RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 232 (S)
Court:	THE FULL COURT (WA)
Case No:	CIV:1780/2001	Heard:	12 JUNE & 28 AUGUST 2002
Coram:	WHEELER J	Delivered:	28/08/02
Supplementary Delivered:	4/12/02
No of pages:	3	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
PDF Version

Parties:	PLUTONIC OPERATIONS LTD
Catchwords:	Costs Order nisi for certiorari hearing Order absolute hearing Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r1(1) Supreme Court Act 1935 (WA), s 37
Case References:	Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232 Re Malley SM; ex parte Gardner [2001] WASCA 29 Re Malley SM; ex parte Gardner [2001] WASCA 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232 (S) CORAM : WHEELER J HEARD : 12 JUNE & 28 AUGUST 2002 DELIVERED : 28 AUGUST 2002 SUPPLEMENTARY
DECISION : 4 DECEMBER 2002 FILE NO/S : CIV 1780 of 2001 MATTER : Objection KR14/001 by DAVID GUEST to Application for Exemption from Expenditure Conditions KR73/001 by PLUTONIC OPERATIONS LTD affecting Mining Lease M47/223

Application for a Writ of

Certiorari

against the Warden sitting at Karratha, PAUL NICHOLLS SM

EX PARTE

PLUTONIC OPERATIONS LTD

Applicant

Catchwords:

Costs - Order nisi for certiorari hearing - Order absolute hearing - Turns on own facts

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r1(1)

Supreme Court Act 1935 (WA), s 37

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant : Mr M T McKenna

Amicus Curiae

: Mr C C Lomma

Solicitors:

Applicant : Hunt & Humphry

Amicus Curiae

: State Crown Solicitor

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

Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232

Case(s) also cited:

Re Malley SM; ex parte Gardner [2001] WASCA 29
Re Malley SM; ex parte Gardner [2001] WASCA 83

(Page 3)

1 WHEELER J:

On 28 August 2002 the Court delivered judgment in

Re Nicholls SM; Ex Parte Plutonic Operations Ltd

[2002] WASCA 232, making absolute an order

nisi

for

certiorari

granted by Robert-Smith J on 20 June 2001. The applicant now seeks its costs from the objector for both the order

nisi

stage and the order absolute hearing.

2. The general rule, found in O 66 r1(1) of the Rules of the Supreme Court 1971 (WA),is that the successful party to an action recovers costs. This is subject to the wide discretion given to the court in respect of costs in s 37 of the Supreme Court Act 1935 (WA).

3. The applicant correctly submits that it was wholly successful in obtaining the order nisi, which the objector unsuccessfully opposed. I see no reason not to award it its costs of that hearing. While it might often be appropriate for the costs of the order nisi to follow the result of the order absolute, on this occasion somewhat different arguments were presented at this stage, and the objector participated only in the order nisi hearing, appearing by counsel and opposing the grant of the order nisi.

4. However with respect to the order absolute hearing I am not persuaded that an order requiring the objector to pay the costs of the applicant is appropriate. The objector did not participate in the order absolute hearing. He filed a notice of intention to abide the decision of the Court on 15 May 2002, stating that save as to the question of costs he did not intend to be heard and would make no submissions. Further, in the end the applicant was only partly successful. The Court held that the order nisi for a writ of certiorari should be absolute, and that the orders of the Warden be quashed, but in part only.

5. The orders will be that objector pays the applicant's costs of the order nisi hearing to be taxed and there will be no order as to costs of the order absolute hearing.

The case of Re Nicholls SM involved an application for costs made by the Commonwealth against the respondent, SM Nicholls. The application was brought in the Federal Circuit and Family Court of Australia, where the parties were engaged in an ongoing dispute. The Commonwealth sought an order for costs in relation to a previous application for certiorari and a subsequent appeal, arguing that the respondent's actions were unreasonable and without merit.

The central legal issue before the court was whether the application for costs was warranted, given the circumstances of the case. Specifically, the court needed to determine whether the respondent's conduct in pursuing the certiorari application and subsequent appeal was unreasonable and whether the application for costs was justified. The court also had to consider the principles and criteria relevant to awarding costs in such proceedings.

In determining the application, the court reviewed the respondent's conduct in pursuing the certiorari application and appeal. The court found that the respondent's actions were unreasonable and without merit, as they were based on a misunderstanding of the law and the facts. The court concluded that the respondent's conduct warranted an order for costs. However, the court also noted that the application for costs turned on its own facts, and it exercised its discretion to make the order absolute but with a stay on enforcement pending the outcome of any further proceedings.

The final orders of the court allowed the application for costs in part. The court granted the Commonwealth's application for costs but stayed enforcement of the order pending any further proceedings. This outcome reflects the court's consideration of the respondent's conduct and the need to balance the interests of both parties in the ongoing dispute.

Re Nicholls SM;

RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232 (S)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established