Re Nicholls SM;
[2002] WASCA 232 (S)
•28 AUGUST 2002
RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 232 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1780/2001 | 12 JUNE & 28 AUGUST 2002 | |
| Coram: | WHEELER J | 28/08/02 | |
| 4/12/02 | |||
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| 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
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:
1.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.
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