Ibrahim v Herring [No 2]

[2012] WASC 508

IBRAHIM -v- HERRING [No 2] [2012] WASC 508

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 508
Case No:	SJA:1091/2009	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	28/12/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL STEVEN HERRING
Catchwords:	Costs ordered after appeal Application to delay enforcement No new principles
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15
Case References:	Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) WAR 308 Ibrahim v Herring (No 4) [2012] WASCA 56 Ibrahim v Herring [2010] WASC 190 Ibrahim v Herring [2011] WASCA 266 State Bank of Victoria v Parry (1989) WAR 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : IBRAHIM -v- HERRING [No 2] [2012] WASC 508 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 28 DECEMBER 2012 FILE NO/S : SJA 1091 of 2009 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL STEVEN HERRING
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R G W BAYLY

File No : PE 27969 of 2007, PE 27970 of 2007, PE 27971 of 2007

Catchwords:

Costs ordered after appeal - Application to delay enforcement - No new principles

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) WAR 308
Ibrahim v Herring [2010] WASC 190
Ibrahim v Herring [2011] WASCA 266
Ibrahim v Herring [No 4] [2012] WASCA 56
State Bank of Victoria v Parry (1989) WAR 240


(Page 3)

1 McKECHNIE J: The appellant has filed an application purportedly in an appeal:

The applicant applies under section 15 of the civil enforcement act for suspension of the cost order on the ground of hardship.

The parties to this application have conferred about the issues giving rise to this application and have not resolved them.

The parties to this application have not conferred about the issues giving rise to this application because:

It is difficult to negotiate with the state solicitor personal and on every occasion the appellant approached the solicitor to settle a matter no results was achieved.

2 The application is misconceived. On 28 July 2010, Hall J gave judgment refusing leave to appeal: Ibrahim v Herring [2010] WASC 190. An appeal against that decision was subsequently dismissed: Ibrahim v Herring [2011] WASCA 266. On 13 March 2012 an application for stay of delivery of judgment was refused: Ibrahim v Herring [No 4] [2012] WASCA 56.

3 When, on 28 July 2010, Hall J ordered that the appeal be dismissed he also ordered the 'appellant to pay the respondent's costs as agreed, if not agreed to be taxed'. Costs were not agreed and on 2 April 2012 costs were taxed by Registrar Dixon in the sum of $7,337.97.

4 The Civil Judgments Enforcement Act 2004 (WA) s 15 provides:

Suspension order

(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to —


(a) the court that gave the judgment; or

(b) a court that is dealing with an appeal against the judgment.


(2) The court may deal with such an application in the absence of the person entitled to the benefit of the judgment if it is just to do so.

(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.

(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.

(Page 4)

5 Discretion to grant a stay is only enlivened if the applicant can demonstrate special circumstances: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) WAR 308; State Bank of Victoria v Parry (1989) WAR 240.

6 The grounds in the application are insufficient to amount to special circumstances. A successful party is entitled to the fruits of judgment. Hardship in meeting the judgment cannot amount to sufficient reason to postpone judgment. Moreover, the appellant has not produced evidence of hardship apart from his bare assertion.

7 The normal reason for a suspension order is the prospect or existence of an appeal in circumstances where the appeal may be frustrated if a stay is refused. There may be other reasons but the appellant does not demonstrate any. The appellant engaged the legal process and lost. The bill was taxed long ago. There are no special circumstances and the application is refused.