Saffari v State of Western Australia

[2023] WASCA 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SAFFARI -v- STATE OF WESTERN AUSTRALIA [2023] WASCA 89

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   26 MAY 2023

DELIVERED          :   26 MAY 2023

PUBLISHED           :   26 MAY 2023

FILE NO/S:   CACV 34 of 2023

BETWEEN:   SHAHRIAR SAFFARI

Appellant

AND

STATE OF WESTERN AUSTRALIA

First Respondent

DANIEL TALBOT

Second Respondent

MAHER FLEYFEL

Third Respondent

ANDREW MACKAY

Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   STRK J

Citation: SAFFARI -v- STATE OF WESTERN AUSTRALIA [No 2] [2023] WASC 46 (S)

File Number            :   CIV 3183 of 2019

Catchwords:

Appeal - Practice and procedure - Appeals against costs orders - Whether leave to appeal should be granted against an order fixing costs in the amount of $2,647.50 - Where costs to the public and the parties of the appeal are disproportionate to the amount at stake in the appeal 

Legislation:

Supreme Court Act 1935 (WA) s 60(1)(e)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	N F Malone and S Liu
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Third Respondent	:	Pragma Lawyers
Fourth Respondent	:	In Person

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

Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41

Saffari v The State of Western Australia [2023] WASC 46

Saffari v The State of Western Australia [2023] WASC 46 (S)

REASONS OF THE COURT:

[These reasons were delivered orally and have been edited from the court's record of the decision]

1. We are considering the appellant's application for leave to appeal against an order that the appellant pay 50% of the third respondent's (Mr Fleyfel's) costs of an interlocutory application in the primary proceedings, fixed in the sum of $2,647.50.

2. Mr Fleyfel filed an interlocutory application to remove him as a party to the primary proceedings and to strike out the appellant's amended further substituted statement of claim filed on 25 October 2022.  That application was partly successful.  The primary judge held that Mr Fleyfel should not be removed as a party but that the claim against him should be struck out on the basis that the pleading may prejudice, embarrass or delay a fair trial.   The appellant was given leave to replead his claim.  The primary judge published written reasons for that decision.[1]

   [1] Saffari v The State of Western Australia [2023] WASC 46 [106] - [121].

3. The primary judge also gave written reasons for her decision to award Mr Fleyfel 50% of the costs of his partly successful interlocutory application and to fix those costs in the specified amount.[2]

   [2] Saffari v The State of Western Australia [2023] WASC 46 (S).

4. Leave to appeal against a decision as to costs only is required under s 60(1)(e) of the Supreme Court Act 1935 (WA). An appellate court will not, in the absence of strong reasons, interfere with an exercise of discretion on the question of costs. It is necessary to demonstrate manifest error or that the order stands outside the limits of a sound discretionary judgment.[3]   

5. Having considered the appellant's grounds of appeal and submissions, we are not persuaded that the appeal against the exercise of the primary judge's discretionary judgment as to costs has any reasonable prospect of succeeding.  The costs orders reflect the usual rule that costs should follow the event, making an allowance for the fact Mr Fleyfel's application was only partly successful.  We are not persuaded that the primary judge arguably erred in evaluating the appropriate proportion of costs which should be awarded to Mr Fleyfel.  Further, it appears to us that the resources of the court and the parties, which the appeal would consume if leave were to be granted, is disproportionate to the amount at stake in the appeal, being an award of the fixed amount of $2,647.50.  In all the circumstances, in our view it is not in the interests of justice to grant leave to appeal.

6. The orders we now make are:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.

[3] See Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [165].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Mitchell

26 MAY 2023