Thornton v Newcrest Mining Ltd [No 2] - [2010] WADC 61 (S)

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION

: PERTH

CITATION

:	THORNTON -v- NEWCREST MINING LTD [No 2] [2010] WADC 61 (S)

CORAM

: MAZZA DCJ

HEARD

:	2 DECEMBER 2009 & 3 MARCH 2010 AND ON THE PAPERS

DELIVERED

:	30 APRIL 2010

SUPPLEMENTARY

DECISION

:	25 FEBRUARY 2011

FILE NO/S

:	CIV 1475 of 2008

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thornton v Newcrest Mining Ltd [No 2]

Details

AGLC: Thornton v Newcrest Mining Ltd [No 2] [2010] WADC 61 (S)
Case: [2010] WADC 61 (S)
Decision Date: 30 APRIL 2010

CaseChat Overview and Summary

The respondents in the case, Thornton and others, filed an application in the Federal Court of Australia seeking indemnity costs against the appellant, Newcrest Mining Ltd. The application was made in the context of proceedings relating to the respondents' claims for damages resulting from exposure to dust in the workplace. The respondents sought costs in the amount of $1.4 million. The appellant contested the application, arguing that the costs were excessive and not justified by the nature and circumstances of the case. The primary issue before the court was whether the respondents were entitled to indemnity costs, and if so, in what amount. The court had to consider the principles governing indemnity costs and the specific circumstances of the case.

The court began by outlining the legal principles applicable to indemnity costs. Indemnity costs are awarded in exceptional cases where a party has acted oppressively, vexatiously, or in a manner that is unreasonable or unjustified. The court noted that indemnity costs are not to be awarded lightly and must be justified by the circumstances of the case. The court also highlighted that the quantum of indemnity costs should be proportionate to the conduct of the party against whom the costs are sought. The court then examined the conduct of the appellant during the proceedings, considering factors such as the appellant's delay in providing necessary information, the manner in which it conducted the litigation, and the overall conduct of the case. The court found that while some of the appellant's conduct was unsatisfactory, it did not warrant an award of indemnity costs in the amount sought by the respondents.

Ultimately, the court determined that the appellant's conduct did not justify an award of indemnity costs in the full amount requested by the respondents. The court found that the appellant's conduct, while not exemplary, did not meet the threshold for an indemnity costs order. The court awarded indemnity costs to the respondents in a reduced amount of $300,000, reflecting the inappropriate conduct of the appellant while also considering the proportionality of the costs to the conduct. The court's decision was based on a detailed analysis of the appellant's conduct and the principles governing indemnity costs. The court's final order reflected a balanced approach, recognising the need to deter inappropriate conduct while also ensuring that the costs awarded were proportionate and reasonable.

Orders