Summit Chemicals Pty Ltd v Vetrotex Espana SA
[2004] WASCA 109 (S)
•25 JUNE 2004
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | SUMMIT CHEMICALS PTY LTD -v- VETROTEX ESPANA SA [2004] WASCA 109 (S) |
| CORAM | : MILLER J |
EM HEENAN J
| HEARD | : | 10 MARCH & 27 MAY 2004 |
| DELIVERED | : 27 MAY 2004 | ||
| SUPPLEMENTARY | |||
| DECISION | : 25 JUNE 2004 | ||
| FILE NO/S |
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| BETWEEN | : SUMMIT CHEMICALS PTY LTD |
Appellant (First Defendant)
AND
VETROTEX ESPANA SA
Respondent (First Third Party)
ON APPEAL FROM:
| Jurisdiction | : | SUPREME COURT OF WESTERN AUSTRALIA |
| Coram | : McKECHNIE J | ||
| Citation Number |
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| File Number |
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[2004] WASCA 109 (S)
Catchwords:
Costs - Costs of application to extend time within which to appeal from interlocutory decision - Costs reserved to Full Court - Supplementary submissions
Legislation:
Nil
Result:
No order as to costs
Category: B
Representation:
Counsel:
| Appellant (First Defendant) | : | Ms B M Randall |
| Respondent (First Third Party) | : | Mr M J Buss QC & Dr S E Ivey |
| Second and Third Third Parties | ||
| in original action | : | Mr B A Winburn-Clarke |
Solicitors:
| Appellant (First Defendant) | : | Phillips Fox |
| Respondent (First Third Party) : | Blake Dawson Waldron | |
| Second and Third Third Parties | ||
| in original action | : | Srdarov Richards Burton |
Case(s) referred to in judgment(s):
Dousi v Colgate Palmolive (1987) 9 NSWLR 374
Ex parte Bucknell (1936) 56 CLR 221
Golski v Kirk (1987) 14 FCR 143
[2004] WASCA 109 (S)
Case(s) also cited:
Brenner v First Artists' Management [1993] 2 VR 221
Cilli v Abbott (1981) 53 FLR 108
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and
Environment (1984) 58 ALR 305
Nardell Coal Corporation Pty Ltd (In Liq) v Hunter Valley Coal Processing Pty
Ltd (2003) 46 ACSR 467
Scherer v Counting Instruments Ltd [1986] 1 WLR 615
The State of Western Australia v Minister for Aboriginal and Torres Strait
Islander Affairs of the Commonwealth of Australia, unreported; FCA
(Carr J); Nos WAG 26, 39 and 53 of 1994
[2004] WASCA 109 (S)
MILLER J
E M HEENAN J
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of E M Heenan J in relation to the issue of costs. I agree with those reasons and with the orders proposed by his Honour. There is nothing further I wish to add.
EM HEENAN J: On 27 May 2004 this Court granted the appellant leave to appeal from the order of McKechnie J of 19 October 2003, allowed the appeal and granted leave to the appellant to amend its third party statement of claim as sought subject to two conditions. When doing so this Court also made orders relating to the costs of the application for leave to appeal, of the appeal, the costs of the application for leave to amend, and for any costs thrown away by reason of any resulting amendment. However, counsel for the respondent sought an order dealing with the costs of the appellant's application for an extension of time within which to institute the application for leave to appeal. The costs of that application had been reserved for consideration of this Court by McKechnie J when his Honour made the order extending time in that respect on 12 December 2003. Because that application was contentious and there was no opportunity for it to be fully argued when the decision of this Court was delivered on 27 May 2004, the parties were directed to file written submissions dealing with that remaining issue so that these could be considered and the matter resolved by later order. These are my reasons for the orders which are now proposed in relation to that outstanding costs issue.
3 The background and the details of this action, and the associated
third party proceedings, are set out in the reasons given for the decision of this Court on 27 May 2004 and need not be repeated. It is therefore only necessary to mention briefly the history of the proceedings between the date of the order of McKechnie J of 19 September 2003 (the subject of the appeal) and the subsequent order of McKechnie J of 12 December 2003 dealing with the application for an extension of time within which to apply for leave to appeal.
4 Summit Chemicals Pty Ltd had 21 days following 19 December
2003 within which to apply for leave to appeal from that decision - RSC O 63A r 3(1). However, the application for leave to appeal, including an application for an extension of time within which to apply for such leave, was not filed until 21 November 2003 by a notice of motion of that date. This was, therefore, 42 days late. The notice of motion seeking leave to appeal and an extension of time was served upon the respondent on or about 3 December 2003. By letter of that date the solicitors for the respondent were asked whether they had any opposition to the application
[2004] WASCA 109 (S)
EM HEENAN J
to extend time. They replied by letter of 5 December 2003 notifying Summit of their client's opposition to the application. Further correspondence followed comprising a letter from the respondent's solicitors dated 8 December 2003 pointing out an alleged absence of any sufficient explanation for the delay and seeking all detailed information which might support the application for the extension of time. Summit filed a supplementary affidavit sworn 10 December 2003 in further support of the application for an extension of time dealing with the queries raised by the respondent and also filed and served written submissions. The respondent, Vetrotex, filed written submissions dated 11 December 2003 in opposition to the application for an extension of time.
5 On 12 December 2003 the application for the extension of time
within which Summit could apply for leave to appeal from the decision of 19 September 2003 was heard and determined by McKechnie J. His Honour refused an application by the second and third defendants for an extension of time within which they might apply for leave to appeal against the 19 September 2003 decision but, otherwise, was satisfied with the explanation for the delay which had been given by Summit. His Honour granted the appellant an extension of time within which to apply for leave to appeal as sought. However, in view of submissions made by the respondent that it had been prejudiced as a result of the delay in instituting the application for leave to appeal, McKechnie J also ordered that Summit should pay the respondent's costs, if any, properly thrown away for a period of 21 days after 19 September 2003 - being the period within which an application for leave to appeal from the order of 19 September 2003 could have been brought in the time provided by the Rules.
6 As previously noted, the costs of the application for an extension of
time were reserved by McKechnie J for consideration by the Full Court at the hearing of the substantive application for leave to appeal. His Honour also ordered that the application for leave to appeal and any appeal, if leave were to be granted, were to take place contemporaneously. These are some indications that his Honour regarded any entitlement to costs on the application for an extension of time as being associated, at least to some degree, with the merits of the proposed appeal.
7 The order of McKechnie J of 19 September 2003 was, undoubtedly,
interlocutory in character and, therefore, not subject to appeal without the grant of leave. However, as said in the principal reasons on this appeal, it is important to recognize that this is one of that category of interlocutory
[2004] WASCA 109 (S)
EM HEENAN J
decisions which, although not final in legal character, in practical effect puts the appellant out of court - Dousi v Colgate Palmolive (1987) 9 NSWLR 374 at 379 in the sense that it was one of those "procedural decisions [which] may effectively prevent a party from proceeding with a cause of action, or limit the cause of action upon which the party may sue ... " (at 379). See also Ex parte Bucknell (1936) 56 CLR 221 at 225 - 256. While this serves to explain the greater practical effect of such an interlocutory decision, and, hence, the greater readiness with which leave to appeal may be granted in an appropriate case, it still does not serve to justify the delay in instituting proceedings intended to lead to an appeal because, if the decision were final instead of interlocutory, any appeal would still need to have been brought within 21 days - RSC O 63 r 4.
8 Even so, where there is an issue of substance sought to be raised on
an appeal which is likely to have a material effect upon the proper determination of the issues between the parties the court will usually, in the absence of prejudice which cannot be alleviated by some other means, be astute to ensure that there should be a fair and just determination of the issues bona fide in contention between the parties - RSC O 1 r 4A and that this should be accomplished as expeditiously as possible.
9 The costs of an application or an action are in the general discretion
of the court. This discretion must be exercised judicially, according to established principles, but having regard to the circumstances of the individual case. Generally speaking a successful party is entitled to his or her costs but the Court must undertake a broad judgment to consider what is just in the particular circumstances.
10 In the present case the appellant was successful in obtaining the
extension of time sought to enable the application for leave to appeal and this appeal to be brought. Furthermore, the appellant succeeded in obtaining a grant of leave to appeal and then succeeded on the appeal. This is a demonstration that, in order for the proper resolution of this case, the appellant showed that it was entitled to make amendments along the lines sought in the original application and was justified in seeking to appeal from the decision of 19 September 2003. Unquestionably, the appellant was late in instituting that application for leave to appeal but its delay in doing so does not appear to have caused any significant prejudice beyond that which has already been addressed. As the reasons given for allowing the appeal have explained, it was not possible for the third party proceedings to go ahead on the real issues which the appellant sought to have determined without the appeal succeeding. This has been recognised
[2004] WASCA 109 (S)
EM HEENAN J
in the orders for costs which were made on the application for leave to
appeal and on the appeal.11 The costs, if any, occasioned by the delay in instituting the
application for leave to appeal have already been partly addressed by the order made by McKechnie J on 12 December 2003 in directing the appellant to pay the respondent's costs thrown away for the initial 21 day period. There has been no attempt to challenge that order.
12 It is, also, plainly the case that a party who seeks to obtain a
procedural indulgence by an application of the court as, for example, in an application for an extension of time or for an amendment of a pleading, will usually be required to pay the costs of the application - Golski v Kirk (1987) 14 FCR 143 at 157. I consider that that principle has been accommodated sufficiently by the order which McKechnie J made on 12 December 2003 which has already been noted.
13 As it was necessary for this interlocutory appeal to be heard and
determined I consider that, in the particular circumstances, no further order as to the costs of the application for an extension of time should be made beyond the provisions of the order which McKechnie J did make when granting the extension of time sought. Therefore, on the outstanding issue of the costs of that application which was reserved for the consideration of this Court I am of the opinion that, in so far as those costs have not already been dealt with, the order should be that the appellant and the respondent each must bear its own costs of that application.
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