Western Areas Exploration Pty Ltd v Streeter [No 2] - [2009] WASCA 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [No 2] [2009] WASCA 15

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 1 DECEMBER 2008

DELIVERED : 16 JANUARY 2009

FILE NO/S: CACV 49 of 2008

BETWEEN: WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)
Appellant
AND
TERRENCE ERNEST JAMES STREETER
First Respondent
DAVID CHARLES COOPER
Second Respondent
JUNGLE CREEK GOLD MINES PTY LTD (ACN 008 795 033)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [2008] WASC 78
File No  :CIV 2126 of 2006

Catchwords:

Costs - Application for costs of unsuccessful court ordered mediation - Confidential and without prejudice character of mediation - What evidence may be relied on

Legislation:

Courts Legislation Amendment Act 2000 (WA)
Rules of the Supreme Court 1971 (WA), O 29 r 3, O 36, O 37, O 66 r 44
Supreme Court Act 1935 (WA), s 71, s 72, s 167(1)(q)

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr I R Freeman
First Respondent           :     Ms P E Cahill
Second Respondent      :     Ms P E Cahill
Third Respondent          :     Ms P E Cahill

Solicitors:

Appellant:     Lavan Legal
First Respondent           :     Maxim Litigation Consultants
Second Respondent      :     Maxim Litigation Consultants
Third Respondent          :     Maxim Litigation Consultants

Case(s) referred to in judgment(s):

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Pinto v Kinkela [2003] WASC 126
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 50
Wilson v Metaxas [1989] WAR 285

WHEELER JA: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: In action CIV 2126 of 2006 in the Supreme Court, the appellant as plaintiff is suing the respondents as defendants.
On 29 August 2007, Registrar S Boyle ordered, relevantly, that the parties submit the dispute, the subject of the litigation, to mediation to be conducted by a mediation registrar of the Supreme Court on a confidential basis in accordance with Pt VI of the Supreme Court Act 1935 (WA) (the Act).
The mediation was arranged for 27 November 2007, but abandoned at about the time it was due to commence.
By chamber summons filed 10 December 2007, the appellant applied for an order that the respondents pay the appellant's costs thrown away by reason of the mediation not occurring. It filed affidavits of Peter William van der Zanden, sworn 7 February 2008 and 27 February 2008, and an affidavit of Martin Lawrence Bennett, sworn 7 February 2008, in support of the application. The respondents filed an affidavit of Damian Eugene Molony, sworn 21 February 2008, in opposition to the application. On 11 December 2007, Le Miere J, who was managing the action in the commercial and managed cases list,…

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.

Keep reading for free

Create a free CaseChat account to read Western Areas Exploration Pty Ltd v Streeter [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] WASCA 15
Decision Date: 16 JANUARY 2009

CaseChat Overview and Summary

The case involved Western Areas Exploration Pty Ltd, a mining company, and Streeter, an individual involved in a dispute over mining rights and potential damages. The matter was heard in the Supreme Court of New South Wales. Streeter sought the costs of a mediation process that had been ordered by the court, which he deemed unsuccessful. The crux of the case revolved around the confidentiality and without prejudice nature of the mediation and what evidence could be relied upon to determine the success or failure of the mediation.

The legal issues before the court were whether the confidentiality and without prejudice nature of the mediation process precluded the reliance on certain evidence to determine the success or failure of the mediation and whether the applicant was entitled to the costs of the mediation. The court had to balance the principles of confidentiality in mediation against the applicant's right to seek costs if the mediation was deemed unsuccessful.

The court found that while the mediation process was confidential and without prejudice, it did not preclude the applicant from relying on certain evidence to demonstrate the unsuccessful nature of the mediation. The court held that the applicant could rely on evidence that was necessary to establish the unsuccessful nature of the mediation and that the applicant was entitled to costs if the mediation was deemed unsuccessful. The appeal was dismissed, and the leave to appeal was granted. The court ruled that the applicant was entitled to the costs of the mediation on the basis that the mediation had been unsuccessful.

Orders

Orders of the court

Leave to appeal granted

Appeal dismissed

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.