Nelson v Moorcraft

[2015] WASCA 19

NELSON -v- MOORCRAFT [2015] WASCA 19

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 19
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:81/2014	Heard:	28 JANUARY 2015
Coram:	BUSS JA NEWNES JA	Delivered:	28/01/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed Costs order made
Category:	B
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Parties:	PETER NELSON PETER MOORCRAFT
Catchwords:	Practice and procedure Costs Appellant discontinued appeal Appellant applied for costs
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(4)
Case References:	Nelson v Moorcraft [2012] WADC 170 Nelson v Moorcraft [2012] WADC 170 (S) Nelson v Moorcraft [2012] WADC 170 (S2) Nelson v Moorcraft [2014] WASCA 212 Nelson v Moorcraft [2014] WASCA 212 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NELSON -v- MOORCRAFT [2015] WASCA 19 CORAM : BUSS JA

NEWNES JA

HEARD : 28 JANUARY 2015 DELIVERED : 28 JANUARY 2015 FILE NO/S : CACV 81 of 2014 BETWEEN : PETER NELSON

Appellant

AND

PETER MOORCRAFT
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : NELSON -v- MOORCRAFT [2012] WADC 170 (S)

File No : CIV ALB 3 of 2011

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : NELSON -v- MOORCRAFT [2012] WADC 170 (S2)

File No : CIV ALB 3 of 2011

Catchwords:

Practice and procedure - Costs - Appellant discontinued appeal - Appellant applied for costs

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(4)

Result:

Application dismissed

Costs order made

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr H Sklarz

Solicitors:

Appellant : In person
Respondent : Henry Sklarz

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

Nelson v Moorcraft [2012] WADC 170
Nelson v Moorcraft [2012] WADC 170 (S)
Nelson v Moorcraft [2012] WADC 170 (S2)
Nelson v Moorcraft [2014] WASCA 212
Nelson v Moorcraft [2014] WASCA 212 (S)



1 JUDGMENT OF THE COURT: On 11 December 2012, after a trial in the District Court, Wager DCJ dismissed the appellant's (Mr Nelson's) claim against the respondent (Mr Moorcraft) and allowed Mr Moorcraft's counterclaim against Mr Nelson. See Nelson v Moorcraft [2012] WADC 170.

2 On 19 December 2012, her Honour made numerous orders pursuant to her reasons for decision. Paragraph 9 of those orders stated in effect that the costs of the District Court action were reserved and to be determined at a later date.

3 On 24 January 2013, Mr Nelson filed an appeal notice, CACV 7 of 2013, in which he appealed to this court against the primary judge's judgment.

4 On 16 April 2014, appeal CACV 7 of 2013 was heard by Buss, Newnes and Murphy JJA. Judgment in the appeal was reserved at the conclusion of the hearing.

5 On 14 November 2014, Mr Nelson's appeal in CACV 7 of 2013 was allowed. See Nelson v Moorcraft [2014] WASCA 212.

6 In the meantime, on 2 May 2014, the primary judge ordered Mr Nelson to pay Mr Moorcraft's costs of the District Court action. See Nelson v Moorcraft [2012] WADC 170 (S2). See also Nelson v Moorcraft [2012] WADC 170 (S).

7 On 17 July 2014, Mr Nelson filed an appeal notice, CACV 81 of 2014, and a supporting affidavit in which he sought an extension of time to appeal against her Honour's order as to the costs of the District Court action. On 28 July 2014, Mr Nelson filed an additional affidavit. On 1 September 2014, he filed a further application and another affidavit in that appeal.

8 On 31 July 2014, Mr Moorcraft filed written submissions in relation to Mr Nelson's appeal in CACV 81 of 2014, but Mr Moorcraft inadvertently filed the submissions in appeal CACV 7 of 2013.

9 Mr Nelson's decision to commence appeal CACV 81 of 2014 was fundamentally misconceived. The order made by the primary judge as to the costs of the District Court action was considered, and would always have been considered, in the context of this court's judgment in appeal CACV 7 of 2013.

10 By a registrar's notice to attend dated 22 January 2015, appeal CACV 81 of 2014 was listed before this court today. The purpose of the hearing was for Mr Nelson to show cause why appeal CACV 81 of 2014 should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding, or alternatively on the basis that the appeal was an abuse of process.

11 On 23 January 2015, after the registrar's notice to attend was served on the parties, Mr Nelson filed a notice in which he discontinued appeal CACV 81 of 2014.

12 Rule 59(4) of the Court of Appeal Rules provides, relevantly, that unless a single judge orders otherwise, an appellant who discontinues an appeal must pay the respondent's costs in respect of the appeal, which must be taxed if they are not agreed. The power conferred on a single judge by this provision may be exercised by two judges of appeal sitting together.

13 On 27 January 2015, Mr Nelson filed an application in appeal CACV 81 of 2014. The application sought an order that Mr Moorcraft pay Mr Nelson's costs in respect of appeal CACV 81 of 2014.

14 Mr Nelson submits that the ordinary rule as to costs following the discontinuance of an appeal should not apply. He contends that special circumstances exist which justify an order that Mr Moorcraft pay his costs of appeal CACV 81 of 2014 to be taxed, if not agreed.

15 Mr Nelson has filed detailed written submissions in support of his contention. He has emphasised and elaborated upon those submissions at the hearing today. It is unnecessary to repeat any of the submissions. We have given them proper consideration.

16 This court is not persuaded that the ordinary rule as to costs set out in r 59(4) should not apply. The critical point is that the costs orders made by the primary judge were reviewable by this court in appeal CACV 7 of 2013. That has been done and this court has made orders today in relation to those costs. See Nelson v Moorcraft [2014] WASCA 212 (S). If Mr Nelson had wanted to obtain any interim relief in relation to the costs orders made by her Honour (for example, a stay of the taxation of the costs or a stay of the payment or recovery of the costs as taxed), he could have sought that relief, either on an application to her Honour or on an application in appeal CACV 7 of 2013. The commencement of a separate appeal in relation to her Honour's costs orders was never appropriate. The appeal did not operate as a stay.

17 In the circumstances, Mr Nelson's application filed 27 January 2015, in appeal CACV 81 of 2014, will be dismissed. Mr Nelson must pay Mr Moorcraft's costs in respect of appeal CACV 81 of 2014, including Mr Moorcraft's costs in respect of the application filed 27 January 2015, to be taxed, if not agreed.

18 The orders which this court makes are as follows:

(1) Mr Nelson's application filed 27 January 2015, in appeal CACV 81 of 2014, is dismissed.

(2) Mr Nelson must pay Mr Moorcraft's costs in respect of appeal CACV 81 of 2014, including Mr Moorcraft's costs in respect of the application filed 27 January 2015 and any reserved costs, to be taxed, if not agreed.