Rankilor v City of South Perth

[2016] WASCA 29 (S)

RANKILOR -v- CITY OF SOUTH PERTH [2016] WASCA 29 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 29 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:124/2014	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	30/03/16
No of pages:	3	Judgment Part:	1 of 1
Result:	Application to set aside costs order dismissed
Category:	B
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Parties:	WENDY RANKILOR CITY OF SOUTH PERTH
Catchwords:	Costs Appeal dismissed Application to set aside costs order in favour of respondent No reason to depart from usual order as to costs
Legislation:	Nil
Case References:	Rankilor v City of South Perth [2016] WASCA 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RANKILOR -v- CITY OF SOUTH PERTH [2016] WASCA 29 (S) CORAM : BUSS JA

NEWNES JA
MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 30 MARCH 2016 FILE NO/S : CACV 124 of 2014 BETWEEN : WENDY RANKILOR

Appellant

AND

CITY OF SOUTH PERTH
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : BOWDEN DCJ

Citation : RANKILOR -v- CITY OF SOUTH PERTH [No 2] [2014] WADC 125

File No : CIV 13 of 2013

Catchwords:

Costs - Appeal dismissed - Application to set aside costs order in favour of respondent - No reason to depart from usual order as to costs

Legislation:

Nil

Result:

Application to set aside costs order dismissed

Category: B

Representation:

Counsel:

Appellant : On the papers
Respondent : On the papers

Solicitors:

Appellant : In person
Respondent : John Eller

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

Rankilor v City of South Perth [2016] WASCA 29



1 JUDGMENT OF THE COURT: This is an application by the appellant to set aside a costs order made against her following the dismissal of her appeal.

2 On 12 February 2016, this court dismissed an appeal by the appellant from a decision of Bowden DCJ in the District Court who had dismissed the appellant's claim against the respondent for damages for personal injury: Rankilor v City of South Perth [2016] WASCA 29. The appellant was ordered to pay the respondent's costs of the appeal. As the appellant did not attend when the court delivered judgment on the appeal, despite having been given prior notice of the time and date of judgment delivery, an order was made that the appellant have liberty to apply by 4.00 pm on 17 February 2016 to set aside or vary the costs order.

3 In an email to the court dated 14 February 2016, the appellant said that she was in Melbourne visiting relatives and sought an extension of time to 29 February 2016 to apply to set aside the costs order. That extension was allowed.

4 The application was filed on 29 February 2016, accompanied by an affidavit of the same date. It is unnecessary to canvass the contents of the affidavit. Suffice it to say there is nothing contained in it that might justify a departure from the costs order made on 12 February 2016. The appellant's only material contention is that this court was in error in dismissing the appeal. That is not a basis upon which the costs order might be altered. It is a matter that, if it is to be pursued, can be pursued only by way of an application to the High Court for special leave to appeal - a course the appellant says in the affidavit that she intends to take. As matters stand, the respondent was the successful party on the appeal and there is nothing before us that might justify a departure from the usual rule that the successful party is entitled to an order for costs.

5 However, without descending into the detail of the reasons the appellant contends this court was in error in dismissing her appeal, we should note that her assertion that the court found the respondent had a complete defence based on s 5Z of the Civil Liability Act 2002 (WA) is simply wrong. We found, in substance, that the appellant had failed to establish any breach by the respondent of its duty of care. In light of that finding, we considered it unnecessary to deal with the respondent's defence under s 5Z of the Civil Liability Actand expressly declined to make any finding on it.

6 The application is dismissed.