Chan v Trevor

[2004] WASC 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CHAN -v- TREVOR & ANOR [2004] WASC 41

CORAM:   MCKECHNIE J

HEARD:   10 MARCH 2004

DELIVERED          :   10 MARCH 2004

FILE NO/S:   CIV 2206 of 2001

BETWEEN:   SENG FAI CHAN

Plaintiff

AND

DOUGLAS TREVOR
JOHANNA BEATRIX TREVOR
Defendants

Catchwords:

Practice and procedure - Costs - No attempt at conferral - Need for an adjournment - Indemnity costs order

Legislation:

Rules of the Supreme Court, O 59 r 9

Result:

Application adjourned
Plaintiff to pay defendants' costs on an indemnity basis

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M F Rynne

Defendants:     Ms C Galati

Solicitors:

Plaintiff:     George Papamihail

Defendants:     Edwards Wallace

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

Nil

Case(s) also cited:

Nil

1. MCKECHNIE J:  In the course of long‑running proceedings for defamation the plaintiff has made application against the defendants for orders that:

   "(1)That Ms Carmelina Galati, the solicitor representing the defendants, be ordered to cease acting any further for the defendants in this action.

   (2)That Ms Carmelina Galati and the firm of Edwards Wallace be required to remove themselves from the court record.

   (3)The time for the hearing of this application be abridged.

   (4)The defendants pay the costs of this application in any event."

2. The application was filed on 8 March 2004 and requires the parties to attend on 10 March, which is of course today.  This morning the applicant has sought that the matter be adjourned sine die.  Ms Galati does not oppose the need for an adjournment, although she would prefer a shorter time.  I propose in due course to make an order that the application be adjourned sine die with liberty to each party to apply on notice to have the matter relisted.

3. Ms Galati seeks the costs of today on an indemnity basis.  I have drawn to the attention of counsel who appears for the plaintiff (and it seems to me the breach is not his breach) that there was absolutely no attempt made for conferral pursuant to Rules of the Supreme Court O 59 r 9.

4. The matter is unusual because the plaintiff is a legal practitioner.  He swore an affidavit on 8 March 2004 where he deposes to conferral.  He said in pars 5 and 6:

   "5.I previously wrote to Ms Galati on 19 September 2002, requesting that she cease acting for the Defendants in this Action due to a possible conflict of interest and due to the possibility that Ms Galati may be called as a witness at the Trial of this action. …"

   6.Ms Galati responded on 19th September 2002 advising me that there would be no conflict of interest if she continued acting for the Defendants in this action. …"

5. I do not regard that as in any way a proper response to the requirement for conferral under O 59 r 9. The exchange of letters occurred nearly 18 months ago, and was not correspondence in relation to this application. What has happened in this case is proof that there was no proper conferral. Ms Galati wrote a detailed letter to the plaintiff's solicitors on 9 March 2004 and suggested that the plaintiff reconsider his position. Mr Rynne mounted his application for an adjournment, quite properly, on the basis that the client needs time to consider his position in the light of the information contained in the letter. That indicates to me that there was no real effort by the plaintiff to comply with O 59 r 9.

6. The matter was, as I have outlined, brought on with short notice.  An abridgement of time was sought.  Nothing is put before me to indicate why, after a period of some 18 months, the matter is suddenly urgent.  I am aware, from a quick look at the file, that there are issues in relation to case management.  The matter is going before Master Newnes in the near future, either tomorrow or early next week.  However, nothing from my brief glance at, what I might call, procedural matters, indicates, to me, an urgency in this application being brought on in the way that it was.  The only urgency might be to obtain some sort of advantage in relation to the matters before Master Newnes.  I do not make any finding about that although I can see no other urgency.

7. In all the circumstances, it seems to me that the plaintiff, by failing to comply with the rules, has brought about the situation where this matter has had to be adjourned.  While in some circumstances one might be sympathetic to plaintiffs, this plaintiff is clearly aware of the need for conferral to take place and has so deposed.

8. The cases cited in "Seamans: Civil Procedure of Western Australia" make the law and the Court's attitude to non‑conferral plain.

9. In those circumstances it is appropriate to make an order that the plaintiff pay the defendants' costs on an indemnity basis in respect of this hearing.