Genovese v Homestyle Pty Ltd
[2007] WASCA 189
•21 SEPTEMBER 2007
GENOVESE -v- HOMESTYLE PTY LTD [2007] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:131/2004 | ON THE PAPERS | |
| Coram: | WHEELER JA MILLER JA | 21/09/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | HERCOLE PIETRO GENOVESE HOMESTYLE PTY LTD (ACN 008 782 248) |
Catchwords: | Costs Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 60 rr 1B, 1BA |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GENOVESE -v- HOMESTYLE PTY LTD [2007] WASCA 189 CORAM : WHEELER JA
- MILLER JA
- Appellant
AND
HOMESTYLE PTY LTD (ACN 008 782 248)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1953 of 2004
Catchwords:
Costs - Turns on own facts
Legislation:
Rules of the Supreme Court1971 (WA), O 60 rr 1B, 1BA
(Page 2)
Result:
Appeal allowed
Costs orders made
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 JUDGMENT OF THE COURT: This matter is a costs application, arising out of an appeal from a decision of Master Sanderson dismissing the appellant's application for prerogative relief. Briefly, the history is as follows.
2 In July 2004, the appellant filed a writ of certiorari in the Supreme Court in relation to a decision of Magistrate Boothman given on 17 October 2003. On 28 July 2004, the matter was listed ex parte before Master Newnes. The master directed that papers be served on the respondent. On 18 August, the matter was heard, on notice, before Master Sanderson. Master Sanderson dismissed the application and ordered that the appellant pay the respondent's costs.
3 On 8 September 2004, the appellant filed a notice of appeal in respect of the decision of Master Sanderson. There were, at that time, 10 grounds of appeal. They alleged matters such as refusing to consider 'overwhelming evidence', failing to attach sufficient or any weight to various grounds of the application, failing to give any or sufficient weight to the appellant's contentions that the magistrate had been biased and, it appears, generally alleging error of law in failing to consider certain errors which were alleged to have occurred on the part of the magistrate. There then followed a considerable amount of correspondence between the parties and the court, and a number of interlocutory directions in the appeal.
4 On 15 March 2007, the appellant, for the first time, filed a document seeking the determination as a preliminary issue of the question of the master's jurisdiction to make the orders. As a result of formal inquiries directed by McLure JA in April 2007, it appeared that there had been no delegation of jurisdiction to Master Sanderson, either in relation to prerogative matters generally or in relation to this specific matter.
5 It was not until 19 April 2007 that the appellant filed an affidavit in support of his interim application, for the first time stating on oath that he had never given consent to the master to hear the application. That was of significance, since O 60 rr 1B and 1BA of the Rules of the Supreme Court1971 (WA), as they then were, would apparently have permitted the master to hear such a matter where there had been consent by both parties.
6 In due course, following conferral between the parties, they eventually agreed to orders that the appeal be allowed. However, the question of costs is still in issue.
(Page 4)
7 The respondent's submission is that the appellant should pay the respondent's costs of the action before the master and the respondent's costs of the appeal. Alternatively to the appellant paying the respondent's costs of the appeal, the respondent seeks that the appellant pay the respondent's costs of the appeal up to 28 February 2007 and that thereafter there be no order as to costs.
8 Although the appellant's submission is somewhat less focussed, it appears to rest upon the proposition that costs should follow the event, so that the respondent should pay the appellant's costs both of the application before the master and of the appeal. However, in order to save further expense, both parties have consented to the issue of costs being dealt with by the court upon the papers.
9 We have read the affidavit of Andrew Ross Macpherson, upon which the respondent seeks to rely. We note that the appellant objects to its reception. We consider the correspondence to which it refers does not assist us, and in arriving at our decision have had regard only to the material which we have described above.
10 In our view, in relation to the action before the master, it is appropriate that costs follow the event. The result of the appeal being allowed is that the orders of the master, including the order for costs, should be set aside. We see no reason why the respondent should retain the benefit of a costs order which the master had no jurisdiction to make. While it is true that the appellant did not raise, before the master, the jurisdictional issue, it is to be noted that he was self-represented, while the respondent was legally represented.
11 So far as the appeal is concerned, there is, it seems to us, considerable force in the submission that the appellant, by failing to raise the jurisdictional issue until a very late stage, has caused the respondent to incur, quite unnecessarily, a very substantial amount of costs. While, as we have noted, the appellant has the misfortune not to have legal representation, it is plain that he was, in due course, able to bring the jurisdictional issue before the court. The respondent should, in our view, be in no worse position than it would have been had the issue been raised at an appropriate time. It is therefore our view that the appellant should pay the respondent's costs of the appeal up to 15 March 2007, that being the date of the first formal application made to the court for the determination of the jurisdictional issue. By reason of the appellant's failure to raise the question before that time, the issues were obscured, entirely unnecessary proceedings were taken, and the opportunity to
(Page 5)
- dispose of the case expeditiously was lost. It appears to us that the circumstances are sufficiently exceptional to justify an order that the appellant pay the respondent's costs of the appeal up to and including 14 March 2007.
12 Thereafter, we would not make an order that there be no order as to costs. Rather, we would order that, to the extent that the appellant may have disbursements which, as a self-represented litigant, he would be able to claim, the respondent pay the appellant's disbursements (if any) incurred in relation to the appeal.
13 The orders of the court are:
1. The appellant's appeal FUL 131 of 2004 be allowed.
2. The orders of Master Sanderson made 18 August 2004 in CIV 1953 of 2004 be set aside.
3. The appellant pay the respondent's costs of the appeal up to and including 14 March 2007, to be taxed.
4. The respondent pay any disbursements incurred after 14 March 2007, and properly claimable by the appellant in the appeal.
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