O'BREE -v- COLLIER [2012] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 88
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:155/2011	Heard:	23 MARCH 2012
Coram:	NEWNES JA MURPHY JA	Delivered:	19/04/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JOHN REGINALD O'BREE LLOYD FREDERICK COLLIER AS TRUSTEE FOR COLLBECK UNIT TRUST TREVOR JAMES BECKWITH AS TRUSTEE FOR COLLBECK UNIT TRUST
Catchwords:	Practice and procedure Application to strike out appeal on ground that likely costs are disproportionate to amount of the claim Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3) Claim for $4,920 Appellant's solicitor acting on 'no win, no fee' basis Parties' likely costs between $13,000 and $18,000 depending on outcome Appeal struck out
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'BREE -v- COLLIER [2012] WASCA 88 CORAM : NEWNES JA

MURPHY JA

HEARD : 23 MARCH 2012 DELIVERED : 19 APRIL 2012 FILE NO/S : CACV 155 of 2011 BETWEEN : JOHN REGINALD O'BREE

Appellant

AND

LLOYD FREDERICK COLLIER AS TRUSTEE FOR COLLBECK UNIT TRUST

First Respondent

TREVOR JAMES BECKWITH AS TRUSTEE FOR COLLBECK UNIT TRUST

Second Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

Citation : COLLIER & BECKWITH as Trustees for COLLBECK UNIT TRUST -v- O'BREE [2011] WADC 216

File No : APP 43 of 2011

(Page 2)

Catchwords:

Practice and procedure - Application to strike out appeal on ground that likely costs are disproportionate to amount of the claim - Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3) - Claim for $4,920 - Appellant's solicitor acting on 'no win, no fee' basis - Parties' likely costs between $13,000 and $18,000 depending on outcome - Appeal struck out

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr E Carlose

First Respondent : Mr T G Darge

Second Respondent : Mr T G Darge

Solicitors:

Appellant : Eapon Carlose

First Respondent : SRB Legal

Second Respondent : SRB Legal

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

Nil

(Page 3)

1 JUDGMENT OF THE COURT: This is an application by the respondents to strike out the appeal pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act),on the ground that the costs of the appeal are disproportionate to the amount of the claim.

2 The appeal arises from proceedings in the Magistrates Court in which the respondents' claim for damages in connection with a motor vehicle collision was dismissed. That decision was reversed on appeal to the District Court and the respondents were awarded damages of $4,920.20, plus interest and costs. The appellant has appealed to this court against the decision of the District Court.

Background

3 The collision occurred at about 5.30 pm on…

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.

Continue reading O'Bree v Collier

Details

AGLC: O'Bree v Collier [2012] WASCA 88
Case: [2012] WASCA 88
Decision Date: 19 APRIL 2012

CaseChat Overview and Summary

The case of O'Bree v Collier involved an appeal to the Supreme Court of Western Australia. The appellant sought damages for injuries sustained in an incident that allegedly occurred due to the negligence of the respondent. The claim was for $4,920, and the appellant's legal representation was provided on a 'no win, no fee' basis. The respondent moved to strike out the appeal, arguing that the likely costs of the appeal process would be disproportionate to the amount in dispute, given that the parties' costs could range between $13,000 and $18,000 depending on the outcome of the appeal.

The central legal issue before the court was whether the appeal should be dismissed due to the likely disproportionate costs relative to the amount claimed. The court had to consider the statutory provision under section 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA), which empowers the court to strike out an appeal if the likely costs are disproportionate to the amount of the claim. The court needed to balance the appellant's right to appeal against the potential financial burden that the appeal process could impose on the respondent.

The court determined that the likely costs of the appeal, which could exceed the amount claimed by a significant margin, were indeed disproportionate to the amount in dispute. The court recognised the potential financial strain on the respondent if the appeal were to proceed and considered it unjust to allow the appeal to continue under such circumstances. Consequently, the court exercised its discretion under the statute and dismissed the appeal. The court's decision was grounded in the principle of proportionality and the prevention of an appeal process that would unduly burden the respondent financially.

Orders

Orders of the court

Appeal dismissed

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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