| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : MAZZA DCJ | ||
| HEARD |
| ||
| DELIVERED |
| ||
| SUPPLEMENTARY | |||
| DECISION |
| ||
| FILE NO/S |
| ||
| 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]
| 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…
Continue reading Thornton v Newcrest Mining Ltd [No 2]
Sign in free to access the full text
- AGLC
- Thornton v Newcrest Mining Ltd [No 2] [2010] WADC 61 (S)
- Case
- [2010] WADC 61 (S)
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.