Brian Gardner Motors Pty Ltd v King - [2007] WASC 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BRIAN GARDNER MOTORS PTY LTD -v- KING [2007] WASC 48

CORAM: MASTER SANDERSON

HEARD: 8 FEBRUARY 2007

DELIVERED : 8 FEBRUARY 2007

FILE NO/S: CIV 2220 of 2005

BETWEEN: BRIAN GARDNER MOTORS PTY LTD
Plaintiff
AND
LEEANNE KING
Defendant

Catchwords:

Appeal from costs order made by Registrar - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Costs order set aside
Defendant to pay plaintiff's costs

Category: B

Representation:

Counsel:

Plaintiff: Mr S M Davies
Defendant: Mr P N Bevilacqua

Solicitors:

Plaintiff: Jonathan Eastoe
Defendant: Success Legal

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON: This is an application for an extension of time to appeal an order of Registrar C Boyle and an appeal against that decision. There was no opposition on the part of the defendant to the extension of time being granted and therefore I would make that order.
The order itself which is appealed is an order that certain proceedings be discontinued with no order as to costs. It is the costs order to which the appeal relates. What the plaintiff would have me do is substitute an order that the costs of the action be paid by the defendant.
The appeal itself is brought under O 60A and pursuant to the provisions of O 60A(6)(i) the appeal is by way of rehearing. Strictly speaking I need not give any consideration to the reasons of the Registrar which, in this case, were in writing.
It is for me to look at the matters afresh and to make a decision. It is interesting to note just in passing that under s 60(1)(e) of the Supreme Court Act 1935 (WA) an appeal does not lie on a question of costs from a Judge or Master to the Court of Appeal unless that Judge or Master gives leave. It appears there is no such restriction on an appeal from a decision of a Registrar just in relation to costs. In any event it was not suggested by the defendant that there was no jurisdiction to deal with the appeal.
The facts in this matter can be briefly stated. Proceedings were commenced by writ dated 18 October 2005. The plaintiff sought relief in respect of a database and the interlocutory relief sought was, first, an injunction restraining the defendant from making any use of the database and, second, an injunction requiring the defendant to deliver her laptop computer to a person nominated by the plaintiff in order to permit removal of the database from the hard drive.
An interlocutory injunction was granted by the Hon Justice Jenkins ex parte on 24 October 2005. By its terms that injunction restrained the defendant from disclosing, copying or making use of the database until 2.15 pm on 26 October 2005.
It is worth noting that in making the order her Honour must have been satisfied there was a serious question to be tried and that the balance of convenience favoured the granting of the injunction.
It is also worthy of note that the injunction was in limited terms. It did not require delivery up of the computer for the database to be removed from the hard drive. All it required was that the defendant be restrained from disclosing, copying or making use of the database.
On 26 October 2005 the injunction was extended by consent to 5 pm on 1 November. Solicitors appeared for the defendant on that occasion. After the hearing on 26 October 2005 the defendant agreed to deliver up the laptop and a desktop computer for removal of the database. It was agreed between the parties that the question of costs was reserved and would be dealt with separately.
On 28 October 2005 the defendant's solicitors delivered the defendant's laptop computer to a computer expert who removed the database and returned it to the defendant. Thereafter the only outstanding issues were the desktop computer and the costs of the proceedings.
The defendant had in fact conveyed the desktop to a third party and subsequent inquiries revealed that the third party had since disposed of the computer. The questions of discontinuance of the action and costs came before Jenkins J on 3 March 2006 and 10 March 2006. Eventually these issues were referred to Registrar C Boyle.
A hearing took place before the Registrar on 26 May 2006. Three months later on 31 August 2006 the Registrar made orders. These orders were that the action be discontinued and no order as to costs.
In my view the proper costs order in this case was that the defendant should pay the plaintiff's costs. Essentially I have come to that view for these reasons. It is clear the database belonged to the plaintiff. In my view it could not seriously be disputed that the database was proprietary to the plaintiff and the plaintiff was entitled to it.
The evidence shows that every effort was made by the plaintiff to obtain the database back before proceedings were commenced. This emerges from the affidavits of Mr Weinbrecht, Ms McDonald and Mr Eastoe each sworn on 18 October 2005.
The defendant only gave up the database once the proceedings had been commenced. Properly considered, the plaintiff has been successful in these proceedings. I can see no circumstances which would justify disentitling the plaintiff for an order for costs in its favour.
Accordingly I would allow the appeal and order the costs of the action be paid by the defendant. In normal circumstances that would be enough to dispose of this appeal. But given that the reasons for decision of the learned Registrar were published and given that those reasons are critical of the plaintiff's solicitor I should I think make some comments about the findings of the learned Registrar.
It seems that the learned Registrar was of the view that the plaintiff's solicitor had failed to disclose certain material to her Honour which was material to the granting of the injunction. I can see nothing in the evidence which supports such a finding. Frankly, the evidence which was put before her Honour was full and complete and nothing further was required.
What the learned Registrar seems to have concluded was that in some way the plaintiff's solicitor should have interrogated the defendant to find out whether or not there was a competing claim. In my view there is no justification for such a conclusion. The plaintiff's solicitor in a telephone conversation asked the defendant to deliver up the computer. She refused. She offered no explanation as to why the database should be retained by her.
There was no positive obligation on a solicitor to take the matter any further. If an explanation had been offered, perhaps a claim by the defendant that she was entitled to joint ownership of the database, then it would have been incumbent upon the plaintiff's solicitor to include that in the affidavit material. But there is no suggestion anything to that effect was said by the defendant. Consequently the disclosure made by the plaintiff's solicitor was full and complete.
The learned Registrar also concluded that the proceedings were issued "abusively." In my view there is nothing in the evidence to suggest that was the case. As I have already outlined, demand was made for return of the database and it was not returned.
There was no timetable given by the defendant as to when its return might have been expected. She did say that she intended to consult a solicitor but when directly questioned about that by the plaintiff's solicitor she was unable to give a date or time and did not indicate that any appointment had been made. In the circumstances I can see no foundation at all for suggesting that there was some abusive behaviour on the part of the plaintiff's solicitor.
Finally, there is a question of procedural fairness. When the hearing took place before the learned Registrar on 26 May 2006 the learned Registrar himself raised the question of whether or not there had been a serious failure on the part of the plaintiff's solicitor to make disclosure or whether the proceedings had been conducted abusively. Neither of those two issues had been raised by the defendant. The learned Registrar should in my view have provided the plaintiff's solicitor with the opportunity to answer both those queries. In fact he refused to accept further affidavit evidence and submissions.
It is true that litigation must be brought to an end and one of the things that bedevils proceedings in this Court - particularly interlocutory proceedings - is the late filing of affidavits and endlessly refined or additional submissions. But this is a different case. This was a matter where the integrity of the solicitor was raised by the Registrar and the solicitor should by any measure have been given the opportunity to answer the concerns expressed by the Registrar. Not to allow the solicitor to do so was patently unfair.
I want to make it clear that from my reading of the evidence I can see nothing that would impinge upon the integrity of the solicitor involved or the way in which he conducted this litigation. Quite the reverse. It seems to me to have been a situation where prompt action brought about a prompt resolution and the steps taken were both necessary and appropriate.
Because the Registrar published reasons in this matter which are on the public record I think it is appropriate that these reasons be published to put the record straight. In my view the plaintiff's solicitor is entitled to have me take that course of action.