Truong v Lam
[2009] WASCA 217 (S)
•9 DECEMBER 2009
TRUONG -v- LAM [2009] WASCA 217 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 217 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:108/2008 | 10 NOVEMBER 2009 | |
| Coram: | OWEN JA PULLIN JA NEWNES JA | 9/12/09 | |
| 25/03/10 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | HOANG THO TRUONG THANH VAN LAM |
Catchwords: | Costs Suitors' Fund Act 1964 (WA) Indemnity certificate |
Legislation: | Suitors' Fund Act 1964 (WA) |
Case References: | Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) Richards v Faulls Pty Ltd [1971] WAR 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRUONG -v- LAM [2009] WASCA 217 (S) CORAM : OWEN JA
- PULLIN JA
NEWNES JA
DECISION : 25 MARCH 2010 FILE NO/S : CACV 108 of 2008 BETWEEN : HOANG THO TRUONG
- Appellant
AND
THANH VAN LAM
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
Citation : LAM -v- TRUONG [2008] WADC 156
File No : CIV 1820 of 2005
(Page 2)
Catchwords:
Costs - Suitors' Fund Act 1964 (WA) - Indemnity certificate
Legislation:
Suitors' Fund Act 1964 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr B H Taylor
Respondent : No appearance
Solicitors:
Appellant : Talbot Olivier
Respondent : No appearance
Case(s) referred to in judgment(s):
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S)
Richards v Faulls Pty Ltd [1971] WAR 129
(Page 3)
1 JUDGMENT OF THE COURT: The respondent has sought a certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA) (the Act) in relation to the costs of the appeal. Section 10(1) relevantly reads :
Where an appeal against the decision of a Court in any proceedings -
(a) to the Supreme Court;
…
on a question of law succeeds, the Supreme Court may, … grant to the respondent to the appeal … an indemnity certificate in respect of that appeal.
2 We accept that the appellant was successful on a question of law, that being that a finding of fact was made without any evidence to support it. That establishes the pre-condition to the grant of an indemnity certificate. However, the question which then arises is whether the discretion should be exercised in favour of the respondent.
3 The discretion is a discretion to grant, rather than a discretion to refuse, which casts an onus on the respondent to show some ground for the exercise of the discretion. See Richards v Faulls Pty Ltd [1971] WAR 129. The court in Richards v Faulls also pointed out that while the intention of the Act is to relieve a litigant from the burden of costs in an appeal which has been lost because the court below erred on a question of law, the purpose of the Act is neither to promote litigation nor to provide legal aid. A relevant factor is the degree to which the question of law involves some point of general application. See Richards v Faulls (138); Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S).
4 In this case, although it was necessary to discuss the distinction between dissolution of a partnership and retirement of a party from the partnership, the appellant ultimately succeeded on the point mentioned above, namely that a finding was made without evidence to support it. The error was therefore case specific.
5 Furthermore, it appears that the parties (including the respondent) conducted the case without considering the law relating to the distinction between dissolution of a partnership and the retirement of a partner. That meant that the decision was reached without the parties, including the respondent, providing appropriate assistance to the court. That conduct is relevant to the exercise of the discretion: see Richards v Faulls (138); Jones v Dalcon Construction [6]. The final factor is that although the respondent's solicitor (who appeared as counsel at trial) did appear at one
(Page 4)
- directions hearing, she did not appear at the hearing of the appeal and did not prepare any written submissions.
6 The factors referred to above lead us to the conclusion that the application should be refused.
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