THE WESTERN AUSTRALIAN BUILDERS LABOURERS, PAINTERS & PLASTERERS UNION OF WORKERS

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CONSTRUCTION DIVISION)

Discontinuance of action - Costs on discontinuance - Plaintiff obtained an interlocutory injunction

Workplace Relations Act (1996) (Cth), Div 11A Pt IX

Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VicRp 38; [1984] VR 469

Metropolitan Properties Pty Ltd v Caltex Petroleum Pty Ltd [1999] WASC 153

Molina v Zaknich [2001] WASCA 337

1 MASTER BREDMEYER: This is an application by the plaintiff for leave to discontinue the action against the defendants. The application is made under the Rules of the Supreme Court O 23 r 2 which provide as follows:

"(1) The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2) The costs referred to in paragraph (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

(3) Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.

(4) ... "

2 The plaintiff seeks an order that the defendants pay the plaintiff's costs of the action, including all reserved costs and of this application, to be taxed. No statement of claim has been filed. The application for leave to discontinue is not opposed. The application for costs is opposed. The defendants say that the appropriate costs order is that each party should bear its own costs.

3 An incident occurred on the plaintiff's building site at the corner of Monash Road and Hospital Road, Nedlands, on the morning of 20 February 2001. Later that day, the plaintiff issued the writ herein against the defendants and sought and obtained an ex parte interlocutory injunction from Scott J, restraining the defendants, their officers, servants, agents from entering onto the plaintiff's premises until 4 pm on Friday, 23 February 2001. The plaintiff was ordered to serve the papers on the defendants. Costs were in the cause.

4 On 23 February 2001, both parties were before Roberts-Smith J, represented by counsel. The defendants filed five affidavits in opposition. The interim injunction was extended as varied. The Judge directed that it be listed for hearing at a special appointment and certain other directions were made. The variation was to add a caveat to the restraining order that the union officers, servants and agents were restrained from entering onto the plaintiff's site, "subject to such legal rights as the defendants have to enter and subject to the Workplace Relations Act 1996 (Cth)". Costs were reserved.

5 The matter came on for hearing before Miller J on 13 March and, after hearing argument, he extended the interlocutory injunction until further order in these terms:

"Until trial the injunction granted by the court on 20 February 2001 shall continue subject to such legal rights as the defendants have to enter the site hereinafter referred to and the defendants shall be restrained, whether by themselves, their officers, servants, agents or otherwise, from entering into premises occupied by the plaintiff and situated at and known as Western Australian Centre for Oral Health, located on the western corner of Hospital Drive and Monash Avenue, Nedlands."

6 By a chamber summons dated 19 April 2001, the plaintiff sought leave to amend its writ of summons in terms of a minute of proposed amended writ of summons. The amended writ added a claim for damages. The application came on for hearing before Master Sanderson on 6 June 2001, when he made the following orders:

"1. The plaintiff have leave to amend its writ of summons in terms of the minute of proposed amended writ of summons filed 19 April 2001.

2. The minute of proposed amended writ of summons do stand as the amended writ of summons and service thereof be dispensed with.

3. The reserved costs of 10 May 2001 of this application be costs in the cause.

4. The plaintiff do pay the defendants' costs of today's hearing in any event."

7 I consider that the interlocutory injunction granted on 20 February and extended on two further occasions until further order, was a forensic win for the plaintiff. I consider, based on a reading of the affidavits, that the defendants exceeded their powers of lawful entry under Div 11A of Pt IX of the Workplace Relations Act (1996) (Cth). It is therefore appropriate that costs should follow the event. The plaintiff has not discontinued this action because its case is weak. It succeeded in obtaining an injunction which prevented the recurrence of the trouble which occurred on 20 February. Later on it completed the building and quit the site, and therefore was no longer in need of the injunction to protect it against unlawful entry to the site by the union. I therefore consider that the plaintiff is entitled to the costs of this action, subject to this exception. The application made by the plaintiff for leave to amend the writ which came on before Master Sanderson on 10 May and 6 June 2001 produced no ultimate benefit to the plaintiff. It has not pursued its claim for damages. In those circumstances, the amendment to the writ was unnecessary and the defendants should not have to pay the plaintiff's legal costs of that. On the contrary, the plaintiff should pay the defendants' costs of that application.

8 I will order the plaintiff to pay the defendants' costs of their appearances before Master Sanderson on 10 May 2001 and 6 June 2001. Subject to that order, the defendants are to pay the plaintiff's costs of the action, including any reserved costs, and of this application, to be taxed.