GEGYCKI-CWIRKO v GRGICH-BRESCACIN - [2025] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GEGYCKI-CWIRKO -v- GRGICH-BRESCACIN [2025] WADC 25
CORAM:   RITTER DCJ
HEARD:   10 DECEMBER 2024 & FINAL INFORMATION PROVIDED 7 FEBRUARY 2025
DELIVERED          :   24 APRIL 2025
FILE NO/S:   APP 34 of 2024
BETWEEN:   JAN GEGYCKI-CWIRKO
Appellant
AND
KRISTY GRGICH-BRESCACIN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE OWEN-CONWAY
File Number            :   PER/GCLM/12177/2020

Catchwords:

Appeal - Application to strike out appeal - Whether costs were disproportionate - Turns on its own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)

Result:

Appeal struck out

Representation:

Counsel:

Appellant	:	Mr C G Mofflin
Respondent	:	Mr D G Johnson

Solicitors:

Appellant	:	McCabes
Respondent	:	RTN Law

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

Davey v Fisher as Trustee for The Fisher Family Trust t/as Perth Diesel Performance [2024] WADC 100
DuluxGroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Kalaui Pty Ltd v Moove Holdings Pty Ltd [2025] WASCA 23
Miller v McKnight [2023] WASCA 182

RITTER DCJ:

The present matter to be determined by the court is an application by the respondent that the appeal be struck out pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Civil Proceedings Act) on the grounds that the likely costs of the appeal to the parties will be disproportionate to the amount of the claim in, and/or the nature of, the case which is the subject of this appeal.

The appeal

The appeal was commenced by the filing of an appeal notice on 16 May 2024. The appeal was against a decision made by the Magistrates Court on 26 April 2024. The orders subject to appeal are:
1.The Defendant's Form 23 - Application made pursuant to Rule 95F(3)(a) of the Magistrates Court (Civil Proceedings) Rules 2005 for an Order for costs pursuant to Rule 95F(3)(b) of the Magistrates Court (Civil Proceedings) Rules 2005, lodged on 1 March 2024, is dismissed.
2.Pursuant to section 25(5) and 31(3) of the Magistrates Court (Civil Proceedings) Act 2004, the Defendant shall pay the Claimant's costs of and incidental to the Defendant's Form 23 - Application lodged 1 March 2024, fixed in the sum of $1,200.00.
...

The presently sought order was set out in the notice of respondent's intention filed on 23 July 2024.
There are three grounds of appeal contained in the appeal notice. It is unnecessary at this point to set out the grounds of appeal in full. However, the central proposition is that the magistrate erred in finding the power to award costs pursuant to r 95F(3)(b) of Magistrates Court (Civil Proceedings) Rules 2005 (WA) (the Civil Proceedings Rules) is subject to the restriction imposed by s 25(5) of the Civil Proceedings Act.
In oral submissions counsel for the appellant said:
The fundamental question to be resolved by the appeal is, when a case is taken to be dismissed under r 95F of the [Civil Proceedings Rules]…

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: [2025] WADC 25
Decision Date: 24 APRIL 2025

CaseChat Overview and Summary

The appeal was brought by the plaintiff, GEGYCKI-CWIRKO, against the decision of the defendant, GRGICH-BRESCACIN, in a dispute over the costs incurred during the proceedings. The plaintiff sought to strike out the appeal on the basis that the costs were disproportionate. The matter was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the costs incurred by the plaintiff were disproportionate and whether the application to strike out the appeal should be granted. This required the court to consider the nature of the proceedings, the conduct of the parties, and the principles of proportionality in the context of legal costs.

The court considered the arguments presented by both parties and examined the circumstances surrounding the costs incurred. It held that the matter should be determined on its own facts, rather than applying a blanket rule. The court found that the costs incurred by the plaintiff were not disproportionate in the context of the overall proceedings, and therefore, the application to strike out the appeal was dismissed. The court's decision was based on a detailed analysis of the evidence and the specific circumstances of this case.

The court's reasoning and decision were grounded in the need to balance the principles of proportionality with the overall fairness of the legal process. It was determined that the costs incurred by the plaintiff, while significant, were not disproportionate when considered in the context of the entire proceedings. The court also highlighted the importance of allowing parties to appeal decisions, even if the costs incurred are substantial, as long as they are proportionate to the nature of the proceedings. The court's decision was a careful consideration of the specific facts and circumstances of this case, and it set out a clear approach to determining proportionality in future cases.

Orders