GARBER t/as THE NERD SHOP -v- ABBOTT [2017] WADC 38

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 38
Case No:	APP:87/2016	Heard:	20 FEBRUARY 2017
Coram:	EATON DCJ	Delivered:	22/03/17
Location:	PERTH
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed
PDF Version

Parties:	JACK GARBER t/as THE NERD SHOP DAVID ABBOTT
Catchwords:	Practice and procedure Appeal from the Magistrates Court against an order for costs Awarding of costs where the claim falls within the minor cases jurisdictional limit
Legislation:	Magistrates Court (Civil Proceedings) Act 2004
Case References:	Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GARBER t/as THE NERD SHOP -v- ABBOTT [2017] WADC 38 CORAM : EATON DCJ HEARD : 20 FEBRUARY 2017 DELIVERED : 22 MARCH 2017 FILE NO/S : APP 87 of 2016 BETWEEN : JACK GARBER t/as THE NERD SHOP

Appellant

AND

DAVID ABBOTT

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE HALL

File No : JOO\GLCM 3145 of 2015

Catchwords:

Practice and procedure - Appeal from the Magistrates Court against an order for costs - Awarding of costs where the claim falls within the minor cases jurisdictional limit

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal allowed

Representation:

Counsel:

Appellant : Mr C P Stokes

Respondent : Mr J Cianfrini

Solicitors:

Appellant : Chris Stokes & Associates

Respondent : JNC Legal

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

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

1 EATON DCJ: By a notice of appeal filed in this court on 8 November 2016 Jack Garber (the appellant) challenged an order made in the Magistrates Court on 21 July 2016. It was a costs order made against him following his failure to appear at a pre-trial conference and the entry of summary judgment against him. By notice dated 12 January 2017 David Abbott (the respondent) indicated an intention to take part in the appeal and argue that the costs order should stand.

The history of the litigation

2 The respondent filed a general procedure claim in the Magistrates Court at Joondalup on 4 December 2015 seeking $1,173 plus various fees. He described his claim as being 'a new claim' for breach of contract arising from the appellant's alleged breach of an agreement between the parties whereby the appellant would repair the respondent's computer for $199.

3 Alternatively, he claimed in conversion by reason of the appellant's refusal to return the computer to him. He alleged that on 6 October 2014 he had collected the computer from the appellant's premises and paid the agreed amount of $199. He found, he alleged, that the computer was still not functioning properly, appearing to have the same 'issues' giving rise to the need for repair. He returned the computer to the appellant, complaining that the repairs paid for had not been effected or effectively effected.

4 The appellant…

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: [2017] WADC 38
Decision Date: 22 MARCH 2017

CaseChat Overview and Summary

In the case of Garber t/as the Nerd Shop v Abbott, the appeal was brought against an order for costs made by the Magistrates Court. The parties involved were Garber, trading as the Nerd Shop, the appellant, and Abbott, the respondent. The underlying dispute pertained to a claim made by Garber against Abbott, which fell within the minor cases jurisdictional limit. The core issue was whether the Magistrates Court was justified in awarding costs to the respondent, Abbott, despite the claim being within the minor cases jurisdiction.

The court needed to determine the appropriate legal framework for assessing the award of costs in cases falling within the minor cases jurisdiction. Specifically, the court had to consider whether the principles applied to major cases could be extended to minor cases, and if so, under what circumstances. This involved an examination of statutory provisions and previous case law that dealt with costs in minor civil matters, and whether these provided sufficient guidance for the Magistrates Court's decision.

The court found that the Magistrates Court had erred in applying the principles of major cases to a matter within the minor cases jurisdiction. The court emphasised that the statutory framework for minor cases is distinct and does not allow for the same discretionary awards of costs as in major cases. The appeal was allowed on the basis that the Magistrates Court had misapplied the relevant legal principles in awarding costs. The decision highlighted the importance of adhering to the specific statutory provisions governing minor cases and the limitations on cost awards within that jurisdiction. The court's ruling reinforced the need for clarity in distinguishing between the procedural rules applicable to major and minor cases.

Orders

Orders of the court

Appeal allowed

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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