Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd
[2009] WASCA 31 (S)
•6 FEBRUARY 2009
SPENO RAIL MAINTENANCE AUSTRALIA PTY LTD -v- METALS & MINERALS INSURANCE PTE LTD [2009] WASCA 31 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 31 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:101/2007 | 14 OCTOBER 2009 AND ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE JA BEECH AJA | 5/02/09 | |
| 23/03/09 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Orders made and costs orders made | ||
| B | |||
| PDF Version |
| Parties: | SPENO RAIL MAINTENANCE AUSTRALIA PTY LTD METALS & MINERALS INSURANCE PTE LTD ZURICH AUSTRALIAN INSURANCE LTD HAMERSLEY IRON PTY LTD |
Catchwords: | Costs Appropriate orders for costs of trials and of the appeal Costs of an intervener Turns on own facts |
Legislation: | Nil |
Case References: | City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65 Liverpool City Council v Weir (1984) 58 ALJR 213 Re State Administration Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SPENO RAIL MAINTENANCE AUSTRALIA PTY LTD -v- METALS & MINERALS INSURANCE PTE LTD [2009] WASCA 31 (S) CORAM : MARTIN CJ
- McLURE JA
BEECH AJA
DECISION : 24 MARCH 2009 FILE NO/S : CACV 101 of 2007 BETWEEN : SPENO RAIL MAINTENANCE AUSTRALIA PTY LTD
- Appellant
AND
METALS & MINERALS INSURANCE PTE LTD
First Respondent
ZURICH AUSTRALIAN INSURANCE LTD
Second Respondent
HAMERSLEY IRON PTY LTD
Third Respondent
- Appellant
AND
METALS & MINERALS INSURANCE PTE LTD
Respondent
- Appellant
AND
HAMERSLEY IRON PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
Citation : ZURICH AUSTRALIAN INSURANCE LIMITED v METALS & MINERALS INSURANCE PTE LTD [2007] WASC 62
File No : CIV 1679 of 2002, CIV 2243 of 2003, CIV 1277 of 2003
Catchwords:
Costs - Appropriate orders for costs of trials and of the appeal - Costs of an intervener - Turns on own facts
Legislation:
Nil
(Page 3)
Result:
Orders made and costs orders made
Category: B
Representation:
CACV 101 of 2007
Counsel:
Appellant : No appearance (On the papers)
First Respondent : No appearance (On the papers)
Second Respondent : No appearance (On the papers)
Third Respondent : No appearance (On the papers)
Solicitors:
Appellant : Pynt & Partners
First Respondent : DLA Phillips Fox
Second Respondent : SRB Legal
Third Respondent : DLA Phillips Fox
CACV 102 of 2007
Counsel:
Appellant : No appearance (On the papers)
Respondent : No appearance (On the papers)
Solicitors:
Appellant : Pynt & Partners
Respondent : DLA Phillips Fox
CACV 103 of 2007
Counsel:
Appellant : No appearance (On the papers)
Respondent : No appearance (On the papers)
(Page 4)
Solicitors:
Appellant : Pynt & Partners
Respondent : DLA Phillips Fox
Case(s) referred to in judgment(s):
City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65
Liverpool City Council v Weir (1984) 58 ALJR 213
Re State Administration Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
(Page 5)
1 JUDGMENT OF THE COURT: On 6 February 2009 the Court of Appeal delivered reasons on this appeal. Three actions were the subject of the appeal. The actions were tried together. The actions are referred to as the Zurich Contribution Action, the MMI Subrogation Action and the Speno Strikeout Application. Appeals against the judgment in these three actions were instituted. The three appeals were consolidated.
2 The substantive orders flowing from the reasons of the court are not in controversy. The appeal in each of CACV 101 of 2007 (relating to the Zurich Contribution Action), CACV 102 of 2007 (relating to the MMI Subrogation Action) and CACV 103 of 2007 (relating to the Speno Strikeout Application) should be allowed. The cross-appeal in CACV 101 of 2007 should also be allowed. The orders made by the trial judge in each action should be set aside. In the Zurich Contribution Action and the MMI Subrogation Action, the action should be dismissed. In the Speno Strikeout Application it should be ordered that the writ of fieri facias issued by Hamersley out of the District Court on 20 January 2003 be struck out.
3 There are issues between the parties as to the costs of the trial in each action, and as to the costs of the appeal. The parties have filed written submissions in relation to costs.
4 We will deal with the costs of the trial of each action before turning to the costs of the appeal.
The Zurich Contribution Action
5 Speno submits that Zurich should pay MMI and Speno's costs of the action (with a certificate for second counsel). MMI agrees with that submission. Zurich accepts that it should pay MMI's costs of the action. However, Zurich submits that it should not be ordered to pay Speno's costs as an intervener in the action. Zurich points out, correctly, that MMI was anyway running the point on which MMI and Speno ultimately succeeded, namely the severance point. Zurich also points out that Speno ran a number of other unsuccessful arguments.
6 In response to this submission, Speno contends that it should have its costs on the basis that costs follow the event.
7 An intervener (unlike a party) will ordinarily be allowed only to support or oppose a position contended for by one of the parties to the proceedings, and will not be permitted to expand the issues to be decided: Re State Administration Tribunal; Ex parte McCourt [2007] WASCA
(Page 6)
- 125; (2007) 34 WAR 342 [41]. In that sense, an intervener takes the action as he or she finds it.
8 The position of an intervener in relation to costs was considered in some detail by Debelle J in City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 - 68. His Honour concluded that in the probate and admiralty jurisdiction, and at general law, as a general rule an intervener was not awarded separate costs even if successful. A successful intervener would be entitled to his or her costs only if the intervention was necessary to protect his or her rights, as would be the case if no party contended for the position adopted (successfully) by the intervener.
9 In Liverpool City Council v Weir (1984) 58 ALJR 213, 216 the High Court (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) observed that an intervener cannot expect, as of course, that the unsuccessful party to the litigation in which he has intervened should bear the extra burden of his costs, even if the intervention was well-intentioned and proved to be of assistance to the court.
10 We would adopt these principles.
11 In this case, as Zurich submits, MMI and Hamersley contended for validity of the underlying insurance clause on the ground of severance. Thus it was not necessary, in the relevant sense, for Speno to intervene to protect its interest in upholding the validity of that clause.
12 For these reasons we would not order that Zurich pay Speno's costs as an intervener.
13 Speno submits in the alternative that MMI ought to pay Speno's costs of the Zurich Contribution Action. That is because, the submission continues, by the MMI Subrogation Action MMI sought to burden Speno with any liability imposed on MMI by the Zurich Contribution Action. We do not accept that that affords a proper basis to order MMI to pay Speno's costs of the Zurich Contribution Action. Speno elected to intervene in that action. It could have chosen to allow MMI to advance the arguments in opposition to Zurich's claim. In our opinion, it is just that Speno bears its own costs in the Zurich Contribution Action.
14 For these reasons we would make no order as to Speno's costs of the Zurich Contribution Action.
(Page 7)
MMI Subrogation Action
15 Speno seeks an order that MMI pay Speno's costs of the MMI Subrogation Action. MMI opposes that order, submitting that there should be no order as to the costs of the MMI Subrogation Action. That conclusion is said to be supported by the fact that it was the bringing of the contribution proceedings by Zurich which led to the occasion for MMI's Subrogation Action. That leads, MMI submits, as a matter of fairness to a conclusion that MMI and Speno should each bear their own costs.
16 Alternatively, MMI submits that if an order that MMI pay Speno's costs is made, it should be coupled with an order that Zurich pay MMI's costs and the costs of Speno which MMI is ordered to pay. That is because, the submission continues, the MMI Subrogation Action was so intimately connected with the Zurich Contribution Action that, having failed in the latter action, Zurich should pay all of the costs incurred by both parties in the MMI Subrogation Action.
17 We do not accept either of these submissions by MMI. As between Speno and MMI, it is just that MMI pay Speno's costs of the action. MMI made the claim against Speno in the MMI Subrogation Action. The result of the court's reasons in this appeal is that MMI has been found to have no rights against Speno.
18 The reasons for failure of the MMI Subrogation Action are independent of the failure of the Zurich Contribution Action. For that reason, Zurich should not pay MMI's costs of the MMI Subrogation Action, or MMI's liability to Speno for Speno's costs in that action.
19 For these reasons, the costs order proposed by Speno should be made, that is that MMI pay Speno's costs of the MMI Subrogation Action.
The Speno Strikeout Application
20 Speno seeks an order that Hamersley pay Speno's costs of the application.
21 Hamersley opposes that order on the same basis as it opposes Speno's proposed cost orders in relation to the MMI Subrogation Action. For corresponding reasons to those given in relation to that action, Speno's proposed cost order should be made in the Speno Strikeout Application.
(Page 8)
The costs of the appeal
22 Speno succeeded in its appeals in relation to all three actions. It is not in dispute that Speno should have its costs of the three appeals. There is a dispute however, between Zurich on the one hand and MMI and Hamersley on the other hand, as to who should pay Speno's costs and as to liability for costs between those parties.
23 The approach invited by Speno is as follows. In substance, the appeal may be seen to have had two elements which occupied roughly equal time. The first was the Zurich Contribution Action; the second was the appeal in relation to the other two matters before the court. Speno submits, and Zurich accepts, that Zurich should pay that part of Speno and MMI's costs of the appeal that relate to the Zurich Contribution Action. Speno suggests 50% be allocated to that action. Zurich does not oppose that allocation.
24 Speno submits that its costs of the appeal relating to the other two matters should be paid by MMI and Hamersley.
25 Zurich supports the costs orders in relation to the other two matters proposed by Speno.
26 MMI and Hamersley oppose Speno's proposed orders. MMI and Hamersley contend that because the failure of Zurich's claim for contribution on the severance ground was, in effect, determinative of all three appeals, Zurich should be ordered to pay the whole of Speno's, MMI's and Hamersley's costs of all of the appeals and of MMI's cross-appeal. Alternatively, MMI and Hamersley submit that if they are ordered to pay Speno's costs of the appeal as it relates to the MMI Subrogation Action and the Speno Strikeout Application, Zurich should be ordered to pay MMI and Hamersley's costs of all of the appeals and MMI's cross-appeal, as well as the costs which MMI and Hamersley is ordered to pay to Speno. That submission is made on the same basis as their submissions as to the costs of the MMI Subrogation Action and the Speno Strikeout Application. For the reasons already given, we do not accept those submissions. MMI and Hamersley failed in the appeals relating to these actions on grounds that were independent of the failure of the Zurich Contribution Action.
27 MMI submits that the court should not apportion the costs of the appeal as between the different actions, suggesting that that should be left to the taxing officer. It seems to us to be appropriate for the court, having
(Page 9)
- had the benefit of hearing and determining the appeals, to apportion the costs.
Other matters
28 The parties are in agreement that orders for the repayment of moneys paid pursuant to the judgments in the actions the subject of this appeal should be made.
Conclusion
29 For the reasons given, we make the following orders:
1. The appeals in CACV 101 of 2007, CACV 102 of 2007 and CACV 103 of 2007 be allowed.
2. The cross appeal in CACV 101 of 2007 be allowed.
3. The judgments of Johnson J in CIV 1679 of 2002 entered on 31 May 2007 and 14 August 2007 be set aside and in lieu thereof judgment be entered as follows:
a. The action be dismissed;
b. The plaintiff pay the defendant's costs of the action to be taxed;
c. The defendant be granted a certificate for second counsel;
d. There be no order as to the costs of the intervener (Speno Rail Maintenance Australia Pty Ltd).
4. The judgment of Johnson J in CIV 2243 of 2003 entered on 31 May 2007 be set aside and in lieu thereof judgment be entered as follows:
a. The action be dismissed;
b. The plaintiff pay the defendant's costs of the action to be taxed;
c. The defendant be granted a certificate for second counsel.
5. The orders of Johnson J in CIV 1277 of 2003 entered on 31 May 2007 and 14 August 2007 be set aside and in lieu thereof it be ordered that:
- a. The writ of fieri facias issued by the defendant out of the District Court on 20 January 2003 be struck out;
b. The defendant pay the third party's costs of the application, including any reserved costs;
c. The third party be granted a certificate for second counsel.
- 6. The third respondent repay to the appellant the sum of $872,195.20 plus interest of $86,443.83 to 6 February 2009, plus interest at the rate of 6% per annum on the sum of $872,195.20 from 7 February 2009 until payment.
7. The second respondent repay to the third respondent the sum of $872,195.20 plus interest of $86,300.46 to 6 February 2009, plus interest at the rate of 6% per annum on the sum of $872,195.20 from 7 February 2009 until payment.
8. The second respondent pay 50%, and the first and third respondents jointly and severally pay 50%, of the appellant's costs of the appeals in CACV 101 of 2007, CACV 102 of 2007, CACV 103 of 2007 and the consolidated appeals, to be taxed as one bill.
9. The second respondent pay the first respondent's costs of the cross appeal to be taxed.
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