JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TRAINING SERVICES AUSTRALIA PTY LTD -v- SAFERIGHT PTY LTD [2025] WASC 7
CORAM: LUNDBERG J
HEARD: ON THE PAPERS
DELIVERED : 16 JANUARY 2025
FILE NO/S: CIV 1937 of 2023
BETWEEN: TRAINING SERVICES AUSTRALIA PTY LTD
Plaintiff
AND
SAFERIGHT PTY LTD
First Defendant
GORDON NOEL JAMES MCCORMACK
Second Defendant
JASON LEITH ATKINSON
Other Party
Catchwords:
Practice and procedure - Appropriate final orders to be made following settlement of proceedings - Parties agreed as to terms of permanent injunction and orders for delivery up to be made - Residual issues remaining for determination by the Court - Whether judgment should be entered in favour of the plaintiff in the sum of $100,000 - Turns on own facts
Practice and procedure - Costs - Appropriate costs orders to be made in relation to ex parte search orders application - Turns on own facts
Practice and procedure - Costs - Appropriate costs orders to be made in the action following acceptance of compromise offer - Whether indemnity costs order should be made - Whether special costs should be ordered - Turns on own facts
Legislation:
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 141(3)
Rules of the Supreme Court 1971 (WA), O 24A
Supreme Court Act 1935 (WA), s 27
Uniform Civil Procedure Rules 2005 (NSW), rule 20.27(3)
Result:
Judgment to be entered for the plaintiff in the sum of $100,000.
Special costs orders made in relation to the search order application.
Special costs orders made in relation to the action generally.
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Other Party | : | No Appearance |
Solicitors:
| Plaintiff | : | Bennett |
| First Defendant | : | Fletcher Law |
| Second Defendant | : | Fletcher Law |
| Other Party | : | In Person |
Case(s) referred to in decision(s):
BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 264
Calderbank v Calderbank [1975] 3 All ER 333; [1976] Fam 93
Chesterton International (WA) Pty Ltd v Interchange Holdings Pty Ltd (WASC, Heenan J, Lib No. 950056, 21 February 1995, unreported)
Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
Della Frana v Lorenzato; Burwood Council v Lorenzato (No 2) [2022] NSWCA 53
Electricity Generation Corporation v Woodside Energy Ltd [2011] WASC 268 (S)
Hodder v Australian Executor Trustees Ltd [No 3] [2022] WASC 361
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S)
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Maitland Hospital v Fisher (No 2) (1992) 27…
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- Case
- [2025] WASC 7
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether judgment should be entered in favour of the plaintiff in the sum of $100,000 and what appropriate final orders should be made following the settlement of the proceedings. Additionally, the court had to address the appropriate costs orders to be made in relation to ex parte search orders and the acceptance of a compromise offer. The court also needed to decide whether an indemnity costs order should be made and if special costs should be ordered.
In its judgment, the court concluded that it was not appropriate to make special costs orders for the entirety of the action. Instead, the court examined particular items of the relevant costs scale and the relevant work streams against the criteria established by section 141(3) of the Uniform Law. The court found that the plaintiff had presented a fairly arguable case that the bill of costs for the writ and statement of claim would exceed the scale limits in the relevant costs determinations. However, the court determined that no order was required for the discovery process, as the 2022 Costs Determination allows for a reasonable amount to be allowed for giving discovery. The court did not find it necessary to order an indemnity costs order or special costs for the action, considering the specific circumstances and scale of the case.
The final orders made by the court included the entry of judgment in favour of the plaintiff in the sum of $100,000, the terms of the permanent injunction and orders for delivery up agreed by the parties, and the dismissal of the application for special costs and an indemnity costs order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is sufficient for me to observe that this is not a case in which I consider special costs orders should be made in respect of the entirety of the action, which seems to me to be the import of the first part of order 4.1 proposed by the plaintiff. There are cases in this Court where such an approach has been warranted,[63] but this case is sufficiently confined in scale and complexity that the proper approach is to examine particular items of the relevant costs scale and the relevant work streams to assess them against the criteria established by s 141(3) of the Uniform Law. In this regard, the plaintiff has identified the following particular items:(a)item 1 - writ;(b)item 7 - discovery;(c)item 10 - chambers (which I have already addressed above in these reasons);(d)item 19 - preparation of case; and(e)the hourly rate of Mr Bennett for the purposes of items 10 (chambers) and 27 (mediation).[63] For example, Electricity Generation Corporation v Woodside Energy Ltd [2011] WASC 268 (S), [13] (Le Miere J). The principles applicable to the making of special costs orders pursuant to s 141(3) of the Uniform Law have been addressed above in these reasons. They need not be repeated here. As to the evidence in support of the orders, I have the benefit of the matters deposed to in Ms Haddad's first affidavit,[64] and of course I can have regard to the course of the proceedings themselves, the nature of the claims made, and the various documents which can be found on the Court's record. I understand the plaintiff seeks an order that the limits across item 1 be removed, which extends to work undertaken in relation to the writ and the statement of claim. The amount allowed under the 2022 Costs Determination for the writ is $759 and for the statement of claim is $6,072. I have reviewed the writ of summons dated 21 August 2023, which is naturally concise, and the statement of claim dated 29 September 2023. The evidence presented by the plaintiff does not expressly address the work undertaken on the writ and the statement of claim. The material is presented in a rather broad brush manner. Nonetheless, I can draw impressions from the material and the pleadings based on experience, and given the nature of the claims advanced in the matter, and from the affidavit evidence which was presented in the ex parte application before Tottle J, which would have been employed by the practitioners in drafting the pleading. Having regard to these matters, I am satisfied it is fairly arguable that the bill of costs to be presented in respect of this item would exceed the scale limits in the relevant costs determinations. Largely for the reasons identified in relation to item 10 above,[65] as to the criteria of 'unusual difficulty' and 'importance', I am also satisfied the scale would be exceeded by reason of these matters. The 2022 Costs Determination provides that, for the giving of discovery, an amount may be allowed that is reasonable in the circumstances, as is noted by the defendants in their submissions.[66] I do not therefore apprehend there is any limit which requires removal. Accordingly, no order is required.