Re Fortescue Metals Group Ltd;

[2010] WASC 88 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	RE FORTESCUE METALS GROUP LTD; EX PARTE FORTESCUE METALS GROUP LTD [2010] WASC 88 (S)

CORAM	: McKECHNIE J
HEARD	:  29 APRIL 2010 AND ON THE PAPERS
DELIVERED	:  30 APRIL 2010
SUPPLEMENTARY
DECISION	:  1 JULY 2010
FILE NO/S	:  CIV 1578 of 2010
MATTER	:  An application under the Magistrates Court Act 2004 s36 for a review order against Giuseppe Mignacca- Randazzo, Magistrate of the Magistrates Court of Western Australia at Perth acting in his capacity as Safety and Health Magistrate under s 51B of the Occupational Safety and Health Act 1984 EX PARTE FORTESCUE METALS GROUP LTD (ACN 002 594 872) and THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340)

EX PARTE

FORTESCUE METALS GROUP LTD
THE PILBARA INFRASTRUCTURE PTY LTD

Applicants

Catchwords:

Costs of non-party - To follow the event - No new principles

[2010] WASC 88 (S)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66

Result:

Applicants to pay non-party's costs

Category: B

Representation:

Counsel:

Applicants	:	Mr M J McCusker QC & Mr R F Pintos-Lopes
Non-Party	:	Mr B P King (for Prosecutor, Christopher

Kirwin)

Solicitors:

Applicants	:	DLA Phillips Fox
Non-Party	:	State Solicitor for Western Australia

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

Nil

McKECHNIE J [2010] WASC 88 (S)

1. McKECHNIE J: The day before the hearing was due to commence in the Magistrates Court, Fortescue applied for a review order, serving the papers on the Magistrate and the prosecutor Mr Kirwin. Over objection from Fortescue, I granted leave to the prosecutor to appear at the application. The prosecutor clearly had a direct interest in the proceedings. Had a review order been granted, the prosecution proceedings he commenced in the Magistrates Court would have been adjourned indefinitely.

2              The Rules of the Supreme Court 1971 (WA) O 56A require a review order to be made ex parte. This does not prevent a judge giving leave to a party whose interests are directly affected by the application, if the judge considers this to be appropriate. The Rules of the Supreme Court O 56A r 3(2)(e) allows a judge to direct service of the notice on an interested party. Though here, Fortescue had already served the prosecutor.

3              The power to award costs in favour of a non-party are said to be

exercised only in exceptional circumstances and with considerable
caution.

4              In this case, the prosecutor had a very real, direct and material

connection with the litigation and a review order would have directly affected the prosecutor. The prosecutor was a theoretical non-party only. In practice, the prosecutor had a vital interest in the application as well as any subsequent review proceedings.

1. It was right that the prosecutor should be able to appear and give the court whatever assistance was possible in the very limited time available.

6              The normal rule should apply and costs follow the event. The

application by Fortescue was refused and the trial proceeded in the
Magistrates Court.

1. The prosecutor seeks the sum of $1,188 being two hours of preparation and one hour of hearing. The costs claimed are reasonable.

Order

1. The applicants pay the non-party's costs fixed at $1,188.