Vella v Bowden

[2011] WASCA 158 (S)

VELLA -v- BOWDEN [2011] WASCA 158 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 158 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:39/2011	Heard:	24 JUNE 2011 & ON THE PAPERS
Coram:	PULLIN JA MURPHY JA	Delivered:	1/08/11
Supplementary Delivered:	18/01/12
No of pages:	3	Judgment Part:	1 of 1
Result:	The appellant's application for costs is dismissed The respondent's application for costs is granted
Category:	B
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Parties:	JOSEPH BERNARD VELLA MICHAEL JOHN BOWDEN
Catchwords:	Appeal Costs Interlocutory application
Legislation:	Nil
Case References:	3 Oceans Wine Company Pty Ltd v Heyshott Pty Ltd [2011] WASC 12(S) Vella v Bowden [2011] WASCA 158 Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VELLA -v- BOWDEN [2011] WASCA 158 (S) CORAM : PULLIN JA

MURPHY JA

HEARD : 24 JUNE 2011 & ON THE PAPERS DELIVERED : 1 AUGUST 2011 SUPPLEMENTARY
DECISION : 18 JANUARY 2012 FILE NO/S : CACV 39 of 2011 BETWEEN : JOSEPH BERNARD VELLA

Appellant

AND

MICHAEL JOHN BOWDEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : VELLA -v- MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO [2011] WASC 78

File No : CIV 1709 of 2010

(Page 2)

Catchwords:

Appeal - Costs - Interlocutory application

Legislation:

Nil

Result:

The appellant's application for costs is dismissed

The respondent's application for costs is granted

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr P D Quinlan SC

Solicitors:

Appellant : In person
Respondent : McCallum Donovan Sweeney

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

3 Oceans Wine Company Pty Ltd v Heyshott Pty Ltd [2011] WASC 12(S)
Vella v Bowden [2011] WASCA 158
Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78


(Page 3)

1 REASONS OF THE COURT: By an application dated 2 June 2011, the appellant applied for orders that the appeal be heard by interstate judges and to summons further witnesses before the Court of Appeal. The appeal is against a decision of Justice Kenneth Martin who struck out components and paragraphs of the appellant's indorsement of claim in a writ of summons because they, inter alia, amounted to a collateral attack against a previous criminal conviction: see Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78. The application was dismissed: see Vella v Bowden [2011] WASCA 158. Subsequently on 30 August 2011, the respondent filed an application seeking an order for costs of the application dated 2 June 2011, to be taxed if not agreed. The appellant then filed an application, dated 13 September 2011, for costs orders to be made in his favour or that costs be reserved.

2 Costs may be dealt with by the court at any stage of the proceedings or after the conclusion of the proceedings, and any order of the court for the payment of costs may require the costs to be paid forthwith notwithstanding that the proceedings are not concluded: O 66 r 10(1) Rules of the Supreme Court 1971 (WA). As a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date, rather than 'in any event'. The latter order means that taxation will only occur after the conclusion of the main proceedings. The purpose of ordering that costs be fixed is to avoid delay and expense in the taxation of costs: 3 Oceans Wine Company Pty Ltd v Heyshott Pty Ltd [2011] WASC 12(S) [5] per Allanson J.

3 Generally, the successful party to an action or matter will be able to recover his or her costs: O 66 r 1(1). The appellant was unsuccessful in his application and the respondent has not engaged in conduct that would disentitle him to costs of the application. The order will be that the appellant pay the respondent's costs of the application dated 2 June 2011, payable forthwith and fixed at $450.00.