Re Malley SM; Ex parte Gardner

[2001] WASCA 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   RE MALLEY SM; EX PARTE GARDNER [2001] WASCA 83

CORAM:   MALCOLM CJ

OWEN J
PARKER J
WHEELER J
McKECHNIE J

HEARD:   18 SEPTEMBER 2000

DELIVERED          :   19 MARCH 2001

FILE NO/S:   CIV 1143 of 2000

MATTER                :Application for a Writ of Certiorari against S R MALLEY SM of the Warden's Court, Perth

EX PARTE

ROBERT CHARLES GARDNER
Applicant

AND

WMC RESOURCES LTD
Respondent

Catchwords:

Costs - Indemnity Basis - Special Order not warranted

Legislation:

Nil

Result:

Applicant to pay respondent's costs to be taxed
Certificate for second counsel

Representation:

Counsel:

Applicant:     Mr J Gilmour QC & Mr M D Howard

Respondent:     Mr C L Zelestis QC & Mr M T McKenna

Solicitors:

Applicant:     Hotchkin Hanly

Respondent:     Hunt & Humphrey

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

Bailleu Knight Frank NSW Pty Ltd v Ted Maning Real Estate Pty Ltd (1992) 30 NSWLR 389

Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Quancorp Pty Ltd v MacDonald [1999] WASCA 101

Re Fountain Selected Meats (1988) 81 ALR 397

Case(s) also cited:

Nil

1. JUDGMENT OF THE COURT:  On 14 February 2001 the Court delivered judgment in Re Malley SM, Ex Parte Gardner [2001] WASCA 29 the respondent now seeks a special costs order that the applicant pay its cost to be taxed on an indemnity basis, save to the extent that they are unreasonable in amount or that they were unreasonably incurred.

2. A special costs order of this nature will only be made in exceptional circumstances; Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225: The conclusion reached by the majority of the Court that these proceedings constituted an abuse of process is capable of constituting special circumstances in the relevant sense and provides a sufficient foundation on which costs could be ordered on an indemnity basis; Bailleu Knight Frank NSW Pty Ltd v Ted Maning Real Estate Pty Ltd (1992) 30 NSWLR 389.

3. As the reasons for decision of this Court reveal, however, this was not a case where the applicant, properly advised, should have known his case was manifestly unarguable with no chance of success; Re Fountain Selected Meats (1988) 81 ALR 397 at 401; Quancorp Pty Ltd v MacDonald [1999] WASCA 101 at [4] and [7]. In this respect it is to be noted that there was some difference of view among the members of this Court and that another Judge of the Court was persuaded to grant an Order Nisi to the applicant.

4. In these circumstances we are not persuaded that a special order is appropriate.

5. The applicant should pay the respondent's costs to be taxed with a certificate for second counsel.