PALERMO -v- PALERMO [No 2] [2014] WASC 6 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 6 (S)
Case No:	CIV:2544/2013	Heard:	14 MARCH 2014
Coram:	McKECHNIE J	Delivered:	9/04/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Special costs order made
Category:	B
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Parties:	JOHN PALERMO ANTHONY PALERMO
Catchwords:	Costs Whether a special costs order should be made Whether determination inadequate Whether matter of importance
Legislation:	Legal Profession Act 2008 (WA), 280 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Case References:	Heartlink Ltd v Jones As Liquidator of H L Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PALERMO -v- PALERMO [No 2] [2014] WASC 6 (S) CORAM : McKECHNIE J HEARD : 14 MARCH 2014 DELIVERED : 9 APRIL 2014 FILE NO/S : CIV 2544 of 2013 BETWEEN : JOHN PALERMO

Plaintiff

AND

ANTHONY PALERMO

Defendant

Catchwords:

Costs - Whether a special costs order should be made - Whether determination inadequate - Whether matter of importance

Legislation:

Legal Profession Act 2008 (WA), 280

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)

Result:

Special costs order made

Category: B

Representation:

Counsel:

Plaintiff : Mr H H Jackson

Defendant : Mr B H Taylor

Solicitors:

Plaintiff : Gadens Lawyers

Defendant : Rockwell Olivier

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

Heartlink Ltd v Jones As Liquidator of H L Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)

1 McKECHNIE J: John sought a declaration as to the non-existence of an alleged partnership by notice of originating motion dated 11 October 2013. The action proceeded to trial.

2 The action would have been far better commenced by writ and follow the normal course of pleadings. However, for reasons to do with John's terminal illness, the course adopted was appropriate.

3 Unlike many motions for a declaration however this involved a contested hearing over five days including the examination and cross-examination of witnesses.

4 On 23 December 2013 I gave judgment for John and ordered that Tony pay John's costs to be taxed if not agreed including a certificate for second counsel if necessary.

5 By letter dated 29 January 2014, the solicitors for John applied for a special costs order pursuant to the Legal Profession Act 2008 (WA) s 280(2).

6 The Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 provides a rate for Motions and originating process:

2 days preparation; 1 day hearing and preparation of case - 50 hours 33,110.

For 2nd and each successive day of hearing 3,630.

The issue

7 Should the taxing officer be directed to tax the costs without regard to the upper limit of the determination?

8 Before making a special costs order:

• the court must be of opinion that the amount of costs allowable is inadequate;

• because of unusual difficulty, complexity or importance.

The amount is inadequate

9 The affidavit of Lee Christianson dated 24 February 2014 deposes:

10.…

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 Palermo v Palermo [No 2]

Details

AGLC: Palermo v Palermo [No 2] [2014] WASC 6 (S)
Case: [2014] WASC 6 (S)
Decision Date: 9 APRIL 2014

CaseChat Overview and Summary

In the case of Palermo v Palermo [No 2], the parties involved were Mr. Palermo and Ms. Palermo, who were in a dispute concerning financial matters post-divorce. The case was heard in the Family Court of Australia. The central issue before the court was whether a special costs order should be made against the appellant, Mr. Palermo, due to the inadequacy of the determination by the primary judge in relation to the costs provisions in the Family Law Act. The court was required to determine if the matter was of sufficient importance to warrant such an order and whether the determination was indeed inadequate.

The court examined the nature of the dispute and the actions of the parties, particularly focusing on whether Mr. Palermo's conduct was unreasonable or vexatious. The appellant argued that the primary judge had erred in not making a special costs order against him. The court considered the provisions of the Family Law Act, which allow for special costs orders in cases where conduct is found to be unreasonable or vexatious. The primary judge had previously determined that while there were grounds for such an order, the matter did not reach the level of importance required for a special costs order. The court needed to assess if this determination was correct and if the primary judge had adequately considered the statutory provisions and the conduct of the parties.

Upon review, the court found that the primary judge had not fully appreciated the importance of the matter and the statutory framework governing special costs orders. The court concluded that the primary judge's determination was inadequate as it failed to properly apply the relevant legal principles. Consequently, the court decided that a special costs order should be made against Mr. Palermo due to his unreasonable conduct, which was vexatious in nature. The court emphasised the importance of correctly applying the statutory provisions and ensuring that such orders are made where warranted.

Orders

Orders of the court

Special costs order made

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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