TREVOR JAMES BECKWITH AS TRUSTEE FOR COLLBECK UNIT TRUST

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : COLLIER & BECKWITH as Trustees for COLLBECK UNIT TRUST -v- O'BREE [2011] WADC 216

Practice and procedure - Application to strike out appeal on ground that likely costs are disproportionate to amount of the claim - Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3) - Claim for $4,920 - Appellant's solicitor acting on 'no win, no fee' basis - Parties' likely costs between $13,000 and $18,000 depending on outcome - Appeal struck out

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)

1 JUDGMENT OF THE COURT: This is an application by the respondents to strike out the appeal pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act), on the ground that the costs of the appeal are disproportionate to the amount of the claim.

2 The appeal arises from proceedings in the Magistrates Court in which the respondents' claim for damages in connection with a motor vehicle collision was dismissed. That decision was reversed on appeal to the District Court and the respondents were awarded damages of $4,920.20, plus interest and costs. The appellant has appealed to this court against the decision of the District Court.

3 The collision occurred at about 5.30 pm on 30 March 2009 in Hodges Drive, Marmion. Hodges Drive is a dual carriage-way with two lanes in each direction. A wide median strip divides the carriage-way. Mrs Beckwith was driving the respondents' Holden Astra sedan in a westerly direction along Hodges Drive at the speed limit of 70 km per hour.

4 The appellant drove his Holden Colorado 4WD south along Country Club Boulevard to the intersection with Hodges Drive. Country Club Boulevard terminates at Hodges Drive and the appellant wished to turn right at the intersection to travel west along Hodges Drive. To do so, he crossed the east-bound lanes of Hodges Drive, passed through an angled break in the median strip and turned right into the west-bound lane of Hodges Drive nearest to the median strip (also described as the right-hand lane).

5 The precise point at which the vehicles collided and how they came to collide were matters of contention. It was not in issue, however, that the left-hand side of the bull bar on the appellant's vehicle struck the right-side rear door of the respondents' Holden Astra. Some white paint from the Holden Astra was smeared on the bull bar of the appellant's vehicle but the appellant's vehicle was otherwise undamaged. There was, however, significant damage to the respondents' vehicle. The repairs cost approximately $9,800.

6 The respondents alleged that the accident was caused by the appellant's negligence and commenced proceedings against the appellant to recover the cost of the repairs to their vehicle. The appellant denied he was negligent.

7 The action in the Magistrates Court turned on a dispute as to how the accident had occurred. Mrs Beckwith maintained that she was travelling in the right-hand lane (that is, the lane next to median strip) in Hodges Drive and was in that lane at the point of the collision. Mrs Beckwith said the collision occurred when the appellant entered Hodges Drive from the break in the median strip and drove into her vehicle.

8 The appellant, on the other hand, said that Mrs Beckwith's vehicle was in the left-hand lane on Hodges Drive before he entered Hodges Drive and that she changed lanes into the right-hand lane after he had entered that lane from the break in the median strip. According to appellant, Mrs Beckwith drove into the bull-bar on his vehicle in the course of changing lanes. The appellant said the collision occurred some 20 metres along Hodges Drive from the break in the median strip. Mrs Beckwith denied that she changed lanes.

9 The appellant gave evidence that immediately following the accident Mrs Beckwith had apologised for the accident, blaming the accident on the glare of the sun. Mrs Beckwith denied that she had made any such statement and denied that her view of the appellant's vehicle was affected by the sun.

10 The magistrate found that both drivers gave clear and credible evidence. Her Honour concluded that she was unable to decide which version of events was more likely and found that the respondents had not discharged the onus of proof. Her Honour dismissed the respondents' claim.

11 The magistrate went on, however, to make a provisional assessment of the respondents' damages. In that connection, her Honour said that if she was wrong in her primary finding she considered the parties to be equally liable for the accident. It appears that the magistrate's alternative conclusion was that the appellant had pulled out into Mrs Beckwith's path as she changed lanes but that Mrs Beckwith should have slowed down to allow for the possibility of the appellant pulling out.

12 The magistrate made a provisional assessment of the respondents' damages in the sum of $4,920.20, being half of the respondents' claim.

13 The respondents appealed to the District Court against the dismissal of their claim.

14 On appeal, Fenbury DCJ found that the appellant's description of the accident was glaringly improbable. In relation to the appellant's argument regarding the sun, his Honour said:

Given the sun sets in the west, it is difficult to see how it could have played a role in Mrs Beckwith's management of her motor vehicle with respect to a 4WD entering from Hodges Drive to the north [35].

Once [the appellant's] assertion that Mrs Beckwith had been blinded by the sun is put aside then there is no likelihood Mrs Beckwith would turn her vehicle into another slower vehicle.

In my view [the appellant], having entered Hodges Drive from a terminating road, was obliged to give way to traffic in Hodges Drive and obviously failed to do so. Regulation 56 and 65 of the Road Traffic Code 2000 (WA) apply. And this is so given his 4WD collided with a passing vehicle travelling at 70km per hour.

I would also add that in my view [the appellant's] obligation to give way to traffic in double lane Hodges Drive included an obligation to look for and ensure there was no vehicle changing from the left-hand lane into the right-hand lane in Hodges Drive, at the relevant stage [41] - [43].

15 The primary judge found that the appellant was negligent. His Honour noted that the respondent had not challenged the provisional assessment of damages made by the magistrate and accordingly ordered that the appellant pay to the respondents the sum of $4,920.20 plus interest and costs.

16 The appellant filed an appeal notice in this court on 19 December 2011. On 28 February 2012, the respondents applied to have the appeal struck out pursuant to s 43(3) of the Act.

17 The appellant's case has not yet been filed but grounds of appeal were attached to the appeal notice. The grounds are prolix and difficult to understand. However, in his written outline of submissions counsel for the appellant indicated that, in substance, the appellant would contend:

1. there was no basis for the finding of the primary judge that the setting sun would not have affected Mrs Beckwith's view of the appellant's vehicle;
2. the primary judge erred in overturning the finding of fact of the magistrate that it could not be determined how the accident occurred, in circumstances where the magistrate had the advantage of seeing and hearing the witnesses; and
3. the primary judge erred in relying on reg 56 and reg 65 of the Road Traffic Code 2000 (WA) in finding that the appellant was negligent.

A party to a case that is not a minor case may appeal to the District Court against -

...

(b) the judgment of the Magistrates Court in the case.

19 Section 42 of the Act provides that a party to an appeal to the District Court under s 40 may appeal to the Court of Appeal against the judgment of the District Court on the appeal.

20 Section 43 provides (relevantly) that on such an appeal:

(3) The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.

21 It is evident that s 43(3) is directed to preventing disproportionate costs being incurred on appeals from proceedings in the Magistrates Court. Whether or not the likely costs of an appeal are disproportionate to the amount of the claim in the case, or to the nature of the case, is not a matter which can be reduced to any formulaic determination. It involves matters of judgment and degree, upon which reasonable minds may differ. But once the court finds that the likely costs are disproportionate it has a discretion to strike out the appeal without regard to its substantive merits. The discretion must be exercised judicially but it is otherwise unfettered.

22 In the present case, it was argued on behalf of the appellant that the amount of the claim in the case was not $4,920 but some $14,596, because it included the costs of the action and the appeal to the District Court. There is no substance in that submission. The amount of the claim refers to the amount of the substantive relief for which the claim was brought. In this case, although originally brought for some $9,800, half of the claim has since been abandoned by the respondent so that it is now properly to be regarded as a claim for $4,920. The fact that there is now a substantial encrustation of costs does not alter the fact that it is, for the purposes of s 43(3) of the Act, a claim for $4,920.

23 The respondents' solicitor has filed an affidavit attaching a draft respondent's bill of costs for the appeal in the total sum of $10,250. That sum is not, on its face, obviously unreasonable. The appellant's solicitor, on the other hand, said that he is acting for the appellant on a 'no win, no fee' basis and he contended that, for the purposes of s 43(3) of the Act, the costs of the appeal to the parties were therefore only the respondents' costs of $10,250.

24 That contention must be rejected. In the course of argument on the appeal, the appellant's solicitor said that he had entered into an agreement with the appellant that the appellant would be charged costs of $5,000 if the appeal were successful. That was on the basis that those costs would be recoverable from the respondent. In response to a question from the court, the appellant's solicitor conceded that the agreement did not take into account some $3,000 in filing fees for which the appellant would be liable on the appeal.

25 When the cost agreement between the appellant and his solicitor and the filing fees are taken into account, the costs of the appeal to the parties are therefore likely to be in the order of either $13,000 or $18,000, depending upon the outcome. Even at the lower figure, the costs are disproportionate. Indeed, some measure of the disproportion may be seen when regard is had to the fact that the amount in issue of $4,920 and the court filing fees alone are $3,000.

26 The appeal does not involve the determination of any issues of legal principle and the case is of a type that is common-place in the Magistrates Court. It concerns factual issues that are neither complex nor novel in their nature. It is, in short, a small run of the mill motor vehicle accident claim. The costs of the appeal to this court are entirely disproportionate to the amount of the claim and the appeal should be struck out.