Suleski v Sons of Gwalia Ltd
[2004] WASCA 2 (S)
•22 JANUARY 2004
SULESKI -v- SONS OF GWALIA LTD [2004] WASCA 2 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 2 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2403/2002 | 10 NOVEMBER 2003 | |
| Coram: | MILLER J WALLWORK AJ | 22/01/04 | |
| 27/05/04 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded against the intervener to the extent that the applicant's costs were increased by reason of the intervener | ||
| B | |||
| PDF Version |
| Parties: | BORIS SULESKI SONS OF GWALIA LTD |
Catchwords: | Costs Extent to which successful applicant should have costs against intervener Whether costs increased by intervener |
Legislation: | Nil |
Case References: | City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Monger; Ex parte Welsby [2003] WASCA 191 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SULESKI -v- SONS OF GWALIA LTD [2004] WASCA 2 (S) CORAM : MILLER J
- WALLWORK AJ
DECISION : 27 MAY 2004 FILE NO/S : CIV 2403 of 2002 BETWEEN : BORIS SULESKI
- Applicant
AND
SONS OF GWALIA LTD
Intervener
Catchwords:
Costs - Extent to which successful applicant should have costs against intervener - Whether costs increased by intervener
Legislation:
Nil
(Page 2)
Result:
Costs awarded against the intervener to the extent that the applicant's costs were increased by reason of the intervener
Category: B
Representation:
Counsel:
Applicant : Mr M D Cole
Intervener : Mr D W Williams
Solicitors:
Applicant : Terrace Law
Intervener : Mullins Handcock
Case(s) referred to in judgment(s):
City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Monger; Ex parte Welsby [2003] WASCA 191
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: The reasons for judgment in this matter were delivered on 22 January 2004. On 29 January 2004 the applicant filed an outline of submissions contending that the intervener should pay the applicant's costs to the extent that those costs were increased by reason of the intervention.
2 The history of this matter is that there was an earlier dispute between the parties in which an intervener had intervened in an application for an order nisi for a writ of certiorari concerning the first determination of the Medical Assessment Panel - Re Bannan; Ex parte Suleski [2001] WASCA 289. On that occasion the intervener was ordered to pay one-half of the applicant's costs in respect of the hearings for the order nisi and before the Full Court exclusive of disbursements.
3 In this case, when judgment was pronounced on 22 January 2004, counsel for the applicant sought an order that the intervener pay half the costs incurred in the present matter. He then forwarded written submissions to the Court on 29 January 2004 in which it is contended that adopting a broad brush approach it is reasonable to assume that the intervention of the respondent intervener roughly doubled the applicant's costs. It is contended that the respondent's submissions in the matter covered ten pages as opposed to the applicant's nine and a half pages at a larger print size and that the submissions on behalf of the respondent occupied roughly half the time in argument.
4 The applicant contends that on the first return date of the motion, being 15 October 2002, there was an appearance on behalf of the intervener and that on 12 November 2002 an order was made that the intervener be joined as a respondent. The matter was then adjourned for a further month to await developments in another jurisdiction with costs being reserved. Then on 12 December 2002 there was no appearance by the respondent. By agreement the matter was adjourned sine die to a special appointment with the costs reserved.
5 Later there was some further correspondence between the parties. On 6 June 2003 there was an appearance to obtain the order nisi. There was further correspondence between the parties. The matter was then argued on 10 November 2003 when the decision was reserved. As stated above the reasons for decision were delivered on 22 January 2004.
6 The intervener's submissions which were delivered in answer to the applicant's submissions agree that costs may be awarded against an unsuccessful intervener at least to the extent that the costs of the applicant
(Page 4)
- are increased by reason of the intervention - City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65; Seaman par 18.6.20. It is contended that it is a question of fact and degree whether the intervener has caused the trial to be substantially longer - City of Burnside (supra). It is further contended that only in special circumstances will the Court will make an order which would have the result that an intervener pay to one of the parties a sum more than the amount by which the costs of that party have been increased by the intervention - O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; Seaman par 18.6.20.
7 The intervener contends that when first filed, the applicant's writ of certiorari encompassed five grounds for the application but that on 4 November 2003, approximately six days prior to the hearing, the applicant sought to amend his application to include the ground which was ultimately upheld. That ground relied on the authority of Re Monger; Ex parte Welsby [2003] WASCA 191 in which it was held that pursuant to s 145E(2) of the Workers' Compensation Rehabilitation Act 1981 a second determination of a Medical Assessment Panel must be delivered within 28 days of the medical examination. It was that ground on which the applicant succeeded in its application for the writ.
8 It is contended that it could not be said that the applicant's costs have been increased by reason of the intervener's intervention. That is obviously wrong because the intervener argued at some length that the writ should not be made absolute.
9 In the intervener's written submissions it is contended that on 10 November 2003 only approximately one hour of argument was required by the Court to dispose of the applicant's original application and that the vast majority of that time was spent by the Court focusing on the applicant's amended ground of application; that very minor attention was given to the other grounds of the application and that the applicant would have sought to amend his application to include the ground concerning the time after the examination in which the assessment should be delivered, irrespective of the intervention.
10 We agree that the application to add the ground upon which the applicant ultimately succeeded was made very late prior to the hearing but do not agree that the intervener's opposition to that ground did not increase the costs in the manner contemplated in the City of Burnside decision (supra). The respondent could have conceded that the applicant's argument on the ground upon which it succeeded was correct. There
(Page 5)
- would have been no need for argument on the 10 November if that had been done.
11 The applicant should be awarded costs against the intervener to cover the argument before the Court on 23 January 2004.
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