| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BRYAN -v- WARRICK & ANOR [2004] WADC 210 CORAM : REGISTRAR WALLACE HEARD : 9 MARCH 2004 DELIVERED : 11 MARCH 2004
PUBLISHED : 29 OCTOBER 2004 FILE NO/S : CIV 2181 of 2003 BETWEEN : MURRAY BRYAN Plaintiff
AND
JOHN GEOFFREY WARRICK
JUDITH WARRICK
Defendants
Catchwords: Defendants' strike-out application - Whether plaintiff's fresh action for amount of costs of earlier action, agreed with defendants, constitutes an abuse of process - Preferable course of action - Considerations in determining appropriate costs orders Legislation: Nil
Result: Plaintiff's action struck out
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Representation:
Counsel:
Plaintiff : Mr J C R McManus
Defendants : Mr J R Brooksby
Solicitors:
Plaintiff : Ilberys
Defendants : Greenland Brooksby
Case(s) referred to in judgment(s):
McHenry v Lewis (1882) 22 Ch D 397
Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225
Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589
Case(s) also cited:
Nil
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1 REGISTRAR WALLACE: By chamber summons filed on 10 November 2003 the defendants seek orders that the plaintiff's action be struck out and that the plaintiff pay the defendants' costs of the application and of the action. I heard the application on 9 March 2004, when I reserved my decision.
2 As a preliminary matter, to the extent that the application was expressed on the face of the chamber summons to have been brought pursuant to O 16 of the Rules of the Supreme Court, it was necessary for the defendants, at the hearing, to seek leave to bring the application out of time. Given that the application was only a few days late, and since I am satisfied that it is appropriate for the application to be determined on its merits, such leave will be granted. 3 It is understood that the defendants' application is brought not only on the ground that the defendants have a good defence to the plaintiff's claim, but also on the ground that the action constitutes an abuse of process. This action was commenced on 1 October 2003, and the nature of the plaintiff's claim against the defendants is that he seeks payment of the sum of $55,000 being the amount agreed by the parties on 10 September 2003 in respect of the plaintiff's costs and disbursements in action number 1133 of 2001. 4 The relevant costs order was made by her Honour Judge French as part of her judgment after trial delivered on 8 October 2003. It is not in dispute that a cheque in the amount of $55,000 was sent by the defendants' solicitor to the plaintiff's solicitor on 3 October 2003, together with a cheque in the amount of $719.56 being interest on the judgment sum awarded to the plaintiff by way of damages. 5 At the hearing, counsel for the plaintiff confirmed that he sought orders that the action be dismissed with costs in favour of the plaintiff. Essentially, therefore, the issue I am called upon to determine is whether or not this action was properly brought. In the light of such determination, I am then required to make what I consider to be the appropriate order as to costs. 6 In support of their application, the defendants filed the affidavit of John Brooksby sworn on 30 October 2003, wherein it is deposed that on 24 April 2001 the plaintiff in the present action, issued proceedings against the defendants claiming damages for personal injury allegedly sustained by him on 26 May 2000. The plaintiff was awarded damages and the defendants were ordered to pay the plaintiff's costs of the action to be taxed.
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7 The plaintiff's solicitors submitted a bill of costs and an appointment for taxation was fixed for 10 September 2003 at 2.15pm. During a telephone conversation on the morning of 10 September, the solicitors for the parties agreed the amount of the plaintiff's costs and disbursements in the sum of $55,000. Annexed to the affidavit of James Cornelius Ronald McManus, sworn on 17 November 2003 and filed in opposition to this application, are two letters dated 10 September 2003, one addressed to the defendants' solicitors confirming the agreement as to costs, and the other addressed to this Court advising the costs had been agreed and requesting that the appointment before the Taxing Officer be vacated.
8 It is deposed in pars 8 to 12 of Mr Brooksby's affidavit that the defendants original insurer was HIH Insurance, and that following the demise of HIH the conduct of the defence was carried by Allianz Australia Advantage Ltd, pursuant to the Federal Government-funded scheme. Under the scheme, it is deposed, treasury approval is required for funds to be dispersed. On 11 September the defendants' solicitors sought from Allianz the cheque for $55,000. 9 A follow-up call was made on 23 September 2003 to the relevant claims officer at Allianz, requesting that the cheque be processed as soon as possible. Mr McManus' affidavit establishes that meanwhile, on 19 September 2003, the plaintiff's solicitors wrote to the defendants' solicitors requesting payment by return. A further letter was sent on 26 September 2003, advising that the plaintiff had given instructions to commence a District Court action for recovery of the amount agreed in respect of costs should payment not have been received by noon on 30 September 2003. 10 I note that there is a conflict of evidence, in that whilst Mr McManus deposes that there was no response from the defendants' solicitors, Mr Brooksby deposes that on 26 September 2003 a telephone message was left for Mr McManus advising that there was no need to commence proceedings, that the cheque had been sought and that the defendants' solicitors were doing all they could to obtain the cheque from the government-funded entity. 11 The cheques were received by the defendants' solicitors on 3 October 2003, and on the same date they were forwarded to the plaintiff's solicitors under cover of a letter which contained the request: "Kindly confirm you will now discontinue the proceedings against the defendants for recovery of your costs. If not we shall apply to strike-out the proceedings on the grounds that issuing the writ amounts to an abuse of process."
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12 That foreshadowed application is the one now before me. Although I do not have the benefit of the transcript of the hearing, my handwritten notes indicate that the submissions of counsel for the defendants were along the following lines.
13 The Court determined the issues between the parties in action number 1133 of 2001 and made a costs order, those having been quantified by agreement, on 10 September 2003. 14 Accordingly, it was submitted, the matter is res judicata, which notion, together with that of issue estoppel, is, in words of Murphy J in the High Court case of Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589: "…founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues which could have been, and should have been, decided in earlier litigation." 15 In the same case, the early authorities of McHenry v Lewis (1882) 22 Ch D 397and Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 were cited with approval by the High Court, which held that the court can, and will, interfere whenever there is vexation and oppression, and there is vexation in point of fact where there is no necessity for harassing the defendant with double litigation. 16 Counsel for the defendants in the present case submitted that it was an abuse of process to have two writs arising out of the same cause of action, and that in any event the defendants had never refused to pay the sum claimed, they were simply waiting for the cheque to be processed. 17 At the hearing, counsel for the plaintiff submitted that the plaintiff was perfectly entitled to issue these proceedings based on the agreement, as the parties had elected out of the taxation process and had proceeded instead on the basis of an agreement that was made on the morning of 10 September. 18 Having followed up the agreement with written notice of intention to commence proceedings if the plaintiff's deadline were not met, the action was properly commenced, submitted counsel, and the plaintiff should be awarded his costs of the application and of the action. In response to my raising with counsel for the plaintiff the situation regarding the defendants' insurer, he submitted that such should be regarded essentially
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as a "red herring", since it was not relevant to the rights and obligations of the plaintiff and the defendants inter se. 19 For the sake of the completeness, I note that counsel also expressed the view that the principles which are required to be considered by me in the present case might well be applicable to those cases where a plaintiff seeks to obtain from the defendant payment of an amount pursuant to a deed of settlement rather than a judgment. Whilst I am aware that plaintiffs sometimes encounter such difficulties, and I am sympathetic to that fact, I make no further comment, since it clearly falls outside the ambit of the application now before me. 20 I turn now to make my own observations, and I think it is helpful for the purpose of putting the dispute into context for me to mention that I have obtained the Court file for action number 1133 of 2001. I note that her Honour's judgment describes the accident as follows: "The plaintiff got down from a stool at the bar, turned around, and tripped over a dog that was lying on the floor. As a result of his fall he sustained soft-tissue injuries to both knees." 21 I note that the plaintiff continued to operate his shop-fitting business, (although the financial statements indicate some decline in its profitability) and that on that basis her Honour made a global award of damages. I make these observations because they lend a sense of perspective. It seems to me that the plaintiff's injuries were not severe injuries; certainly they did not force him to give up his job, and by the time the present action was commenced he had already received judgment sum of some $136,800. 22 Whilst the plaintiff understandably wished to receive the cheque for his costs as soon as possible, there was apparently no urgency based on actual financial hardship. That being so, for the plaintiff to have instructed his solicitors to commence a fresh action by writ only some 14 working days after the amount for costs had been agreed was, in my view, at least a premature overreaction to a delay which could not be described as inordinate. 23 Moreover, although I accept that the "red herring" submission referred to earlier in these reasons is technically correct, one cannot simply ignore the practicalities. I am prepared to take judicial notice of the practical consequences which have flowed from the HIH collapse, to the limited extent that I recognise that the additional bureaucratic channels have increased the length of time taken for paperwork to be processed.
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Such observations relate to the timing of the institution of these proceedings, but more important is the nature of the cause of action pleaded. 24 I am strongly of the view that the wrong course of action was taken on 10 September 2003. The amount of the plaintiff's costs was agreed in the morning, and there was an appointment before a Taxing Officer fixed in the afternoon. In my opinion, that appointment should not have been vacated. A representative of each party should have attended at the appointed time, confirmed the agreement to the Taxing Officer, and obtained a consent allocatur in accordance with the procedure described in the "Circular to Practitioners", a copy of which was provided to me by the defendants' solicitors. 25 That course of action would have been prompt, convenient, inexpensive and certain. In the event of default in payment, the plaintiff would have been able to execute directly on the basis of the allocatur. It brings to mind the old proverb, "a stitch in time saves nine", and I would urge the parties to follow such a course in future. 26 That having been said, I am not convinced that once the original appointment for taxation had been vacated it was thereafter no longer open to the plaintiff to seek a fresh appointment solely for the purpose of having a consent allocatur signed. In the light of the plaintiff's concerns regarding delay, it would, in my view, have been reasonable for the plaintiff's solicitor to have made such a request to the defendants' solicitor. I am confident that the Court would have accommodated such a request without delay. Every Registrar of this Court is ex officio a Taxing Officer, and a 10 minute slot would have been easily found. Even the two-hour appointment for the full-blown taxation was allocated promptly: the bill of costs was filed on 20 August 2003, and the appointment for 10 September was listed by the Court after taking into account a number of unavailable dates. 27 Such is the course of action which I consider the plaintiff ought to have followed, but I must still determine whether or not the course of action which the plaintiff actually followed was a proper alternative. I am not entirely convinced by the argument that the circumstances give rise to a res judicata. There was no liquidated amount in the judgment itself. The amount of costs was essentially left to be finally determined by the Taxing Officer. That was never done by way of a taxation, nor was the agreed amount incorporated into the judgment by the prescribed means of
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the allocatur. I doubt that, until such formal finality has been achieved, res judicata will be applicable. 28 The proceedings might, nevertheless, amount to an abuse of process on other grounds, however, and having taken into account all the circumstances I have formed the view that the present action does fall within the category of "litigation which is unnecessary, ill-adapted to achieve complete justice between the parties and an inappropriate judication of court proceedings". Also it may be regarded as oppressive insofar as the defendant has been forced to deal with two separate suits. As such, I conclude that the action should be struck out as an abuse of process. 29 I turn now to the question of costs. I have a discretion which I propose to exercise taking into account all of the circumstances. There are a number of matters which I consider relevant. Firstly, I am confident that both counsel will understand why I am reluctant in this case to make a costs order which would lead the parties back, full-circle, to having a bill of costs taxed. Secondly, I am personally familiar with the limited content of this short-lived action as well as this strike-out application. Thirdly, I am not satisfied that it would be appropriate in this case for costs simply to follow the event and nothing more. 30 I consider that the interests of justice would be better served by my fixing costs in an amount which takes into account not only the fact that the defendants' application has been successful, but also the fact that there was some contribution on the part of the defendants to the unsatisfactory state of affairs which prompted the plaintiff to issue the writ. They are: firstly, that the defendants' solicitors apparently acquiesced in the vacating of the appointment before the Taxing Officer when it was the interests of both parties to have the consent allocatur signed. Secondly, there was a delay providing the cheque to the plaintiff; even after the cheque had been issued on 23 September 2003, there was the delay (which in his affidavit Mr Brooksby concedes is unexplained) of nine days before the cheque was received by the defendants' solicitors. Thirdly, I consider that it would have been both prudent and courteous for the defendants' solicitors to have responded promptly and in writing to the plaintiff's solicitor's letters dated 19 September 2003 and 26 September 2003. A telephone message left by an articled clerk was, in my view, an inadequate means of communication - evidenced by the fact that the message never reached Mr McManus.
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31 In addition to those considerations, I note that the defendants' chambers summons was filed out of time and did not, on its face, seek the necessary leave; I also note that I have not been persuaded by the defendants' argument in relation to the issue of res judicata.
32 Taking into account the content of the defendants' solicitor's letter dated 3 October, inviting the plaintiff to discontinue the action, I have formed the view that it would be appropriate for each party to bear its own costs of the action up to the bringing of this application. I suspect that if the plaintiff had been willing to have his action dismissed by way of an O 43 r 16 minute of consent orders at that point, ie. upon receipt of the cheque, the defendants would probably not have sought costs. 33 As for this strike-out application, my aim today is to fix costs in favour of the defendants against the plaintiff in a sum which constitutes a contribution to the defendants' costs of bringing the application, but which is not unduly punitive to the plaintiff. 34 Orders made 1. The defendants do have leave to bring this application out of time; 2. The plaintiff's action be struck out; 3. The plaintiff do pay the defendants' costs of this application fixed in the sum of $700, otherwise each party do bear its own costs of the action.
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