SIGMA Chemicals (1986) Pty Ltd as Trustee of the SIGMA Chemicals Trust v Brown
[2002] WASC 12
SIGMA CHEMICALS (1986) PTY LTD as Trustee of the SIGMA CHEMICALS TRUST -v- BROWN & ORS [2002] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 12 | |
| Case No: | CIV:1715/2000 | 19 DECEMBER 2001 | |
| Coram: | WHITE AUJ | 5/02/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay defendants' costs with certificate for second counsel in any event | ||
| B | |||
| PDF Version |
| Parties: | SIGMA CHEMICALS (1986) PTY LTD as Trustee of the SIGMA CHEMICALS TRUST DAVID BROWN GLENYS DAWN BROWN DAVID BROWN INVESTMENTS PTY LTD JEAN-PIERRE GEORGES HERICHER CICELY MADELEINE HERICHER STEPHEN GLEN BROWN JEFFREY DAVID BROWN MICHAEL CHARLES BROWN CHEMISALES PTY LTD PAUL CONRAD WOJTYSIAK ROBERT STALLARD X-RAY FLUX CORPORATION PTY LTD |
Catchwords: | Practice and procedure Costs Whether appropriate to award indemnity costs where Anton Pillar order discharged Turns on own facts |
Legislation: | Nil |
Case References: | Nil Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 FAI General Insurance Co Ltd v Burns (1997) 9 ANZ Insurance Cases 61-384 Hytrac Conveyors Ltd v Conveyors International Ltd & Ors [1983] 1 WLR 44 Lock International plc v Beswick & Ors [1989] 3 All ER 373 Packer v Meagher [1984] 3 NSWLR 486 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Vietnam International Video D & D Inc & Anor v Tho Vinh Huynh t/as Thang Looi Video & Co & Ors [1997] 3105 FCA |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
as Trustee of the SIGMA CHEMICALS TRUST
- Plaintiff
AND
DAVID BROWN
First Defendant
GLENYS DAWN BROWN
Second Defendant
DAVID BROWN INVESTMENTS PTY LTD
Third Defendant
JEAN-PIERRE GEORGES HERICHER
Fourth Defendant
CICELY MADELEINE HERICHER
Fifth Defendant
STEPHEN GLEN BROWN
Sixth Defendant
JEFFREY DAVID BROWN
Seventh Defendant
(Page 2)
MICHAEL CHARLES BROWN
Eighth Defendant
CHEMISALES PTY LTD
Ninth Defendant
PAUL CONRAD WOJTYSIAK
Tenth Defendant
ROBERT STALLARD
Eleventh Defendant
X-RAY FLUX CORPORATION PTY LTD
Twelfth Defendant
Catchwords:
Practice and procedure - Costs - Whether appropriate to award indemnity costs where Anton Pillar order discharged - Turns on own facts
Legislation:
Nil
Result:
Plaintiff to pay defendants' costs with certificate for second counsel in any event
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr S J Penrose
First Defendant : Mr G T Bigmore QC & Mr S K Shepherd
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Mr G T Bigmore QC & Mr S K Shepherd
Solicitors:
Plaintiff : Tottle Christensen
First Defendant : Mallesons Stephen Jaques
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Nil
(Page 4)
Case(s) also cited:
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
FAI General Insurance Co Ltd v Burns (1997) 9 ANZ Insurance Cases 61-384
Hytrac Conveyors Ltd v Conveyors International Ltd & Ors [1983] 1 WLR 44
Lock International plc v Beswick & Ors [1989] 3 All ER 373
Packer v Meagher [1984] 3 NSWLR 486
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Vietnam International Video D & D Inc & Anor v Tho Vinh Huynh t/as Thang Looi Video & Co & Ors [1997] 3105 FCA
(Page 5)
1 WHITE AUJ: In this matter, on 2 August 2001, I granted an ex parte application for Anton Pillar orders against the first and twelfth defendants (to whom I shall refer as "the defendants") authorising the plaintiff, by its proper representatives, to enter certain premises in which it was believed that the defendants had documents and chemicals and equipment relating to the manufacture of x-ray fluxes, which the plaintiff believed to involve actions in contempt of the orders of this Court forbidding the defendants to mix lithium carbonate and boric acid for the production of x-ray fluxes.
2 Pursuant to the injunction, representatives of the plaintiff entered the defendants' premises, examined and took photographs of the contents and seized certain papers which were then lodged with the Court.
3 On 27 September 2001, I delivered reasons for decision in which I expressed the view that:
"I am persuaded that it is undesirable, certainly at this stage, that the plaintiff have access to the materials seized pursuant to the Anton Pillar orders granted by me. In my opinion, the material should be made available to an independent expert, such, for example, as Professor Watling, for him to examine and to make a confidential report to the Court as to his findings. I would also require from him, or from whomsoever else may be appointed to undertake the task, an undertaking in suitable terms not to disclose, whether directly or indirectly, any information derived by him from his examination of the records until further order. I shall hear from counsel as to the appropriate orders to give effect to these Reasons."
4 Professor Watling duly furnished to me his confidential report which satisfied me that there was no evidence establishing on a balance of probabilities that the defendants were, in the manufacture of x-ray fluxes, mixing lithium carbonate and boric acid, in breach of the aforementioned injunction. In the circumstances, I discharged the Anton Pillar injunction on 7 December 2001 and directed that the documents delivered to Mark Atkinson on 6 August 2001 and thereafter delivered by him to the Court be returned to the defendants forthwith and that all unexposed photographic film and videotape delivered to the Court pursuant to my Order be destroyed forthwith. The question of costs was adjourned to 19 December 2001 for argument.
5 I heard counsel on that date and reserved the question of costs, with which I now deal.
(Page 6)
6 Senior counsel for the defendants submitted that the costs should follow the event and that, in the circumstances of the present case, I should order that the plaintiff pay the defendants' costs as between solicitor and client forthwith.
7 Counsel for the plaintiff submitted that it would be appropriate to reserve the costs for the decision of the trial Judge in due course. I did not accept that submission as I am of the view that the Anton Pillar proceedings constituted a discrete matter which can and should be resolved without regard to other aspects of the action between the parties.
8 Mr Bigmore QC for the defendants submitted that the circumstances called for an order for the payment of solicitor and client costs. His submissions were:
"11 The costs of and arising from the plaintiff's Anton Piller application and the defendants' application for discharge, should be the defendants on a solicitor/client basis because of:
(a) the manner in which the application was brought;
(b) the conduct of the ex parte application; and
(c) the failure of the plaintiff to accept an offer by the first defendant to have its expert witness the manufacture of x-ray flux.
Manner in which the application was brought
12 In bringing the application, the plaintiff proceeded with 'high-handed presumption':
(a) the first defendant and his representatives wrote to the plaintiff, indicating that he intended to make x-ray flux without the use of lithium carbonate and offered to discuss any concerns the plaintiff might have (H S Evans 31 July 2001 annexures, E, G; K A Tyler 31 July 2001 annexure KT5; E K Montgomery 31 July 2001 annexure L);
(b) the plaintiff was aware at all times that x-ray flux could be made in a number of different ways without breaching the injunctions against the defendants;
(Page 7)
- (c) the plaintiff brought the application asserting, on oath but without any reasonable grounds, a likelihood that, if warned, the defendants would destroy evidence of their alleged contempt despite having actually warned the defendants of its intended application three weeks previously (E K Montgomery 31 July 2001 annexure K).
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 at 502
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Lock International v Beswick [1989] All ER 373 at 382 - 3
- 13 Alternatively, the application was brought for the ulterior purpose being either to:
(a) discover the alternative chemicals employed by the defendants to make x-ray flux – see paragraph 18 of the plaintiff's submissions dated 2 August; or
(b) gather (as opposed to preserve) evidence to support an application to commit the defendants for contempt – no contempt proceedings were in fact commenced.
Packer v Meagher [1984] 3 NSWLR 486 at 501.
See also Seaman Civil Procedure at para 66.1.14.
Conduct of the ex parte application
14 It is the duty of a party seeking ex parte relief to bring to the notice of the Court all facts material to the determination of the application, regardless of whether they are aware of their importance. This requires the party inducing the Court to act to supply the place of the absent party to the extent of bringing forward all the material facts which the absent party would presumably have brought forward in his defence.
(Page 8)
- Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682
See Seaman Civil Procedure at para 52.1.13.
- 15 The orders obtained by the plaintiff's ex parte on 2 August 2001 were obtained as a result of misleading submissions. The submissions suggested that the factual background recited in paragraph 1 was not "controversial". However, paragraphs 1(c) (f) and (g) were very much in issue: see the defendants' submissions dated 7 August 2001.
16 Matters not brought to the Court's attention or not properly brought to the Court's attention included:
(a) the plaintiff's awareness (for a considerable period prior to the application) that the defendants had access to a supply of lithium carbonate stored at the Joondalup premises (affidavit of G J S Evans 29 July 2001 para 5 cf paras 8(f) to (i) of the plaintiff's submissions);
(b) the plaintiff's awareness that x-ray flux can be made in a number of alternative ways without lithium carbonate;
(c) the correspondence from the defendant advising the plaintiff that he intended to manufacture x-ray flux without breaching the injunction (H S Evans 31 July 2001 para 8 and annexure G);
(d) the letter dated 11 July 2001 from Tottle Christensen to the defendants' solicitors warning that the plaintiff intended to apply for 'urgent and grave orders' (E K Montgomery 31 July 2001 annexure K).
17 The matters referred to above were material in persuading the Court. The plaintiff should bear the costs consequences of failing to fulfil its duties to the Court in the conduct of the ex parte application.
(Page 9)
- Failure to accept the offer to inspect
18 By letter dated 5 August 2001 (eighth affidavit of David Brown Annexure DB8B), the defendants proposed that the first defendant demonstrate to the plaintiff's expert, Professor Watling, the production of flux without the use of lithium carbonate. The offer was rejected by the plaintiff in a most high handed fashion (eighth affidavit of David Brown Annexure DB8C). On 27 September 2001 His Honour found it would have been appropriate to have accepted the offer.
19 Had the plaintiff accepted the proposal, the application and consequent proceedings would not have been necessary. The plaintiff should bear the defendants' costs on a solicitor client basis so that, as far as possible, the defendants are protected from the effect of the plaintiff's refusal."
9 In the course of the reasons which I published on 27 September 2001, I remarked that:
"Interestingly enough, the defendant offered to demonstrate to the plaintiff's witness, Professor Watling, the manufacture of the flux without the use of lithium carbonate. That offer has been rejected. In my opinion, it would have been appropriate to have accepted it."
10 The plaintiff submitted that the defendants' contentions were spurious, that the various matters identified under the heading referring to the manner in which the application was brought were already before the Court on 2 August 2001, when I held that there was a prima facie case of breach of the injunction and that there is no basis for the assertion that the application was brought for either of the ulterior purposes alleged. Mr Penrose for the plaintiff further submitted that:
"3.1 The 'manner in which the application was brought'
(a) The various matters identified under this heading are all matters which were before this Honourable Court on 2 August 2001 on which day the Court determined that there was a prima facie case of breach of the injunctions and the orders sought be [sic] the plaintiff were made.
(Page 10)
- There is simply no basis for the assertion that the plaintiff's application was brought for either of the 'ulterior purposes' identified in paragraph 13 of the defendant's outline of submissions.
- 3.2 The 'conduct of the ex-parte application'
(a) The matters adverted to under this heading formed the primary basis of the defendants' application dated 6 August 2001 (see the defendant's submissions dated 7 August 2001, paragraphs 1 to 6).
(b) The defendants did not succeed in having the Anton Piller order set aside on the basis of the matters adverted to under this heading. See paragraph 4 below as to the circumstances in which the order were finally set aside.
3.3 The 'failure to accept the offer to demonstrate'
(a) As previously made plain, the first defendant's offer to demonstrate to the plaintiff that he could make x-ray fluxes without breaching the injunctions was not accepted because the plaintiff considered such a demonstration to be of no utility, because it had never been in issue that x-ray flux could be made in a number of different ways (see the affidavit of Keith Tyler sworn 31 July 2001 at paragraph 9).
...
5. There is no 'special or unusual feature' in this matter which takes it out of the ordinary run of cases and which would justify an order for indemnity costs (see, by way of example, Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248)."
11 It has been suggested that the significance of indemnity costs, as opposed to party and party costs, may not be as great in this Court as it may be in other jurisdictions: Seaman: Civil Procedure Western Australia, par 66.1.16. The learned author goes on in that paragraph to say:
(Page 11)
- "Furthermore, with limited exceptions, there should be no difference between items allowed under a party and party bill of costs and a solicitor and client bill of costs . . ."
12 In all the circumstances, I am not prepared to order that the costs be taxed on an indemnity basis.
13 In my opinion, the appropriate order as to costs is that the plaintiff must pay the defendants' costs of and incidental to the application for the Anton Pillar injunction, such costs to be taxed if not agreed, with a certificate for a second counsel and to be paid in any event.
14 I shall, so order.
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