Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 2]
[2013] WASC 481
•26 SEPTEMBER 2013
WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 2] [2013] WASC 481
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 481 | |
| Case No: | CIV:3041/2010 | 26 SEPTEMBER 2013 | |
| Coram: | LE MIERE J | 26/09/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff should pay the defendants' costs of the application | ||
| 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
- 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 or matter recover its costs.
3 In its written submissions the plaintiff also refers to the principles to be applied where there has been no hearing on the merits. The plaintiff refers to the decision of the Court of Appeal in Western Australia Planning Commission; Ex Parte Solomon [2010] WASCA 236 (S) and in particular the statement of Pullin JA, with whom Newnes JA agreed to the following effect. First, a court will not try a hypothetical action. Secondly, if it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continue to be reasonable until the litigation was settled, the proper exercise of the cost discretion will usually mean the court will make no order as to costs of the proceedings, and thirdly, in some cases where a party has effectively surrendered to the other party, an inference may be drawn that the abandoning party acted unreasonably.
4 Senior counsel for the defendants, Mr Brereton SC, referred to the rule which is often applied by the court when making an order which is in effect an indulgence to the party seeking the order. Mr Brereton referred to Stanley v Layne Christensen Company [2006] WASCA 56 and in particular the statement by Wheeler JA that:
The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party’s conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence [52].
5 Neither set of rules or principles exactly fit this case. Whilst the plaintiff did not seek an indulgence in the sense referred to by Wheeler JA in Stanley v Layne Christensen, nor relief from undertakings in the sense referred to by Murray J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2010] WASC 168, the plaintiff did seek a variation of orders made by consent.
6 The consent orders were made on 24 May 2012. They provided for a confidentiality regime which was agreed between the parties. That agreement followed negotiations between the parties. The parties had expressly adverted to the terms of what became cl 5 and which is the provision which the plaintiff subsequently sought to vary. Mr Myers QC, on behalf of the plaintiff, submitted in effect that the plaintiff sought a variation of the orders because as things unfolded it became apparent that the agreed regime was unworkable or at least amounted to a practical impediment to the efficient running of the case by the legal representatives of the plaintiff insofar as the rejections imposed by cl 5 were concerned.
7 There was not a change of circumstances in the sense which often leads to litigation not being pursued by the plaintiff or by parties resolving the matter without the merits being eventually determined. What unfolded was that it became apparent to the plaintiff that the regime which it had negotiated and agreed to was one which created practical difficulties for it and it sought to vary the regime. The matter then progressed by the plaintiff proposing a particular form of amendment which in essence would permit the plaintiff’s legal representatives to communicate the relevant information by email. That proposal was resisted and opposed by the defendants.
8 The plaintiff then pursued an alternative form of communication by a method described as a SitePoint. The defendant did not accede to that proposal. The plaintiff then proposed a third form or system of communication which would enable its legal representatives to access the relevant information by means of an e-law secure data room. That proposal was put forward by the plaintiff in early July or soon before that. It was then acceded to by the defendant and the parties agreed upon consent orders which were made on 5 August 2013.
9 All of those matters make it appropriate that the plaintiff should pay the defendants' costs of the application. First, because the plaintiff was seeking a variation of consent orders and secondly, because the plaintiff proposed variations which the plaintiff did not press when they were opposed by the defendant. As Wheeler JA observed in Stanley v Layne Christensen, the Court should have regard to the extent to which it might be said that the costs were unnecessarily incurred by a party and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded.
10 Mr Myers submitted that in effect the defendants acted unreasonably in taking the position on or about 7 May 2013 that they would not agree to any amendments to the confidentiality regime. Subsequent to that, the plaintiff ceased to press for the changes to the confidentiality regime which it had proposed at that time and instead proposed the e-law secure data room system. When that was proposed the defendant acceded to it and agreed the variation.
11 In circumstances where the plaintiff did not press for a variation to the confidentiality regime to allow communication by email or by the SitePoint proposal, I am not able to find that the defendant acted unreasonably in not acceding to those proposals in circumstances where it agreed to the e-law secure data room proposal when that was made by the plaintiff.
0
3
2