Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd
[2003] WASC 53 (S3)
•24 MARCH 2003
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | ALPINE HOLDINGS PTY LTD & ORS -v- WARWICK ENTERTAINMENT CENTRE PTY LTD & ORS [2003] WASC 53 (S3) |
| CORAM | : ROBERTS-SMITH J | ||
| HEARD |
| ||
| DELIVERED | : 24 MARCH 2003 | ||
| SUPPLEMENTARY | |||
| DECISION | : 31 MAY 2004 | ||
| FILE NO/S |
| ||
| BETWEEN |
|
EGON KONIG Second Plaintiff
SHELLEY KONIG
Third Plaintiff
AND
WARWICK ENTERTAINMENT CENTRE PTY LTD
(ACN 054 246 918)First Defendant
WESTGEM HOLDINGS PTY LTD
(ACN 050 218 954)Second Defendant
ROBERT STEELE
Third Defendant
Catchwords:
Costs - Application for removal of costs limit pursuant to O 66 r 12(1) of the Rules of the Supreme Court - No appearance by third and fourth defendants - Order made - Application not served on third and fourth defendants - Order not perfected - Denial of natural justice - Order recalled
Legislation:
Rules of the Supreme Court, O 66 r 12(1)
Result:
Order recalled
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr O D Feinauer |
| Second Plaintiff | : | Mr O D Feinauer |
| Third Plaintiff | : | Mr O D Feinauer |
| First Defendant | : | Mr D R Kilpatrick |
| Second Defendant | : | Mr D R Kilpatrick |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Feinauer & Associates |
| Second Plaintiff | : | Feinauer & Associates |
| Third Plaintiff | : | Feinauer & Associates |
| First Defendant | : | Williams & Hughes |
| Second Defendant | : | Williams & Hughes |
[2003] WASC 53 (S3)
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
[2003] WASC 53 (S3)
ROBERTS-SMITH J
ROBERTS-SMITH J: On 27 May this year, having heard submissions from counsel for the plaintiffs and from Mr Dillon, counsel for the first and second defendants, I made orders that the plaintiffs have leave to make their application for removal of the cost limit in item 13 of the Supreme Court scale to be removed pursuant to O 66 r 12(1) of the Rules of the Supreme Court.
2 I granted the application for removal of the limit and I made an order
that the plaintiffs pay the first and second defendants' costs of the application in any event. There was no appearance on that occasion by the third and fourth defendants, Messrs Steele and McCubbing.
3 On Friday afternoon, 28 May, my Associate was telephoned by the
plaintiffs' solicitors to advise that they had ascertained that the applications and material in support had not been served on the third and fourth defendants and that was the reason for their non-appearance. That telephone advice was subsequently confirmed in faxed correspondence.
4 By letter dated 28 May, Feinauers, the plaintiffs' solicitors, advised
that upon a review of the files following the hearing before me the day before, they had become aware that due to an oversight, the third and fourth defendants had not been served with the relevant papers and accordingly had no notice of the hearing. They apologised for the error and indicated a willingness to do all things necessary to rectify it.
5 They advised that they were sending the papers under
correspondence explaining the matter to both the third and fourth defendants that day. They noted that although they would be able to courier the documents to Messrs Wilson and Atkinson as representatives for the fourth defendant, the third defendant was presently resident in Halls Head and has not to date responded to any correspondence sent to him in the course of this matter.
6 They indicated that unless I was willing to deal with the matter
having heard only the submissions of the plaintiffs and the first and second defendants on the basis that no further submissions made on behalf of the third or fourth defendants could or would have altered the decision reached the day before, the matter would unfortunately have to be listed again before me to allow the third and fourth defendants the opportunity to make submissions in opposition to the application if they wished.
7 On 31 May the plaintiffs' solicitors, again by facsimile letter,
forwarded copies of the correspondence from them to the third defendant and the solicitors for the fourth defendant. In that correspondence they
[2003] WASC 53 (S3)
ROBERTS-SMITH J
made various suggestions as to possible courses of action, noting that I will be in Albany on circuit from tomorrow, Tuesday, 1 June, for possibly some five weeks.
8 It was suggested that there were potentially three ways the matter
may be dealt with. First it was pointed out that having filed written submissions and making extensive oral submissions at the hearing, counsel for the first and second defendants had not only raised the potential prejudice to the first and second defendants but also that prejudice he felt might befall the third and fourth defendants as litigants in person.
9 It was pointed out that my decision was made having regard to those
submissions and that if the view were to be taken that no further submissions could or would have altered the decision, then it may be allowed to stand.
10 Secondly it was suggested that if the third and fourth defendants so
wished, the matter might be dealt with by the filing of written submissions on behalf of them or by them, as the case may be. I could then consider the submissions and return a supplementary judgment taking them into account.
11 The third option suggested was that the matter be brought on for
hearing before me to allow the third and fourth defendants to make oral submissions. Also on 31 May (that is to say today) I received through my Associate a copy of a letter from Messrs Wilson and Atkinson to Feinauers. They recited the circumstances briefly as known to them and indicated that having been spoken to by Mr Feinauer they had taken urgent instructions from their client on the understanding that I had indicated I wished to hear from the parties at 2.15 pm today prior to my departure for Albany.
12 Messrs Wilson and Atkinson indicated that they wished to make it
clear that they were not acting for Mr McCubbing at the trial of the primary action and that he was representing himself. They went on to say:
"Mr McCubbing is extremely unhappy at the fact that he was not served with or even made aware of this application before it was heard. He is being placed under pressure in being forced to make an instant decision on this issue today. In the circumstances Mr McCubbing believes he has no choice but to
[2003] WASC 53 (S3)
ROBERTS-SMITH J
acquiesce to the application and on that basis will not be
attending court at 2.15 today."
13 As I indicated to Mr Feinauer in the course of his submissions this
afternoon, I would not regard that as any appropriate indication of consent
to the orders being made.14 The orders I made on Thursday have not been settled nor extracted.
Under the circumstances it seems to me that I have inherent power to recall orders which have not been perfected where there is a substantial reason for so doing.
15 The situation which exists here seems to me to be one in which that
is appropriate. An order which has been made without one or more of the parties having been given an opportunity to be heard in respect of it, when it is an order made against that party or those parties and an order of some substance, is clearly a denial of natural justice. I do not understand anyone in this matter to be taking any view different to that.
16 In my view, as I say, there has been a fundamental breach of the right
to be heard and that has given rise in the circumstances to orders which have not been perfected and which ought to be recalled and set aside. I say that because despite the fact that Mr Feinauer's application is for the orders to be held as against the first and second defendants on the basis that the third and fourth defendants be given an opportunity to appear and make submissions with respect to their positions, I think there are very real problems with that.
17 There is clearly potentially the prospect that having heard from the
third and fourth defendants I might be disposed to make some different orders than those made last week. If that be so, there would then be some considerable difficulty with what might be inconsistent orders as against the first and second defendants by comparison with those against the third and fourth defendants.
There are significant difficulties in that situation and I do not think it is one which I should willingly allow to occur, even potentially.
19 Secondly, in terms of prejudice, it seems to me there is no prejudice
to the plaintiffs were I to proceed on the basis of setting aside the orders made last week and giving the third and fourth defendants an opportunity to make submissions in respect of the application and the first and second defendants a limited opportunity to deal with any matters affecting them
[2003] WASC 53 (S3)
ROBERTS-SMITH J
which might arise out of the submissions made by the third and fourth
defendants.20 I am told by Mr Feinauer that the process of taxation is going to take
a very long time in any event and although clearly there would be some inconvenience in proceeding with the work in respect of the item "getting up" on one basis rather than another, that is to say, on the basis the cost limit has been lifted or not, nonetheless to the extent that might be seen as prejudice to the plaintiffs, it is in any event prejudice which has arisen as a result of the way in which the matter has been conducted by their own solicitors.
21 On that basis it seems to me it would be unjust to let the order stand
and I propose to recall it. I will recall the orders made on Thursday and set them aside, except for the order made then that the plaintiffs pay the first and second defendants' costs of the application in any event, which order shall stand.
0
0
1