RAYNEY -v- PAN MACMILLAN AUSTRALIA PTY LTD [2014] WASC 129 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 129 (S)
Published:	02/05/2014
Case No:	CIV:1587/2010	Heard:	16 APRIL 2014
Coram:	EDELMAN J	Delivered:	16/04/14
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for special costs orders dismissed
Category:	B
PDF Version

Parties:	LLOYD PATRICK RAYNEY PAN MACMILLAN AUSTRALIA PTY LTD MALCOLM CRAIG BROWN ESTELLE BLACKBURN
Catchwords:	Practice and procedure Costs Application for special costs orders Whether special costs orders should be made Whether costs should be fixed
Legislation:	Legal Practitioners Supreme Court (Contentious Business) Determination 2012 (WA) Legal Profession Act 2008 (WA)
Case References:	Atwell v Roberts [2013] WASCA 37 (S) Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Brookvista Pty Ltd v Meloni [2009] WASCA 180 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92 Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RAYNEY -v- PAN MACMILLAN AUSTRALIA PTY LTD [2014] WASC 129 (S) CORAM : EDELMAN J HEARD : 16 APRIL 2014 DELIVERED : 16 APRIL 2014 PUBLISHED : 2 MAY 2014 FILE NO/S : CIV 1587 of 2010 BETWEEN : LLOYD PATRICK RAYNEY

Plaintiff

AND

PAN MACMILLAN AUSTRALIA PTY LTD

First Defendant

MALCOLM CRAIG BROWN

Second Defendant

ESTELLE BLACKBURN

Third Defendant

Catchwords:

Practice and procedure - Costs - Application for special costs orders - Whether special costs orders should be made - Whether costs should be fixed

Legislation:

Legal Practitioners Supreme Court (Contentious Business) Determination 2012 (WA)

Legal Profession Act 2008 (WA)

Result:

Application for special costs orders dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Ms C Galati

Second Defendant : Ms C Galati

Third Defendant : Ms C Galati

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Ms C Galati

Second Defendant : Ms C Galati

Third Defendant : Ms C Galati

Cases referred to in judgment:

Atwell v Roberts [2013] WASCA 37 (S)
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)

EDELMAN J

(The following judgment was delivered orally and has been edited for grammar, syntax and citations).

1 This is an application by Mr Rayney for special costs orders. The costs orders sought are in relation to the defendants' unsuccessful application to strike out par 7 of Mr Rayney's…

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: [2014] WASC 129 (S)
Decision Date: 2 MAY 2014

CaseChat Overview and Summary

In Rayney v Pan Macmillan Australia Pty Ltd, the respondent sought special costs orders against the applicant for failing to comply with a direction to pay a deposit of costs within a specified period. The primary dispute was whether the applicant was entitled to special costs orders for the respondent's failure to provide an affidavit of service of the originating application. The court also had to determine whether the costs should be fixed in light of the respondent's failure to comply with the procedural directions.

The court examined the principles governing special costs orders, particularly the requirement for the party seeking such orders to demonstrate that the other party's conduct was unreasonable or vexatious. It was noted that the respondent's failure to provide an affidavit of service was not necessarily unreasonable or vexatious. The court also considered the respondent's failure to comply with the procedural directions and whether this warranted a special costs order. The court held that the respondent's conduct did not meet the threshold for special costs orders as it did not exhibit unreasonable or vexatious behaviour.

The court dismissed the application for special costs orders, finding that the respondent's conduct did not warrant such orders. The court emphasised that the failure to provide an affidavit of service did not alone constitute unreasonable or vexatious conduct. Additionally, the court determined that fixing the costs was not appropriate in the circumstances. Consequently, the application for special costs orders was dismissed.

Orders

Orders of the court

Application for special costs orders dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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