Thornton v Newcrest Mining Ltd [No 2]
[2010] WADC 61 (S)
•30 APRIL 2010
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : MAZZA DCJ | ||
| HEARD |
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| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| BETWEEN | : MICHAEL EMERY THORNTON |
Appellant
AND
NEWCREST MINING LTD
Respondent
Catchwords:
Costs - Application by respondent to be paid indemnity costs
Legislation:
Nil
[2010] WADC 61 (S)
Result:
Costs orders made
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Chapmans |
| Respondent | : | DLA Phillips Fox |
Case(s) referred to in judgment(s):
Nau v Kemp & Associates Pty Ltd [2010] NSWCA 164
Quancorp Pty Ltd v MacDonald [1999] WASCA 101
Thornton v Newcrest Mining Ltd [2010] WADC 61
Unified Pty Ltd v The Cancer Council of Western Australia Inc [No 2]
[2011] WASC 39
| MAZZA DCJ | [2010] WADC 61 (S) |
MAZZA DCJ: On 30 April 2010, I made orders dismissing the appellant's appeal from a decision given by Deputy Registrar Hewitt: Thornton v Newcrest Mining Ltd [2010] WADC 61. The appellant has since filed a notice of appeal against this decision. When I delivered judgment I gave the parties liberty to file written submissions on the question of costs. It was agreed that I would determine any order for costs on those submissions.
2 In due course, the respondent filed detailed submissions.
The essence of those submissions is that the respondent is entitled to indemnity costs of the action and the appeal. Essentially, it is submitted that the appellant's action and appeal had no chance of success and were 'hopeless' cases. The respondent submits that the appellant's conduct in bringing and maintaining the action and the appeal was so unreasonable that the court should exercise a discretion to order indemnity costs against the appellant.
3 The only submission made on behalf of the appellant as to costs was
that 'it may well be premature to determine any question of costs
(in the light) of Nau v Kemp & Associates Pty Ltd [2010] NSWCA 164'.4 Nau v Kemp & Associates was decided after I had delivered judgment. It is a case not on indemnity costs, rather, it deals with the interpretation of s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which is the statutory equivalent of s 7(1)(b) of the Law Reform (Contributory Negligence Tort Feasors) Act 1947 (WA). I gather that the purpose of citing this authority to me was to suggest that my decision in this case was wrong. Ultimately, that is a matter for the Court of Appeal to decide. It would be inappropriate for me to, in effect, to revisit my decision in light of Nau v Kemp & Associates. Contrary to the appellant's submissions, I have concluded that the correct course is to make costs orders now.
The relevant chronology
On 23 June 2008 the appellant issued the writ in this action.
6 On 4 February 2009, the respondent's solicitors wrote to the
appellant's solicitors putting them on notice of their view that the appellant was not entitled to recover further damages having regard to s 7(1)(b) of the Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947.
| MAZZA DCJ | [2010] WADC 61 (S) |
7 On 19 May 2009, the respondent filed a summons seeking leave to
apply for summary judgment and summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (the RSC). On 28 August 2009, Deputy Registrar Hewitt upheld the respondent's application for summary judgment. On 3 September 2009 the appellant filed a notice of appeal against Deputy Registrar Hewitt's decision. That appeal was initially heard by me on 2 December 2009. As a result of some concerns that I had about the evidence submitted by the appellant, I adjourned the proceedings to 3 March 2010 for further submissions and to allow further evidence to be adduced by affidavit. On 3 March 2010 I heard oral submissions and reserved my decision.
The law
8 The general rule is that the successful party to an action recovers
their costs from the unsuccessful party: O 66 r 1 of the RSC. The usual costs order is for costs on a party/party basis. An order for indemnity costs will only be made in exceptional circumstances. The circumstances in which a court will make such an order are not closed and cannot be exhaustively stated. They include where there has been a improper or unreasonable conduct on the part of a party or that party's legal advisors and in those circumstances mark the court's disapproval of the conduct: Unified Pty Ltd v The Cancer Council of Western Australia Inc [No 2] [2011] WASC 39 (Allanson J).
9 A court should be careful when invited to conclude that an indemnity
costs order should be made because the losing party's cause was 'hopeless'. As Wheeler J observed in Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7]:
On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in may areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as 'hopeless' is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full.
10 I now turn to the application of the relevant principles to the present
case. The full factual basis leading to the appellant's settlement of his claim against Simon Engineering was not apparent to me until the
| MAZZA DCJ | [2010] WADC 61 (S) |
affidavit of Ms Trudgian sworn 29 January 2010 was before the court. The content of that affidavit along with Mr Gandini's concession on 3 March 2010 that the appellant did not dispute Ms Trudgian's account of events were important factors which enabled me to conclude that the appellant's action would have been no value to him even if he proved negligence against the respondent. Up to the hearing on 3 March 2010, while the appellant's case against the respondent might have been characterised as weak, I did not regard it as being hopeless. I would not order the payment of indemnity costs up to this point.
11 I have given serious consideration to whether I should order
indemnity costs for the appearance on 3 March 2010. At that point the appellant's case, in my mind, revealed to be without merit. However, I do not think that the solicitor/client costs for that appearance would substantially exceed the party/party costs. Certainly no evidence to that effect has been put before me. In these circumstances I would not order indemnity costs for that appearance.
Conclusion and orders
12 In my opinion an award of indemnity costs should not be made either
in respect of the action or on the appeal. I make the following costs
orders:
1. The appellant should pay the respondent's costs of the action and the appeal on a party/party basis to be taxed if not agreed.
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