Wilden Pty Ltd v Greenco Pty Ltd
[2004] WASCA 55
•12/03/2004
WILDEN PTY LTD -v- GREENCO PTY LTD [2004] WASCA 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 55 | |
| THE FULL COURT (WA) | 12/03/2004 | ||
| Case No: | FUL:89/2003 | 12 MARCH 2004 | |
| Coram: | MCKECHNIE J EM HEENAN J | 12/03/04 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| B | |||
| PDF Version |
| Parties: | WILDEN PTY LTD GREENCO PTY LTD |
Catchwords: | Costs orders Delay in presenting bill of costs for taxation Whether taxation should be stayed Turns on own facts |
Legislation: | Nil |
Case References: | Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILDEN PTY LTD -v- GREENCO PTY LTD [2004] WASCA 55 CORAM : MCKECHNIE J
- EM HEENAN J
- FUL 90 of 2003
FUL 91 of 2003
- Applicant
AND
GREENCO PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN J
File Number : FUL 133 of 1995; CIV 1622 of 1995; CIV 1864 of 1995
(Page 2)
Catchwords:
Costs orders - Delay in presenting bill of costs for taxation - Whether taxation should be stayed - Turns on own facts
Legislation:
Nil
Result:
Leave refused
Category: B
Representation:
Counsel:
Applicant : Mr T Galic
Respondent : Mr M L Bennett
Solicitors:
Applicant : Galic & Co
Respondent : Bennett & Co
Case(s) referred to in judgment(s):
Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: There are three applications for leave to appeal but the matters are common. The history of the matter need not be recounted in any great detail and can conveniently commence on 20 January 2000 when the Full Court made orders for costs in favour of the present respondent against the present applicant. It appears that nothing much was done about that order for some considerable time, over 2 years, when the order was extracted in January 2002. Further unexplained delay occurred before a bill of costs was presented.
2 The present applicant, after seeking an adjournment of the taxation, then took proceedings before Pullin J for a stay of the taxation. That matter came before the judge on 30 May 2003 and in brief, but adequate, extempore reasons he refused the stay.
3 It is the case, as I have remarked earlier, that the delay was unexplained. However, there is no evidence to suggest that the delay was contumelious or intentional and it was within the period of 6 years which is allowed to enforce orders.
4 Mr Galic of counsel has this morning pointed to the fact that the chief complaint is as to the process and that there should have been some explanation. That may or may not have some significance but this is an application for leave to appeal against a discretionary judgment. The judge exercised his discretion as to the question of prejudice noting that there was a delay of nearly 2 years.
5 Counsel has referred to Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78 a decision of French J in the Federal Court in 1992. In that case the delay was of some 4 years and there was no finding that the delay was contumelious or intentional. French J said at [8]:
"It is right to say that the burden of showing prejudice justifying a stay rests upon Mr Busby…"
6 In Busby, having heard evidence, French J held that Mr Busby had discharged his burden. In the present case, the judge concluded, in a matter which counsel has frankly conceded was open to him, that there was no sufficient evidence of prejudice to the defendant. In those circumstances, there being no evidence of contumelious or intentional delay, merely explained delay, and the applicant not establishing prejudice, the decision made by the judge in the exercise of discretion was one that was open to him. That being so, leave in all three cases should be refused.
(Page 4)
7 EM HEENAN J: I agree with the reasons just announced by McKechnie J and that leave to appeal in each of these three applications should be refused.
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