Gray v Sirtex Medical Ltd Formerly Known as Paragon Medical Ltd

[2009] WASC 126

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Declaratory relief
3. › Discretion to grant declaration
4. › Whether declaration should be made where facts admitted by defendant
5. › Whether live controversy required at time of hearing
6. › Whether declaration serves useful purpose
7. › Supreme Court Act 1935 (WA), s 37(1)
1. Practice and Procedure
2. › Costs
3. › Costs following the event
4. › Proceedings resolved by concession during trial
5. › Whether successful party entitled to costs where principal issue not determined on merits
6. › Rules of the Supreme Court (WA), O 66 r 1

Quick Take

A court may exercise its discretion to make a declaration even where the defendant has conceded the factual basis, if the declaration will serve a useful purpose in conclusively resolving the controversy that gave rise to the proceedings. Where a defendant's assertion of contractual rights causes the plaintiff to commence proceedings and the defendant subsequently concedes, costs will ordinarily follow the event in favour of the plaintiff.