Nyoni v Patterson [No 2]

[2011] WASCA 268

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NYONI -v- PATTERSON [No 2] [2011] WASCA 268

CORAM:   NEWNES JA

MURPHY JA

HEARD:   ON THE PAPERS

DELIVERED          :   13 DECEMBER 2011

FILE NO/S:   CACV 89 of 2011

BETWEEN:   EMSON NYONI

Appellant

AND

MURRAY PATTERSON
First Respondent

ROBERT BATEMAN
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2610 of 2010

Catchwords:

Practice and procedure - Costs - Dismissal of appeal against striking out of pleading - Appellant to pay respondents' costs

Legislation:

Nil

Result:

Appellant to pay respondents' costs of appeal

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr A J Sefton

Second Respondent      :     Mr A J Sefton

Solicitors:

Appellant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

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

Nyoni v Patterson [2011] WASCA 215

1. JUDGMENT OF THE COURT:  On 7 October 2011, we dismissed the appellant's application for leave to appeal against a decision of Master Sanderson striking out the appellant's statement of claim:  Nyoni v Patterson [2011] WASCA 215. We found, in substance, that no substantial injustice would be done if the master's decision was not reversed as the appellant had been given leave to repeal by way of a substituted statement of claim and had availed himself of that opportunity. It was not to the point that subsequently leave to amend in terms of the substituted proposed statement of claim had been refused and the action dismissed. That decision was the subject of a separate appeal. We also found that the master had not erred in striking out the original statement of claim.

2. The appellant, who resides in Kellerberrin, did not attend when judgment was delivered due to the distance involved, but sought an opportunity to make submissions on costs.  Following the delivery of judgment, counsel for the respondents made oral submissions on costs.  In substance, it was submitted that, having been successful on the appeal, the respondents were entitled to an order for costs. 

3. The appellant was required to file and serve any written submissions he wished to make by 20 October 2011, on the basis that the question of costs was to be decided on the respondents' oral submissions and the appellant's written submissions.  A copy of the transcript of the respondents' oral submissions was provided to the appellant. 

4. The appellant's submissions were delayed due to his admission to hospital, but were ultimately filed on 18 November 2011.  In effect, the appellant submits that as the appeal against the subsequent decision of Master Sanderson to refuse leave to file a substituted statement of claim and dismiss the action remains pending (the second appeal), the costs of this appeal should be reserved to await the outcome of the second appeal.  The appellant submits that he may be successful on the second appeal and that as both appeals arise out of the same matter, success on the second appeal may alter the position in relation to the costs of this appeal.

5. We do not accept that submission.  The appeals were brought separately and concern different decisions.  It is not to the point that they concern the same action.  If the appellant were to be successful on the second appeal, that would have no bearing on the proper determination of the costs in relation to this appeal.

6. Ordinarily a successful party is entitled to an order for costs. That principle is enshrined in O 66 r 1 of the Rules of the Supreme Court 1971 (WA). There are no circumstances in the present case which would warrant a departure from it. Accordingly, there will be an order that the appellant pay the respondents' costs of the appeal to be taxed.