La Mela v Fogliani
[2017] WADC 53
•27 APRIL 2017
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he pay the respondents' costs of an application made by him for an extension of time within which to comply with orders originally made on 24 April 2015.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 the list on or before 24 July 2015.
4.The parties to lodge listing conference memoranda annexing statements of intended evidence on or before 15 August 2015 and provide their unable dates for a listing conference at the same time.
Orders 1 ‑ 3 were complied with. Orders 4 and 5 were complied with by the first respondent.
(e)By an application made 23 July 2015 the appellant sought orders that the second respondent be joined as a defendant and that the case be put on hold for the next three months by reason of his medical condition. Annexed to his supporting affidavit was a further report from Dr McLernon dated 20 July 2015 which was in similar terms to his earlier letter. The application was set down for hearing for 26 October 2015 by which time the respondents were represented.
On 22 October 2015 the appellant filed an affidavit to which a further report dated 22 October 2015 from Dr McLernon was annexed in which Dr McLernon again opined that the appellant required a period of convalescence and would not be able to fulfil a court order for the next three months.
On 26 October 2015 the court ordered:
(i)The appellant's application dated 23 July 2015 be adjourned to 25 January 2016.
(ii)If the appellant applied for any further adjournments on the grounds of ill‑health he was to provide to the court a detailed medical report particularising the reasons why he is unfit to continue with the proceedings including but not confined to his diagnosis, prognosis and treatment regime.
(f)On 25 January 2016 orders were made including:
(i)The time for the appellant to comply with orders 4 and 5 made 24 April 2015 be extended to 31 March 2016.
(ii)Any application by the appellant to extend the time to be supported by medical evidence detailing diagnosis, treatment and prognosis.
I note that there did not appear to be any additional medical report later than Dr McLernon's report of 22 October 2015.
(g)By an application dated 23 March 2016 the appellant sought an order that the time for compliance with orders 4 and 5 made 24 April 2015 be further extended for three months. That application was supported by an affidavit sworn by him and attached reports from Dr McLernon dated 10 March 2016 and Dr Helberg, a radiologist. In his report Dr McLernon said that the appellant's lung cancer had worsened on recent imaging and that the appellant would be having further testing in the coming months and should avoid being exposed to situations which may cause stress. As a consequence he would not be able to fulfil a court order for the next three months. Dr McLernon said that the treatment involved further monitoring and imaging, antidepressant medication and probable further radiotherapy treatment. He said that the medium term prognosis was good. He had some reservation regarding the long term prognosis due to the uncertain course of his lung cancer.
The application was heard on 13 May 2016. The respondents opposed the application. The solicitors for the respondents filed an affidavit sworn by Ms Shingler in which she summarised the various extensions of time granted to the appellant to comply with orders 4 and 5.
In addition the respondents filed a minute of proposed orders in the following terms:
1.The appellant's application dated 24 March 2016 be dismissed.
2.The time for the appellant to comply with orders 4 and 5 made 24 April 2015 be extended to 3 June 2016.
3.If the appellant did not comply with order 2 then:
(i) the appellant's claim against the first and second respondents be dismissed; and
(ii)default judgment be entered against the appellant in favour of the second respondent with respect to the first and second respondents' counterclaim dated 21 January 2015 and costs to be taxed if not agreed.
4.The appellant pay the respondents' costs of the application to be assessed if not agreed.
Proceedings on 13 May 2016
By his application the appellant sought to have it dealt with ex parte however he was informed that the application was to be listed in the general application list. The application came on for hearing before Magistrate Temby. A transcript of those proceedings are included in the appeal papers.
His Honour made the following orders:
1.a springing order in terms that unless the appellant complied with orders 4 and 5 made on 24 April 2015 by 30 June 2016 the appellant's claim would be dismissed and there would be judgment for the counterclaim;
2.there would be general liberty to apply; and
3.the appellant pay the respondents' costs of the application.
The appellant complied with orders 4 and 5 in accordance with the springing order.
The law
The appeal notice was filed on 11 October 2016 which was well out of time. However the respondents' do not assert that they are prejudiced by the late filing of the appeal notice. They say that the appeal is, however, without merit. As I say the application for leave and the appeal can be conveniently dealt with together.
It is common ground that because this is an appeal against a discretionary order the appellant must demonstrate that an error has been made by the learned magistrate in exercising his discretion. The principles are conveniently summarised in House v The King (1936) 55 CLR 499 in which the High Court said (504 – 505):
It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In Stanley & Ors v Layne Christenson Company & Ors [2006] WASCA 56 the Court of Appeal said, with respect to cost orders in circumstances where the indulgence of the court is sought, the following [52]:
The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the 'normal rule' relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer.
The appellant says that the learned magistrate should have made an order that the appellant have the costs of the application or that costs be in the cause.
The arguments advanced by the appellant from which he says I ought to find that the learned magistrate made an error in exercising his discretion are as follows:
1.His Honour had not reviewed or digested all of the documents filed in support of the application and was not familiar with the facts, nor with the background of the action. To that end his Honour said that the application was to have been dealt with by his Honour Magistrate Cockram who was ill and that he was given Magistrate Cockram's workload about 20 minutes before he started his own workload at 9.30 am so he simply had not been able to digest the material that was on the file.
2.Notwithstanding that he made a springing order as sought by the respondents his Honour allowed the appellant's application in that he granted an extension of time within which the appellant could comply with orders 4 and 5 made 24 April being aware that the appellant's ground for the application was that he was suffering from illness and then unable to comply with those orders.
As such the appellant was successful in his application and the starting point with respect to costs was therefore s 25(1) of the Magistrates Court (Civil Proceedings) Act 2004 (Act).
Section 25 of the Act relevantly provides:
(1)The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
(2)A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order …
3.His Honour did not allow the appellant the opportunity to make a submission as to costs.
4.As to the submission made by the respondents that his Honour granted costs in favour of the respondents because of case management principles the appellant says that was not borne out by the transcript of the proceedings. In any event his Honour was not, by his own admission, aware of the history of the proceedings which, in fact, involved defaults by both the appellant and respondents in compliance with orders made during the course of the action.
On the other hand counsel for the respondents submitted that his Honour was aware of the nature of the application and the medical evidence underpinning it and that a number of extensions had been sought and obtained by the appellant since the orders were made in April 2015. As a matter of case management his Honour was correct in making orders to move the case along towards conclusion.
Conclusion
I am not satisfied that his Honour fell into error in exercising his discretion to award costs to the respondents. My reasons for reaching that conclusion are as follows:
(a)It is true that his Honour admitted receiving the application late however it is clear from the transcript that he was aware of the nature of the application and, I infer, a summary of the occasions upon which extensions of time had been afforded to the appellant with respect to compliance with orders 4 and 5 to which reference was made in Ms Shingler's affidavit. In addition his Honour had considered the medical certificate of Dr McLernon dated 10 March 2016 and, I infer, the attachment from the radiologist.
(b)The submission made by Ms Shingler that the point had been reached where case management principles come into effect were apt – not because there had been defaults by both parties (which were from my reading of the file fairly evenly balanced) – but in order to progress the action towards a conclusion.
(c)It is clear from the transcript that his Honour patiently explained to the appellant the effect of a springing order in circumstances where he was mindful of the appellant's ongoing medical condition. To facilitate any application for a further indulgence he made an order for general liberty to apply but impressed upon the appellant that he ought not think that meant that he could continue to obtain delays in the progress of the case.
(d)It is true that the appellant was not invited to make submissions with respect to the matter of costs. In my view, given that the appellant was seeking an indulgence of the court, it would only have been appropriate to make an order for costs adverse to the respondents if the respondents had acted unreasonably in opposing the application. In the circumstances of this case the respondents' actions in opposing the application were not unreasonable. The costs order did not involve difficult considerations for his Honour. This was a further indulgence sought by the appellant in circumstances where his Honour was aware that there had been earlier extensions of time with respect to compliance with orders made nearly 12 months earlier. Having regard to the principles enunciated in Stanley v Layne Christenson and the matters known to his Honour an order that the respondents have the costs of the application was entirely appropriate.
If I am wrong and the failure on the part of his Honour not to invite the appellant to make submissions on costs was an error in the exercise of his discretion, I am satisfied having reviewed the court file, that in all the circumstances the appropriate order was that the appellant pay the respondents' costs of the application. From the court file there was nothing which the appellant could likely have contended which was not already self‑evident.
I would grant leave to the appellant to appeal out of time but dismiss the appeal.
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