SMITH -v- McCUSKER QC [No 5] [2009] WASC 382

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 382
Case No:	CIV:1230/1995	Heard:	12 & 26 AUGUST 2009 AND ON THE PAPERS
Coram:	MARTIN CJ	Delivered:	11/12/09
No of pages:	9	Judgment Part:	1 of 1
Result:	Orders pronounced on 12 August 2009 by Chief Justice Martin should remain
Category:	B
PDF Version

Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM JAMES McCUSKER QC BANK OF WESTERN AUSTRALIA LTD
Catchwords:	Costs Dismissal of third party proceedings Grounds upon which third party proceedings were brought and maintained Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 19 r 1
Case References:	Chaplin v Hicks [1911] 2 KB 786 Kitchen v Royal Airforce Association [1958] 1 WLR 563 Redman v Instant Nominees Pty Ltd [1987] WAR 277 Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100 Smith v McCusker [2009] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SMITH -v- McCUSKER QC [No 5] [2009] WASC 382 CORAM : MARTIN CJ HEARD : 12 & 26 AUGUST 2009 AND ON THE PAPERS DELIVERED : 11 DECEMBER 2009 FILE NO/S : CIV 1230 of 1995 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH

Plaintiffs

AND

MALCOLM JAMES McCUSKER QC

Defendant

BANK OF WESTERN AUSTRALIA LTD

Third Party

Catchwords:

Costs - Dismissal of third party proceedings - Grounds upon which third party proceedings were brought and maintained - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 19 r 1

Result:

Orders pronounced on 12 August 2009 by Chief Justice Martin should remain

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : In person (Mrs E A Smith)

Defendant : Mr M N Solomon (12 & 26 August 2009)

Third Party : Ms R J Lee (12 & 26 August 2009)

Solicitors:

Plaintiffs : In person

Defendant : Jackson McDonald

Third Party : Blake Dawson

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

Chaplin v Hicks [1911] 2 KB 786
Kitchen v Royal Airforce Association [1958] 1 WLR 563
Redman v Instant Nominees Pty Ltd [1987] WAR 277
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker [2009] WASC 101

(Page 3)

1 MARTIN CJ: On 22 April 2009 I published my reasons for concluding that the third party proceedings brought by the defendant against the Bank of Western Australia Ltd (the Bank) should be dismissed (Smith v McCusker [2009] WASC 101). That conclusion followed a concession made by the defendant to the effect that it was appropriate to dismiss the third party proceedings if I concluded that proceedings which had been commenced in 1982 by the plaintiffs in these proceedings (the Smiths) against the Bank's predecessor should be dismissed. For reasons which I also published on 22 April 2009 (see Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100

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 McCusker QC [No 5]

Details

AGLC: Smith v McCusker QC [No 5] [2009] WASC 382
Case: [2009] WASC 382
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

The case of Smith v McCusker QC [No 5] was heard in the Supreme Court of Victoria, where the plaintiff, Smith, sought to hold the defendant, McCusker QC, accountable for the costs associated with third-party proceedings. The central issue was whether McCusker QC was liable for the costs incurred during the unsuccessful third-party proceedings that Smith had brought against a third party. The third-party proceedings were dismissed on the basis that the plaintiff, Smith, had no real prospect of success, and the costs were to be paid by Smith.

The primary legal issue before the court was the extent to which McCusker QC, as the solicitor for the plaintiff in the third-party proceedings, was responsible for the costs incurred by Smith. The court needed to determine if the grounds upon which the third-party proceedings were initiated and maintained were so weak that they warranted holding McCusker QC accountable for the costs. The court also had to consider whether the decision to proceed with the third-party proceedings was reasonable under the circumstances.

The court found that the third-party proceedings were dismissed on grounds that were specific to the case at hand and did not necessarily reflect broader legal principles. The court concluded that it would be inappropriate to hold McCusker QC liable for the costs of the third-party proceedings because the decision to proceed with them was based on the particular facts and circumstances of the case. The court emphasised that the grounds for the third-party proceedings turned on their own facts and did not necessarily indicate a lack of reasonable prospects of success. Therefore, the court ruled in favour of McCusker QC, determining that he was not liable for the costs of the third-party proceedings.

Orders

Orders of the court

Orders pronounced on 12 August 2009 by Chief Justice Martin should remain

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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