Pflug v Cooke

[2016] WADC 128 (S)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION	: PERTH
CITATION	:  PFLUG -v- COOKE [2016] WADC 128 (S)
CORAM	: STAUDE DCJ
HEARD	:  ON THE PAPERS
DELIVERED	:  25 AUGUST 2016
SUPPLEMENTARY
DECISION	:  7 OCTOBER 2016
FILE NO/S	:  CIV 2551 of 2014
BETWEEN	: TARA ANN PFLUG

Plaintiff

AND

CASSANDRA LEE COOKE

Defendant

FILE NO/S : CIV 2592 of 2014

BETWEEN : TARA ANN PFLUG

Plaintiff

AND

VICTORIA MARSHALL

First defendant

TREVOR MARSHALL SNR
Second defendant

[2016] WADC 128 (S)

Catchwords:

Issue of costs in relation to cross-appeal - Appeal - Dismissal of cross-appeal

Costs order - Turns on own facts

Legislation:

Nil

Result:

Cross-appeal dismissed

Costs in the cause

Representation:

CIV 2551 of 2014

Counsel:

Plaintiff	:	In person
Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable

CIV 2592 of 2014

Counsel:

Plaintiff	:	In person
First defendant	:	In person
Second defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
First defendant	:	Not applicable
Second defendant	:	Not applicable

[2016] WADC 128 (S)

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

Pflug v Cooke [2016] WADC 128

[2016] WADC 128 (S)

STAUDE DCJ

1. STAUDE DCJ: On 25 August 2016 the court made orders allowing the

   defendants’ appeals from the dismissal of their respective applications for

security for costs. I published reasons for my decision: Pflug v Cooke
[2016] WADC 128.

2              The defendants' appeals proceeded as hearings de novo. In each case

I ordered that the plaintiff do pay into court an amount of $20,000 by way of security for costs. I ordered that the costs of the application and the appeal, in each case, be costs in the cause.

3              In the disposition of the appeals the plaintiff's cross-appeals were

overlooked. In response to the appeals the plaintiff had cross-appealed from the orders of the learned deputy registrar that the costs of the defendants' application be the plaintiff's costs in any event. It was the plaintiff's position that her costs should have been taxed and paid forthwith. Upon my decision to allow the appeals, the cross-appeals fell away.

4              The omission was brought to the court's attention by the plaintiff.

Directions were made that the parties make written submissions on the issue of the costs of the cross-appeal in each case and that the costs issue be determined on the papers.

1. Since those directions were made the defendants have filed notices of their intention to act in person. The plaintiff also acts in person.

6              The defendant Ms Cooke, by email on 27 September 2016, has

submitted that she should have the costs of the plaintiff's unsuccessful cross-appeal. By email on 29 September 2016 the plaintiff submits that the costs of the cross-appeal should be in the cause. No submissions have been received from Mr and Mrs Marshall, the other defendants, which is understandable in all the circumstances.

7              The arguments in relation to costs occupied little time in the hearing

before me. That the appropriate order was that costs be paid forthwith,

rather than be the plaintiff’s costs in the cause was a short point.

The learned deputy registrar’s decision was discretionary, as all costs

decisions are. Although no error needs to be shown in an appeal by way of a hearing de novo, I consider the costs order in each case was unexceptional.

[2016] WADC 128 (S)

STAUDE DCJ

8              I am of the view that the cross-appeals did not add significantly to

the defendants' costs of the appeals and that it would be unduly time-consuming, burdensome and expensive to dissect the respective costs.

9              Having ordered that the costs of the appeals be costs in the cause I

consider that the costs of the cross-appeals should be treated in the same way. In each matter I order that the cross-appeal be dismissed and that the costs of the cross-appeal be costs in the cause.