given that the registrar delivered ex tempore reasons at the hearing of 2 March 2023, and the outcome of this appeal does not depend upon the success of any of the grounds of appeal or on the identification of error, I do not propose to scrutinise those reasons with a fine-tooth comb, or with an eye keenly attuned to the identification of error.[15]
[15] Strahan v Brennan [2014] WASC 190 [89] - [90].
On the one hand, the registrar's reasons are capable of being read as an endorsement of the plaintiffs' approach to this matter because, on occasions, the registrar appeared to accept that the defendants' application for costs thrown away was based on a claimed entitlement as of right. On the other hand, the registrar also appeared to acknowledge that an order for costs thrown away is made as an exercise of discretion, subject to the court being able to satisfy itself that reasonable costs have been incurred and wasted.[16]
[16] However, the registrar did not appear to appreciate that the defendants' written submissions made it very clear that the only basis on which they sought costs thrown away was in the exercise of the court's discretion.
However, when the reasons are read as a whole, and taking into account the fact that they were delivered ex tempore, what the registrar appears to have determined is that based on a construction of the Rules it was not open to make an order for costs thrown away because of amendments made to pleadings, where those amendments were made without the need for leave to be obtained from the court, in accordance with O 21 r 3(1) of the Rules. This can be seen from the way in which the registrar framed the issue to be determined by reference to what she understood was the plaintiffs' contention:
The plaintiffs contend that an order for costs thrown away should not be made because by operation of order 21, rule 3 of the rules, the defendants assert that the plaintiffs' argument is that they did not require leave to amend their statement of claim.[17]
[17] Transcript 2 March 2023, 4.
In my opinion the registrar concluded that as O 66 r 3(1) of the Rules expressly provides that 'the costs of and occasioned by any amendment made without leave in … any pleading shall be borne by the party making the amendment, unless the Court otherwise orders', it was not open to the court to make an order for costs thrown away because of any such amendment.[18] In effect, the registrar decided that O 66 r 3(1) covers the field of costs orders that can be made consequent upon amendments being made to pleadings without the need for leave, and that there is no residual discretion to make an order for costs thrown away.
[18] Order 66 r 3(1) of the Rules is in the following terms: 'The costs of and occasioned by any amendment made without leave in the writ or any pleading shall be borne by the party making the amendment, unless the Court otherwise orders'.

This can be seen from the registrar's concluding remarks:
So, in my view, order 66, rule 3(1) is important in that it established, whilst there exists a right to an entitlement for costs incurred by reason of pleadings amendments made without leave, its importance is in its use of its language, which in my view means that where the amendment is made as of right the defendant is entitled to costs in the cause, but is not entitled to a special costs order as contended for by the defendants in their submissions. So the application for costs thrown away is refused and, in my view, the intention of the law is that those costs are the defendants' costs in the cause.[19]
[19] Transcript 2 March 2023, 8.
It can also be gleaned from the preamble to the orders that were made on 2 March 2023, in which the registrar refused the defendants' application for costs thrown away, which was in the following terms:
The preliminary question being, where the plaintiffs amend a statement of claim indorsed on the writ, as of right as to that first amendment, are the defendants entitled to a costs order for fixed costs thrown away forthwith under the Rules of the Supreme Court 1971 (WA).[20]
[20] See fn 3.
Accordingly, it might be possible to conclude that 'the matter that was before the registrar' was a preliminary issue about whether, in light of O 66 r 3(1), it was open to make an order that the plaintiffs pay the defendants' costs thrown away. However, given that an appeal brought pursuant to O 60A r 4 is an appeal against 'an order or decision of a registrar', I am of the view that 'the matter that was before the registrar' falls to be determined primarily by reference to that order or decision, understood in the light of the application that was made.
Regardless of the true scope of the preliminary issue that was determined by the registrar, the defendants applied for an order for costs thrown away. That application ultimately took the form of a minute that was filed by the defendants in accordance with orders made on 24 January 2023. As I have already noted above, in that minute the defendants sought an order that:
The plaintiffs pay the defendants' costs thrown away by reason of the amendments made to the plaintiffs' Statement of Claim dated 8 July 2022 by the filing of the Substituted Statement of Claim dated 2 December 2022, further or alternatively, the Amended Statement of Claim dated 18 January 2023, fixed in the sum of $17,842.
Further, although the registrar answered the preliminary question, she also made the following orders:
1.The defendants' application for an immediate costs order for fixed costs thrown away (the Application) is refused. The plaintiffs are to pay to the defendants any costs of and occasioned by any amendment to the Substituted Statement of Claim (2 December 2022) and the Amended Statement of Claim (18 January 2023) in the cause, in any event.
2.The defendants are to pay the plaintiffs costs of the Application in the cause, in any event.
In my view, and contrary to the plaintiffs' submissions, when the history of this matter is properly understood, the 'matter that was before the registrar' was not an application for a costs order that was made on the narrow basis of an entitlement 'as of right'. Further, the 'matter' was not a preliminary issue, however framed. The 'matter that was before the registrar' was an application for an order in the terms that were sought in the minute of proposed orders. Accordingly, I am to conduct a new hearing of that application.
If I reach the view that, contrary to the registrar's conclusion, the court does a have discretion to order that the plaintiffs pay the defendants' costs thrown away, then it is open to me to exercise that discretion at a new hearing.
It follows that I reject the plaintiffs' submission that I should not admit the First and Third Roberts Affidavits into evidence on the appeal on the basis that they raise issues that go beyond 'the matter that was before the registrar'.
The plaintiffs also submit that the defendants ought be estopped from relying on evidence and arguments that were not before the registrar. It is submitted, in effect, that it was so unreasonable for the defendants not to have previously made the claims they now bring in this appeal that they are estopped under the principles in Anshun from bringing or maintaining those claims.
In simple terms, the principle in Anshun 'operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding'.[21]
[21] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22] (French CJ, Bell, Gageler & Keane JJ) (citations omitted).
Even if the premise of the plaintiffs' submission is accepted, namely, that the defendants are now seeking to raise an issue of fact or law in circumstances that made it unreasonable not to have raised it before the registrar, this occurred in the context of the same proceedings. As I have already observed, an appeal under O 60A r 6 of the Rules is conducted as a 'new hearing' of 'the matter that was before the registrar'. It follows that the principles in Anshun can have no application.
The plaintiffs also argue that to allow the defendants to raise material that was not the subject of the original application is an abuse of process because it is oppressive and vexatious to the plaintiffs, particularly where the registrar did not make any identifiable error. However, that argument does not rise above a mere assertion and there is nothing in the materials before me that would justify a finding that that an appeal based on evidence that was not before the registrar would be oppressive or vexatious.
Finally, the plaintiffs submit that the case management principles found in O 1 r 4A and r 4B of the Rules should 'condition', this court's approach to the appeal and to the question of whether additional evidence should be admitted. The premise of this submission is that the defendants chose not to lead the evidence that they now seek to rely.
In my view the defendants' decision not to adduce any evidence in support of their application for costs thrown away before the registrar needs to be understood in a proper context. As the chronology I have set out above demonstrates, the application was initiated by one paragraph in written submissions that were filed in support of the strike‑out application. As can be seen from those written submissions, which were almost 25 pages in length, the defendants' focus was on the strike‑out application and not on the issue of costs.
The plaintiffs' written submission on the strike‑out application did not address the defendants' application for costs. It is also not apparent whether any issues about costs were raised in the course of the hearing of the strike‑out application. In fact, according to the First Roberts Affidavit, the issue of costs was first raised immediately after the registrar gave her reasons in relation to the strike‑out application.
It is clear from the First Roberts Affidavit, and from the transcript of the hearing that subsequently took place on 2 March 2023, that the registrar decided to deal with a preliminary issue based only on written submissions, without any evidence. The whole purpose of the hearing was to avoid the need for any evidence.
In those circumstances there is no basis to conclude that case management principles should operate to preclude the defendants from adducing evidence on an appeal that is to be conducted as a new hearing of the matter that was before the registrar. In my view there is in fact every reason to conclude that the defendants should be permitted to rely on evidence that was not before the registrar on this appeal.
In any event, in Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [98] the Court of Appeal said, by reference to a summary of principles in Civil Procedure Western Australia[22] relating to appeals de novo from a registrar of the District Court pursuant to r 15 of the District Court Rules 2005 (WA):
As the appeal is by way of a new hearing of the matter that came before the registrar, the parties are not confined to the evidence presented to the registrar, and the court should ordinarily allow the parties to rely on additional evidence, subject to a discretion to exclude. (citations omitted and emphasis added)
[22] LexisNexis, Civil Procedure Western Australia, vol 2 (193) [16,065.5].
As r 15(6) of the District Court Rules is in virtually identical terms to O 60A r 6 of the Rules, there is no reason to think that the same principles would not apply to an appeal under that rule. Accordingly, there being no basis for the proper exercise of a discretion to exclude the First and Third Roberts Affidavits, I would admit those affidavits as evidence on the appeal.

Disposition

Given that this appeal is a new hearing, and that it is not necessary for the defendants to demonstrate that the registrar made an error in the decision under appeal, I do not intend to review the reasons give for that decision to any extent. I also do not think that, in the circumstances, it is necessary for me to specifically consider all of the grounds of appeal.
As I have already found, the defendants did not contend that they were entitled to an order for costs thrown away 'as of right'. Instead, the defendants asked the court to exercise its discretion to order the plaintiffs to pay those costs, but that did not occur. In my view, this is the essence of the complaint that is made in the defendants' first ground of appeal.
In conducting the 'new hearing' that is required by O 60A r 6 of the Rules, the starting point is to note that neither party submitted that O 66 r 3(1) is the only source of the court's power to make an order in relation to costs incurred because of amendments made to pleadings without the need to obtain the leave of the court. It was common ground before me that the registrar had a discretion to make an order that the plaintiffs pay the defendants' costs thrown away because of the amendments that were made to the statement of claim. It also appeared to be common ground that O 66 r 3(1) of the Rules was concerned with 'costs of and occasioned by any amendment', and that this differed from costs incurred and thrown away by reason of an amendment.[23]
[23] As to which, see Simmons v Love [No 2] [2016] WASC 167 [58] - [64].
In my view the parties' common position should be accepted.
The source of the court's power to award costs is s 37 of the Supreme Court Act 1935 (WA), which confers a very wide discretion. It has been observed that the only limits on the discretion are those provided elsewhere in that Act, in the Rules and in other statutes. The discretion must also only be exercised judicially.[24]
[24] Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 [39].
It has not been suggested that there is any relevant legislative or other similar fetter on the court's discretion to make an award of costs thrown away, including any limit that applies when a party makes an amendment to a pleading without leave pursuant to O 21 r 3(1) of the Rules. In my view, O 66 r 3(1) does regulate the costs that are payable when a party makes an amendment to a pleading without leave, but only in the limited field in which it operates, namely 'costs of and occasioned by any amendment made without leave'. However, it does not follow that it also limits the court's discretion to make an order for costs to be paid where an amendment has given rise to wasted costs.[25]
[25] This is consistent with the approach taken in Edgen Murray Pte Ltd v Clough Projects International Pty Ltd [2009] WASC 402 and in Hampton Transport Services Pty Ltd v Crushing Services International Pty Ltd [2018] WASC 54 [27].
The essential issue for me to determine is whether I should, in the exercise of a discretion, make the order for costs thrown away that was originally sought by the defendants. In that regard, I must decide whether costs have been reasonably incurred by the defendants relating to work that was done and wasted as a result of amendments that have been made to the statement of claim.
In Ashwin v Minara Resources Ltd [No 2] [2010] WASC 330 [8], Le Miere J explained costs thrown away in the following way, by reference to GE Dal Pont, Law of Costs (2nd ed) at [1.23], and Quick on Costs at [1.1230]:
The costs thrown away are such costs as the taxing officer determines have in the circumstances of the case been reasonably incurred and related to work done which has been wasted as a result of the successful application ... Costs attributable to work useful for the ongoing conduct of the substantive proceedings are not costs thrown away. Costs thrown away are costs incurred which must be incurred a second time for the purpose of a trial in the future. (emphasis added)
This extract suggests that, in the context of an application for an order for costs thrown away, it is not necessary for a party to establish by admissible evidence, that costs have been reasonably incurred and related to work done which has been wasted.[26] In any event, based on the evidence that I have admitted on the appeal I find that costs have been reasonably incurred as a consequence of amendments that the plaintiffs have made to the statement of claim, and that they are related to work done which has been wasted.
[26] Cf Saraceni v Mentha [No 2] [2021] WASC 192 (S) [90].
The Third Roberts Affidavit demonstrates that a significant amount of work was done by the defendants' solicitors in the communications that took place between the parties about the statement of claim in the time that led up to the eventual filing of the amended versions of that document.
The affidavit also demonstrates that the plaintiffs provided the defendants with a draft statement of claim, presumably in an effort to stave off the threatened strike‑out application. It is apparent from that document that the plaintiffs proposed making a considerable number of changes to the original statement of claim. The defendants' solicitors understandably had to analyse the proposed amended statement of claim, which included the preparation of a detailed matrix.[27] They also wrote to the plaintiffs' solicitors about the proposed amended statement of claim, setting out in comprehensive terms what they considered were 'fundamental deficiencies' with the proposed pleadings, and foreshadowing a strike‑out application if it was filed.
[27] A copy of which was attached to the Third Roberts Affidavit.
As described above, the defendants filed a strike‑out application, and programming orders were made by consent. Three business days before the defendants were due to file their submissions, the plaintiffs filed a substituted statement of claim.[28] The defendants then had to amend their strike‑out application and sought an order that the substituted statement of claim be struck out.
[28] The plaintiffs filed the final version of that document, showing the changes to the original statement of claim, on 18 January 2023.
I have reviewed the original statement of claim, the proposed amended statement of claim, and the substituted statement of claim. I agree with the defendants' submission that large parts of the substituted statement of claim contained pleas that did not resemble the case that had been put in the original statement of claim or in the proposed amended statement of claim. In my view the defendants have at least demonstrated that there was a level of wastage in relation to work that was done in connection with the original statement of claim, and the proposed amended statement of claim. Further, they have demonstrated that at least some work was wasted in drafting an application to strike out the original statement of claim.
The plaintiffs made several submissions about why they say that the defendants have not established that the costs claimed have been wasted. In my view, most of those submissions are appropriately matters for a taxing officer to consider in due course.
The plaintiffs also submit that it is not possible to determine whether any of the costs claimed by the defendants have been wasted because they are yet to re-plead in accordance with an order granting of leave to re-plead that was made by the registrar on 24 January 2023.
It seems highly unlikely that the plaintiffs will ultimately file a statement of claim that is substantially different to the amended statement of claim that was filed on 18 January 2023, or that the plaintiffs might revert to the original statement of claim (or the draft that was provided in September 2022). However, because the plaintiffs have not yet availed themselves of leave to re-plead it is not presently possible for me to fairly determine the amounts of the costs thrown away.[29] I do not have sufficient material on which I can be confident that I will be able to arrive at an appropriate fixed sum.
[29] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27].
Accordingly, while I accept that an order should be made that the plaintiffs pay the defendants costs thrown away by reason of the amendments made to the plaintiffs' statement of claim dated 8 July 2022, I am not prepared to make an order that those costs be fixed in the amount claimed by the defendants, or at all. It is appropriate that those costs should be taxed, and that this should occur after the statement of claim has been filed.

Conclusion

For the above reasons, I would allow the defendants' appeal, and set aside the order made by the registrar on 2 March 2023 refusing the defendants' application for costs thrown away. I would also make an order that the plaintiff pay the defendants' costs thrown away by reason of the amendments made to the plaintiffs' statement of claim dated 8 July 2022 by the filing of the substituted statement of claim dated 2 December 2022, further or alternatively, the amended statement of claim dated 18 January 2023, to be taxed if not agreed. In that way the question of the extent to which the defendants are entitled to costs thrown away will be a matter for a taxing officer to decide.
Any such taxation should not take place until after the plaintiffs have filed a statement of claim pursuant to the leave granted by the registrar on 24 January 2023.
On 2 March 2023 the registrar also ordered that the plaintiffs were to pay the defendants' costs of and occasioned by any amendment to the substituted statement of claim dated 2 December 2022 and the amended statement of claim dated 18 January 2023. Given that this order was made in accordance with O 66 r 3(1) of the Rules, I would not disturb that order.
At the hearing of the appeal the defendants' counsel informed me his clients did not seek to displace the remaining order that was made on 2 March 2023, namely, that the defendants pay the costs of the application for costs thrown away. Accordingly, I would not disturb that order.
I will hear the parties as to the precise terms of the orders that should be made to reflect my reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Hon Justice Vandongen
20 JUNE 2023