Cristovao v John Horton and Associates T/As Taylor Woodgate Pty Ltd
[2012] WASCA 12 (S)
•31 JANUARY 2012
CRISTOVAO -v- JOHN HORTON & ASSOCIATES T/AS TAYLOR WOODGATE PTY LTD [2012] WASCA 12 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 12 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:99/2011 | 6 DECEMBER 2011 & ON THE PAPERS | |
| Coram: | NEWNES JA MURPHY JA | 31/01/12 | |
| 12/03/12 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs on an indemnity basis | ||
| B | |||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO JOHN HORTON & ASSOCIATES T/AS TAYLOR WOODGATE PTY LTD |
Catchwords: | Practice and procedure Costs Indemnity costs Appeal had no reasonable prospect of succeeding Costs of appeal disproportionate to matter in issue Conduct of appellant unreasonable |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43 |
Case References: | Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cristovao v John Horton & Associates [2012] WASCA 12 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CRISTOVAO -v- JOHN HORTON & ASSOCIATES T/AS TAYLOR WOODGATE PTY LTD [2012] WASCA 12 (S) CORAM : NEWNES JA
- MURPHY JA
DECISION : 12 MARCH 2012 FILE NO/S : CACV 99 of 2011 BETWEEN : ROGERIO MARTINS CRISTOVAO
- Appellant
AND
JOHN HORTON & ASSOCIATES T/AS TAYLOR WOODGATE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : APP 14 of 2011
(Page 2)
Catchwords:
Practice and procedure - Costs - Indemnity costs - Appeal had no reasonable prospect of succeeding - Costs of appeal disproportionate to matter in issue - Conduct of appellant unreasonable
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43
Result:
Appellant to pay respondent's costs on an indemnity basis
Category: B
Representation:
Counsel:
Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellant : In person
Respondent : MGB Legal
Case(s) referred to in judgment(s):
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Cristovao v John Horton & Associates [2012] WASCA 12
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
(Page 3)
1 JUDGMENT OF THE COURT: On 31 January 2012, we dismissed an appeal against a decision of Curthoys DCJ in the District Court: Cristovao v John Horton & Associates [2012] WASCA 12. The appeal arose out of proceedings the appellant had commenced in the Magistrates Court against the respondent claiming the sum of $2,700. In the course of those proceedings, the appellant applied for an order requiring the respondent to file a more detailed list of discoverable documents. That application was dismissed on the ground that the respondent's existing list of discoverable documents was adequate. The appellant appealed against that decision to the District Court. The primary judge dismissed the appeal.
2 We dismissed an appeal against the decision of the primary judge on the ground, first, that the likely costs to the parties of the appeal to this court would be disproportionate to the issue on the appeal: Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43; and, secondly, that none of the grounds of appeal had any reasonable prospect of succeeding.
3 The respondent has applied for an order that the appellant pay the costs of the appeal on an indemnity basis. Alternatively, the respondent seeks an order that the appellant pay the respondent's costs on a party and party basis. The appellant resists an order in either form.
4 On 31 January 2012, it was ordered that each party file written submissions on costs and that the issue of costs be determined on the papers. The parties have since filed written submissions in support of their respective contentions.
5 In respect of the claim for indemnity costs, the respondent advances, in substance, three submissions. First, it is submitted that the appellant's substantive claim in the Magistrates Court had been dismissed before the appeal was instituted and the appellant should therefore have been aware that the appeal served no purpose. Secondly, an offer by the respondent to compromise the appeal was unreasonably rejected by the appellant. Thirdly, the appellant's conduct was unreasonable and, further, the appellant ought to have recognised that the appeal was without merit.
6 The written submissions of the appellant are, with respect, incomprehensible. So far as we are able to make anything of them, we understand the appellant's submission to be that as the amount of the claim falls within the minor cases jurisdiction of the Magistrates Court, the respondent is not entitled to its costs of the appeal. That, it is said, is
(Page 4)
- because legal costs are not recoverable in the minor cases jurisdiction except in certain specific instances, none of which apply here.
7 If that is the appellant's contention, it is misconceived. The provisions of the Magistrates Court (Civil Proceedings) Act in relation to costs in the minor cases jurisdiction of that court are irrelevant to the costs of the appeal to this court. Moreover, the appellant's claim was not brought in the minor cases jurisdiction of the Magistrates Court. Had it been brought in that jurisdiction, no right of appeal to the District Court would have arisen: Magistrates Court (Civil Proceedings) Act, s 32.
8 The general rule in this court is that a successful party is entitled to an order for its costs: O 66 r 1, Rules of the Supreme Court 1971 (WA). In the present case, the respondent was successful and no reason has been shown which would disentitle the respondent to an order for costs. The only issue is whether the respondent is entitled to its costs on an indemnity basis.
9 The general rules as to indemnity costs can, for present purposes, be shortly stated. An order for indemnity costs is a departure from the ordinary principle that costs are awarded on a party and party basis. While an award of indemnity costs is a matter of discretion, there must be some special or unusual feature in the case to justify the court exercising its discretion in that way. Thus such an order may be appropriate in circumstances where there has been some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers: see Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233 (Sheppard J); Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
10 In addition, ordinarily an indemnity costs order will only be available in circumstances where, in the absence of such an order, the successful party is unlikely to recover the full amount of their costs. In relation to that there is an affidavit of the respondent's solicitor sworn on 22 November 2011. In that affidavit, the solicitor says, in substance, that the respondent has entered into a costs agreement in respect of its costs of the appeal and that the costs payable by the respondent to its solicitors under that costs agreement would exceed the amount recoverable by the respondent by way of party and party costs.
11 In our opinion, the respondent is entitled to an order for indemnity costs. The appeal had no prospect of succeeding and, in addition, the conduct of the appellant in pursuing the appeal was, in the circumstances,
(Page 5)
- unreasonable. As noted earlier, the appeal involved a minor procedural issue in a claim in the Magistrates Court for the sum of $2,700. Moreover, there was no evidence that the appellant would suffer any prejudice if the decision of the Magistrates Court was not reversed. It was obvious from the very outset that the costs involved in the appeal to this court would be entirely disproportionate to the amount in issue in the action, let alone the point in issue on the appeal.
12 That the costs would be disproportionate could hardly have escaped the appellant's attention, notwithstanding that as a self-represented litigant he would not incur any legal costs and that, as the holder of a Disability Support Pension Card, he was not liable to pay court filing fees. He knew that the respondent was represented (which, as a company, it was required to be) and that it would incur substantial legal costs. The appellant's approach appeared to be that he was, as he believed, entitled pursuant to the rules of court to a more detailed list of discoverable documents and he was determined to pursue that entitlement regardless of the time and cost involved.
13 Such an approach proceeds upon a serious misconception. The relentless pursuit of a procedural issue of little practical significance cannot be justified simply by resort to claims of entitlement. Nor can it be excused simply because the appellant is not legally qualified. The concept of proportionality to be found in s 43 of the Magistrates Court (Civil Proceedings) Act and O 1 r 4B of the Rules of the Supreme Court is but a reflection of the dictates of common-sense. Plainly, on any reasonable view the time and cost involved in an appeal to this court could not be justified by what was in issue on the appeal.
14 If, remarkably, that had not occurred to the appellant at the outset it would have been brought home by the letter from the respondent's solicitors of 10 November 2011, after the appellant's case was filed, in which express reference was made to the concept of proportionality in s 43(3) of the Magistrates Court (Civil Proceedings) Act. The respondent's solicitors also contended that the appeal was without merit. The appellant was invited to abandon the appeal on the basis that each party bear its own costs. That invitation was met with a firm rejection.
15 We are satisfied that the appellant's conduct in bringing and pursuing the appeal was unreasonable and that this is an appropriate case for an order for indemnity costs.
(Page 6)
16 There will be an order that the appellant pay the respondent's costs of the application dated 22 November 2011 and of the appeal, including any reserved costs, to be taxed on an indemnity basis so that the respondent is fully indemnified for its costs except in so far as those costs are unreasonable in amount or were unreasonably incurred.
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