Cleeve v Rogerson
[2010] WASC 91
•3 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CLEEVE -v- ROGERSON [2010] WASC 91
CORAM: BEECH J
HEARD: 23 APRIL 2010
DELIVERED : 23 APRIL 2010
PUBLISHED : 3 MAY 2010
FILE NO/S: CIV 1494 of 2010
BETWEEN: PATRICIA ANNE CLEEVE
Plaintiff
AND
KATHRYN GAE ROGERSON
Defendant
Catchwords:
Injunctions - Interlocutory injunctions - Importance of a letter requesting undertaking - Importance of conferral
Practice and procedure - Requirement of conferral
Legislation:
Rules of the Supreme Court 1971 (WA) O 59 r 9
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr A P Skerritt
Defendant: Mr G R Dean
Solicitors:
Plaintiff: Great Southern Legal Pty Ltd
Defendant: Hudson Henning Goodman
Case(s) referred to in judgment(s):
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1
BEECH J:
(These reasons were delivered extemporaneously on 23 April 2010 and have been edited from the transcript.)
Background
The plaintiff leases premises from the defendant as lessor. On 14 April 2010 the plaintiff commenced proceedings by originating summons and filed a chamber summons seeking an interlocutory injunction restraining the defendant from taking possession of the leased premises. The application was supported by a lengthy affidavit of the plaintiff sworn 9 April 2010, and subsequently the affidavit of Mr Maddy (the solicitor for the plaintiff) sworn 23 April 2010.
The basis of the application
The application was said to be based upon a concern that on 26 April 2010 the defendant would remove the plaintiff from the leased premises. That concern was derived principally from a document described as a notice of termination dated 25 February 2010. The notice of termination states that the defendant lessor terminates the lease, with effect in 60 days time.
Also in support of the application, the affidavit of Mr Maddy refers to an email forwarded to the plaintiff by the defendant, purporting to terminate the lease in 2007. For reasons submitted by counsel for the defendant, that communication provides very little foundation for any concern of forcible removal. That is so for two reasons: one is that it had occurred more than two years ago and was not acted upon. The second is that in any event, properly understood that communication referred to the retaking of possession with the assistance of lawyers, not by forcible removal. However, there is, in my opinion, a more significant flaw in the foundation for this application.
Absence of conferral or letter requesting undertaking
The more significant point is this: at no time after receipt of the termination notice did the plaintiff's solicitors write to the defendant's solicitors stating something to the effect of, 'Our client has a concern arising from the termination notice that your client intends to remove her from the premises. We require an undertaking that you will not do so, failing which our client will apply for an interlocutory injunction.'
In my opinion, the failure to write any such letter prior to the commencement of this application was both inexplicable and inexcusable. Counsel for the plaintiff did not offer any explanation or excuse for the failure to write a letter, nor in my opinion could he have justifiably done so.
A letter requesting an undertaking is not only a necessary first step before conferral, it forms a central evidentiary basis upon which an application such as this is made. It is the existence of an immediate threat of harm which animates the exercise of power to give interlocutory injunctive relief. The absence of an undertaking in response to such a letter is generally important evidence of such a threat, which is notably absent in this case.
Mr Maddy states in his affidavit that 'On the basis that the termination notice required the plaintiff to vacate the premises on 26 April 2010, there was insufficient time to file the originating summons and then confer with the defendant's solicitors.'
I am unable to understand how a solicitor could make such a statement. Counsel for the plaintiff could not offer any explanation for it. There was more than ample time for communication both by letter and by telephone. The time referred to in the termination notice expired on 26 April 2010; the proceedings and this application were filed on 14 April 2010. Communications should have occurred before the chamber summons was issued. Failing that, it certainly should have occurred immediately after the filing of the chamber summons. However, there is no justification in this case for the failure to communicate before the chamber summons was issued.
The plaintiff did not file a memorandum under O 59 r 9; nor did the plaintiff seek an order waiving the requirement to file such a memorandum. It is not necessary to repeat in detail what should by now be well known about the significance of order 59 and its substance; that is, the requirement of meaningful conferral before applications are brought before a court.
I refer to what the Chief Justice said in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 [3] ‑ [5]. The reference in that passage to the risk that legal representatives who fail to engage in any meaningful conferral be ordered to pay costs personally seems to me germane to the circumstances of this case.
Late service
On 15 April 2010 the originating summons was served on the defendant's solicitor. By then the chamber summons and affidavit had also been filed, however they were not served until 21 April. There is no explanation offered for why the affidavit and chamber summons were not also served on 15 April. It may be inferred that on 15 April the hearing date of the chamber summons was not by then known. Of course that provides no justification for the failure to provide the chamber summons and the substantial affidavit to the defendant's solicitors until some six days later when it was eventually served.
Conclusion
The defendant has offered an undertaking in her solicitor's outline of submissions. The substance of the defendant's response to this application is that it was completely unnecessary because, had an undertaking been requested earlier, a similar one would have been offered, thereby preventing the need for such an application. I agree with that characterisation of this application.
In the light of:
(a)the circumstances in which the application was brought;
(b)the failure to confer or even to write a letter requesting an undertaking; and
(c) the offering of an undertaking by the defendant
in my opinion this application must be dismissed.
Costs
Further, in the circumstances I have outlined, I consider that justice requires that the defendant have the benefit of an indemnity costs order in her favour. I am presently minded to order that those costs be payable by the plaintiff's solicitor. However, I would not make an order in those terms without giving the plaintiff's solicitor the opportunity to show cause why he should not pay those costs personally.
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