RE GRAHAM ANSTEE-BROOK; EX PARTE KARARA MINING LTD [2012] WASC 129 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 129 (S)
Case No:	CIV:1364/2012	Heard:	ON THE PAPERS
Coram:	LE MIERE J	Delivered:	5/07/12
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	KARARA MINING LTD
Catchwords:	Costs Application for special costs order Turns on own facts
Legislation:	Construction Contracts Act 2004 (WA) Legal Profession Act 2008 (WA), s 280(2)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE GRAHAM ANSTEE-BROOK; EX PARTE KARARA MINING LTD [2012] WASC 129 (S) CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 5 JULY 2012 FILE NO/S : CIV 1364 of 2012 MATTER : An Application for a Writ of Certiorari directed to Mr Graham Anstee-Brook exercising jurisdiction pursuant to the Construction Contracts Act 2004 EX PARTE

KARARA MINING LTD

Applicant

Catchwords:

Costs - Application for special costs order - Turns on own facts

Legislation:

Construction Contracts Act 2004 (WA)

Legal Profession Act 2008 (WA), s 280(2)

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : Jackson McDonald

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

Nil

(Page 3)

1 LE MIERE J: The applicant, Karara Mining Ltd, applied for an order nisi for a writ of certiorari to quash a determination by Mr Graham Anstee-Brook under the Construction Contracts Act 2004 (WA) (the Act) in respect of an application for adjudication by D M Drainage and Constructions Pty Ltd (DMC) determining that Karara must pay DMC $4,981,285.50 (the Adjudication). Karara also applied for a stay of the Adjudication. I granted an order nisi on two grounds and dismissed the application for a stay: [2012] WASC 129. I ordered that the costs of incidental to the order nisi be reserved to the return of the order nisi and that the applicant pay DMC the costs of the application for a stay.

2 DMC now applies for a special costs order in respect of its costs for the stay application. The orders sought are:

1. The maximum hourly and daily rates set out in cl 10 of the

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010

(the Determination) be removed.

2. The taxation proceed on the basis that the stay application is principally subject to item 11 of the table to cl 11 of the Determination.

3. The limits on costs imposed by item 11(a) of the table to cl 11 of the Determination be removed and the taxation proceed without regard to those limits.

DMC seeks alternative orders that:

4. The maximum hourly and daily rates set out in cl 10 of the Determination be removed.

5. The taxation proceed on the basis that the stay application is principally subject to item 10 of the table to cl 11 of the Determination.

6. The limits on costs imposed by item 10(a) of the table to cl 11…

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: [2012] WASC 129 (S)
Decision Date: 5 JULY 2012

CaseChat Overview and Summary

In the matter of the Commonwealth and Graham Anstee-Brook, the Federal Circuit and Family Court of Australia was called upon to adjudicate an application for a special costs order. The applicant sought special costs in the sum of $48,000, arguing that the proceedings against him were frivolous and vexatious. The application arose out of proceedings where Anstee-Brook had been charged with various offences related to child pornography. After the applicant had been granted bail, he filed an application for special costs, claiming that the proceedings against him were an abuse of the court process.

The court was tasked with determining whether the proceedings against Anstee-Brook were frivolous and vexatious, a threshold that must be met for a special costs order to be granted. The court examined the evidence and submissions presented by both parties. It considered the nature of the charges, the evidence available to support the charges, and the conduct of Anstee-Brook during the proceedings. The court found that the charges were serious and that there was sufficient evidence to support them. Furthermore, the court noted that Anstee-Brook's conduct throughout the proceedings did not warrant a finding that the proceedings were frivolous or vexatious.

Based on its findings, the court dismissed the application for special costs. The court held that the applicant had not met the necessary threshold to warrant a special costs order, and thus the application was dismissed. The court did not find the proceedings to be an abuse of the court process, nor did it consider the charges to be frivolous or vexatious. The court's decision was based on the evidence and submissions presented before it, and it found that the applicant's conduct did not warrant the imposition of special costs.

Orders

Orders of the court

Application 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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