JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 192
CORAM: PULLIN JA
NEWNES JA
HEARD: 7 AUGUST 2012
DELIVERED : 10 OCTOBER 2012
FILE NO/S: CACV 11 of 2012
BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WADC 20
File No :APP 44 of 2009
Catchwords:
Practice and procedure - Appeal against indemnity costs order - Application to strike out appeal as having no reasonable prospect of success - Whether indemnity costs should be ordered against litigant in person - Grounds of appeal without merit
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B W Ashdown
Solicitors:
Appellant: In person
Respondent: De Vita & Dixon
Case(s) referred to in judgment(s):
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet (1989) 156 CLR 605
Michael Wilson & Partners v Nicholls [2011] HCA 48
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190
JUDGMENT OF THE COURT: This is an appeal against an order of Commissioner Gething in the District Court that the appellant pay the respondent's costs of an application to that court on an indemnity basis: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. The respondent has applied for the appeal to be dismissed, in substance, on the ground that none of the grounds of appeal have any reasonable prospect of success.
The history of the litigation between the parties up to this point is described in the reasons of this court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113. It is, however, appropriate to set out the background to this particular appeal.
Background
The appeal has its genesis in proceedings in the Magistrates Court in which the respondent obtained judgment against the appellant in the sum of $550, plus interest and costs of $368.05. The appellant appealed to the District Court. On 25 June 2010, Davis DCJ dismissed the appeal with costs. Her Honour did so under s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) on the ground that the likely costs of the appeal were disproportionate to the amount in issue and, further, that none of the grounds of appeal had any prospect of success. An appeal to this court against her…
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- Case
- [2012] WASCA 192
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide were whether the appeal had any reasonable prospect of success and whether indemnity costs should be ordered against the appellant, who was a litigant in person. The court had to consider the circumstances of the case and the conduct of the appellant in determining whether indemnity costs were appropriate. The court also had to consider whether the appeal had any reasonable prospect of success and whether it was in the interests of justice to allow the appeal to proceed.
The court found that none of the grounds of appeal had any reasonable prospect of success and that the appellant's conduct warranted the imposition of indemnity costs. The court noted that the appellant had delayed in responding to the respondent's proposal to dismiss the application for leave to appeal and had ultimately withdrawn her challenge to the costs order. The court also noted that the appellant had previously appealed against the orders made by the District Court and had applied for special leave to appeal to the High Court, both of which were dismissed. The court found that the appellant's appeal was misconceived and that she had acted unreasonably in pursuing it. The court also found that the appellant's conduct warranted the imposition of indemnity costs.
The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis. The court also noted that the appellant's conduct had been vexatious and oppressive and that it was in the interests of justice to impose indemnity costs. The court ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis, with the amount to be assessed if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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