Conti v Cook - [2001] WADC 228

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CONTI -v- COOK & ANOR [2001] WADC 228

CORAM: JENKINS DCJ

HEARD: 5 SEPTEMBER 2001

DELIVERED : 28 SEPTEMBER 2001

FILE NO/S: CIV 1684 of 2000

BETWEEN: AUGUSTO CONTI
Plaintiff
AND
DOROTHY JOAN COOK
First Defendant
GAIL CHRISTINA SALFINGER
Second Defendant

Catchwords:

Procedure - District Court Procedure - Appeal from order of Registrar - Application to extend time prescribed by O 6, r 11(2) District Court Rules - Appeal from Registrar's order in relation to costs of summary judgment application

Legislation:

Rules of the Supreme Court, O 16

Rules of the District Court, O 6, r11(2)

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr M A Detata
First Defendant             :     Mr A C Thorpe
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Ian Tait & Co
First Defendant             :     A C Thorpe
Second Defendant         :     No appearance

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

Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995
McInnes Concrete Service Pty Ltd v Inform Formwork Pty Ltd, unreported; SCt of WA; Library No 940251; 11 May 1994
Whitehall Holdings Pty Ltd & Ors v Custom Credit Corporation Limited, unreported; FCt SCt of WA; Library No 920347; 19 June 1992

Case(s) also cited:

Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Company Pty Ltd (1978) 29 ACTR 21

JENKINS DCJ: This is an appeal from the decision of the Registrar of this Court made on 2 August 2000 wherein the first defendant was ordered to pay the plaintiff's costs of the first defendant's application pursuant to O 16 of the Supreme Court Rules for summary judgment. The Registrar also dismissed the first defendant's application for summary judgment.
By letter dated 9 August 2000 the first defendant's solicitor advised the Court that she appealed from the said decision. That letter was not sent to the plaintiff's solicitors. However, the plaintiff does not contradict the first defendant's solicitor's assertion in his affidavit sworn 11 September 2001 that on or about 9 August 2000 his solicitor received a phone call from the solicitor for the first defendant advising "that an appeal was being brought". No formal notice of appeal was filed until 24 October 2000. The plaintiff's solicitor says that the notice of appeal was not served at that time and it was not until December 2000 that the plaintiff had formal notification of the appeal.
The first defendant submits that it is not necessary for her to obtain an extension of time in which to appeal but in the event that I do not agree with that submission she applies for such an extension of time.
Order 6, r 11(2) of the District Court Rules states that an appeal from an order of a Registrar:
"shall be made by notice in writing to attend before a Judge without a fresh summons, such notice to be given within 5 days after the decision…

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 Conti v Cook

Details

AGLC: Conti v Cook [2001] WADC 228
Case: [2001] WADC 228
Decision Date: 28 SEPTEMBER 2001

CaseChat Overview and Summary

In the case of Conti v Cook, the appellant, the first defendant, sought to appeal an order made by the Registrar of the District Court of Western Australia, which pertained to costs in a summary judgment application. The dispute involved the first defendant's attempt to seek summary judgment, which was subsequently dismissed. The central issue before the court was whether the first defendant was entitled to apply for summary judgment despite being aware of the plaintiff's denial of certain facts and whether the costs incurred in the summary judgment application should be awarded against the first defendant.

The court examined the principle that an application for summary judgment should not be brought if it is apparent or should be apparent to the party that the application is hopeless and has no prospect of succeeding. The court noted that there are circumstances where the costs of a summary judgment application may be awarded against the unsuccessful party, particularly when they were aware or should have been aware that the application was baseless. The court found that the first defendant was aware that the plaintiff had denied the existence of a defence but still proceeded with the application for summary judgment. The court concluded that the first defendant's knowledge of the plaintiff's denials should have precluded them from bringing the application for summary judgment, as it was not in the spirit of the rule that such applications should be made only when there is a genuine prospect of success.

Ultimately, the court upheld the Registrar's decision to award costs against the first defendant for the summary judgment application, ruling that the first defendant was aware of the plaintiff's denial of the existence of a defence and should not have proceeded with the application. The court emphasized that the rule against bringing hopeless applications for summary judgment applies equally to both plaintiffs and defendants, and that awareness of a potential defence should have deterred the first defendant from pursuing the application. The court's decision reinforces the importance of ensuring that summary judgment applications are made with a genuine belief in their prospects of success.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I now turn to the merits of the appeal. The usual order where an application for summary judgment is dismissed is that the costs of the application be in the cause so that the party successful at the trial recovers them: Whitehall Holdings Pty Ltd & Ors v Custom Credit Corporation Limited, unreported; FCt SCt of WA; Library No 920347; 19 June 1992. Exceptionally, when an application for summary judgment is dismissed, costs are awarded to the successful party; cases of this kind occur where applications should never have been made. The rule that the costs of a summary judgment application may be awarded against an unsuccessful plaintiff applicant where he knows of the existence of a defence rests in essence on the principle that applications for summary judgment should not be brought when the plaintiff is aware or should be aware that the application is hopeless and that it has no prospect of succeeding; ibid p 3. In my opinion the rule applies mutatis mutandis to costs in the case of an unsuccessful defendant who has applied for summary judgment. The facts in this case are that prior to the application for summary judgment being made by the first defendant, the first defendant had been advised in a letter from the plaintiff's solicitor that the plaintiff denied having been notified by the second defendant that the first defendant was assigning her interest in the lease in the business operating from the leased premises to her partner, the second defendant. The first defendant was also aware that the plaintiff denied accepting that assignment: affidavit of Ian Fraser Tait sworn 12 January 2001. However no grounds were given by the plaintiff for these denials. Although the first defendant acknowledges that she was aware of the denials by the plaintiff she says that she was still entitled to bring the application for summary judgment because mere notice of a proposed defence does not disqualify a plaintiff from asserting the belief that there is no defence. Similarly, she says, in an application for summary judgment by a defendant, mere notice that the plaintiff denies that the defendant has a good defence to the claim does not disqualify a defendant from asserting the belief that the defendant has a good defence. There are two judgments in the same matter which support the first defendant's submissions in this regard. The first is the judgment in the case of McInnes Concrete Service Pty Ltd v Inform Formwork Pty Ltd, unreported; SCt of WA; Library No 940251; 11 May 1994. In this case the Master was dealing with an application for summary judgment under O 14 of the Rules of the Supreme Court, that is an application by the plaintiff for summary judgment. The plaintiff had received prior notice by letter that the defendant claimed that he had a good defence to the plaintiff's action. The defendant submitted that in light of that notice the plaintiff was not entitled to bring an application for summary judgment nor was it entitled to swear an affidavit to the effect that in his opinion the defendant did not have a defence to the action. The Master said:"…it is plain in my view that what the cases say is that where a plaintiff knows that the defendant is relying on a contention which would entitle him to unconditional leave to defend then he cannot properly invoke the jurisdiction of the Court under O 14. That does not mean that where the plaintiff knows that the defendant relies upon any contention it must be a contention which would entitle a defendant to unconditional leave to defend. That is, facts to support the defence must be put before the Court save in those rare cases where a point of law is raised which the Court agrees is arguable.If the defendant's arguments were correct there would be very few O 14 applications brought in this Court. They would not be brought where a defence had been filed and yet many of them are. They would not be brought where a letter had been written between the parties asserting various grounds of defence but the defendant elected not to go on affidavit to assert the facts in support of those assertions. That is the case here. The defendant relies upon a letter written by his solicitors after the action commenced. It raises various matters that dispute the contract, the basis for it and raises possibly a counterclaim. All of those matters may give grounds for a defence but a defendant does not show cause by producing an affidavit which is evidence only that a letter was written containing various assertions."