SWINDALE -v- BABIC [No 2] [2007] WASCA 262 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 262 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:132/2007	Heard:	21 NOVEMBER 2007
Coram:	PULLIN JA NEWNES AJA	Delivered:	2/12/07
Supplementary Delivered:	18/02/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Respondent to pay appellant's costs of the appeal
Category:	B
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Parties:	KENNETH GRIFFITHS SWINDALE DINKO BABIC
Catchwords:	Costs Costs of successful appeal Whether conduct disentitling appellant to order for costs Turns on own facts
Legislation:	Suitors' Fund Act 1964 (WA), s 10
Case References:	Cilli v Abbott (1981) 53 FLR 108 Latoudis v Casey (1990) 170 CLR 534 Swindale v Babic [No 2] [2007] WASCA 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWINDALE -v- BABIC [No 2] [2007] WASCA 262 (S) CORAM : PULLIN JA

NEWNES AJA

HEARD : 21 NOVEMBER 2007 DELIVERED : 3 DECEMBER 2007 SUPPLEMENTARY
DECISION : 19 FEBRUARY 2008 FILE NO/S : CACV 132 of 2007 BETWEEN : KENNETH GRIFFITHS SWINDALE

Appellant

AND

DINKO BABIC

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

Citation : BABIC -v- SWINDALE [2007] WADC 166

File No : CIV 1862 of 2006

(Page 2)

Catchwords:

Costs - Costs of successful appeal - Whether conduct disentitling appellant to order for costs - Turns on own facts

Legislation:

Suitors' Fund Act 1964 (WA), s 10

Result:

Respondent to pay appellant's costs of the appeal

Category: B

Representation:

Counsel:

Appellant : Mr M H Zilko QC

Respondent : Mr D R Clyne

Solicitors:

Appellant : Williams Handcock

Respondent : Simon Walters

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

Cilli v Abbott (1981) 53 FLR 108
Latoudis v Casey (1990) 170 CLR 534
Swindale v Babic [No 2] [2007] WASCA 262

(Page 3)

1 JUDGMENT OF THE COURT: On 3 December 2007, this court upheld the appellant's appeal against the decision of the learned trial judge by which his Honour refused the appellant's application to rely on certain medical evidence at the trial of the action. We set aside the decision and remitted the appellant's application to the learned trial judge for further hearing: Swindale v Babic [No 2] [2007] WASCA 262.

2 An issue has now arisen between the parties as to the costs of the appeal. The respondent contends that the appellant should pay his costs of the appeal, on the ground that the application to the learned trial judge, and the appeal to this court, only came about because of the appellant's decision, for tactical reasons, not to serve certain expert medical reports in accordance with the rules of court. The respondent also says that the appeal was premature and that the appellant should have awaited the outcome of the trial to determine whether an appeal was in fact necessary.

3 In any event, the respondent submits it is appropriate that he be granted a certificate…

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 Swindale v Babic [No 2]

Details

AGLC: Swindale v Babic [No 2] [2007] WASCA 262 (S)
Case: [2007] WASCA 262 (S)
Decision Date: 3 DECEMBER 2007

CaseChat Overview and Summary

In the matter of Swindale v Babic [No 2], the parties involved were Swindale, the appellant, and Babic, the respondent. This case was heard by the court of appeal, and the central issue was the entitlement of the appellant to costs incurred during the appeal process. The appellant had previously been successful in a lower court and sought costs for the appeal, but the respondent argued that the appellant's conduct during the proceedings had disentitled them to such costs.

The court was required to determine whether the appellant's conduct warranted a denial of costs. This decision hinged on the specific facts of the case, and the court had to consider the conduct of the appellant in light of the circumstances of the appeal. The court assessed whether the appellant's actions were reasonable and in line with the principles of fairness and justice. The outcome of this assessment would determine whether the appellant was entitled to an order for costs from the respondent.

The court found that the appellant's conduct did not warrant a denial of costs. The court held that the appellant's actions were reasonable and in line with the principles of fairness and justice. Consequently, the court determined that the appellant was entitled to an order for costs from the respondent. The respondent was directed to pay the appellant's costs of the appeal.

Orders

Orders of the court

Respondent to pay appellant's costs of the appeal

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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