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 complained of or such further time as may be allowed by a Judge or by a Registrar."
In my opinion the first defendant's solicitor's letter to the Court, which was not served upon the plaintiff's solicitors does not comply with the above rule.
By affidavit sworn 11 September 2001 the solicitor for the first defendant deposes that he understood that the Rules in relation to appeals from Registrars merely required a notice in writing without a fresh summons and that he had previously appealed by letter to the Court. However in the same affidavit he acknowledges that he was advised by the Court, it appears soon after August 2000, that it would be necessary for a formal notice of appeal to be filed.
The solicitor for the first defendant says, in the same affidavit, that he was not immediately able to attend to the filing of a notice of appeal because of administrative difficulties within his office. Counsel for the plaintiff points out that regardless of his administrative difficulties the solicitor for the first defendant should have been able to comply with the direction from the Court prior to 24 October 2000 when the appeal was filed and certainly prior to 18 December 2000 when the first defendant was ordered to serve the notice of appeal on the plaintiff.
In my opinion the delay of the first defendant to initially file a notice of appeal has been adequately explained. However, the first defendant has only proffered a weak explanation for the delay in filing a formal notice of appeal after a request from the Court to do.
Further on 18 December 2000 the first defendant was not only ordered to file and serve the notice of appeal but also to file and serve an affidavit in support of an application to extent time in which to file the notice of appeal. As a consequence of what transpired at the hearing of the appeal it is apparent that a sworn affidavit in support of the application to extend time was not sworn until 11 September 2001, six days after the hearing of the appeal, although an unsworn version of the affidavit had been provided to the plaintiff sometime prior to the hearing and an unsworn version of the affidavit was handed up to the Court during the hearing.
An adequate reason for the failure to comply with the order of 18 December 2000 has not been given. However, the plaintiff has not pointed to any particular prejudice to him in relation to these delays. Without in any way wishing to imply an acceptance by the Court of the failure of the first defendant to comply with both the rules and orders of the Court, after considering the above matters and taking into account the merits of the appeal I grant an extension of time to the first defendant in which to file her notice of appeal.
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."
The Master determined that as all the defendant had done was brought before the Court a letter written by his solicitor disputing the claim, there was no material before the Court on which the Court could be satisfied by the defendant that there was an issue or question in dispute that ought to be tried or that for some other reason there ought to be a trial. The Master therefore granted summary judgment to the plaintiff.
The matter then went on appeal to the Full Court of the Supreme Court of Western Australia in the case of Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995. The leading judgment of Ipp J discloses that during the course of the initial hearing before the Master an attempt was made by the defendant to file an affidavit which verified the truth of the matters in the letter from the defendant to the plaintiff advising the plaintiff that the defendant had a good defence. His Honour found that the affidavit did verify the truth of the facts in the letter and that the Master should have admitted it into evidence, despite the questionable tactics used by the defendant's counsel in the original hearing before the Master.
Ipp J was satisfied that sufficient had been set out in the letter and the affidavit to justify the grant of leave to defend the action and therefore to preclude a grant of summary judgment.
Having decided that the decision of the Master ought to be set aside he went on to consider the question of costs before the Master. He said that in his view, which was agreed with by the other two members of the Court of Appeal, there was no substance to the proposition that summary judgment was precluded by the mere knowledge on the part of the respondent/plaintiff of the appellant's/defendant's possible defences. He went on to say that in the circumstances he considered that but for what was contained in the affidavit the application for summary judgment would have succeeded. The judgment on appeal therefore confirmed what the Master had said concerning a party's entitlement to bring an application for summary judgment despite assertions in a letter to the effect that a defendant had a good defence to the action.
As I have said earlier I see no reason why principles applying to the application by a plaintiff for summary judgment pursuant to O 14 of the Supreme Court Rules should not apply mutatis mutandis to an application by a defendant for summary judgment under O 16. Therefore applying the principles from the above judgment there is nothing improper about an application for summary judgment being brought by a defendant under O 16 even though he or she has received a letter from the plaintiff putting them on notice that the plaintiff denies that the defendant has a good defence to the action. If there is nothing improper about such an application there can be no justification for departing from the normal rule that when such an application is nonetheless unsuccessful the usual costs rule should apply, that is costs should be in the cause.
However what does concern me in this case is that the plaintiff swore an affidavit on 13 July 2000 verifying the assertions that had been made in the previous letters that had been sent to the defendants' solicitors, which were to the effect that he denied releasing the first defendant from the lease which was the subject of the action. This affidavit was filed on 14 July 2000. It is my opinion, which accords with the oral submissions of the first defendant's counsel, that once the plaintiff filed that affidavit there was no chance of the application for summary judgment succeeding. Despite that the application was persisted with until the hearing date on 2 August 2000 at which time I am advised, and it is not disputed by the plaintiff, that the application for summary judgment was dismissed by consent. It appears therefore that there was a period of some two weeks where the application was maintained despite the first defendant being aware that it had no chances of success. During this period, on 18 July 2000 the matter was mentioned before a Registrar and the matter adjourned to 2 August 2000 for hearing. On 1 August 2000 the first defendant swore an affidavit in support of her application. Therefore it appears that as late as that the intention was to proceed with the application. During the hearing of the appeal the counsel for the first defendant submitted that "At the ultimate return of the application counsel who appeared…conceded…" Thus the highest the first defendant puts her case is that she conceded the application at the hearing on 2 August 2000.
In the circumstances it would have been appropriate for the first defendant's solicitors to advise the plaintiff very soon after 14 July 2000 that the application would be withdrawn or consent granted to it being dismissed. I have not been given any indication that this occurred. Instead the first defendant continued to incur her own costs in the pursuit of her application and no doubt caused the plaintiff to incur unnecessary costs in the defence of an application that had no prospects of succeeding. I see no reason why the plaintiff should be at any risk of having to bear the costs of the application for summary judgment after 14 July 2000 the date upon which he filed his affidavit. The pursuance of the application after this date justifies a divergence from the normal costs rule.
Therefore I would allow the appeal, set aside the costs order made by the learned Master and in substitution therefore order that the costs of the first defendant's summary judgment application up to and including the costs of 14 July 2000 be costs in the cause of the action. From 14 July 2000 the first defendant should pay the plaintiff's costs of the application to be taxed.