Norilya Minerals Pty Ltd v Easterday

[2009] WASC 191

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Litigant in contempt
4. › Whether party who has not complied with court orders should be refused a hearing
5. › Whether non-payment of money order amounts to contempt
6. › Whether contempt in separate proceedings bars hearing in current proceedings
1. Practice and Procedure
2. › Abuse of process
3. › Stay or striking out of proceedings
4. › Whether proceedings commenced to avoid consequences of court orders
5. › Whether collateral attack on orders of Court of Criminal Appeal
1. Practice and Procedure
2. › Declaratory relief
3. › Power to grant declarations
4. › Whether court may declare rights that existed in the past but no longer exist
5. › Whether declaration would serve a useful purpose
1. Practice and Procedure
2. › Security for costs
3. › Consent orders
4. › Whether consent order for security for costs constitutes binding contract
5. › Whether court may vary consent order based on contract
6. › Rules of the Supreme Court 1971 (WA), O 66

Quick Take

A consent order for security for costs that results from a proposal by one party accepted by the other may constitute a binding contract between the parties, which the court will not vary absent circumstances rendering it unjust to hold the parties to the agreement. Non-payment of a money order does not necessarily constitute contempt where the judgment debtor lacks the means to pay through no action of its own, and even if contempt exists, the court retains discretion to hear the party where the contempt arose in separate proceedings and non-compliance is due to inability rather than wilful refusal.