Boniface v Hong Kong Jockey Club Systems

[1997] QCA 54

COURT OF APPEAL

[1997] QCA 054

DAVIES JA
McPHERSON JA

FRYBERG J

Appeal No 10041 of 1996

IAN BONIFACE	Applicant
v. HONG KONG JOCKEY CLUB SYSTEMS
(AUSTRALIA) PTY. LTD.	Respondent
BRISBANE ..DATE 10/02/97

JUDGMENT
100297 T9/FLC14 M/T CMS11/97
DAVIES JA: The applicant seeks leave pursuant to section
118 of the District Courts Act to appeal against orders made
in the District Court at Southport on 8 November last.
Those orders were as follows:

1.   That the applicant file and serve a further amended plaint within seven days of the order;

2.   That the respondent deliver a request for further and better particulars of the further amended plaint (if any) within seven days after service of the further amended plaint;

3.   That the applicant deliver further and better particulars within 14 days after the request; and

4.   That the applicant pay the respondent's costs of and incidental to the application.

The second of those orders was of course a conditional order against the respondent not the applicant and so was not an appropriate one for him to appeal against at any stage but having said that there is no need to refer to that again.

The action which was commenced by plaint on 5 July 1996 claimed damages pursuant to section 82 of the Trade Practices Act and section 99 of the Fair Trading Act. Prior to the making of this order there had been an order of the District Court that a number of paragraphs of the applicant's plaint be struck out, some of the basis that they were scandalous and embarrassing and others on the

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basis that they were irrelevant.

It is unnecessary to say more about that than that the applicant after the order had been made sought to introduce by way of further and better particulars the allegations which had been struck out as scandalous and embarrassing.

He was asked by the respondent to delete these and he did not agree to do this and although he indicated his intention of amending his plaint he did not do so before this application was heard.

Prior to the hearing on 8 November the applicant notified the respondent and the Court that he could not appear on that day as he was appearing in another Tribunal; however he said his wife would appear. On that date it appears that the applicant's wife went to the Court House but mistakenly did not proceed to the correct Court. The Court list which has been exhibited to an affidavit before us was not entirely clear on the matter, at least from a lay person's point of view, as to what the appropriate course for such a person was.

It therefore seems the applicant's wife's error was due partly to her fault and perhaps partly to the inadequacy of the notice, which contributed to the fact that she did not attend the correct Court at the right time although she was generally in the Court building. The respondent's counsel quite properly informed the Chamber Judge that the applicant had said his wife would attend and her name was called three times outside the Court.

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100297 T9/FLC14 M/T CMS11/97 to which I have just referred were made. The applicant filed an affidavit before the hearing explaining his difficulty but it is unclear whether that was read by the Judge. He also wrote a letter to the Registrar dealing with that matter but again it is unclear whether that letter came to the attention of the Judge. Apart from the question of costs these orders have now been complied with. The applicant filed a further amended plaint on 15 November and served a copy of it on the respondent on 18 November. The respondent delivered a request for further and better particulars of the plaint on 22 November and the applicant delivered further and better particulars on 6 December.

The applicant agrees that all these orders apart from the order for costs have been complied with. It necessarily follows that any appeal against the making of those orders would now be pointless and the only question between the parties can be one of costs. The respondent concedes that leave is not necessary in respect of the costs appeal. That appears to be correct although anomalous. The provisions of section 9 of the Judicature Act do not apply to orders for costs made in the District Court.

Consequently no orders can be made on this application unless the parties are prepared to treat this hearing as the hearing of the appeal in respect of the matter. Sensibly both have accepted that this hearing may be treated as the appeal in respect of the matter. There is one other preliminary matter which stands in the way of hearing the

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appeal and that is that the appeal was filed out of time. I
would grant an application for extension of time to allow
this appeal to be heard.

Costs are of course within the discretion of the Court. That is why in the Supreme Court there can be no appeal from a costs order alone except by leave of a Judge who makes the order. Moreover the usual order is that costs abide the event. Rule 363 of the District Court Rules accepts that as correct. It does seem to me however that the application before the learned Chamber Judge was premature. On 30 October (and I omit reference to a long line of correspondence between the parties in the course of which each makes allegations against the other) the applicant wrote to the respondent's solicitors advising that a plaint had been sent to counsel to settle amendments and said that his solicitors advised that counsel would return the amended plaint within seven to 14 days.

A reply was sent by facsimile by the respondent's solicitors on the following day indicating the basis upon which it was said that the application which at that time had not even been filed would be adjourned. It was said that if they received written confirmation from the applicant's solicitors by close of business that day that the amended plaint was with counsel and would be served no later than 14 November they were prepared to adjourn the hearing of the application to the next available chamber day. The application was then filed on

1 November.

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Shortly after that the applicant provided the respondent solicitors with the name of his counsel, though not with the name of his solicitors, and the reason which he gave, and it does not seem to me entirely unreasonable, is that he had engaged them only for advice and he did not want to build up costs by generating correspondence between his solicitors and the respondents.

I should say, however, that his facsimile of 31 October imposed entirely unreasonable conditions upon agreeing to contact with his solicitors. Be that as it may, it seems to me, as I have said, that having regard to that exchange of correspondence was premature. Name of counsel had been given, a time had been given within which the plaint would be delivered, it would have been open and, in my view, appropriate for the respondent - notwithstanding the long history of the matter - to have not made the application for another 14 days and indicated that that would be the course to be taken.

There are also some difficulties arising from the hearing before the learned chamber Judge. The affidavit and the letter to which I have referred from the applicant may not have been brought to the attention of the chamber Judge. In saying that I certainly do not for a moment criticise the conduct of the respondents of that application, but it may be that the information contained in that affidavit and letter were not brought to the learned chamber Judge's attention.

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If those matters had been brought to his attention I think that the probability is that His Honour would have adjourned the application, at least for a week or a fortnight, to ensure that the plaint was filed.

There is also a question which was raised by the presiding Judge during the course of this hearing as to whether in fact the learned Chamber Judge was aware of and, if so, complied with the provisions of Order 65 rule 12 of the Rules of the Supreme Court which, there being no equivalent provision in the District Court Rules, applies in the District Court, and which required him to wait, in effect, for half an hour after the time appointed for the hearing of the application before making an order in the absence of a party. All of those matters, in my view, justify interfering with the costs order, notwithstanding the width of discretion allowed to a Judge at first instance in such matters, and I would accordingly allow the appeal, set aside the costs order made below, and make no order as to costs.

I would also be disinclined to make any order with respect to costs of this appeal.

McPHERSON JA: I agree with the orders proposed by agree with His Honour's reasons. The qualification relates to rule 363 of the District Court Rules. I would myself not be prepared to accept or act on the footing that it refers to the costs of interlocutory proceedings before a Judge without my first having heard further submissions on that

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matter. Subject to that minor exception, I agree with what has been said and, as I have already remarked, with the orders proposed.

FRYBERG J: I agree. In these days when more and more litigants are appearing in person and legal aid is being reduced, it is incumbent upon the Courts to make their public documents as clear as possible. There was an unfortunate scope for misunderstanding in the form of the list published in the District Court to give the public the location of hearings on 8 November 1996 and it would be desirable for the appropriate listing authorities to pay attention to the form of such lists in future.

McPHERSON JA: The order will be as it was propounded by

Mr Justice Davies.

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