WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 2] [2013] WASC 481

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 481
Case No:	CIV:3041/2010	Heard:	26 SEPTEMBER 2013
Coram:	LE MIERE J	Delivered:	26/09/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Plaintiff should pay the defendants' costs of the application
Category:	B
PDF Version

Parties:	WRIGHT PROSPECTING PTY LTD HANCOCK PROSPECTING PTY LTD HOPE DOWNS IRON ORE PTY LTD HAMERSLEY WA PTY LTD
Catchwords:	Costs Variation of orders made by consent Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37(1)
Case References:	Stanley v Layne Christensen Company [2006] WASCA 56 Western Australia Planning Commission; Ex Parte Solomon [2010] WASCA 236 (S) Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2010] WASC 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 2] [2013] WASC 481 CORAM : LE MIERE J HEARD : 26 SEPTEMBER 2013 DELIVERED : 26 SEPTEMBER 2013 FILE NO/S : CIV 3041 of 2010 BETWEEN : WRIGHT PROSPECTING PTY LTD

Plaintiff

AND

HANCOCK PROSPECTING PTY LTD

First Defendant

HOPE DOWNS IRON ORE PTY LTD

Second Defendant

HAMERSLEY WA PTY LTD

Third Party

Catchwords:

Costs - Variation of orders made by consent - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Supreme Court Act 1935 (WA), s 37(1)

Result:

Plaintiff should pay the defendants' costs of the application

Category: B

Representation:

Counsel:

Plaintiff : Mr A J Myers QC & Mr G A Thompson QC & Mr T J Palmer

First Defendant : Mr P J Brereton SC

Second Defendant : Mr P J Brereton SC

Third Party : Ms R A Collins

Solicitors:

Plaintiff : Clayton Utz

First Defendant : Jackson McDonald

Second Defendant : Jackson McDonald

Third Party : Allens

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

Stanley v Layne Christensen Company [2006] WASCA 56
Western Australia Planning Commission; Ex Parte Solomon [2010] WASCA 236 (S)
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2010] WASC 168

1 LE MIERE J: On 5 March 2013 the plaintiff filed a chamber summons seeking orders varying the confidentiality orders made on 24 May 2012. On 5 August 2013 I made orders varying the terms of the confidentiality orders. On 26 September 2013 I ordered the plaintiff to pay the costs of the application. This is an edited version of my ex tempore reasons for doing so.

2 In its written submissions, the plaintiff refers to the Supreme Court Act 1935 (WA) s 37(1) which confers a wide discretion on the court in relation to the award of costs and O 66 r 1 of the Rules of the Supreme Court 1971 (WA) which, without fettering the court's discretion, provides that the Court will generally order that the successful party to any action…

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: [2013] WASC 481
Decision Date: 26 SEPTEMBER 2013

CaseChat Overview and Summary

In the case of Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 2], the parties were engaged in a dispute concerning variations of orders made by consent. Wright Prospecting, the plaintiff, sought to alter certain costs orders that had been previously agreed upon by the parties. Hancock Prospecting, the defendant, opposed the application on the grounds that the circumstances had not sufficiently changed to warrant such a variation. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the circumstances had sufficiently changed to justify the variation of the costs orders made by consent. The court had to consider the principles governing the variation of costs orders and whether the application by Wright Prospecting met the threshold for such a variation. Specifically, the court needed to determine whether the changes in circumstances were significant enough to warrant a re-evaluation of the costs orders and whether the application was made in good faith.

The court found that the application to vary the costs orders was not warranted. It held that the circumstances had not changed to the extent necessary to justify a variation of the previously agreed-upon costs orders. The court emphasised that variations of this kind should only be made in exceptional circumstances and when there is a clear and significant change in the factual matrix upon which the original orders were based. Given that the application did not meet these criteria, the court declined to vary the orders and instead ordered that Wright Prospecting pay Hancock Prospecting's costs of the application.

Orders

Orders of the court

Plaintiff should pay the defendants' costs of the application

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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