CRISTOVAO -v- FORENSIC DOCUMENTS EXAMINERS PTY LTD [2014] WADC 100

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 100
Case No:	APP:84/2013	Heard:	10 FEBRUARY, 11 MARCH AND 1 MAY 2014
Coram:	DAVIS DCJ	Delivered:	8/08/14
Location:	PERTH
No of pages:	18	Judgment Part:	1 of 1
Result:	Application for security for costs and to join additional parties to the appeal dismissed Appeal dismissed
PDF Version

Parties:	ROGERIO MARTINS CRISTOVAO FORENSIC DOCUMENTS EXAMINERS PTY LTD
Catchwords:	Appeal from Magistrates Court Appeal from magistrate's decision on a review of taxation costs Application for security for costs by appellant from the respondent Application by appellant to join parties to the appeal Application by respondent to strike out the appeal Court's own motion to strike out the appeal Allegation of fraud tainting judgment and orders made in the Magistrates Court Whether allegations of fraud able to be determined on appeal
Legislation:	District Court Rules 2005 O 51, r 57(2) Magistrates Court (Civil Proceedings) Act 2004 s 25(5), s 31, s 31(3), s 40, s 40(3), s 40(4), s 43(4), s 43(5) Rules of the Supreme Court 1971 O 18
Case References:	Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Avsar v Westland Healthcare Ltd [2008] WASCA 35 Cabassi v Vila (1940) 64 CLR 130 Dodds v Kennedy [2011] WASCA 32 Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 Jonesco v Beard [1930] AC 298 McDonald v McDonald (1965) 113 CLR 529 McHarg v Woods Radio Pty Ltd [1948] VLR 496 Michael v Hawkins [2013] WADC 110 Michael v Hawkins [2014] WASCA 64 Mossensons (a firm) v Coastline Associates (Unreported; WASCA; Library No 970661B; 6 November 1996) Parker v Transfield Pty Ltd [2000] WASCA 382 Rhodium Australia Pty Ltd v Stateway Pty Ltd [2013] WADC 129 Ridout v O'Brien [2004] WASC 137 Schweppes Ltd v Archer (1934) 34 SR (NSW) 178 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 Tobin v Dodd [2004] WASCA 288 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CRISTOVAO -v- FORENSIC DOCUMENTS EXAMINERS PTY LTD [2014] WADC 100 CORAM : DAVIS DCJ HEARD : 10 FEBRUARY, 11 MARCH AND 1 MAY 2014 DELIVERED : 8 AUGUST 2014 FILE NO/S : APP 84 of 2013 BETWEEN : ROGERIO MARTINS CRISTOVAO

Appellant

AND

FORENSIC DOCUMENTS EXAMINERS PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE COCKRAM

File No : PER GCLM 1691 of 2010

Catchwords:

Appeal from Magistrates Court - Appeal from magistrate's decision on a review of taxation costs - Application for security for costs by appellant from the respondent - Application by appellant to join parties to the appeal - Application by respondent to strike out the appeal - Court's own motion to strike out the…

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: [2014] WADC 100
Decision Date: 8 AUGUST 2014

CaseChat Overview and Summary

The appellant, Cristovao, sought to appeal a decision from the Magistrates Court regarding the review of taxation costs. The Forensic Documents Examiners Pty Ltd was the respondent. The appellant filed an application for security for costs and sought to join additional parties to the appeal. The respondent opposed the appeal and filed a motion to have the appeal struck out. The appeal was subsequently dismissed by the court on its own motion due to allegations of fraud that purportedly tainted the judgment and orders made in the Magistrates Court.

The legal issues before the court involved the validity of the appellant's application for security for costs and the joinder of additional parties to the appeal. Additionally, the court needed to determine whether the allegations of fraud could be considered on appeal and if they warranted the striking out of the appeal. The respondent argued that the allegations of fraud were a collateral attack on the Magistrates Court's judgment, which should not be entertained on appeal.

The court found that the application for security for costs and the joinder of additional parties to the appeal were without merit and dismissed these applications. The court further held that the allegations of fraud were not pertinent to the appeal process and could not be considered as grounds for striking out the appeal. The court ruled that the appeal was an attempt to relitigate issues that had already been decided by the Magistrates Court. Consequently, the appeal was dismissed.

Orders

Orders of the court

Application for security for costs and to join additional parties to the appeal dismissed

Appeal dismissed

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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