Alvaro v Metaxas and HAGER
[2012] WASC 341
•20 SEPTEMBER 2012
ALVARO -v- METAXAS & HAGER [2012] WASC 341
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 341 | |
| Case No: | LPA:42/2010 | 16 AUGUST 2012 | |
| Coram: | MASTER SANDERSON | 20/09/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROCCO ALVARO METAXAS & HAGER |
Catchwords: | Costs Application to strike out an application for review of solicitors costs for want of prosecution Turns on own facts |
Legislation: | Legal Profession Act 2008 (WA), s 298 |
Case References: | Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398 Hughes v Gales (1995) 14 WAR 434 Ulowski v Miller [1968] SASR 277 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
METAXAS & HAGER
Respondent
Catchwords:
Costs - Application to strike out an application for review of solicitors costs for want of prosecution - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA), s 298
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr D J Garnsworthy
Respondent : Ms M L Coulson
Solicitors:
Applicant : David Garnsworthy
Respondent : Coulson Legal
Case(s) referred to in judgment(s):
Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398
Hughes v Gales (1995) 14 WAR 434
Ulowski v Miller [1968] SASR 277
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1 MASTER SANDERSON: This is an application to strike out for want of prosecution. The applicant is a former client of the respondent. The respondent is a firm of legal practitioners and over time they rendered a series of accounts to the applicant. By letter of 29 October 2010 the applicant sought to have these accounts taxed.
2 By letter from the court dated 10 November 2010 the application (which I will refer to as the Action) was listed for a directions hearing on 26 November 2010. Although it is not clear from the file it would appear that hearing was adjourned so that discussions could take place between the parties. Counsel for the applicant then wrote to the court by letter dated 4 March 2011 asking for the matter to be relisted. It is worthy of note there is nothing in the evidence to suggest the respondent did not acquiesce in the delay between 26 November 2010 and 4 March 2011.
3 By letter of 23 March 2011 the court wrote to the parties advising the matter would be listed for an assessment of costs on 9 May 2011. By letter of 11 April 2010 the applicant requested the court obtain files relevant to several actions 'involved in the assessment'.
4 The assessment hearing took place on 9 May 2011 before Registrar C Boyle. Both parties were represented by counsel. The registrar made certain comments at the hearing in relation to the inadequacy of the applicant's application and adjourned the hearing. The applicant was ordered to pay the respondent's costs of the hearing fixed at $400.
5 By email dated 8 June 2011 the respondent asked the applicant's counsel to provide unavailable dates so 'the matter can be listed without further delay'. There was a further exchange of emails. It would appear the applicant's counsel was contacted by the registrar's associate in mid-June asking for an update on the progress of the matter. Counsel responded by letter of 30 June 2011. He indicated the matter was not yet ready to proceed as further work had to be undertaken. Although no indication is given in the correspondence as to when the matter would be ready for hearing the implication is counsel expected the matter would not be long delayed.
6 By email dated 26 July 2011 the respondent contacted the applicant's counsel seeking an update on the present position. The letter said the respondent would in any event be relisting the matter. It would appear further discussions took place between the respondent and the applicant's
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- counsel and on 27 July 2011 counsel for the applicant wrote to the court asking for the matter to be relisted. It was relisted on 5 October 2011.
7 On 5 September 2011 counsel for the applicant wrote to the court saying he was no longer available on the proposed date. With the consent of the respondent the matter was to be further adjourned. It was adjourned without appearance until 30 November 2011.
8 On 29 November 2011 the parties lodged a consent order vacating the taxation scheduled for the following day and seeking to have the matter relisted. The correspondence shows the respondent was attempting to complete the reconciliation of the files which comprised the taxation.
9 Between January and March 2012 there were a number of email exchanges between the applicant's counsel and the respondent's counsel. On 8 March 2012 the applicant's counsel sent an email to the respondent saying, 'please send correspondence direct to Rocco'. No further steps were taken in a taxation until the respondent applied to strike out for want of prosecution. That application was filed on 5 June 2012.
10 The principles to be applied in an application to strike out for want of prosecution were not in dispute. Both parties relied upon what was said by the Court of Appeal in Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398. Steytler P and Owen JA set out the legal principles at (412 - 415). Their Honours say:
There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
• the length of the delay;
• the explanation for the delay;
• the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
• the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
• the conduct of the defendant in the litigation (414).
11 Their Honours had previously said the discretion is unfettered and is to be applied on a case by case basis. They refer to a number of decisions in particular the decision in Ulowski v Miller [1968] SASR 277; and Hughes v Gales (1995) 14 WAR 434.
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12 This case is slightly unusual. It involves a taxation of costs. There is no reason why an application to strike out for want of prosecution cannot be brought in such proceedings - counsel for the applicant did not argue otherwise. For present purposes it is enough to note the nature of the proceedings without saying anything more.
13 In an affidavit by Bruce Graeme Grubb sworn on 6 June 2012 and filed in support of the application the respondent sets out five areas where it says it is prejudiced. First the respondent says it no longer has the relevant files in relation to which the applicant instructed the respondent. It seems these files were provided to the applicant's new solicitors prior to the fees rendered to the applicant being paid. Undoubtedly the respondent would have had a lien over these files. It is not difficult to understand now the respondent would be at something of a disadvantage because it does not have access to the documents. Nonetheless they are probably in no worse a position now than they were when this application to have the bills taxed was made.
14 Secondly the respondent says the passage of time is making it more difficult for Mr Grubb who undertook the work on behalf of the applicant to recall relevant events. Some of the work goes back to March 2008 and relates to some 12 matters.
15 Third the respondent has engaged counsel who specialises in costs matters. The longer the matter goes on the greater will be the irrecoverable fees incurred by the respondent in dealing with the taxation.
16 Fourth by reason of s 298 of the Legal Profession Act 2008 (WA) the respondent is precluded from recovering its costs in the Magistrates Court until the assessment is determined. In fact the respondent did commence proceedings in the Magistrates Court in 2010. On 13 July 2010 it obtained default judgment against the applicant. On 19 November 2010 that default judgment was set aside. The Magistrates Court action now is stayed. The respondent says it is prejudiced by not being able to pursue that action by reason of the applicant's delay.
17 Fifth it is said the way the matter has dragged on is in every sense prejudicial. In other words the final matter is really a catchall which picks up the inevitable prejudice to a party when an action is not pursued diligently.
18 In opposition to the application the applicant relied on an affidavit he swore on 19 June 2012. It would appear the affidavit was prepared by the
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- applicant personally. With respect it does not advance the position at all. It provides no real explanation as to why the delay has occurred.
19 On balance I am not satisfied this is an appropriate case to strike out for want of prosecution. My reasons for reaching that conclusion are as follows. First although the taxation of costs has been adjourned on a number of occasions it would appear most of the adjournments have been by consent. It is difficult to work out the extent to which the respondent has acquiesced in the delay. It is also somewhat harsh to penalise the respondent when it appears they have been acting reasonably in giving the applicant more time to prepare their case. Nonetheless the Hancock decision makes it plain periods of delay in which the respondent has acquiesced are not to be held against the applicant.
20 Viewed in that light I am not satisfied the length of the delay is such as to justify striking the matter out. Notice of the review was given on 29 October 2010 and the application to strike out was filed 5 June 2012. When adjournments by agreement are factored in, in my view the delay is not so long as to warrant taking the draconian step of striking out the application.
21 There is also an issue as to the practical utility of striking out this application. If that was done there would appear to be no reason why the applicant should not simply seek a review. There may then arise a question of whether or not any required extension of time would be granted. But that has the potential to cause further delay and increase the cost for all parties. In my view it would be preferable to allow this assessment to proceed and ensure it is undertaken as soon as possible.
22 As a final factor there does not appear to have been any contumelious disregard of orders by the applicant. True it is he has not progressed this matter as promptly as he should have. But there is nothing on the file to suggest he has ignored any programming order or deliberately engaged in delay. That is a factor in his favour.
23 It should be possible to now bring this matter to a reasonably prompt conclusion. Having said that, I am mindful in the past such optimism has been unfounded. In Hancock for instance counsel for the plaintiff on the appeal thought it should be possible to get the matter to trial within six to nine months. Steytler P and Owen JA were sceptical. That scepticism was justified. The appeal decision was handed down in May 2005. The matter went to trial earlier this year - some seven years later. This matter
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- should not be allowed to drift. I will make programming orders for the early disposal of the application.
24 Subject to hearing from the parties I am satisfied the applicant ought pay the costs of the application. There has been undue delay which, while not sufficient to warrant striking out the proceedings for want of prosecution, is inexcusable. I would be prepared to fix the costs if the respondent so wishes.
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