Coshott v Shipton Lodge Cobbity Pty Ltd

[2004] NSWSC 353

CITATION:	Coshott v Shipton Lodge Cobbity Pty Ltd [2004] NSWSC 353
HEARING DATE(S):	1 April 2004
JUDGMENT DATE:	30 April 2004
JUDGMENT OF:	Simpson J
DECISION:	amended summons to be filed and served; decline to order that Coshott provide security for the costs of the appeal; parties required to bring in short minutes of orders
CATCHWORDS:	appeal against the judgment of a Magistrate - flawed summons - abuse of process - security for costs
LEGISLATION CITED:	Legal Profession Act 1987 s198L Local Courts (Civil Claims) Act 1970 s.69 Supreme Court Rules Part 1 Rule 3, Part 5 Rule 3, Part 13 Rule 5, Part 18 Rule 4, part 38 Rule 4, Part 51A
CASES CITED:	McWilliam v Penthouse Publications [1999] NSWCA 2, unreported, 21 January 1999
PARTIES :	Shipton Lodge Cobbitty Pty Ltd - Applicant Robert Gilbert Coshott - Respondent
FILE NUMBER(S):	SC 12167/03
COUNSEL:	M A Bradford - Applicant K Burke - Respondent
SOLICITORS:	Hill Ryner & Company - Applicant Mack & Associates - Respondent

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	995/00
LOWER COURT JUDICIAL OFFICER :	Stoddart LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 30 April 2004

12167/03
Robert Gilbert Coshott v Shipton Lodge Cobbity Pty Ltd

JUDGMENT

1 HER HONOUR: By notice of motion filed on 14 November 2003 the applicant (Shipton Lodge Cobbitty Pty Ltd) seeks a variety of orders concerning a summons filed by the respondent (Robert Coshott) on 22 August 2003. Having regard to the proliferation of proceedings, it is convenient to refer to the parties as “Shipton Lodge” and “Coshott”. In substance the orders sought by Shipton Lodge fall into two categories: that Coshott’s summons be struck out or dismissed in whole or in part; or as a backup to this claim, that Coshott be required to file and serve an amended summons; and an order that Coshott provide security for Shipton Lodge’s costs of the proceedings. Consequential orders for costs, and for the assessment of costs on an indemnity basis are also sought.

2 As a foundation for the claim that the summons be struck out or dismissed in whole or in part Shipton Lodge relies upon SCR Part 13 Rule 5 and the inherent power of the Court. In either case it claims that the summons constitutes an abuse of process of the Court.

3 It is now necessary to set out a brief history of the events that give rise to the proceedings. At some time not clearly identified Shipton Lodge made a claim in the Local Court for damages against Coshott. The claim was in contract, arising out of the agistment of horses. On 26 August 2003 a Local Court Magistrate, Mr Stoddart, entered judgment in favour of Shipton Lodge in the total sum of $77,829.64. This sum was made up of the amount claimed by and found to be owing to Shipton Lodge, court costs, interest and professional costs. The Magistrate ordered Coshott to pay Shipton Lodge’s costs assessed on an indemnity basis.

4 On 22 August 2003 Coshott filed in this Court the summons the subject of the present notice of motion, by which he appealed against the judgment of the Magistrate. The substantive order that Coshott sought in the summons was an order that the judgment be set aside; he also sought orders setting aside the costs order or, alternatively, the order that the costs be assessed on an indemnity basis; and additionally an order that Shipton Lodge pay his costs of the proceedings before the magistrate and of the appeal.

5 Provision is made for appeals against decisions of Local Court magistrates sitting in the civil jurisdiction by s69 of the Local Courts (Civil Claims) Act 1970. Relevantly, that section provides:

“(2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom.
…

(2B) Despite subsection (2), … an appeal does not lie to the Supreme Court against any of the following judgments or orders of a court except by leave of the Supreme Court:
(a) an interlocutory judgment or order,
(b) a judgment or order made with the consent of the parties,
(c) an order as to costs.

(3) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only by leave of the Supreme Court.”

6 It will be observed that, where a dissatisfied party contends that the judgment or order of the court is erroneous in point of law, the appeal to this Court is as of right. In other cases, that is, where it is sought to appeal against an interlocutory judgment or order, a consent judgment or order, a costs order or on a ground involving a question of mixed law and fact, the appeal permitted by s69 is by leave only.

7 SCR Part 51A deals with appeals to this Court (except the Court of Appeal). Rule 2A thereof relevantly provides as follows:

“(1) An application for leave to appeal and, subject to sub-rule (2), to cross appeal shall be made by summons.

…

(6) The applicant shall file with or subscribe to the summons a statement of -
(a) the nature of the case;
(b) the questions involved; and
(c) the reasons why leave should be given.

(4) An appeal to the Court shall be instituted by filing a summons claiming the judgment, order or determination which the party instituting the appeal seeks in place of the decision of the tribunal below.
Statement of ground
(5) The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement of the grounds relied upon in support of the appeal and as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below.”

8 Pursuant to SCR Part 5 Rule 3 the summons commencing proceedings must be in accordance with Form 6.

9 Presumably in purported compliance with Part 51A r5, appended to the summons was the following:

“ The Grounds of Appeal

1. His Worship erred in law as follows:
1.1 failing to strike out the Statement of Claim on the defendant’s application heard on 3rd April, 2003;
1.2 finding that a contract existed between the plaintiff and the defendant;
1.3 in ordering the defendant to pay the plaintiff’s costs;
1.4 in ordering the defendant to pay the plaintiff’s costs on an indemnity basis when no proper basis had been made out therefore;
1.5 in entering a final judgment and ordering costs before the Cross-Claim had been determined;
1.6 in refusing to hear the Claim and Cross-Claim together;
1.7 in finding that there can properly be more than one final judgment in one proceedings;
1.8 awarding interest before the Cross-Claim had been determined;
1.9 proceeding to assess costs before the Cross-Claim had been determined and the plaintiff had no liability at the time for costs and there was nothing for the defendant to indemnify the plaintiff against;
1.10 by finding that at the relevant times there was a contract on foot between the plaintiff and the defendant;
1.11 awarding/assessing damages when there was no evidence of breach of contract and/or of any loss suffered by the plaintiff;
1.12 contrary to the evidence finding that there was a contract by conduct between the plaintiff and the defendant on foot between 1995 and the date of judgment (25 July, 2003) under which the defendant was solely liable;
1.13 including in the damages Goods and Services Tax; and
1.14 by granting leave to the plaintiff to increase the quantum of its claim on three occasions, including after it had closed its case and after judgment had been entered.”

10 The first proposition put in support of the notice of motion concerned the proper characterisation of the various grounds of appeal. These, it was argued, in truth amount to purported appeals against decisions as to which an appeal lies to this Court only by leave. It was argued that the grounds numbered 1.1, 1.5, 1.6, 1.7, 1.8, 1.9, and 1.14 fall into this category, as representing appeals against interlocutory judgments or orders. On their faces, each of these grounds does involve a challenge to an interlocutory order. I make a possible exception in that conclusion as to the ground numbered 1.5, which does not appear to me to represent an interlocutory judgment. Counsel further argued that the grounds numbered 1.3 and 1.9 require leave by reason of s69(2B)(c), that is, as representing appeals against orders as to costs. He argued that the ground numbered 1.6 required leave because it represents a determination made with the consent of the parties. Finally, he argued that the grounds numbered 1.2, 1.10 and 1.12 (concerning a conclusion that a contract existed between the parties) represented a challenge to a finding involving a question of mixed law and fact, which, by s69(3), may only be raised with the leave of this Court.

11 There is considerable substance to some, if not all, of these matters raised on behalf of Shipton Lodge. Plainly, those grounds which challenge a refusal to strike out the statement of claim, and grants of leave for the plaintiff to increase the quantum of its claim, are challenges to interlocutory judgments and may only be advanced in this Court by leave. They should be made the subject of a summons seeking leave to appeal. Similarly, those grounds in which costs orders are challenged may only be brought in this Court by leave. They also may only be brought by a summons seeking leave to appeal.

12 The ground numbered 1.5 is in a separate category. Counsel for Shipton Lodge tendered evidence intended to demonstrate that an order of the kind alluded to had been made by consent and therefore required leave as a result of s69(2B)(b). That evidence was in the form of handwritten consent orders, dated 7 February 2003. Order 2 is in the following terms:

“The Cross-claim is ordered to be heard separately pursuant to Part 18 Rule 4.”

13 I do not accept this argument. The order made by agreement was as to a hearing of the claim and cross-claim separately; it does not, in my view, necessarily establish that that agreement extended to an agreement that final judgment, including costs orders, be entered in advance of the determination of the cross-claim. It is a pity that the parties do not appear to have turned their minds to that question.

14 The only remaining matters on this aspect are whether the three grounds concerning the finding of the existence of a contract between the parties involved a question of mixed law and fact. Merely on the finding of the Magistrate itself, it is difficult to reach a conclusion. A finding that a set of circumstances creates a contract between parties certainly involves questions both of fact and of law. That is, it is ordinarily necessary to make findings of fact and then to determine whether, on those facts, a contract has been established. That is essentially a question of law. The challenge to the finding might be on the basis of the facts found by the primary decision maker – in which case, in my view, the challenge would not be as to a mixed question of fact and law. The challenge might be as to the decision maker’s statement of legal principles, in which case, in my opinion, the question would involve a question of law but not a question of mixed fact and law. I can envisage circumstances in which a challenge to a finding that a contract exists does raise a mixed question of fact and law but it is not possible, on the material before me, to discern whether that is what is sought to be done in this case. Nor, having regard to the conclusion I have reached on other matters, is it necessary to decide this matter.

15 I have said enough to make it clear that the summons will have to be extensively amended. If Coshott wishes to challenge the various interlocutory orders, costs orders and the consent order (referred to in ground 1.6) it will be necessary that he file a summons seeking leave to appeal.

16 In the body of the summons itself there are other flaws. The summons opens with a claim for a stay of the judgment and orders pending the hearing of the appeal. This is, having regard to s.69(5), quite unnecessary. The body of the summons also contains claims for relief in relation to costs orders and these plainly cannot be allowed to stand. I propose to make orders which will strike out the prayers for relief numbered 1, 3, and 4 (by which Coshott claims a stay of proceedings, and orders concerning the costs orders made by the Magistrate); and the entirety of the appended statement which appears under the heading “The Grounds of Appeal”.

17 Counsel for Shipton Lodge also relied upon three other matters in order to establish that the summons represents an abuse of process. These can be disposed of quickly. Firstly, he complained that the summons failed to comply with Part 1 Rule 3, which requires that the summons be in accordance with Form 6. The deficiency, he argued, lay in the absence of a residential address. Form 6 contains, at its end, a series of requirements. They are set out as follows:

“Plaintiff: ( name, address )
(a minor)
(tutor): ( name, address )
Plaintiff’s address for service: ( Part 9, Rule 6 )
Address of registry: …”

18 The formal part of the summons as filed contains, in the space that follows the word “plaintiff”, Coshott’s full name but no address. That is immediately followed by an address for service which is, as is conventional, the name and address of his solicitors. No reason appears why the Form contains two separate spaces for the plaintiff’s address. It may well be that the address required to be inserted in the space following the plaintiff’s name was intended to be a residential address, or some address other than the address for service, but if so, no reason is apparent. Ordinarily, a party to litigation needs to know an address of other parties for the purpose of service of notices and other documentation. That is normally the address of the party’s legal representatives.

19 Counsel contended, however, that what was provided was inadequate. When pressed as to the purpose of requiring the residential address, he replied that it was to enable the enforcement of a judgment of the Local Court. I reject that. The function of information required by a summons in this Court is not to facilitate the enforcement of judgments of other courts. In any event, since a stay of the judgment is created by the filing of the appeal, nothing would be achieved by making that address available for that purpose. In my opinion, Coshott has adequately complied with what was required by the Form. In saying this, I acknowledge that put before me was a decision of Registrar Jupp of the Court of Appeal in McWilliam v Penthouse Publications [1999] NSWCA 2, unreported, 21 January 1999. In that case the registrar was dealing with an application for security for costs which in part depended upon an assertion that the appellants had not been frank about where they resided and one of them resided outside the jurisdiction. Registrar Jupp wrote:

“ … the notice of appeal does not include the residential addresses of the appellants. This is in breach of the rules to the extent that the prescribed form requires the disclosure of a residential address.”

20 No authority was cited by Registrar Jupp and no other authority was cited by counsel for Shipton Lodge for the proposition that the address required by the Form is a residential address. Whatever was intended by the rule makers, I am unimpressed by reliance upon a matter of such trivia. If it is correct that a summons is deficient for failing to include a residential address, I would exercise the power conferred by Supreme Court Rules Part 1, Rule 12 and dispense with compliance with that requirement. I do not regard the non-compliance (if such it is) as a matter of the slightest significance in considering whether the summons constitutes an abuse of process.

21 The second matter was equally misconceived. Counsel argued that Coshott’s solicitors had failed to comply with their obligations under s198L of the Legal Profession Act 1987. Subs(2) of that section provides as follows:

“(2) A solicitor or barrister cannot file originating process or a defence on a claim for damages unless the solicitor or barrister certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.” (emphasis added)

22 A summons commencing an appeal is not an originating process on a claim for damages. The section has no application.

23 The final matter concerned an affidavit said to have been filed on behalf of Coshott in the appeal. The affidavit was brief, merely exhibiting transcript of Local Court proceedings over six days. I was told that the solicitors acting for Shipton Lodge had sought, from Coshott’s solicitors, a photocopy of this material. Coshott’s solicitors declined, citing their obligations under SCR Part 38 Rule 4(6). That rule provides:

“(6) A party who serves an affidavit to which a document is an exhibit shall, at the option of any other party:
(a) produce the document for inspection by that other party,
(b) provide a photocopy of the document to that other party, or
(c) produce the document at some convenient place to enable it to be photocopied by that other party.”

24 Counsel for Shipton Lodge correctly pointed out that, the affidavit having been served by Coshott’s solicitors, Shipton Lodge had the option of selecting which of the three alternatives set out in sub-r 6 they wished to avail themselves of. When asked by me whether his solicitors already had a copy of the transcript, counsel replied in the affirmative. When asked why they insisted on being provided with another copy by Coshott’s solicitors, he replied that they wished to ensure that the transcripts were identical. When asked for the source of the copy of the transcript in the possession of his instructing solicitors, counsel replied that it was an official transcript obtained from the Court Reporting Branch.

25 Counsel nevertheless argued that the refusal of Coshott’s solicitors to provide to them a photocopy of transcript covering six days of hearing was a matter to be taken into account in determining whether the summons was an abuse of process. In my opinion, to the extent that any abuse is in evidence, it lies in the demand made by Shipton Lodge’s solicitors for the production of copies of documents which they already have in their possession, and as to which there can be no reason to believe that they differ from copies of the same documents in the possession of Coshott’s solicitors. I reject the submission.

security for costs

26 Counsel for Shipton Lodge conceded that Shipton Lodge’s solicitors had made enquiries as to the financial position of Coshott and were satisfied that he was not impecunious and would be able to meet any order for costs. The basis for the claim for security for costs was that Shipton Lodge had already incurred significant costs and had been successful in its claim on the first instance. A substantial sum of money is owing to Shipton Lodge if the Local Court judgment stands. That is not, in my opinion, a sufficient basis for an award of security for costs.

27 I decline to order that Coshott provide security for the costs of the appeal.

28 It will be necessary, however, to consider the costs of these proceedings. I do intend to make an order striking out substantial parts of the summons and granting leave to Coshott to amend the summons. I have not been asked to, and I do not embark upon, a consideration of an application for an extension of time for leave to appeal the interlocutory decisions.

29 Shipton Lodge has been substantially successful in this notice of motion and would, accordingly, be entitled to some costs. However, a good deal of time was wasted in the frivolous objections that were taken. Further, in written submissions filed and served some time before the hearing, Coshott acknowledged some (unidentified) deficiencies in the summons. In my opinion, had the legal representatives of Shipton Lodge seen fit to explore the matter with Coshott’s solicitors, it may be that the need for this hearing would have been obviated.

30 The Rules of the Supreme Court were never intended to provide litigants with instrumentation to oppress their opponents. If that was not clear before 2000, it has been abundantly clear since the amendment to Supreme Court Rules Part 1 Rule 3. Legal practitioners need to make themselves aware of their obligations under that rule.

31 The most convenient course now to take is to require the parties to bring in short minutes of order reflecting my conclusions, and it is to be hoped, some sensible resolution of outstanding matters, so that what remains in issue may be determined.

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Last Modified: 05/06/2004