Muriale v Hoghton - [2022] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MURIALE -v- HOGHTON [2022] WASC 22
CORAM:   REGISTRAR GRIFFIN
HEARD:   ON THE PAPERS
DELIVERED          :   1 FEBRUARY 2022
FILE NO/S:   CIV 2013 of 2021
BETWEEN:   ANGELA MARISSA MURIALE
Plaintiff
AND
DANIEL JOHN HOGHTON
First Defendant
KRISTY MICHELLE HOGHTON
Second Defendant
DANIEL JOHN HOGHTON
KRISTY MICHELLE HOGHTON
Plaintiff by counterclaim
ANGELA MARISSA MURIALE
Defendant by counterclaim

Catchwords:

Application for costs - Strike Out Application - Conferral process - Costs order when no decision on the merits - Costs thrown away

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Defendants are entitled to their costs of the Strike Out Application and this application for those costs

Category: B

Representation:

Counsel:

Plaintiff	:	No Appearance
First Defendant	:	No Appearance
Second Defendant	:	No Appearance
Plaintiff by counterclaim	:	No Appearance
Defendant by counterclaim	:	No Appearance

Solicitors:

Plaintiff	:	Chalmers Legal Studio Pty Ltd
First Defendant	:	Fletcher Law
Second Defendant	:	Fletcher Law
Plaintiff by counterclaim	:	Fletcher Law
Defendant by counterclaim	:	Chalmers Legal Studio Pty Ltd

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

Chaffey Services Pty Ltd As Trustee For Cataby Services Trust, t/a Cataby Services v Doble [2021] WASC 391
Dudley v Reece Australia Pty Ltd [2021] WASC 240
Palamara v City of Perth (1995) WAR 235
Sobey v Commission of Taxation [2008] FCA 1621
The Liberal Party of Australia (Western Australia Division) Inc v City of Gosnells [2013] WASC 267
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161

REGISTRAR GRIFFIN:

This is the defendants' application for the costs of an application to strike out the plaintiff’s statement of claim (Strike Out Application).

Background

The application is being determined on the papers. Pursuant to orders made by consent on 10 November 2021, the parties have filed affidavits and submissions. The defendants filed an affidavit of Bushra Tariq affirmed 19 November 2021 (Tariq Affidavit 1), submissions dated 3 December 2021 and 17 December 2021 (which were responsive submissions) and an affidavit of Bushra Tariq affirmed 17 December 2021 (Tariq Affidavit 2). The plaintiff filed submissions dated 10 December 2021 and did not file any affidavit evidence.
Pursuant to order 4(c) of the orders of 10 November 2021, the defendants had leave to file any affidavit evidence purely responsive to the plaintiff's affidavit evidence. The plaintiff did not file any affidavit evidence so on the face of it, the defendants did not have leave to file Tariq Affidavit 2.
In a footnote to the responsive submissions the defendants sought leave to rely upon Tariq Affidavit 2, on the basis that the content of the affidavit was not contentious, and it was not anticipated that the plaintiff would suffer any prejudice if leave was granted.[1] The plaintiff has not taken issue with Tariq Affidavit 2. The affidavit annexes correspondence between the parties commencing 3 December 2021 and a screenshot of the eCourts portal.…

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 Muriale v Hoghton 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] WASC 22
Decision Date

CaseChat Overview and Summary

In this case, the plaintiff, Angela Marissa Muriale, filed a statement of claim against the defendants, Daniel John Hoghton and Kristy Michelle Hoghton. The defendants subsequently filed a strike out application, which was rendered otiose by the plaintiff's amendment of the statement of claim. The defendants applied for the costs of the strike out application and this subsequent application for those costs. The application was determined on the papers.

The court considered whether the defendants were entitled to the costs of the strike out application, given that it was not served and did not proceed to a substantive hearing. The court found that the defendants were entitled to the costs, as the plaintiff's conduct during the conferral process demonstrated that there were no real issues in dispute. The plaintiff's failure to engage in meaningful conferral and her subsequent amendment of the statement of claim showed that the defendants acted reasonably in issuing the strike out application. The court also found that the defendants were entitled to the costs thrown away by reason of the amendment to the statement of claim.

The court ordered that the plaintiff pay the defendants' costs of the strike out application and this application for those costs, to be taxed if not agreed.

The final orders of the court were as follows:

1. The plaintiff do pay the defendants' costs of the strike out application made by chamber summons filed on 28 October 2021.
2. The defendants' costs of the application for a costs order with respect to the strike out application are to be taxed if not agreed.

Orders