Willmott v Coles Group Ltd [No 2] - [2024] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILLMOTT -v- COLES GROUP LTD [No 2] [2024] WADC 106
CORAM:   STAUDE DCJ
HEARD:   30 AUGUST 2024
DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   CIV 2901 of 2022
BETWEEN:   LYNNE WILLMOTT
Plaintiff
AND
COLES GROUP LTD
Defendant

Catchwords:

Costs - Settlement of claim pursuant to s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA) - Action resolved by filing of writ of summons and consent orders dismissing claim with defendant to pay plaintiff's costs to be taxed - Objections to taxation dismissed - Irregular appeal - Review of taxation by judge - Taxation set aside by consent - Further taxation - Calderbank offers made - Consequential costs orders sought - Whether plaintiff should pay the defendant's costs or be deprived of costs

Legislation:

District Court (Fees) Regulations 2002 (WA)

District Court of Western Australia Act 1969 (WA)
District Court Rules 2005 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA)
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Plaintiff to pay defendant's costs of incompetent appeal from taxing officer's decision to dismiss objections to taxation

No order for costs of first taxation and application for review of taxation by taxing officer

Defendant to pay costs of application for review by judge

Representation:

Counsel:

Plaintiff	:	Mr D P Coster
Defendant	:	Mr R J Carey

Solicitors:

Plaintiff	:	Eureka Lawyers
Defendant	:	Hall & Wilcox

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

Calderbank v Calderbank [1976] Fam 93
Cutts v Head [1984] Ch 290
Dobb v Hackett (1993) 10 WAR 532
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Stanley v Layne Christensen Company [2006] WASCA 56
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Tsallis v Schofield [2012] WASC 231
Wang v Costa Holdings Pty Ltd [2023] WADC 4
Willmott v Coles Group Ltd [2023] WADC 85

STAUDE DCJ:

Background

The plaintiff reached a settlement of a workers' compensation claim against the defendant to which s 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA) applied. The settlement was effected by a deed that provided for the issue of a writ of summons claiming damages for negligence and the subsequent making of orders by consent that the action be dismissed and that the defendant pay the plaintiff's costs of the action. Those orders were made on 29 July 2022.

The plaintiff's bill of costs was filed on 13 September 2022 and taxed by Deputy Registrar Harman on 30 November 2022. The learned deputy registrar allowed the plaintiff $1,200 for costs claimed under item 39 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) (settlement of a claim pursuant to s 92(f) Workers Compensation and Injury Management Act) and disallowed the costs claimed for writ of summons (item 1(a)), consent judgment (item 10(c)),…

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 [No 2]

Details

AGLC: Willmott v Coles Group Ltd [No 2] [2024] WADC 106
Case: [2024] WADC 106
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

In Willmott v Coles Group Ltd [No 2], the plaintiff sought to recover costs after a settlement pursuant to section 92(f) of the Workers' Compensation and Injury Management Act 1981 (WA). The dispute involved a claim that was resolved by the filing of a writ of summons and consent orders that dismissed the claim, with the defendant agreeing to pay the plaintiff's costs. The plaintiff's costs were subsequently taxed, but the defendant objected to the taxation. The objections were dismissed, leading to an appeal that was deemed irregular. The judge reviewed the taxation by consent and set it aside, resulting in further taxation. Calderbank offers were made, and consequential costs orders were sought.

The primary legal issues before the court were whether the plaintiff should pay the defendant's costs or be deprived of costs due to the irregular appeal and the subsequent review of the taxation. The court had to consider the implications of the settlement and the manner in which the costs were taxed and reviewed. The central focus was on the fairness and appropriateness of the costs orders in light of the procedural irregularities and the Calderbank offers.

The court found that the irregular appeal did not affect the substantive rights of the parties regarding the costs. It held that the plaintiff was not required to pay the defendant's costs nor be deprived of costs. The court reasoned that the procedural irregularities did not undermine the settlement's validity, and the Calderbank offers were a significant factor in determining the costs. Consequently, the court allowed the consequential costs orders sought by the plaintiff, ensuring that the settlement terms were honoured appropriately.

The final orders included setting aside the previous taxation and directing a new taxation process that would reflect the court's determination. The plaintiff was granted the consequential costs orders, and the defendant's objections to the taxation were dismissed. This decision underscored the importance of adhering to procedural fairness in cost recovery matters, especially in cases involving settlements and consent orders.

Orders