Smith v The Executive Director of the Department of Conservation and Land Management
[2002] WASC 305
SMITH & ORS -v- THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2002] WASC 305
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 305 | |
| Case No: | CIV:1232/2000 | 20 NOVEMBER 2002 | |
| Coram: | EM HEENAN J | 20/11/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Unconditional leave to discontinue granted Plaintiffs to pay costs of proceedings to be taxed | ||
| B | |||
| PDF Version |
| Parties: | JOHN WILLIAM SMITH MURRAY AUSTIN SMITH IAN FRANCIS SMITH T/AS THE "JEBARJUP PASTORAL COMPANY" MICHAEL TERENCE ARMSTRONG ANNE ROSALIE ARMSTRONG T/AS "M T & A R ARMSTRONG" THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT |
Catchwords: | Leave to discontinue Conditions Costs |
Legislation: | Limitation Act 1935, s 47A Supreme Court Rules, O 24 |
Case References: | Nil Broad v Westralian Sands, unreported; DCt of WA; Library No 4051; 10 June 1994 CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd, unreported; SCt of WA; Library No 8740; 26 February 1991 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Duvall v Godfrey Virtue & Co (A Firm) [2001] WASCA 163 Hess v Labouchere (1898) 14 TLR 350 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 McLean v Kerville, unreported; SCt of WA; Library No 6455; 3 October 1986 Messiter v Hutchinson (1987) 10 NSWLR 525 O'Neil v Mann [2000] FCA 1680 OneTel Limited v Deputy Commissioner of Taxation [2000] FCA 270 Schmidt v Gilmour [1998] 2 WAR 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MURRAY AUSTIN SMITH
IAN FRANCIS SMITH
T/AS THE "JEBARJUP PASTORAL COMPANY"
First Plaintiffs
MICHAEL TERENCE ARMSTRONG
ANNE ROSALIE ARMSTRONG
T/AS "M T & A R ARMSTRONG"
Second Plaintiffs
AND
THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
Defendant
Catchwords:
Leave to discontinue - Conditions - Costs
(Page 2)
Legislation:
Limitation Act 1935, s 47A
Supreme Court Rules, O 24
Result:
Unconditional leave to discontinue granted
Plaintiffs to pay costs of proceedings to be taxed
Category: B
Representation:
Counsel:
First Plaintiffs : Mr I R Freeman
Second Plaintiffs : Mr I R Freeman
Defendant : Mr S V Forbes
Solicitors:
First Plaintiffs : Phillips Fox
Second Plaintiffs : Phillips Fox
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Broad v Westralian Sands, unreported; DCt of WA; Library No 4051; 10 June 1994
CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd, unreported; SCt of WA; Library No 8740; 26 February 1991
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Duvall v Godfrey Virtue & Co (A Firm) [2001] WASCA 163
Hess v Labouchere (1898) 14 TLR 350
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
(Page 3)
McLean v Kerville, unreported; SCt of WA; Library No 6455; 3 October 1986
Messiter v Hutchinson (1987) 10 NSWLR 525
O'Neil v Mann [2000] FCA 1680
OneTel Limited v Deputy Commissioner of Taxation [2000] FCA 270
Schmidt v Gilmour [1998] 2 WAR 219
(Page 4)
1 EM HEENAN J: In this matter the plaintiffs seek leave to discontinue their claims against the defendant for damages arising out of a fire in January 1997, which spread from Stirling Range National Park over the properties of the plaintiffs, causing damage.
2 The background and circumstances of the fire, the competing allegations of the parties and the causes of action which are to be advanced have been fully canvassed in the reasons for decision of McKechnie J published on 30 November 1999 when his Honour gave leave for the commencement of an action against the defendant pursuant to s 47A of the Limitation Act 1935, notwithstanding that the action had not been commenced within the time or according to the formalities contemplated by that section.
3 Since then the action has been proceeding in this Court and was entered into the long causes list. The main issues in the action appear to be whether or not there was negligence by the defendant in failing to respond to the danger presented by this fire which had commenced by a lightning strike and, in particular, by failing to assemble quickly enough appropriate fire fighting equipment to prevent the escape of the fire from the National Park.
4 There is a second issue relating to questions of liability and that is whether a buffer zone intended to separate the margins of the national park from surrounding farming areas was maintained in sufficient state to prevent or diminish the effect of fire, or at least to retard it for sufficient time, to allow fire fighting measures to become effective.
5 On the issue of damages there are the usual questions about the quantification of the plaintiffs' damages, the loss of profitability, the damage to stock, fences, pasture and improvements on the properties giving rise to the plaintiffs' claim. It was acknowledged on both sides that expert evidence would probably be necessary and this was being sought in relation to the issues of liability and damages.
6 The action proceeded to the point where discovery was completed on both sides. There had been mediation and a series of negotiations between the parties with a view to reaching a settlement of the action. On 4 October 2000 the defendant's solicitors wrote to the plaintiffs' solicitors, in what has been called a Calderbank offer, indicating that if the offer in the terms there contained was accepted within seven days the defendant would allow the plaintiffs to abandon their claims with no liability as to costs. That offer was not accepted and the action has continued. There
(Page 5)
- were then, during 2001 and 2002, two or more offers for the settlement of the claim by the plaintiffs filed pursuant to O 24 of the Supreme Court Rules, indicating an amount which the plaintiffs would accept from the defendants for the satisfaction of their claims. Those offers were not accepted.
7 The case has proceeded, but now the plaintiffs desire to discontinue the action on the basis, deposed to in their affidavits, that although they consider they have reasonable prospects of success, the risk of costs being awarded against them in the action and their magnitude is more than they can bear. Consequently, despite the strength of what they consider to be their case, they wish to discontinue.
8 The defendant does not oppose the application for discontinuance except as to the imposition of terms. The terms which it seeks to have imposed are, firstly, that the discontinuance should be on condition that the plaintiffs do not commence any further action seeking the same or similar relief and, secondly, that the costs of the defendant should be paid by the plaintiffs as taxed, that these should include the costs of the application for leave to extend time under s 47A of the Limitation Act, (which have already been ordered) and that the costs of the action, but not the s 47A application, should be on an indemnity basis.
9 I will deal first with the application that a condition on leave to discontinue should be imposed preventing the plaintiffs from bringing another action seeking the same or similar relief. The circumstances are that the plaintiffs are now out of time for the commencement of any alternative action. If they desired to commence any fresh action they would need to apply under s 47A for an extension of time. That having already been once granted in these proceedings and these proceedings abandoned, it seems to me that the probabilities are overwhelming that leave to extend time would be refused. I do not consider that the defendant is subject to any material risk of further proceedings by the plaintiffs arising out of this fire and I do not consider that such a condition is either necessary or appropriate.
10 When it comes to the question of costs it is undoubtedly the case that a party who discontinues must, except in exceptional circumstances, bear the opposing party's costs of the proceedings. That is accepted by the plaintiffs and there is no barrier to an order that the plaintiffs should pay the defendant its costs of the action to be taxed, including, as has already been ordered, the costs in the s 47A application.
(Page 6)
11 The defendant has put before the Court, both in oral and written submissions and in much affidavit material, a claim that the issues in this case were so complicated and generated the need for such substantial inquiries, both as to issues of liability and damages, that an order for indemnity costs should be made or at least an order increasing the limits contained in the scale. One must have a certain sympathy for that application because an investigation of cases involving the consequences of an escaping fire can be very difficult, can involve investigation and interview of many witnesses in the locality and can generate very real arguments, as this case has done, about the adequacy of the precautions taken by the landowner from whose premises the fire escaped. Those problems arise even before one reaches the difficult question of quantifying and verifying a claim for damages.
12 While acknowledging those difficulties and those consequences on the one hand, it must be accepted, on the other, that claims by farmers and landowners against their neighbours or adjoining landowners arising from the consequences of fire in this State are very common. The real issues in this case, namely, the adequacy of the response to this particular fire, the question of the sufficiency of the maintenance of a buffer zone, are issues which should be familiar to any country landowner, especially to an authority such as the defendant who is the Executive Director of the Department of Conservation and Land Management. Similarly, the investigation of the loss suffered by a landowner whose property has been partially or totally destroyed by fire is, unfortunately, a common experience in which loss adjusters, assessors and investigators are very experienced.
13 It seems to me that there is nothing particularly unusual about this litigation or its course which would justify any special order for costs, still less an order for indemnity costs. On the question of whether disbursements for witness fees or expert reports are recoverable it seems to me that those are not matters which are governed by the scale of costs and can be scrutinised by a taxing officer adequately in the ordinary circumstances. I see nothing in the course of this action and certainly not in the series of offers which have been made which would justify a departure from the ordinary rule that an order should be made for the costs of the action to be taxed in accordance with the scale.
14 The orders I shall therefore make are that the plaintiffs have leave to discontinue the action against the defendant and that the plaintiffs, jointly and severally, pay the defendant's costs of the action to be taxed.
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