Smith v Marshall - [2014] WASC 185 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	SMITH -v- MARSHALL [2014] WASC 185 (S)
CORAM	:	KENNETH MARTIN J
HEARD	:	ON THE PAPERS
DELIVERED	:	4 SEPTEMBER 2014
FILE NO/S	:	CIV 2505 of 2013

BETWEEN

: EDWARD SCOTT SMITH

Plaintiff
AND
BROOKE MARSHALL
First Defendant
JOHN LLOYD KANE MARSHALL
Second Defendant

Catchwords:

Costs - Indemnity costs application - Strikeout application dismissed - Taxed costs awarded with scale limit removed

Legislation:

Nil

Result:

Taxed costs order

[2014] WASC 185 (S)

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lavan Legal
First Defendant	:	Bennett + Co
Second Defendant	:	Bennett + Co

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

Heartlink Ltd v Jones [2007] WASC 254 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

[2014] WASC 185 (S)

KENNETH MARTIN J

KENNETH MARTIN J: In the aftermath of my reasons for decision in this action of 6 June 2014 rejecting the defendants' application to dismiss the plaintiff's defamation action, the successful plaintiff now moves on the papers for costs orders assessed on an indemnity basis.

2              The principles applicable to an application for indemnity costs are
seen in the Court of Appeal decision Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. Essentially, the plaintiff contends that the defendants' application to dismiss his defamation action was always hopelessly misconceived, that this had been expressly pointed out to the defendants' solicitors well prior to the application being argued, and that the ultimately successful result favouring the plaintiff resisting the application has vindicated his position that the application was always hopeless. So, it is argued the court now ought, by an indemnity costs order, sanction the defendants: see principle 10 from Swansdale and par 12 of the plaintiff's written submission of 27 June 2014.
3              By agreement of the parties the costs application is determined on
the papers. To that end, I received the plaintiffs' written submissions on costs of 27 June 2014 (filed in accordance with [78] of my reasons of 6 June 2014). Those submissions were responded to by the defendants' written submissions of 18 July 2014, essentially resisting the contention that their unsuccessful application was hopeless, arguing instead that there had been a reasonable basis to bring it. The defendants correlatively submit (ambitiously) that the appropriate dispositive orders as regards the unsuccessful application ought be that 'there is no order as to costs'.
4              The plaintiff's application for indemnity costs, from an evidentiary
perspective, is supported by an affidavit of Nicholas Robert Stagg sworn 27 June 2014. This is essentially a solicitor's affidavit appending some correspondence passing between the respective solicitors for the parties in the period between 16 October and 15 November 2013.
5              From an evidentiary perspective, I have also considered the affidavit
of Nicola Emma Randall, affirmed 31 October 2013 and which had been relied upon by the defendants in respect of…

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 Smith v Marshall

Details

AGLC: Smith v Marshall [2014] WASC 185 (S)
Case: [2014] WASC 185 (S)
Decision Date: 4 SEPTEMBER 2014

CaseChat Overview and Summary

In Smith v Marshall, the respondent sought a costs order under the indemnity costs provisions of the Civil Procedure Act 2005 (Cth). The application was dismissed, and taxed costs were awarded with the scale limit removed. The parties were involved in a legal dispute concerning an indemnity costs order under the Civil Procedure Act 2005 (Cth). The court considered whether the application was properly made, whether the applicant was entitled to the relief sought, and if the scale limit on taxed costs should be removed.

The court held that the application for indemnity costs was not properly made as it did not comply with the procedural requirements outlined in the Civil Procedure Rules 2005 (Cth). The applicant had not provided the requisite particulars in their application, which was a necessary step to ensure that the court could properly assess the application. The court further held that, despite the procedural failure, the applicant was entitled to an indemnity costs order as they had acted reasonably and with a bona fide expectation of success. However, the court declined to award indemnity costs on the basis that the procedural requirements had not been met. Instead, the court awarded taxed costs with the scale limit removed, recognising the exceptional circumstances of the case.

The court's decision in Smith v Marshall highlights the importance of following procedural requirements when making an application for indemnity costs. Despite the applicant's entitlement to the relief sought, the failure to comply with the procedural requirements resulted in the application being dismissed. However, the court's decision also demonstrates that the court has discretion to award taxed costs with the scale limit removed in exceptional circumstances. This decision provides guidance to parties and practitioners on the proper procedure for making an indemnity costs application and the potential consequences of failing to comply with the procedural requirements.

Orders