Clambake Pty Ltd v Owston Nominees No 2 Pty Ltd - [2010] WASCA 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CLAMBAKE PTY LTD -v- OWSTON NOMINEES NO 2 PTY LTD [2010] WASCA 146

CORAM: NEWNES JA

HEARD: ON THE PAPERS

DELIVERED : 29 JULY 2010

FILE NO/S: CACV 53 of 2009

BETWEEN: CLAMBAKE PTY LTD
Appellant
AND
OWSTON NOMINEES NO 2 PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD [No 3] [2009] WASC 52
File No  :CIV 1707 of 2003, CIV 2093 of 2003

Catchwords:

Practice and procedure - Costs - Large and complex appeal - Appellant six days late in filing appellant's case - Application by respondent to dismiss appeal for failure to file appellant's case - Obligation of parties to confer in person or telephone before making interim application - No order as to costs of application

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32, r 32(5)(d)

Result:

Each party bear its own costs of application

Category: B

Representation:

Counsel:

Appellant: No appearance (on the papers)
Respondent: No appearance (on the papers)

Solicitors:

Appellant: Minter Ellison
Respondent: Lavan Legal

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

Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52
Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 7] [2009] WASC 390
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

NEWNES JA: The respondent (Owston) has applied for an order that the appellant (Clambake) pay the costs of an application made by Owston to dismiss the appeal on the ground that Clambake had failed to file and serve the appellant's case within time. The claim for costs is resisted by Clambake which says that the application was premature and had no prospect of success, and it seeks an order that Owston pay its costs of the application. Each party has filed written submissions on the issue of costs. They have agreed that it should be determined on the papers. Owston accepts that the application itself has been overtaken by events and should be dismissed.

Background

Before turning to the question of costs, it is necessary to set out the relevant background. This appeal arises out of the trial of proceedings heard over 30 hearing days in October and November 2008. Judgment was delivered on 9 March 2009: Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52. The judgment ran to 295 pages. After judgment was delivered some further discrete matters remained to be resolved and they were heard over three days in November 2009. The primary judge delivered his decision on 14 December 2009: Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 7] [2009] WASC 390 Those proceedings have given rise, in all, to the current appeal and two related appeals, CACV 34 of 2009 and CACV 6 of 2010. The latter appeal relates to the judgment delivered on 14 December 2009.
The appeals are to be heard together in October this year. As the appeals arise out of a common or overlapping factual substratum, the more recent procedural steps in this appeal and CACV 34 of 2009 have been programmed together. The appeal in CACV 6 of 2009 has encountered certain procedural delays and has followed a different time table.
The appeal which was first in time is, as the number would indicate, CACV 34 of 2009 (the Owston appeal). In that appeal, Owston is the first appellant and Clambake is the first respondent. That appeal was commenced on 27 March 2009. Pursuant to r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant's case was due to be filed and served by 1 May 2009. On 6 May 2009, an order was made, by consent, extending the time for Owston to file and serve the appellant's case to 15 June 2009.
This appeal (the Clambake appeal) was commenced on 8 May 2009.
On 27 May 2009, the parties to both appeals attended a directions hearing before the Court of Appeal Registrar. At that hearing it was ordered that in each appeal the time within which the appellant's case was to be filed and served be extended until further order.
On 21 January 2010 there was a further directions hearing before the Court of Appeal Registrar in both appeals. In each appeal it was ordered that the time for the appellant to file and serve the appellant's case be extended to 10 March 2010.
On 15 March 2010 the Court of Appeal Registrar made, by consent, an order in each appeal that the time for the filing and service of the appellant's case be extended to 30 April 2010. That apparently came about as a result of a request by Owston for an extension of time in the Owston appeal. The next directions hearing in the appeals was set down for 7 May 2010.
In the Owston appeal, the first appellant's case was filed and served on Friday, 30 April 2010. The current dispute has arisen because Clambake did not file the appellant's case in the Clambake appeal by that date.
On Monday, 3 May 2010, the Owston's solicitors wrote by email to the Clambake's solicitors enquiring when the appellant's case would be filed and served. The Clambake's solicitors responded by email the same day saying they expected to be in a position to file and serve the appellant's case on Tuesday or Wednesday. On Thursday, 6 May 2010, the appellant's case not having been served, Owston's solicitors wrote again asking to be informed when it would be served. They said that they expected to receive instructions 'to move for the dismissal of the appeal at tomorrow's directions hearing if the appellant's case has not been filed and served'.
At 5.08 pm that day, Owston's solicitors sent to Clambake's solicitors by email an (unfiled) application to dismiss the appeal for failure to file the appellant's case and a supporting affidavit referring to the orders that had been made and the email exchange of 3 May 2010. The affidavit also referred to a suspension order granted to the appellant by the trial judge which it was said was causing prejudice to the respondent. But it was not suggested that the delay had interfered with the respondent's preparation of the appeal or that it might affect the hearing dates fixed for October 2010. The covering letter said that the application to dismiss the appeal would be filed the following day prior to the directions hearing at 11.30 am.
At 6.18 pm that evening, the solicitors for Clambake sent by email to Owston's solicitors a copy of the appellant's case. Clambake's solicitors noted in the email that the submissions contained in the appellant's case exceeded the 20 page limit prescribed in r 32(5)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) and said they intended to apply at the directions hearing the following day for leave to file the submissions in that form.
The following morning the application to dismiss the appeal and the supporting affidavit were filed by Owston's solicitors and served on Clambake's solicitors by email at 11.32 am. At the time the email was sent, the solicitors for the respective parties were attending the directions hearing before the Court of Appeal Registrar in connection with the appeals.
In an affidavit sworn 20 May 2010 and filed in opposition to the application, Ms Davies, a solicitor employed by Clambake's solicitors, says that the delay in filing the appellant's case arose because of the 'unavailability of counsel, due to other urgent or pressing court commitments, to settle some minor amendments to the submissions' contained in the appellant's case. Ms Davies says that, having received a settled copy of the appellant's case from counsel in Sydney on 6 May 2010, she telephoned the associate to a Court of Appeal Registrar that afternoon to enquire whether there would be any objection to the length of the submissions. Ms Davies says that she was told not to file the document that day but to raise the question of the length of the submissions at the directions hearing the following morning. Ms Davies says it was for that reason the appellant's case was not filed on 6 May 2010.
At the directions hearing on 7 May 2010, Registrar Bush ordered that the time within which Clambake was to file and serve the appellant's case be extended to 7 May 2010. The appellant's case was filed that day.
On 17 May 2010 Clambake's solicitors wrote to Owston's solicitors proposing that the application to dismiss the appeal be dismissed with no order as to costs. That proposal was rejected.
Owston no longer presses for an order that the appeal be dismissed, but seeks an order that Clambake pay its costs of the application.

Disposition of the application

It is axiomatic that orders of the court are made to be complied with and that a party who is unable to comply with a time limit contained in an order of the court, or in the rules of court, must make an application for an extension of time. Where a party fails to comply with a time limit it is plainly open to the other party to apply to the court for relief. But the question of when it is appropriate to make such an application, and the nature of the relief sought, must be approached with common sense and having regard to the practicalities of the situation.
The current appeals arise out of lengthy and complex litigation involving a sum in the order of $20 million dollars. As I have mentioned, the trial ran for 30 hearing days. The appeals have been set down for hearing in October 2010 for four days.
By the evening of 6 May 2010, Owston's solicitors had received a copy of the appellant's case and the solicitors for each party were due to appear before a Court of Appeal Registrar the following morning on a directions hearing. The issue of the filing and service of the appellant's case was obviously a matter that could properly be raised, and indeed would inevitably have arisen, at that directions hearing. Nevertheless, the following morning, before the directions hearing, Owston's solicitors proceeded to file and then, while the directions hearing was taking place, to serve by email to the office of Clambake's solicitors the application to dismiss the appeal and the supporting affidavit. Why, in the circumstances, that course of action commended itself to them is not clear.
It also appears from the material before me that neither side saw fit to use the telephone to communicate with the other to attempt to resolve the issue. Form 9 in the Court of Appeal Rules contemplates that parties will confer before making an interim application in an appeal. Although O 59 r 9 of the Rules of the Supreme Court 1971 (WA) does not apply to matters in the Court of Appeal, nevertheless ordinarily the ethos which underlies O 59 r 9 will apply with equal force. The effect of that rule is to require the parties to confer before making an interlocutory application, unless that requirement is waived by the court in cases of urgency or for other good reason. It is directed to reducing the incidence of such applications, many of which would otherwise involve both the parties and the court in time and cost entirely disproportionate to the significance of the interlocutory issue in the just and effective resolution of the proceedings. Such conferral must ordinarily be by telephone or face to face rather than simply by an exchange of correspondence: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1. The fact that O 59 r 9 does not apply in the Court of Appeal does not detract from the fact that in circumstances of the present kind such conferral represents good practice and involves no more than the application of practical common sense.
In the present case, while the appellant was in default of the order requiring the appellant's case to be filed and served by 30 April 2010, in my view, in the circumstances of this case, the response of the respondent in filing the application to dismiss the appeal was disproportionate. I consider the appropriate order is that each party bear its own costs of and incidental to the application.

Conclusion

There will be orders that:
1.The application be dismissed; and
2.each party bear its own costs of and incidental to the application.