Practice and procedure - Application for leave to discontinue action without liability as to costs - Conditional terms on grant of leave - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 23 r 2(3)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     In person
Second Defendant         :     In person

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

Attorney‑General (UK) v Times Newspapers Ltd [1974] AC 273
Attorney‑General v Soundy, Vimpany & Calvert (1938) 38 Tas LR 143
Clark v Richards & Anor [2002] WASC 49
Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554
Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876
J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121
O'Neill v Mann [2000] FCA 1680
Owners of the Cargo of Kronprinz v Owners of the Kronprinz (The Ardandhu) (1887) 12 App Cas 256
Resolute Ltd & Anor v Warnes [2000] WASCA 359
SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113
Willshire‑Smith v Votino Bros Pty Ltd (1993) 41 FCR 496

Case(s) also cited:

Nil

MCLURE J:

Introduction

Even in ideal circumstances, litigation is an expensive stressful experience for the parties. The circumstances in which this action is being conducted are far from ideal. It has assumed nightmarish proportions. The defendants appear in person. In March 2002 they went on oath as to their impecunious circumstances. Nearly five years after she commenced the action, the plaintiff seeks leave to discontinue it without liability as to costs. The plaintiff also seeks the vacation of an order I made on 7 October 2002 for mediation.
The plaintiff's claims in this action are for assault, battery, trespass, libel and slander. The factual backdrop for the dispute is the sport of ice-skating. The plaintiff is or was an ice skating coach who at some time coached one of the defendants' children. The plaintiff alleges that the defendants physically assaulted her in October 1997. The slander allegedly occurred when Mrs Richards said to persons at the Cockburn Ice Rink that the plaintiff had assaulted the defendants, been spreading rumours about another ice skating coach and refused to hand back tapes for which the defendants had paid. The libel claim concerns similar matters published by the defendants in letters to Ice Skating Associations in Western Australia and New South Wales.

Background

The plaintiff commenced the action on 13 November 1997 and filed her statement of claim on 30 March 1998. The defendants filed a defence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Richards

Details

AGLC: Clark v Richards [2003] WASC 5
Case: [2003] WASC 5
Decision Date: 17 JANUARY 2003

CaseChat Overview and Summary

In the case of Clark v Richards, the plaintiff, Clark, sought leave to discontinue the action against the defendants, Richards, without incurring liability for costs. The defendants, Richards, had been involved in various instances of non-compliance with court directions and had exhibited conduct that deterred the plaintiff from proceeding with the action and interfered with the administration of justice. The case was before the court to determine the appropriate conditions, if any, that should be attached to the grant of leave to discontinue the action.

The court was tasked with considering whether leave to discontinue should be granted and, if so, what conditions should be imposed to protect the defendants' rights and to ensure that justice was not compromised. The court examined the defendants' conduct in refusing to abide by court directions, the effect of this conduct on the plaintiff's ability to proceed with the action, and whether any terms should be attached to the discontinuance to protect the defendants' rights.

The court found that the defendants had deliberately refrained from taking steps to relist their further application to amend, and they were primarily responsible for the delay in the progress of the action. The court concluded that leave should be granted to discontinue the action without liability as to costs, subject to certain conditions. These conditions included the plaintiff undertaking not to enforce orders for costs made in her favour in the course of the litigation and not to bring any further proceedings in relation to the action without leave of the court.

The court ordered that the plaintiff be granted leave to discontinue the action without incurring liability for costs, subject to the conditions outlined in the judgment. The court also made an order that the plaintiff not bring any further proceedings in relation to the action without leave of the court and that the plaintiff undertake not to enforce orders for costs made in her favour in the course of the litigation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

However, there is no principle that leave will never be granted unless the rights of the defendant are completely protected: SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113 at 143, 162 and 185. Discontinuance pursuant to leave granted under O 23 r 2(3) does not attract an automatic award of costs against the discontinuing party. The conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: O'Neill v Mann [2000] FCA 1680 at [13]. It may be a term of the leave to discontinue that the plaintiff undertake not to enforce orders for costs made in his or her favour in the course of the litigation: O'Neill v Mann (supra) at [20]. An order for discontinuance without terms as to future proceedings is not a defence to a subsequent action: Owners of the Cargo of Kronprinz v Owners of the Kronprinz (The Ardandhu) (1887) 12 App Cas 256 at 259 and 262. The plaintiff relies on three overlapping categories of conduct in support of her application to discontinue the action with no liability as to costs. They are the defendants' conduct:(1)in refusing to abide by court directions;(2)that has a tendency to deter the plaintiff from proceeding with her action;(3)that has a tendency to interfere with the due administration of justice. The plaintiff relies on the defendants' failure to comply with the order made on 20 March 2002 concerning the filing of any further application to amend their defence and their conduct following the order to attend a mediation conference. As a result of the defendants' failure to file a formal application for leave to amend or to take any steps to bring the matter back before the Court the matter was not listed for a hearing. As a result, the plaintiff's solicitors assumed responsibility for arranging the listing of the matter. At the hearing on 7 October 2002 Mr Richards said the defendants' failure to file a formal application was caused by their lack of understanding of court procedures. However, this was not the first occasion on which the defendants had failed to file a formal application. The defendants filed their first formal application to amend some four months after filing a minute of amended defence and supporting affidavit. A review of the court file shows that prior to the amendment applications, the defendants whilst acting in person, had filed a number of formal applications to the court. Further, as appears from a letter dated 23 October 2002 from both defendants, Mrs Richards refused to apply to have the matter listed. The letter states:"The court and counsel for the Plaintiff are correct, in that we did not apply to have the matter brought on for a hearing – quite frankly, it was Mrs Richards who refused to, as she well and truly had enough to deal with, and decided her family's health was far more important." I am satisfied that the defendants deliberately refrained from taking steps to re‑list their further application to amend. Indeed, the defendants are primarily responsible for the delay in the progress of this action since July 2001. The primary cause of that delay is the defendants' very belated application to plead truth to the libel claim.

Citations

AGLC Citation

Clark v Richards [2003] WASC 5

Most Recent Citation

Del Borrello v Friedman and Lurie (A Firm) [No 3] [2014] WASC 204

Cases citing this decision · 5 of 5 shown

Brindabella Resources Pty Ltd v Australian Transit Group Pty Ltd
[2025] WASC 424 Para 3

…4] Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22], [39]. [15] Clark v Richards [2003] WASC 5 [27], [78] . [16] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J). [17] Ex parte La…
Lynn v Moore Demo and Civil
[2025] WASC 113 Para 2

…Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22], [39] ( Citystyle Enterprises ). [4] Clark v Richards [2003] WASC 5 [27], [78]. [5] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624. [6] O'Neill v Mann [2000] FCA…
ROBERT MICHAEL KIRMAN and ROBERT CONRY BRAUER as joint and several administrators of TIGER RESOURCES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
[2021] WASC 273 Para 3

…rnest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22], [39] (Corboy J). [3] Clark v Richards [2003] WASC 5 [27], [78] (McLure J) . [4] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J). [5] Ex…
Cronin v Green and Carter
[2015] WASC 377

…Clark v Richards [2003] WASC 5 Daniels v Hall [No 2] [2014] WASC 272 Dean v Collins [No 2] [2015] WASCA 151 Del Borrello v Friedman & Lurie (A firm) [No 3] [2014] WASC 204 Judith Betty Green and Mary Lynette Carter In Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow…
Del Borrello v Friedman and Lurie (A Firm) [No 3]
[2014] WASC 204

…Clark v Richards [2003] WASC 5 Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348 Fox v Star Newspaper Co Ltd [1898] 1 QB 636 O'Neill v Mann [2000] FCA 1680 SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

Clark v Richards & Anor
[2002] WASC 49 Para 4

…nce. They did so and the application came before me again on 7 March 2002. I again refused leave for the reasons published in Clark v Richards & Anor [2002] WASC 49. On 20 March 2002 I ordered that any further application by the defendants to amend their defence must be filed and served within seven days from tha…
O'Neill v Mann
[2000] FCA 1680 Para 4

…ct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: O'Neill v Mann [2000] FCA 1680 at [13]. It may be a term of the leave to discontinue that the plaintiff undertake not to enforce orders for costs made in his or her favour in the c…
Resolute Ltd v Warnes
[2000] WASCA 359 Para 2

…ey‑General (UK) v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Resolute Ltd & Anor v Warnes [2000] WASCA 359.…
Willshire-Smith, D. v Votino Bros. P/L
[1993] FCA 198 Para 2

…of interference with the due administration of justice. The existence of the risk is determined objectively: Willshire‑Smith v Votino Bros Pty Ltd (1993) 41 FCR 496; Attorney‑General (UK) v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Resolute Ltd & Anor v Warne…
SCI Operations Pty Ltd v Trade Practices Commission
[1984] FCA 52 Para 3

…ple that leave will never be granted unless the rights of the defendant are completely protected: SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113 at 143, 162 and 185.…
(1887) 12 App Cas 256
(1887) 12 App Cas 256 Para 5

…out terms as to future proceedings is not a defence to a subsequent action: Owners of the Cargo of Kronprinz v Owners of the Kronprinz (The Ardandhu) (1887) 12 App Cas 256 at 259 and 262.…
[1974] AC 273
[1974] AC 273 Para 2

…ence of the risk is determined objectively: Willshire‑Smith v Votino Bros Pty Ltd (1993) 41 FCR 496; Attorney‑General (UK) v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Resolute Ltd & Anor v Warnes [2000] WASCA 359.…
[1977] 1 WLR 876
[1977] 1 WLR 876 Para 2

…t the defendant is not deprived of some advantage which he or she has already gained in the litigation: Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879.…

Legislation cited in this decision · 0

No legislation cited in this case.