Ruby v Doric Constructions (Australia) Pty Ltd - [2013] WASCA 94 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	RUBY -v- DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD [2013] WASCA 94 (S)

CORAM

: PULLIN JA

NEWNES JA MURPHY JA

HEARD	:	ON THE PAPERS
DELIVERED	:	5 JUNE 2013
FILE NO/S	:	CACV 36 of 2012

BETWEEN

: RODNEY MARK RUBY

Appellant
AND
DORIC CONSTRUCTIONS (AUSTRALIA) PTY
LTD
First Respondent
STL ENGINEERING PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction

DISTRICT COURT OF WESTERN AUSTRALIA

Coram

: COMMISSIONER GETHING

Citation

:	RUBY -v- DORIC GROUP HOLDINGS PTY LTD [2012] WADC 58

File No

:	CIV 3670 of 2010

[2013] WASCA 94 (S)

Catchwords:

Practice and procedure - Costs - Appeal successful on point not raised below - No order as to costs - Application for certificate under Suitor's Fund Act 1964 (WA) - Relevant considerations

Legislation:

Suitor's Fund Act 1964 (WA), s 10(1), s 13(3)

Result:

No order as to costs of application to District Court
No order as to costs of appeal

Certificate under Suitor's Fund Act granted subject to condition

Category: B

Representation:

Counsel:

Appellant	:	On the papers
First Respondent	:	On the papers
Second Respondent	:	On the papers
Intervenor	:	Not applicable

Solicitors:

Appellant	:	Bradford & Co
First Respondent	:	Jarman McKenna
Second Respondent	:	Tottle Partners
Intervenor	:	Not applicable

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

Richards v Faulls Pty Ltd [1971] WAR 129

JUDGMENT OF THE COURT

[2013] WASCA 94 (S)

JUDGMENT OF THE COURT: On 9 April 2013, we allowed an appeal against a decision of Commissioner Gething in the District Court. The commissioner had refused an application by the appellant for orders that the dismissal of the appellant's action pursuant to r 44G(1) of the District Court Rules 2005 (WA) (the Rules) be set aside and the action be removed from the Inactive Cases List. The commissioner ordered the appellant's former solicitors to pay the respondents' costs of the application.

2 The appeal was allowed on the ground that the proceedings were
never validly entered on the Inactive Cases List, and therefore could not be deemed to have been dismissed for want of prosecution pursuant to r 44G of the Rules. That was not a matter raised before the Commissioner and it was raised in this court only by way of an amendment to the grounds of appeal made in the course of argument on the appeal. The point was first raised in the outline of submissions filed in the appeal by the intervener, the Attorney-General for Western Australia.

There is now an issue between the appellant and the respondents as to the costs of the application before the commissioner and of the appeal.

4 The appellant contends that he should be entitled to the costs below,
the decision of the commissioner having been reversed, or alternatively, he says there should be no order as to costs. He also contends that he should be entitled to the costs of the appeal,…

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 Ruby v Doric Constructions (Australia) Pty Ltd

Details

AGLC: Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94 (S)
Case: [2013] WASCA 94 (S)
Decision Date: 5 JUNE 2013

CaseChat Overview and Summary

In the matter of Ruby v Doric Constructions (Australia) Pty Ltd, the dispute revolved around an appeal from a decision made by Commissioner Gething in the District Court. The appellant, Ruby, had sought to set aside the dismissal of her action under rule 44G(1) of the District Court Rules 2005 (WA) and to remove the action from the Inactive Cases List. The commissioner had rejected Ruby’s application and ordered her former solicitors to pay the respondents' costs. The subsequent disagreement between Ruby and the respondents centred on the allocation of costs for both the application to the District Court and the appeal. The court was required to determine whether costs should be awarded to the respondents for the application and the appeal, and whether the respondents were eligible for indemnity certificates under section 10(1) of the Suitor’s Fund Act 1964 (WA).

The legal issues before the court included the assessment of costs in cases where an appeal is successful on a point not raised before the lower court, and the eligibility of the respondents for indemnity certificates under the Suitor’s Fund Act. The court considered the implications of the appellant’s unsuccessful appeal and the principle that costs should not be awarded for arguments not presented at the trial level. Additionally, the court examined the criteria for granting indemnity certificates, which require an affidavit attesting to the company’s paid up capital not exceeding $200,000.

The court ruled that there should be no order as to the costs of the application to the District Court and the appeal, given the unsuccessful nature of Ruby’s appeal. Furthermore, the court determined that each respondent was eligible for an indemnity certificate concerning the costs of the appeal, subject to the respondents filing an affidavit confirming their paid up capital did not exceed $200,000 within 14 days. This ruling was based on the Suitor’s Fund Act, which provides for indemnity certificates to protect smaller entities from disproportionate costs in legal proceedings.

In conclusion, the court made orders that no costs be awarded for the application to the District Court or the appeal. However, the respondents were granted indemnity certificates for the costs of the appeal, subject to compliance with the Suitor’s Fund Act. This decision highlights the importance of the specific grounds on which appeals are fought and the protections available under the Suitor’s Fund Act for smaller entities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: On 9 April 2013, we allowed an appeal against a decision of Commissioner Gething in the District Court. The commissioner had refused an application by the appellant for orders that the dismissal of the appellant's action pursuant to r 44G(1) of the District Court Rules 2005 (WA) (the Rules) be set aside and the action be removed from the Inactive Cases List. The commissioner ordered the appellant's former solicitors to pay the respondents' costs of the application. There is now an issue between the appellant and the respondents as to the costs of the application before the commissioner and of the appeal. Section 10(1) relevantly reads: We would make the following orders: 1. there be no order as to the costs of the application to the District Court by the appellant by chamber summons dated 13 January 2012; 2. there be no order as to the costs of the appeal; 3. each respondent be granted an indemnity certificate in respect of its costs of the appeal, pursuant to s 10(1) of the Suitor's Fund Act, subject to that respondent filing within 14 days an affidavit of an officer of the company certifying that its paid up capital does not exceed $200,000.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.