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
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
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- Case
- [2022] WADC 12
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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