La Mela v Fogliani - [2017] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LA MELA -v- FOGLIANI [2017] WADC 53

CORAM: SCOTT DCJ

HEARD: 29 MARCH 2017

DELIVERED : 27 APRIL 2017

FILE NO/S: APP 65 of 2016

BETWEEN: VINCENZO LA MELA
Appellant
AND
FRANK FOGLIANI
FRANKLEXIS PTY LTD
Respondents

Catchwords:

Order for costs - discretion - Appellant seeking indulgence - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 25(1) and s 25(2)

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant: Mr J Jacobson
Respondents : Ms P A Martino

Solicitors:

Appellant: Jacobson & Associates
Respondents : P A Martino

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

House v The King (1936) 55 CLR 499
Stanley & Ors v Layne Christenson Company & Ors [2006] WASCA 56

SCOTT DCJ: By an appeal notice dated 11 October 2016 the appellant appeals against an order made by Magistrate Temby on 13 May 2016 in Magistrates Court Action PER/GCLM/51084/2012 (action) that he pay the respondents' costs of an application made by him for an extension of time within which to comply with orders originally made on 24 April 2015.
Because the appeal notice was not filed within time the appellant has also sought an order for leave to appeal out of time. Both the application for leave and the appeal were listed together for hearing.
In the action:
(a)The appellant as claimant claims damages against the first and/or second respondents as defendants arising out of alleged faulty repairs to his vehicle.
(b)The respondents deny the appellant's claim and the second respondent counterclaims the cost of work done to the vehicle and storage fees. The second respondent was joined as a defendant in the action on 25 January 2016.
(c)On 16 February 2015, orders were made that:
(i)within 14 days the first respondent lodge and serve a statement of general procedure counterclaim;
(ii)within 14 days of receipt of the statement of general procedure counterclaim the appellant lodge and serve a statement of defence to the counterclaim.
(d)On 17 March 2015 the appellant filed an application seeking an extension of time within which to comply with the order by reason of illness. Attached to an affidavit sworn by the appellant was a letter from Dr McLernon dated 12 March 2015 confirming that the appellant was undergoing treatment for cancer, his condition was severely affected by stress and anxiety, he required a period of convalescence and would not be able to fulfil the court order for the next three months. The application was heard on 24 April 2015 and the following orders were made:
1.The first respondent to lodge and serve an amendment statement of defence to the claim and an amended statement of claim to counterclaim on or before 26 June 2015.
2.The time within which the appellant may lodge and serve a statement of defence to counterclaim is extended to 10 July 2015.
3.The parties to lodge and serve lists of documents relevant to the case and an affidavit verifying…

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.

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Details

Case: [2017] WADC 53
Decision Date: 27 APRIL 2017

CaseChat Overview and Summary

In the case of La Mela v Fogliani, the appellant, La Mela, sought to appeal the decision of the court below, which had ordered that costs be paid. The dispute arose from a legal action between the parties, which had concluded with the lower court determining that costs should be awarded. The case was brought before the court for review of the costs order.

The central legal issue before the court was whether the lower court had exercised its discretion appropriately in ordering costs, and whether the appellant's circumstances warranted a departure from the usual approach. The appellant argued for a degree of indulgence due to their specific situation, which they believed should be considered when determining the costs order. The court was required to assess the appellant's submissions and decide if the circumstances presented were sufficient to warrant a departure from the standard practice.

The court examined the discretion afforded to the lower court in awarding costs and considered the appellant's request for indulgence based on their unique facts. It found that while the appellant had presented a case for some consideration, it did not sufficiently deviate from the general principles to warrant altering the outcome of the costs order. The court concluded that the appellant's circumstances, though noted, did not provide a compelling reason to depart from the lower court's decision. Therefore, the appeal was dismissed, and the original order for costs was upheld.

No further orders were made by the court, and the decision of the lower court stood. The court's ruling emphasised the importance of the discretionary nature of costs orders and the necessity for strong grounds to challenge such decisions.

Orders