Re Burvill;

[2005] WASCA 181 (S)

RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 181 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CIV:2352/2004	Heard:	19 AUGUST 2005
Coram:	WHEELER JA MCLURE JA PULLIN JA	Delivered:	23/09/05
Supplementary Delivered:	21/02/06
No of pages:	3	Judgment Part:	1 of 1
Result:	Application for costs dismissed
Category:	B
PDF Version

Parties:	BAINS HARDING INDUSTRIES PTY LTD NAUM SILJANOSKI
Catchwords:	Costs Turns on own facts
Legislation:	Nil
Case References:	O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181 Corporate Affairs Commission v Bradley [1974] NSWLR 391 Knight & Anor v F P Special Assets Ltd (1992) 174 CLR 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 (S) CORAM : WHEELER JA

MCLURE JA
PULLIN JA

HEARD : 19 AUGUST 2005 DELIVERED : 23 SEPTEMBER 2005 SUPPLEMENTARY
DECISION : 21 FEBRUARY 2006 FILE NO/S : CIV 2352 of 2004 MATTER : Application for a Writ of Certiorari against Dr P W BURVILL, Dr C ZANETTI and Dr A HARPER as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 EX PARTE

BAINS HARDING INDUSTRIES PTY LTD
Applicant

Catchwords:

Costs - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant : Mr G W Nutt

Intervenor : Mr J R Ludlow

Solicitors:

Applicant : Jarman McKenna

Intervenor : Bradford & Co

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

O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181

Case(s) also cited:

Corporate Affairs Commission v Bradley [1974] NSWLR 391
Knight & Anor v F P Special Assets Ltd (1992) 174 CLR 178


(Page 3)

1 JUDGMENT OF THE COURT: These reasons concern the costs of the application in Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181. In that case the Court ordered that the order nisi the subject of the application should be made absolute and the decision of a Medical Assessment Panel quashed.

2 The applicant seeks an order that Mr N Siljanoski ("claimant") pay the applicant's costs of the application to be taxed. The Panel's decision the subject of the application related to the extent of a work-related disability suffered by the claimant. The claimant, by his counsel, sought and obtained leave to make submissions in opposition to the application. He was not a party to the application but in effect an intervener.

3 We accept that this Court has the power to make the costs order sought by the applicant. The Court has an unfettered discretion in that regard. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 the High Court said (at p 311) that it is only in special circumstances that it is appropriate for a Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party had been increased by the intervention.

4 Two issues were raised at the hearing. The first concerned the jurisdiction of a review officer to refer a question to a Panel and the second related to the adequacy of the Panel's reasons. If the claimant had not participated in the application, the Court would have sought assistance from a representative of the State Solicitor's Office as amicus curiae. The matters raised by the claimant would, in our assessment have been raised by, or with, the amicus. We are not persuaded that the length of the hearing was extended as a result of the claimant's participation.

5 In these circumstances, we would not in the exercise of our discretion order the claimant to pay the applicant's costs. We would make no order in relation to the costs of the application.