Aussie Home Loans Ltd v Bradley Philips P/L & Ors No. DCCIV-99-11766

[2000] SADC 132

Aussie Home Loans Limited v Bradley Philips Pty Ltd & Craig Saunders
[2000] SADC 132

Judge Bishop
Civil

1. On 10 December 1999, Aussie Home Loans Limited (“the plaintiff”) lodged an application herein for orders, inter alia, that:

   1... until further order the defendant Craig Saunders, [“the second defendant”] transfer to the control of the plaintiff the telephone number 0418 820 685; and that

   2.in the alternative, until further order the second defendant transfer that telephone number to an independent redirection service to be agreed between the parties where callers can be instructed by voice recording to call either the plaintiff on an alternative number or the [second] defendant on another alternative number.

That application was heard before Judge Herriman.  On 7 March 2000, his Honour indicated his satisfaction that,

“in causing the advertisement which is the subject of this application to be placed in the year 2000 edition of the Yellow Pages, the defendants were in breach of clause 6.16 of the subject contract, in breach of clause 8.5 of that contract or involved in passing themselves off as in some manner representing the plaintiff.”

On 7 March 2000, his Honour ordered, inter alia,

“1..... That the [second] defendant take all necessary steps within 7 days of the date of this order to have diverted to an independent redirection service all incoming calls to the telephone number 0418 820 685;

2.That the costs of that diversion and the costs of the independent redirection service in all respects by [sic] paid by the second defendant;

3...... That upon the said transfer to the redirection service, the second defendant instruct the said redirection service to respond to all calls made to the said number by way of a message in the following terms:

‘This is an answering service for Craig Saunders.  Craig is no longer associated with Aussie Home Loans.  If you want an Aussie Home loan, please ring 13 13 33.  If you want to speak to Craig please leave a message.’;

4...... That paragraphs 1, 2 and 3 of this order enure up to and including 31 December 2000;

5.     ...

6.     ...

7...... That the defendants pay the plaintiff’s costs, including all reserved costs to be agreed or taxed.” 

(My emphasis.)  

That order was endorsed, inter alia,

“If you the within named Craig Saunders do not comply with this order, you will be liable to be imprisoned or otherwise dealt with for contempt of court.”

2 On 21 March 2000, the plaintiff lodged application herein for the following orders:

“1..... That the second defendant be dealt with by the Court for his contempt

2.That the defendants pay the plaintiff’s costs of monitoring the defendants’ compliance with the orders of his Honour Judge Herriman made in this honourable court on 7 March 200 [sic] on an indemnity basis

3.     That the defendants pay the costs of and incidental to this application

4.     Such further orders as this honourable Court deems expedient.”

The foundation for that application were the affidavits of two solicitors in the employ of the plaintiff’s solicitors, which testified that, on four occasions on 17 and 20 March 2000, telephone calls made to the number 0418 820 685 had indicated non-compliance with the terms of the ‘responding message’ which had been directed be made in paragraph 3 (above) of the order made by Judge Herriman on 7 March 2000.

3 This application came before me on 21 March 2000 when, by consent, it was adjourned for one week to enable the plaintiff further to monitor the situation, Dr Baxter (counsel for the plaintiff) indicating that, during that afternoon, there appeared to be substantial compliance with  Judge Herriman’s order.  However, when the application again came before me on 28 March 2000, Dr Baxter indicated that, on 27 March 2000, there did not appear to be substantial compliance with that order.  For the purpose of determining whether it was appropriate, pursuant to Rule 93.03 of the District Court Rules, to direct that the Registrar issue a summons to the second defendant to show cause as to whether he should be dealt with for contempt of court, the application was further adjourned to 5 April 2000, any affidavits for the second defendant to be filed and served on 4 April 2000.

4 On 5 April 2000, Dr Baxter informed the Court that further monitoring of the ‘responding message’ during the previous week had indicated compliance with the order of Judge Herriman.  Dr Baxter requested an adjournment of the application for another two weeks, to enable the plaintiff further to monitor whether there was continued compliance with that order.  In opposing the requested adjournment and seeking that the application be dismissed, Mr Magarey (counsel for the second defendant) submitted that the word “enure”, in paragraph 4 of Judge Herriman’s order, could not be said to impose any continuing obligation upon his client.  Being of a different view, I granted adjournment of the plaintiff’s application for two weeks, to enable further monitoring of the service to be effected.

5 Upon the adjourned application, on 19 April 2000 Dr Baxter again informed the Court of continued compliance with the order of Judge Herriman.  By consent, the plaintiff’s application of 21 March 2000 was dismissed for want of further prosecution.  Thereupon, both the plaintiff and second defendant applied for the costs of that application.  Upon that issue, written submissions were presented.  Unfortunately, delay in presentation of the second defendant’s submissions resulted in my being unable to resolve this issue until I recently returned from leave.

6 Where there has not been a trial on the merits, as Hill J observed in Australian Securities Commission v Aust-Home Investments Ltd & Others (1993) 116 ALR 523, at 530, it will rarely, if ever, be appropriate for a court determining how the costs of the proceedings should be borne to endeavour to determine, for itself, the case on the merits. But, as his Honour continued,

“(3)In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them [South East Queensland Electricity Board v Australian Telecommunications Commission (1989 unreported)].

(4) In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371.”

(The principles there enunciated by Hill J afforded general guidance to Mansfield J in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust, reasons for decision delivered on 30 June 1999, at page 3.)

7 On 17 March 2000, four days before this application was lodged, the plaintiff’s solicitors wrote to the defendants’ solicitors confirming the oral intimation that day given that the order of Judge Herriman was not being complied with and informing them that, unless there were compliance by 12 noon on 20 March, their instructions were to “take steps to have your client dealt with for contempt, without further notice.”  On 20 March 2000, the plaintiff’s solicitors again spoke and wrote to the defendants’ solicitors concerning continued non-compliance with the order.  That letter stated,

“To have at least 4 different responses in one morning...does not constitute compliance with Herriman J’s order.  If that is a consequence of your client’s choice of a “natural person” answering service, he has to solve the problem he has created.  No such problem would occur if the caller to 0418 820 685 were answered with a recorded message.   ...When we attend before the Court, we shall be seeking, on [sic] addition to the obvious orders in relation to your client’s continuing contempt, orders that our client’s costs of monitoring what is going on and of the urgent hearing be paid by your client on an indemnity basis.”

Notwithstanding that response, the uncontested affidavit (sworn on 28 March 2000) of Mr Grace, a solicitor acting for the plaintiff, indicated that non-compliance with the order still continued.  The affidavit (sworn on 4 April 2000) of Mr Holland, a solicitor acting for the defendants, indicated that, on 29 March 2000, compliance with the order was still being sought.  The affidavits (sworn on 4 April 2000) of the second defendant and Mr Korner related to the unsuccessful efforts which were made with Link Telecommunications to ensure compliance with the order.

8 In all of the circumstances surrounding the plaintiff’s application of 21 March 2000, which are disclosed in the documents filed herein, and upon considering the respective submissions of counsel, I am satisfied that the plaintiff acted reasonably in commencing the application.  I am also satisfied that conduct of or for the second defendant precipitated the application.  For two weeks before the application was commenced, the terms of Judge Herriman’s order were not complied with.

9 In my judgment, the plaintiff was justified both in bringing the application and in monitoring the ‘responding message’ to ascertain when compliance with the order had occurred.  In the exercise of my discretion, the plaintiff will be awarded, against the second defendant, both costs of the application and costs of monitoring the ‘responding message’ up to and including 19 April 2000, when the application was dismissed for want of prosecution, compliance with the order then having been achieved.