Ibrahim v The Honourable Justice Carolyn Martin
[2013] WASCA 14 (S)
•15 MARCH 2013
IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2013] WASCA 14 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 14 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:48/2012 | ON THE PAPERS | |
| Coram: | BUSS JA MURPHY JA | 15/03/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant pay respondent's costs of the appeal fixed in the sum of $1,000 | ||
| B | |||
| PDF Version |
| Parties: | TAREK IBRAHIM THE HONOURABLE JUSTICE CAROLYN MARTIN |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 20 |
Case References: | Ibrahim v Herring [2011] WASCA 266 Wilson v McDonald [2009] WASCA 39(S); (2009) 193 A Crim R 80 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2013] WASCA 14 (S) CORAM : BUSS JA
- MURPHY JA
- Appellant
AND
THE HONOURABLE JUSTICE CAROLYN MARTIN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2012] WASC 338
File No : CIV 3020 of 2010
Catchwords:
Practice and procedure - Costs - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 20
Result:
Appellant pay respondent's costs of the appeal fixed in the sum of $1,000
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C J Thatcher
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ibrahim v Herring [2011] WASCA 266
Wilson v McDonald [2009] WASCA 39(S); (2009) 193 A Crim R 80
(Page 3)
1 JUDGMENT OF THE COURT: These reasons deal with the respondent's application for an order for costs following the court's dismissal of the appellant's appeal. On 6 February 2013, the respondent sought costs fixed in the sum of $1,000. The appellant indicated he would oppose the costs order, and mentioned a decision of the President of the Court of Appeal which, he said, demonstrated that there should be no order as to costs. He was directed to identify the decision to which he referred in writing, and to provide written submissions.
2 Pursuant to the court's direction, the appellant provided written submissions in relation to the question of costs on 12 February 2013. He provided further written submissions, without leave, on 22 February 2013. In his written submissions of 12 February 2013, the appellant sought to contend that the decision to dismiss the appeal was erroneous. That plainly is not a consideration relevant to the question of costs. These submissions were not only irrelevant, but were inappropriate and offensive in their tenor and language.
3 The appellant also advanced, in effect, three reasons why there should be no order for costs against him. First, with reference to the decision of the President, he said:
In hearing for another reasons of a decision before the court of appeal, the court of appeal President McLeod J denied the State Solicitor Office cost because the case was under the leave to appeal Ibrahim v The Police Department. That case number is CACR 133/2010 (it was about two minor traffic infringement) she stated something resembling to (the court runs an open leave to appeal and if the respondent chose to join they would do that on their own cost) same in this case as it was under leave to appeal the court need to be consistent. I am using this court decision as one of the bases why respondents should not be awarded the cost. [sic]
4 Secondly, the appellant said that the appeal had 'abated' after the respondent had died, and that in any event he had 'made an effort' after the respondent had passed away to 'jointly discontinue the case'.
5 Thirdly, the appellant indicated that he did not 'agree' that the proposed sum of $1,000 for costs was reasonable.
6 In relation to the appellant's first contention, the court published reasons for judgment in case number CACR 133/2010 in Ibrahim v Herring [2011] WASCA 266. The court's reasons do not address the question of costs. The respondent's solicitors acknowledged, however, that in that matter the State Solicitor's Office had applied for costs and was refused. Nevertheless, that was a case where the Registrar's Notice to
(Page 4)
- Attend with respect to the hearing of the appellant's application for an extension of time stated that the respondent was not required to attend the hearing.
7 This case is a civil proceeding whereas Ibrahim v Herring was governed by pt 2 div 3 of the Criminal Appeals Act 2004 (WA). As to the power to award costs conferred by s 20 of the Criminal Appeals Act, see Wilson v McDonald [2009] WASCA 39(S); (2009) 193 A Crim R 80. Neither the decision in Ibrahim v Herring, nor the particular circumstances of that case, have any application to the proper disposition of the costs application in this case. In this case, the appellant applied for an extension of time and the respondent properly resisted the application and also sought an order that the appeal be dismissed pursuant to Pt 5 r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The respondent was the successful party. The usual rule in civil proceedings is that the successful party is awarded costs.
8 Secondly, it is unnecessary to determine whether the appeal abated after the death of the respondent. The hearing of the application to extend time, and the respondent's application to have the appeal dismissed for non-compliance with the rules, occurred on 18 September 2012. Although on that occasion the appellant was given liberty to provide further affidavits and written submissions by 2 October 2012, and for the respondent to file and serve any material in reply by 9 October 2012, the bulk of the costs incurred by the respondent would have been incurred prior to her death on 2 October 2012. Even if the appeal had abated on 2 October 2012 (which it remains unnecessary to decide) there would be no occasion for the respondent to be deprived of costs prior to then.
9 Also, although the appellant said that he made an effort to have the appeal discontinued, there was no application to this court to that effect and, even if there had been, it could not be supposed that the application to discontinue would have resulted in the appellant not being ordered to pay costs prior to that date.
10 In relation to the appellant's third contention, in our view, the costs claimed are reasonable in relation to the costs incurred by the respondent prior to 2 October 2012 (compare, for example, item 23(e) of the table to cl 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)).
(Page 5)
11 In all the circumstances, the usual rule should apply. The court will order that the appellant pay the respondent's costs fixed in the sum of $1,000.
12 The appellant did not have leave to file the additional submissions of 22 February 2013, and it is not appropriate to take them into account. Even if they were taken into account, there is nothing in them which would displace the conclusion reached above.
13 The court's order will be:
1. The appellant do pay the respondent's costs of the appeal, fixed in the sum of $1,000.
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