Dokhe v Mills - [2019] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DOKHE -v- MILLS [2019] WADC 74
CORAM:   QUAIL DCJ
HEARD:   20 MAY 2019
DELIVERED          :   7 JUNE 2019
FILE NO/S:   APP 107 of 2018
BETWEEN:   BANANI AND NILESH DOKHE
Appellants
AND
CLARE MILLS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON
File Number             :   PER/GCLM/2895/2017

Catchwords:

Practice and procedure - Appeal against order for costs under general procedure of Magistrates Court - Claim within the minor claims jurisdiction of Magistrates Court - Meaning of costs order made by Magistrates Court - Delegation of costs order to registrar - Whether rejection of a Calderbank offer amounts to an exceptional circumstance

Legislation:

District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25, s 31
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Magistrates Court (Minor Cases Procedure) Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Magistrates Court Regulations 2005 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellants	:	Mr G J Pynt
Respondent	:	No appearance

Solicitors:

Appellants	:	Hall & Wilcox (Perth)
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Craft Decor Pty Ltd v Oteri [2012] WASCA 46
Cristovao v Forensic Documents Examiners Pty Ltd [2015] WASCA 85
Jones v Darkan Hotel [2014] WASCA 133
McKay v Commissioner of Roads (No 7) [2011] WASC 223
McKeon v Knapton [2009] WADC 170
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Shilkin v Taylor [2011] WASCA 255

QUAIL DCJ:

Introduction

On 1 December 2016 a Honda Civic motor vehicle owned and driven by Ms Clare Mills was damaged in a collision with a Toyota Camry driven by Ms Banani Dokhe and owned by Mr Nilesh Dokhe.
By general procedure claim filed on 17 February 2017 in the Magistrates Court, Ms Mills claimed from Ms Dokhe the cost of vehicle repairs and hire car charges totalling $3,862.59. Ms Dokhe filed a general procedure statement of defence and counterclaim and Mr Dokhe ultimately joined in the action. The claim and counterclaim were both within the jurisdiction of the minor case procedure but Ms Mills and Mr Dokhe were insured and their insurers exercised rights of subrogation. All parties to the litigation were legally represented, including by counsel.
The case went to trial on 25 September 2018 before Magistrate Walton. On 5 October 2018 his Honour gave judgment for Ms Mills in the sum of $3,862.54 plus interest of $427.95. The counterclaim was dismissed.
The magistrate reserved his decisions on costs and subsequently the court issued three versions of general order formalising the judgment. In relation to costs the final version ordered that Ms and Mr Dokhe pay Ms Mills costs to be taxed if not agreed. The court further ordered that 'the "Calderbank offer" and any accompanying orders related to the application of s…

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.

Continue reading Dokhe v Mills

Details

AGLC: Dokhe v Mills [2019] WADC 74
Case: [2019] WADC 74
Decision Date: 7 JUNE 2019

CaseChat Overview and Summary

In the matter of Dokhe v Mills, the parties were involved in a dispute concerning an appeal against an order for costs made under the general procedure of the Magistrates Court. The proceedings originated as a claim within the minor claims jurisdiction of the Magistrates Court. The appeal was brought before the court to address the interpretation of the costs order made by the Magistrates Court, specifically whether the rejection of a Calderbank offer amounted to an exceptional circumstance warranting the rejection of the appeal against the costs order.

The court was required to determine the meaning and scope of the costs order made by the Magistrates Court, particularly in the context of the delegation of the order to the registrar. Additionally, the court had to examine the circumstances under which the rejection of a Calderbank offer could be considered an exceptional circumstance that would justify the dismissal of an appeal against a costs order.

The court found that the costs order made by the Magistrates Court was clear in its terms and properly delegated to the registrar. The court also held that the rejection of a Calderbank offer did not amount to an exceptional circumstance that would warrant the dismissal of an appeal against a costs order. The court emphasised that the rejection of a Calderbank offer, while a factor to be considered, did not automatically preclude an appeal against the costs order. The court concluded that the appeal against the costs order should not be dismissed on the basis of the rejection of the Calderbank offer.

As a result, the appeal against the costs order was allowed, and the order made by the Magistrates Court was set aside. The court's decision clarified the legal principles governing the delegation of costs orders to registrars and the circumstances in which the rejection of a Calderbank offer may be considered in the context of an appeal against a costs order.

Orders