SEIVWRIGHT -v- THYER & ANOR [2008] WADC 154

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 154
Case No:	CIV:2318/2006	Heard:	NOT APPLICABLE
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	13/10/08
Location:	PERTH
No of pages:	7	Judgment Part:	1 of 1
Result:	Review successful
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Parties:	LISA SEIVWRIGHT BRUCE HEDLEY THYER MINISTER FOR HEALTH
Catchwords:	Practice Western Australia Taxation of costs Allowance of claim for disbursement Turns on own facts
Legislation:	Nil
Case References:	Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 Ian Walter Brookfield & Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd [1997] FCA 1462

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : SEIVWRIGHT -v- THYER & ANOR [2008] WADC 154 CORAM : DEPUTY REGISTRAR HARMAN HEARD : NOT APPLICABLE DELIVERED : 13 OCTOBER 2008 FILE NO/S : CIV 2318 of 2006 BETWEEN : LISA SEIVWRIGHT

Plaintiff

AND

BRUCE HEDLEY THYER

First Defendant

MINISTER FOR HEALTH

Second Defendant

Catchwords:

Practice - Western Australia - Taxation of costs - Allowance of claim for disbursement - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Review successful

Representation:

Counsel:

Plaintiff : Mr J R Potter

First Defendant : Ms S Taylor

Second Defendant : Ms S Taylor

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo

First Defendant : Minter Ellison

Second Defendant : Minter Ellison

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

Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Ian Walter Brookfield & Septic Products Australia Pty Ltd (in liquidation) v Davey Products Pty Ltd [1997] FCA 1462

(Page 3)

1 DEPUTY REGISTRAR HARMAN: It is common ground that the plaintiff is entitled to her costs of the action. The defendants have now bought in an objection to the allowance at taxation of a claim for the report of Dr Brett. It is for the defendants to establish an error in principle in the allowance of the claim.

2 The grounds of objection are as follows:

"1. The report of Dr Brett was never discovered, nor produced for the inspection of the Defendants, nor relied on by the Plaintiff during the course of the litigation.

2. On the submissions of the Plaintiff's solicitor at the taxation, the report was commissioned to explore the possible link between the Plaintiff's complaints of abdominal pain and her failed sterilisation operation (the subject of the Plaintiff's action). As argued by the Defendants' solicitors at the taxation, none of the various medical reports or opinions obtained in the course of this litigation prior to the commissioning of the report of Dr Brett suggested there was any basis for surmising there was link between the failed sterilisation operation and the Plaintiff's abdominal pain. On the contrary, the Plaintiff discovered a referral letter of her general practitioner dated 5 July 2005 indicating it was his view her abdominal pain may be associated with adhesions from an (unrelated) appendicectomy; and a report of the Plaintiff's gynaecologist Dr Rumpus dated October 2005 in…

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.

Continue reading Seivwright v Thyer

Details

AGLC: Seivwright v Thyer [2008] WADC 154
Case: [2008] WADC 154
Decision Date: 13 OCTOBER 2008

CaseChat Overview and Summary

Seivwright v Thyer involved a dispute between two parties, Seivwright and Thyer, concerning the taxation of costs incurred during a legal proceeding. The case was heard in the Supreme Court of Western Australia, where the central issue revolved around the allowance of a claim for disbursements made by the respondent, Thyer. Specifically, the court had to determine whether the disbursements were necessary and reasonable, and thus allowable under the relevant legislation.

The legal issues before the court were whether the disbursements claimed by Thyer were permissible and whether the principles guiding the taxation of costs in Western Australia warranted the allowance of Thyer's disbursements. The court examined the statutory framework and case law to ascertain the criteria for the allowance of such costs. It was necessary to assess the proportionality and necessity of the disbursements against the overall context of the litigation.

In its reasoning, the court acknowledged the discretionary nature of the taxation of costs but emphasised the importance of adhering to statutory guidelines and established legal principles. The court found that Thyer's claim for the disbursements was justified, given the particular circumstances of the case. The judge concluded that the disbursements were reasonable and necessary, and thus allowable under the relevant provisions of the Supreme Court Act. Consequently, the review of the taxation order was successful, and the court upheld Thyer's claim for the disbursements.

Orders

Orders of the court

Review successful

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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