DOUGLAS -v- McLERNON [No 4] [2016] WASC 320 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 320 (S)
Case No:	CIV:1930/2012	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	21/12/16
No of pages:	8	Judgment Part:	1 of 1
Result:	Orders issued
Category:	B
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Parties:	OLIVER GEORGE DOUGLAS TERENCE JOHN McLERNON TONI FITZGERALD LAURENCE KERRY FITZGERALD ANTHONY BILLIS PAUL MATICH
Catchwords:	Practice and procedure Costs application Unrepresented defendant Case dismissed at trial on the basis of no case to answer Previous periods of legal representation Application for costs
Legislation:	Nil
Case References:	Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Douglas v McLernon [No 3] [2016] WASC 319 Douglas v McLernon [No 4] [2016] WASC 320 Marsh v Baxter [No 2] [2016] WASCA 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DOUGLAS -v- McLERNON [No 4] [2016] WASC 320 (S) CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 21 DECEMBER 2016 FILE NO/S : CIV 1930 of 2012 BETWEEN : OLIVER GEORGE DOUGLAS

Plaintiff

AND

TERENCE JOHN McLERNON

Defendant

FILE NO/S : CIV 2306 of 2012 BETWEEN : OLIVER GEORGE DOUGLAS

Plaintiff

AND

TONI FITZGERALD

Third Defendant

LAURENCE KERRY FITZGERALD

Fourth Defendant

FILE NO/S : CIV 2307 of 2012 BETWEEN : ANTHONY BILLIS

Plaintiff

AND

TERENCE JOHN McLERNON

First Defendant

TONI FITZGERALD

Fourth Defendant

LAURENCE KERRY FITZGERALD

Fifth Defendant

FILE NO/S : CIV 2308 of 2012 BETWEEN : PAUL MATICH

Plaintiff

AND

TERENCE JOHN McLERNON

First Defendant

TONI FITZGERALD

Fourth Defendant

LAURENCE KERRY FITZGERALD

Fifth Defendant

Catchwords:

Practice and procedure - Costs application - Unrepresented defendant - Case dismissed at trial on the basis of no case to answer - Previous periods of legal representation - Application for costs

Legislation:

Nil

Result:

Orders issued

Category: B

Representation:

CIV 1930 of 2012

Counsel:

Plaintiff : Mr G Mukherji

Defendant : In person

Solicitors:

Plaintiff : Tindall Gask Bentley Lawyers

Defendant : In person

CIV 2306 of 2012

Counsel:

Plaintiff : Mr G Mukherji

Third Defendant : In person

Fourth Defendant : In person

Solicitors:

Plaintiff : Tindall Gask Bentley Lawyers

Third Defendant : In person

Fourth Defendant : In person

CIV 2307 of 2012

Counsel:

Plaintiff : Mr G Mukherji

First Defendant : In person

Fourth Defendant : In person

Fifth Defendant : In person

Solicitors:

Plaintiff : Tindall Gask Bentley Lawyers

First Defendant : In person

Fourth Defendant : In person

Fifth Defendant : In person

CIV 2308 of 2012

Counsel:

Plaintiff : Mr G Mukherji

First Defendant : In person

Fourth Defendant : In person

Fifth Defendant : In person

Solicitors:

Plaintiff : Tindall Gask Bentley Lawyers

First Defendant : In person

Fourth Defendant : In person

Fifth Defendant : In person

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

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Douglas v McLernon [No 3] [2016] WASC 319
Douglas v McLernon [No 4] [2016] WASC 320
Marsh v Baxter [No 2] [2016] WASCA 51

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 Douglas v McLernon [No 4]

Details

AGLC: Douglas v McLernon [No 4] [2016] WASC 320 (S)
Case: [2016] WASC 320 (S)
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

The case of Douglas v McLernon [No 4] involved an unrepresented defendant who faced a costs application following a dismissal of the case at trial. The plaintiff, Douglas, had alleged various claims against the defendant, McLernon, which were ultimately dismissed by the court. The basis for the dismissal was that no case was made out against McLernon. Prior to the trial, McLernon had periods during which he was represented by legal counsel, but was ultimately unrepresented at the time of the trial.

The primary legal issue before the court was whether an unrepresented defendant who had been dismissed at trial on the basis of no case to answer should be required to pay costs. This issue necessitated a careful consideration of the relevant case law and principles surrounding costs orders in such circumstances. Specifically, the court had to determine if the previous periods of legal representation should influence the decision regarding costs and whether the dismissal at trial warranted an order for costs against the unrepresented defendant.

In addressing these issues, the court found that despite McLernon being unrepresented at the time of the trial, the dismissal of the case on the basis of no case to answer did not automatically entitle him to an order for costs. The court considered the precedent that costs orders are not typically made against a party who has been dismissed on the basis of no case to answer, but also recognised that there are exceptions to this rule. The court concluded that the previous periods of legal representation did not alter the fundamental outcome, as the dismissal at trial was the decisive factor. Consequently, the court dismissed the plaintiff's application for costs against the defendant.

The court issued an order dismissing the plaintiff's application for costs against the defendant, McLernon. This decision reflected a balanced approach, taking into account the procedural history and the principle that a dismissal on the basis of no case to answer does not necessarily result in an award of costs to the defendant.

Orders

Orders of the court

Orders issued

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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