Willmott v Coles Group Ltd - [2023] WADC 85

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILLMOTT -v- COLES GROUP LTD [2023] WADC 85
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   ON THE PAPERS
DELIVERED          :   31 JULY 2023
FILE NO/S:   CIV 2901 of 2022
BETWEEN:   LYNNE WILLMOTT
Plaintiff
AND
COLES GROUP LTD
Defendant

Catchwords:

Practice and procedure - Taxation of costs - Review - Taxation of costs under item 39 of the Scale - Consideration of the scope for recovery under item 27(b)

Legislation:

Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Jurisdiction for review not established

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	Hall & Wilcox (Perth)

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

Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 2 December 1997)
Smith v Buller (1875) LR 19 Eq 473

DEPUTY REGISTRAR HARMAN:

The parties agreed that they would engage in a procedure to settle a claim for damages within the scope outlined by s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA). Section 92(f) commences as follows:
(f)If a worker's claim for damages … is settled by agreement …
In the process of implementing the agreement, a writ was issued, a memorandum of appearance was filed, and an order was made upon a memorandum of consent dismissing the action. In effect, the action was commenced for the purpose of dismissing the claim brought upon the causes specified by the indorsement of the writ.
According to the order the plaintiff is entitled to recover costs, however as the memorandum did not specify the scope for recovery and the deficiency is reflected in the order, its effect is uncertain.
Neither the common interest of the parties to establish the claim within the scope of s 92(f) nor their success in achieving that result would generate any impetus towards the conclusion that the defendant would pay the cost of any service provided to the plaintiff. Other than to the extent that the parties had agreed, there would be no reason to consider that the defendant would meet the cost of any service provided to the plaintiff.
In circumstances where parties had filed a memorandum of consent that provided for dismissal of an action and without specification, for the costs of one of the parties, in the process of determining the benefit conferred, it may be considered that it would be open to infer that the parties had intended that the beneficial party would recover either the costs of the action or the costs referable to the process by which it was dismissed.
In circumstances where the action had been commenced pursuant to an agreement, it would be open to consider that the context may suggest different results. In an instance where the agreement that preceded the action had been to bring a claim within the scope of s 92(f), a feature of the context presented for consideration in determining the…

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.

Continue reading Willmott v Coles Group Ltd

Details

AGLC: Willmott v Coles Group Ltd [2023] WADC 85
Case: [2023] WADC 85
Decision Date: 31 JULY 2023

CaseChat Overview and Summary

The case of Willmott v Coles Group Ltd involved a dispute regarding the taxation of costs in a legal proceeding. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Willmott, sought a review of the costs awarded to the defendant, Coles Group Ltd, under item 39 of the Scale. The crux of the dispute was whether the costs could be taxed under item 27(b) of the Scale, which allows for costs in proceedings that involve significant public interest.

The court had to determine whether the proceedings met the criteria for taxation under item 27(b), which pertains to cases of significant public interest. The court examined whether the proceedings involved matters of substantial public importance, which could potentially justify the costs being taxed under a different item in the Scale. The court had to balance the considerations of public interest against the established rules for taxation of costs.

The Federal Circuit Court of Australia held that the proceedings did not meet the threshold for significant public interest as required by item 27(b) of the Scale. The court found that the case did not involve matters of substantial public importance that would warrant a departure from the standard rules for taxation of costs. Consequently, the costs were properly taxed under item 39 of the Scale. The court's decision was based on a careful analysis of the nature of the proceedings and the applicable legal principles.

The court ordered that the costs be assessed and taxed in accordance with item 39 of the Scale, as the proceedings did not qualify for taxation under item 27(b). The decision affirmed the original taxation of costs and did not allow for a review on the basis of public interest.

Orders