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)

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.

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…

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: [2010] WASC 88 (S)
Decision Date: 30 APRIL 2010

CaseChat Overview and Summary

Fortescue Metals Group Limited brought an application seeking a declaration that it was not liable to pay the costs of the Environmental Defenders Office (EDO) in relation to proceedings it had brought against the respondent. The primary question for the court was whether Fortescue Metals Group Limited was liable to pay the costs of the EDO, who were not a party to the proceedings, in relation to the proceedings brought against it. The court found that the principle that a party is not liable for the costs of a non-party in litigation unless the costs were incurred for the benefit of the party is well settled in Australian law. The court further found that there were no exceptional circumstances that would justify Fortescue Metals Group Limited being liable for the costs of the EDO.

The court emphasised that the principle that costs follow the event was fundamental to the administration of justice in Australia and that there was no authority that would allow for deviation from this principle. The court found that the circumstances of the case did not warrant any departure from this principle. The court found that the EDO had brought the proceedings in the public interest and that the proceedings had not been brought for the benefit of Fortescue Metals Group Limited. The court found that there was no basis for Fortescue Metals Group Limited to be liable for the costs of the EDO. The court dismissed the application for a declaration that it was not liable to pay the costs of the EDO. The court made no order as to costs.

Orders