Triplett v Busselton City FC Inc
[2019] WASCA 98
•5 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRIPLETT -v- BUSSELTON CITY FC INC [2019] WASCA 98
CORAM: MITCHELL JA
PRITCHARD JA
HEARD: 19 JUNE 2019
DELIVERED : 5 JULY 2019
FILE NO/S: CACV 48 of 2019
BETWEEN: WALTER JAMES TRIPLETT
Appellant
AND
BUSSELTON CITY FC INC
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : APP 111 of 2018
Catchwords:
Practice and procedure - Appeal from District Court's order dismissing an appeal against an order of the Magistrates Court as to costs - Whether appeal should be struck out on the basis that the likely costs of the appeal would be disproportionate to the nature of the case which is the subject of the appeal
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)
Result:
Appeal struck out
Application for stay dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | Mr D Markovich |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Lane Buck & Higgins Margaret River |
Case(s) referred to in decision(s):
Cristovao v John Horton & Associates [2012] WASCA 12
Rankilor v Etihad Airways PJSC [2019] WASCA 36
JUDGMENT OF THE COURT:
On 15 September 2017, the appellant filed a statement of general procedure claim in the Magistrates Court of Western Australia. The Statement of Claim pleaded, in general terms, that the appellant agreed with the respondent (the club) that he would upgrade the club's kitchen. The appellant was to be reimbursed for that cost out of the receipts from the kitchen. Once reimbursement occurred, profits from the kitchen would be shared equally between the club and the appellant. The appellant pleaded a 12 month lease with an option for renewal. In general terms, the appellant claimed that the club wrongfully terminated the arrangement, and sought restitution of $26,000 which he had spent in upgrading the kitchen.
After a hearing on 24 July 2018, a magistrate gave the appellant leave to lodge and serve an amended claim within 28 days. The appellant was ordered to pay the club's 'costs to date at scale rate to be taxed if not agreed' (Costs Order). Those costs were subsequently assessed and allowed in the sum of $5,694.80.
On 6 November 2018, the appellant filed an appeal notice in the District Court of Western Australia against the Costs Order. On 15 March 2019, the primary judge refused an extension of time in which to appeal and dismissed the appeal to the District Court. The appellant was ordered to pay the club's costs of the appeal to the District Court to be taxed if not agreed.
Her Honour gave ex tempore reasons for making those orders.[1] She found that leave to amend the claim was granted to allow the appellant to plead a substantively different claim which included damages for loss of future profits.[2] There was evidence before the Magistrates Court to the effect that if the amendment were allowed the costs incurred by the respondent to that date would be thrown away.[3] The magistrate ordered the appellant to pay the respondent's costs to date, rather than merely the respondent's costs thrown away by reason of the amendment. The magistrate considered this order to be appropriate as the court was permitting the appellant to make an amendment by substitution setting out a fresh claim.[4] Her Honour did not find the magistrate had erred in exercising his costs discretion in that manner in the circumstances.[5]
[1] District Court ts 18 - 28.
[2] District Court ts 24 - 26.
[3] District Court ts 22 - 23.
[4] Magistrates Court ts 59 - 60.
[5] District Court ts 25 - 26.
On 4 April 2019, the appellant appealed to this court against the primary judge's decision. Despite a number of unsuccessful attempts, the appellant has not filed an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
A taxation of the respondent's costs in the District Court was listed before a registrar of that court on 17 June 2019. We were informed by counsel for the respondent that those costs were taxed in the amount of $6,900.[6]
[6] Appeal ts 5.
On 19 June 2019, the matter came on before us, pursuant to a registrar's notice to attend, to consider the following matters:
(1)The appellant's application in an appeal filed on 10 April 2019, which seeks a stay of the taxation of costs in the District Court and a stay of bankruptcy proceedings which have been commenced against the appellant.
(2)Whether the court should strike out the appeal on the grounds that the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal, pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).
(3)Whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding, or on the basis that the appellant has failed to file and serve an appellant's case within the time required by the Rules.
Despite being notified of the hearing on a number of occasions, the appellant did not attend the hearing on 19 June 2019. On 18 June 2019, an associate of the appellant emailed the Court of Appeal Office indicating that the appellant was unwell. The Court of Appeal Office advised the appellant and the associate that if an adjournment was sought, it would be necessary for the appellant to make an application supported by medical evidence.
On 19 June 2019, we heard brief oral submissions from the respondent as to the matters identified in the amended registrar's notice and as to the costs orders which should be made if the appeal was struck out or dismissed. We directed the Court of Appeal Office to provide a copy of the transcript of the hearing on 19 June 2019 and the orders made at that hearing to the appellant. The court ordered:
(1)The appellant may, by 4.00 pm on 3 July 2019, file and serve any further written submissions he wishes to advance in relation to the matters before the court on 19 June 2019.
(2)The appellant has liberty to apply for a further oral hearing by 4.00 pm on 3 July 2019, any such application to be supported by an affidavit explaining the reasons why the appellant did not attend court on 19 June 2019 and which attaches a detailed report by a qualified medical practitioner describing any medical condition which prevented the appellant from attending court on 19 June 2019 and indicating the expected duration of any incapacity to attend court.
(3)Unless the court orders otherwise, the matters identified in the amended registrar's notice to attend, and any application made pursuant to order 2, be determined on the papers.
The appellant did not file any further written submissions or application pursuant to the orders made on 19 June 2019.
In our view, it is appropriate for this court to determine the matters raised by the amended registrar's notice on the papers.
It is convenient to begin by considering whether the appeal notice should be struck out under s 43(3) of the MCCP Act.
Section 40(1) of the MCCP Act provides for a right of appeal to the District Court from any order made by the Magistrates Court in the course of proceedings in a case that is not a minor case. Section 42 of the MCCP Act gives a party to an appeal under s 40 the right of appeal, without leave, to the Court of Appeal against the District Court's judgment on the appeal.
In that context, s 43(3) of the MCCP Act provides:
(3)The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
As this court noted in Cristovao v John Horton & Associates:[7]
There are therefore two limbs to s 43(3). In determining whether the likely costs of the appeal would be disproportionate, the first limb is concerned with the amount of the claim in the Magistrates Court, and the second limb is concerned with 'the nature of the case which is the subject of the appeal'. Section 43 is not concerned with the substantive merits of the appeal: Defendi v Eden Hill Plasterers [2008] WASCA 269 [16].
The 'nature of the case which is the subject of the appeal' in s 43(3) is not, in our view, confined to the nature of the substantive proceedings in the Magistrates Court. Where, as here, the appeal is against an interlocutory order, it includes the nature of the particular issue in those proceedings which is the subject of the appeal.
[7] Cristovao v John Horton & Associates [2012] WASCA 12 [20] - [21], adopted in Rankilor v Etihad Airways PJSC [2019] WASCA 36 [18].
The nature of the case which is the subject matter of the appellant's appeal is the magistrate's award of costs against the appellant in the amount of $5,694.80.
In our view, the likely costs which would be incurred by the parties in this appeal would be disproportionate to the nature of the case which is the subject of the appeal. While the appellant is self-represented, the club is represented by solicitors and counsel, and has indicated that it intends to take part in the appeal. The experience of this court is that costs in an appeal are highly likely to exceed $15,000 in even a simple appeal where one of the parties is legally represented. The likely costs of the appeal to the parties is disproportionate to the costs award of $5,694.80 which is, substantively, the subject of the appeal. There is no discretionary reason in this case for the court to decline to exercise its power under s 43(3) of the MCCP Act.
The appellant raised a variety of matters going to the merits of his proposed appeal. Those matters do not impact on the critical question of the proportionality between the subject of this appeal and the likely costs of this appeal to the parties. In any event, nothing in the materials before us suggests any reasonable basis for doubting the correctness of the primary judge's orders.
We would therefore make an order under s 43(3) of the MCCP Act striking out the appeal to this court. There is, therefore, no basis for granting any stay. In any event, there would have been no proper basis for this court to stay bankruptcy proceedings which are committed to the exclusive jurisdiction of the Federal Court of Australia and the Federal Circuit Court by s 27 of the Bankruptcy Act 1966 (Cth). The appellant's application in an appeal should be dismissed. In these circumstances, it is unnecessary to deal with the other matters referred to in the registrar's notice to attend.
The respondent also seeks an order that the appellant pay its costs of the appeal fixed in the amount of $1,700. It is appropriate that costs follow the event. It appears to us that the amount the respondent seeks is a reasonable amount in all the circumstances.
For the above reasons, the following orders should be made in the appeal:
(1)The appeal is struck out.
(2)The appellant's application in an appeal filed on 10 April 2019 is dismissed.
(3)The appellant is to pay the respondent's costs of the appeal fixed in the amount of $1,700.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell5 JULY 2019
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