DANIELE v Weissenberger

[2002] WASCA 289 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DANIELE -v- WEISSENBERGER

[2002] WASCA 289 (S)

CORAM	: PARKER J
HEARD	: 20 JUNE 2002
DELIVERED	: 23 OCTOBER 2002
SUPPLEMENTARY
DECISION	: 1 NOVEMBER 2002
FILE NO/S	:  SJA 1108 of 2001
BETWEEN	: ANTONIO DANIELE

Appellant

AND

LINDA WEISSENBERGER

Respondent

Catchwords:

Costs - Turn on own facts

Legislation:

Nil

Result:

Respondent to pay 20 per cent of appellant's taxed costs
Respondent granted an indemnity certificate

[2002] WASCA 289 (S)

Category: B

Representation:

Counsel:

Appellant	:	Mr P A Kyle
Respondent	:	Mr D J Pratt

Solicitors:

Appellant	:	Kyle & Company
Respondent	:	Phillips Fox

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

Nil

Case(s) also cited:

Hughes v Western Australian Cricket Association (1986) ATPR 40-748
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

[2002] WASCA 289 (S)

PARKER J

1. PARKER J: The appellant succeeded on appeal on a question of law, in that as a consequence of conviction the learned Magistrate purported to prohibit the appellant from owning horses for two years, there being no statutory authority for such an order. This was the subject of ground (b) of the appellant's grounds of appeal.

2              Leave to appeal had been granted to the appellant in respect of three

grounds of appeal. At the commencement of the hearing of the appeal, however, the appellant abandoned what had been ground (a) and effectively substituted a further ground which became the appellant's primary case on appeal. The appellant failed on all issues except ground (b).

3              Ground (b) was a discrete issue from the other grounds. It was not

opposed on appeal. It turned solely on the terms of s 21 of the Prevention of Cruelty to Animals Act 1920 and the form of order made below. It required no reference to the transcript of evidence or the exhibits for its development and no authority was in point. The issue could be, and was able to be, dealt with succinctly by both counsel on appeal.

4              By contrast the argument in respect of the other issues raised on

appeal was comparatively extensive and required a deal of attention to the
evidence below and some reference to authority.

5              In the circumstances, while the appellant should have his costs of the

appeal insofar as they relate ground (b), I am not persuaded that the respondent should be required to meet the appellant's costs insofar as they relate to the other issues raised on appeal, or that the appellant should meet the whole or any part of the respondent's costs of the appeal.

6              In the circumstances, it would facilitate and save much time and

further costs on taxation, and so benefit both parties, were I to apportion the appellant's costs of the appeal as between ground (b) and the other issues. This is necessarily an approximate exercise. In my view, an appropriate apportionment, even though it may if anything tend to favour the appellant a little, is that the respondent should pay 20 per cent of the appellant's taxed costs of the appeal.

7              I would, however, grant to the respondent an indemnity certificate

pursuant to s 10 of the Suitors Fund Act 1964 in respect of the appeal. While, pursuant to reg 14 of the Suitors Fund Regulations 1965 and s 11(3)(b) of the Suitors Fund Act, the amount payable to the respondent pursuant to the certificate may not exceed $2,000, that will go some way

[2002] WASCA 289 (S)

PARKER J

to alleviating the costs burden on the respondent in respect of her
performance of her statutory function in this appeal.