JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WALTER -v- BUCKERIDGE [No 4] [2011] WASC 313
CORAM: LE MIERE J
HEARD: 29 MARCH 2011
DELIVERED : 22 NOVEMBER 2011
FILE NO/S: CIV 2549 of 2003
BETWEEN: JULIAN ALAN WALTER
Plaintiff
AND
LEONARD WALTER BUCKERIDGE
First DefendantBGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Second Defendant
FILE NO/S :CIV 2566 of 2003
BETWEEN :JULIAN ALAN WALTER
Plaintiff
AND
LEONARD WALTER BUCKERIDGE
Defendant
Catchwords:
Practice and procedure - Application for leave to discontinue - Application unopposed - Costs upon discontinuance - Whether parties acted reasonably in commencing and defending the proceedings - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 23 r 2
Result:
Actions discontinued
Plaintiff pay defendants' costs of the actions
Category: B
Representation:
CIV 2549 of 2003
Counsel:
Plaintiff: Mr R W Richardson
First Defendant : Mr S M Davies SC & Mr M G Lundberg
Second Defendant : Mr S M Davies SC & Mr M G Lundberg
Solicitors:
Plaintiff: Clayton Utz
First Defendant : Mallesons Stephen Jaques
Second Defendant : Mallesons Stephen Jaques
CIV 2566 of 2003
Counsel:
Plaintiff: Mr R W Richardson
Defendant: Mr S M Davies SC & Mr M G Lundberg
Solicitors:
Plaintiff: Clayton Utz
Defendant: Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd [2006] FCA 1119
J T Stratford & Son Ltd v Lindley [No 2] (1969) 1 WLR 1547
One.tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
LE MIERE J:
Overview
In each of these defamation actions the plaintiff, Mr Walter, applies for leave to discontinue the action against the defendants, Mr Buckeridge and BGC (Australia) Pty Ltd and that there be no order as to the costs of the action and any costs orders already made but not yet paid or satisfied be vacated. The defendants consent to the plaintiff's application for leave to discontinue the actions but resist the costs orders sought by the plaintiff. The defendants submit that the plaintiff should be ordered to pay the defendants' costs of the actions.
Mr Walter has sworn that in brief, his reasons for wanting to discontinue the actions are:
I am tired, frustrated and fed‑up with this litigation which has been going since December 2003. I feel that all I have been doing for the past seven years or so years since commencing the Actions is paying legal bills and devoting inordinate amounts of my time and effort to something I believe no longer carries any value or beneficial purpose for me, given these defamatory publications were made in December 2003. I am also frustrated because I feel that technical legal disputes and interlocutory disputes and applications have consistently and repeatedly impeded my efforts to clear my reputation through the Actions.
I am fed…
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- AGLC
- Walter v Buckeridge [No 4] [2011] WASC 313
- Case
- [2011] WASC 313
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was to determine whether the parties had acted reasonably in commencing and defending the proceedings, and whether there was a basis for an exercise of the court's discretion otherwise than by an award of costs to the successful party. The court was required to consider the principles established in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin and One.tel Ltd v Deputy Commissioner of Taxation, as well as the case of ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd.
The court considered that the plaintiff had acted reasonably in commencing the proceedings, but had assumed the risk of the proceedings becoming futile. The court found that it was appropriate for the plaintiff to pay the defendant's costs occasioned by the discontinued claim, including reserved costs and the costs of the motion. The court exercised its discretion to order the plaintiff to pay the defendant's costs.
The final orders were that the plaintiff be granted leave to discontinue the proceedings, but that it pay the defendant's costs. The court's decision was based on the principle that if both parties had acted reasonably in commencing and defending the proceedings, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. However, in this case, the court found that the plaintiff had assumed the risk of the proceedings becoming futile, and it was appropriate for it to pay the defendant's costs.
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
McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, considered the relevant principles for determining costs orders where there has been no hearing on the merits of the case. His Honour stated:The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. …If it appears that both parties had acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings (624 ‑ 625). In One.tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, Burchett J said:In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs [6]. In ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd [2006] FCA 1119 ACN sought leave to discontinue the proceedings with no order as to costs. The basis of ACN's no costs contention was that, in commencing the proceedings, it had acted reasonably and that its conduct had continued to be reasonable until the further prosecution of the litigation became futile. Finn J ordered that ACN be granted leave to discontinue the proceedings but that it pay the defendant's costs. Finn J said:As I foreshadowed, I am satisfied that an order for costs is appropriate. While it cannot be said that the institution of this proceeding was in any way unreasonable – it was one of a complex of legal manoeuvres in a hostile take over bid ‑ it was done in the full knowledge that, consequent upon the decision of Perry ACJ, Coopers would act to alter its constitution to remove Lion Nathan Australia's pre‑emptive rights and exemptions unless either that decision was reversed on appeal or the holding of the necessary extraordinary general meeting could be prevented. Neither of these contingencies eventuated. From its inception this matter contained the seeds of its own futility, yet ACN was prepared to proceed and to put Coopers to its defence. In so doing ACN assumed the risk of the proceedings becoming futile. It cannot escape the consequences of that by the assertion that it nonetheless conducted itself reasonably. It gambled and it lost. It is entirely appropriate that it pay Coopers' costs occasioned by the discontinued claim including reserved costs and its costs of this motion [22].