Legal Research
Cases
La Mela v Fogliani

La Mela v Fogliani

Link copied

Case Copied 11 February 2022 26 min read

Contents

On this page

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LA MELA -v- FOGLIANI [2022] WADC 12
CORAM:   GETHING DCJ
HEARD:   7 FEBRUARY 2022
DELIVERED          :   11 FEBRUARY 2022
FILE NO/S:   APP 65 of 2016
BETWEEN:   VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 86 of 2016
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 93 of 2017
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

FILE NO/S: APP 101 of 2017
BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

ON APPEAL FROM:
For File No:   APP 65 of 2016
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE TEMBY (13 MAY 2016)
File Number            :   PER/GCLM/51084/2012
For File No:   APP 86 of 2016
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE JOHNSTON (21 OCTOBER 2016)
File Number            :   PER/GCLM/51084/2012
For File No:   APP 93 of 2017
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON (19 SEPTEMBER 2017)
File Number            :   PER/GLCM/51084/2012
For File No:   APP 101 of 2017
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON (5 OCTOBER 2017)
File Number            :   PER/GCLM/51084/2012

Catchwords:

Magistrates Court appeal - Appeal from an interlocutory decision of a registrar - Suspension order - Whether error of principle made in a taxation - Whether basis to set aside the certificates of taxation

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 66 r 55

Result:

Suspension orders refused

Representation:

APP 65 of 2016

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 86 of 2016

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 93 of 2017

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

APP 101 of 2017

Counsel:

Appellant	:	In person
Respondents	:	Ms A L Shingler

Solicitors:

Appellant	:	Not applicable
Respondents	:	P A Martino

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

Australia Machinery Engineering (AME) Pty Ltd v Moore Group Holdings Pty Ltd [2017] WADC 124
Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Bray v Ryan [1999] WADC 66
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
Ellis v East Metropolitan Health Service [2018] WADC 36 (S)
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [No 2] [2008] WASCA 75
Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe [No 2] (1992) 8 WAR 96
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Kezic v St John of God Health Care Inc…

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.

Keep reading for free

Create a free CaseChat account to read La Mela v Fogliani and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] WADC 12
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Vincenzo La Mela, an appellant, has been involved in a decade-long litigation against Frank Fogliani and Franklexis Pty Ltd, the respondents, over a $480 invoice for work done on the appellant's 2002 Alfa Romeo 156 twin spark automobile. The most recent instalment of this litigation was an appeal from a decision of a registrar in March 2021 to refuse an application by Mr La Mela to suspend enforcement of a series of costs judgments. The appellant had also sought to challenge the taxation of the underlying bills of costs and to set aside the certificates on those bills. The court found that the appellant's concerns did not establish an error of principle or any other basis to set aside the certificates of taxation. Further, the court found that the costs orders had been paid and there were no current enforcement proceedings to suspend. For this reason, the court declined to make the orders sought.

The court found that the appellant had not made any objection pursuant to Rules of the Supreme Court 1971 (WA) O 66 r 53 to the taxation of the underlying bills of costs before each certificate was signed. The registrar is functus officio once he or she has signed the certificate of taxation. For that reason alone, any application for review brought pursuant to RSC O 66 r 55 would have been dismissed. It follows that it would not have been appropriate to extend the time within which any such application could have been brought. The court further found that there remains an inherent jurisdiction to set aside a certificate of taxation. In determining whether to set aside a certificate of taxation, a relevant consideration is the applicant's prospects of a successful review of the taxation. The court found that none of the appellant's concerns would have given rise to an error of principle by the registrar. Nor would any have given rise to a basis to set aside any of the certificates of taxation. There is a final, more general, basis on which an error in principle may arise, being that it may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong, or where it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question. The court found that it could not infer any such error.

The court found that, in the interests of finality, it was appropriate for it to fix the costs of the hearing before it. The cost determination applicable as at 7 February 2022 was Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA). This sets an hourly rate of $495 for a senior practitioner. The relevant item is item 26(c), an interlocutory hearing in the appeal, for which there is no scale maximum. The hearing on 7 February 2022 took just under an hour. Counsel for the respondent filed written submissions. The court considered that a reasonable amount for necessary work for preparing for and attending the hearing on 7 February 2022 was three hours. Accordingly, the court fixed the costs of the hearing on 7 February 2022 at $1,485, and made it payable by Mr La Mela within 14 days. The court also fixed the costs of the hearing on 10 March 2021 at $495, and made it payable by Mr La Mela within 14 days.

Orders