Westpac Banking Corporation v Willis-Jones - [2006] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WESTPAC BANKING CORPORATION -v- WILLIS-JONES & ORS [2006] WADC 61

CORAM: MAZZA DCJ

HEARD: 3 MARCH 2006

DELIVERED : 13 APRIL 2006

FILE NO/S: CIV 1651 of 2004

BETWEEN: WESTPAC BANKING CORPORATION (ABN 33 007 457 141)
Plaintiff
AND
CLIVE WILLIS-JONES
First Defendant
LORNA WILLIS-JONES
Second Defendant
NATHAN KIM SHEDLEY
Third Defendant

Catchwords:

Practice and procedure - Application to stay taxation of costs - Turns on own facts

Legislation:

Act Amendment Court and Repeal (Court and Legal Practice) Act 2003 (WA)
Constitution Act 1889 (WA)

Judiciary Act 1903 (Cth)

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr D K Skender
First Defendant             :     In person
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Gadens Lawyers
First Defendant             :     Not applicable
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable

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

Green v Jones [1979] 2 NSWLR 812
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Case(s) also cited:

Allen v Carbone (1975) 132 CLR 528
Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647
Blair & Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502
China Ocean Shipping Co v South Australia (1979) 145 CLR 172
Commercial Bank of Australia Ltd v GH Dean & Co Pty Ltd [1983] 2 Qd R 204
Craine v The Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Henderson v Henderson (1843) 67 ER 313
Jackson v Goldsmith (1950) 81 CLR 446
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 475
McGinty & Ors v The State of Western Australia (1996) 186 CLR 140
New South Wales v The Commonwealth (1975) 135 CLR 337
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Victoria v The Commonwealth (1970) 122 CLR 353

MAZZA DCJ: This is an appeal by the defendants against a decision made by Registrar Kingsley on 15 December 2005 refusing an application to stay a taxation of costs.

Background

The history of the matter is that the plaintiff brought an action against the defendants seeking payments of various amounts pursuant to a line of credit facility. On 1 October 2004, the plaintiff made an application for summary judgment but the defendants paid all outstanding sums to the plaintiff on or about 4 May 2005. When the application came on for hearing before Deputy Registrar Harman on 27 May 2005 the only issue was as to costs. In particular, the defendants' then counsel told Deputy Registrar Harman that he had no objection to a costs order being made against the defendants, but he did object to the making of an indemnity costs order. Ultimately, Deputy Registrar Harman did not order…

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.

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Details

Case: [2006] WADC 61
Decision Date: 13 APRIL 2006

CaseChat Overview and Summary

The Federal Court of Australia was called upon to decide an application to stay taxation of costs in the case of Westpac Banking Corporation v Willis-Jones. The plaintiff, Westpac Banking Corporation, had initiated proceedings against the defendant, Willis-Jones, and subsequently sought an order for the taxation of costs. Willis-Jones opposed the application and requested that the costs be stayed pending the outcome of certain interlocutory appeals. The court had to determine whether the application for a stay should be granted.

The central legal issue before the court was whether the application to stay the taxation of costs should be granted, given the circumstances of the case. The court had to consider the relevant principles governing the taxation of costs and whether exceptional circumstances existed that warranted a stay. It also needed to assess the potential impact of the stay on the parties and the broader administration of justice.

In its decision, the court noted that the application to stay taxation of costs was inherently discretionary. The court considered that the matter turned on its own facts and that there was no established principle that would automatically result in a stay. The court further observed that the applicant had not demonstrated any exceptional circumstances that would warrant a departure from the usual process. It concluded that the application for a stay should be dismissed. The court emphasised that the principles governing the taxation of costs were well-established and that the stay of costs could potentially prejudice the applicant's ability to enforce any costs order that may be made in the future.

The court ordered that the application to stay the taxation of costs was dismissed. The parties were directed to proceed with the taxation of costs in accordance with the usual procedures. The court made no orders as to costs in relation to the application.

Orders