Cristovao v Butcher Paull & Calder

[2008] WADC 49

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CRISTOVAO -v- BUTCHER PAULL & CALDER & ORS [2008] WADC 49

CORAM:   KEEN DCJ

HEARD:   28 MARCH 2008

DELIVERED          :   8 APRIL 2008

FILE NO/S:   CIV 1874 of 2005

BETWEEN:   ROGERIO MARTINS CRISTOVAO

Plaintiff

AND

BUTCHER PAULL & CALDER
First Defendant

ROBERT  BUTCHER
Second Defendant

SUSAN MACKAY
Third Defendant

Catchwords:

Procedure - Costs - Turns on own facts

Legislation:

District Court Rules 2005 O 14 r 2, r 8, O 37 r 7, O 44, O 66 r (1)(1)

Result:

Plaintiff to pay defendants' costs to be taxed

Representation:

Counsel:

Plaintiff:     Mr D J Garnsworthy

First Defendant              :     Mr A T Macknay

Second Defendant         :     Mr A T Macknay

Third Defendant            :     Mr A T Macknay

Solicitors:

Plaintiff:     Tan & Tan

First Defendant              :     McCallum Donovan Sweeney

Second Defendant         :     McCallum Donovan Sweeney

Third Defendant            :     McCallum Donovan Sweeney

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

Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 920347; 13 December 1991

1. KEEN DCJ:   In this matter the defendants seek costs orders in respect of a number of interlocutory steps taken in these proceedings.

Background

1. The plaintiff has, until recently, been acting in person.  The first defendant is a firm of solicitors and the second and third defendants individual solicitors within that firm.

2. By writ of summons dated 23 August 2005 the plaintiff sought damages against the defendants for professional negligence in the handling of proceedings on behalf of the plaintiff in the Family Court of Western Australia.

3. The plaintiff filed a statement of claim dated 5 January 2006. For the purposes of the present applications it is not necessary for me to carry out a detailed analysis of that statement of claim.  It is sufficient to note that the plaintiff engaged the first defendant firm and "sought their advice, professional help and assistance and immediate action on his behalf so that he could resume his business and the Livelihood immediately".  The business was that of the plaintiff as a butcher. 

4. The case as put against the defendants was one of negligence on the part of the defendants in failing to assist the plaintiff to recover plant and machinery and tools of his trade.  Also negligence was alleged against the defendants in respect of the sale of the plaintiff's plant, machinery and tools of trade by public auction.  Further allegations of negligence were made encompassing alleged delay on the part of the defendants in property settlement matters.  It was also alleged in the statement of claim that the defendants failed to follow the plaintiff's instructions in a number of respects and took action contrary to the plaintiff's instructions.  It was also alleged that the defendants were negligent in failing to act professionally in attending to the client's business "diligently, courtoualy (sic), appropriately and in a timely fashion".  Negligence was alleged by failure to keep the plaintiff duly informed of his solicitor/client costs and party/party costs, failure to maintain a healthy solicitor/client relationship, engaging in illegal conduct said to be fraudulently and dishonestly interpolating fresh material into an affidavit that had been sworn by the plaintiff and finally continuing to act for the plaintiff after the plaintiff had withdrawn instructions to the defendants.

5. The statement of claim had been prepared by the plaintiff himself and runs to some 15 pages. 

6. Based upon that statement of claim, by summons dated 30 January 2006 the plaintiff sought summary judgment or judgment in default of the defendants filing a defence.  From that point the litigation became protracted with numerous applications.  Eventually on 26 September 2007 various orders were made by his Honour Judge Bowden which inter alia by consent dismissed the plaintiff's applications for judgment.

The various interlocutory matters

1. These relevantly comprise the following applications which I will refer to by their number:

   1.The plaintiff's chamber summons for judgment dated 30 January 2006.

   2.The defendants' chamber summons dated 8 February 2006 to have the affidavit of the plaintiff sworn 30 January 2006 in support of his summary judgment application to be removed from the file or struck out.  This summons was amended on 3 March 2006 to cover a subsequent affidavit sworn by the plaintiff on 13 February 2006.

   3.A motion by the plaintiff dated 2 May 2006 seeking an order that a Mr Viji De Alwis be granted leave to appear as amicus curiae for the plaintiff.

   4.The plaintiff's further chamber summons for judgment dated 10 May 2006.

   5.A further motion from the plaintiff dated 15 May 2006 that certain practitioners who had either sworn affidavits or written letters in the matter attend the Court for cross-examination.

   6.A chamber summons from the defendant dated 30 January 2007 for the plaintiff's claim to be dismissed and judgment to be granted to the defendant, the action having become inactive pursuant to r 44 of the District Court Rules 2005.

2. The various applications can be placed into two distinct categories; those involving the plaintiff's application for judgment and the remainder.

3. On 26 September 2007, apart from dismissing the applications for judgment, his Honour Judge Bowden also ordered that the plaintiff's affidavits in support of summary judgment sworn 30 January 2006 and 13 February 2006 be taken off the Court file.  In other words, his Honour allowed the defendants' summons of 8 February 2006 as amended on 3 February 2006.  His Honour also ordered that the costs of the plaintiff's applications for judgment and the defendants' applications to remove the affidavits from the file be reserved with liberty to apply.

4. It is in respect of these matters and other matters that the defendants now seek their costs.

The present application

1. The defendants seek orders that the plaintiff do pay the defendants' costs of these summonses and also the motions of the plaintiff and the summons of the defendants set out as applications numbered 3, 5 and 6 above.  The defendants also sought costs of a motion by the plaintiff of 26 April 2006.  This application was abandoned on the hearing of the present application.

2. The defendants seek those costs to be taxed and paid forthwith. 

3. The plaintiff, for its part, argues that all of the costs should be costs in the cause. 

The defendants' submissions

1. In relation to the summary judgment application the defendants say that by consent the applications were dismissed and the affidavits in support which were the subject of striking out applications were taken off the Court file.

2. The defendants acknowledge that in relation to summary judgment applications the usual order, where the application does not succeed, is that the costs of the application be in the cause.  That often occurs by reason of the fact that the merits of the case have not been finally determined and the plaintiff may indeed go on to win the case.

3. The defendants argue that in this case the application for judgment should never have been brought.  A cursory look at the statement of claim and the affidavit in support would demonstrate that to be the case.  It was argued by the defendants that an action of this nature being for professional negligence does not of itself lend itself to a summary judgment application.  Further, it was argued that the allegations in the statement of claim as it then stood were unintelligible in form and did not clearly demonstrate what the cause of action was.

4. The defendants also argued that the affidavit in support contained scandalous and irrelevant material.  The second affidavit suffered the same problems and neither affidavit had been replaced by an affidavit which in any way would support an argument that there was some merit in bringing the application for judgment.  It was also suggested that insofar as the statement of claim is concerned a substituted statement of claim has now been filed which adds weight to the argument that the action was not one that lent itself to summary judgment proceedings on the original statement of claim.

5. With regard to the affidavits in support, the fact that they were taken off the Court file by consent demonstrated that the complaints as to these affidavits were well founded.  Mr Garnsworthy for the plaintiff did not seek to argue to the contrary.

6. With regard to the motions in respect of Mr De Alwis and the cross‑examination of the practitioners, the defence conceded that one might normally take a somewhat lenient line with litigants in person wishing to have assistance at trial.  However, it was pointed out that an oral application had been heard previously before Registrar Kingsley who refused to allow Mr De Alwis to appear.  On another occasion before the Principal Registrar on a directions hearing Mr De Alwis in the presence of the plaintiff sought to assist without leave being obtained.  That was followed by a formal application on 2 May 2006 supported by affidavit.  In response the defendants filed an affidavit on 9 May 2006 dealing with the appropriateness or otherwise of leave being granted for Mr De Alwis to appear. 

7. The defence position is that by the time the matter came before her Honour Judge Crisford for hearing it was quite clear that Mr De Alwis was not an appropriate person to act.  At that time Mr De Alwis was a practitioner who had been suspended from practice.

8. It is said by the defendants that all of this should have been clear to the plaintiff and that the objection related to the identity of Mr De Alwis rather than to the principle of whether the plaintiff as a self-represented litigant should have the benefit of assistance from a "McKenzie friend". 

9. The defendants argued that the plaintiff should have had this knowledge that Mr De Alwis was not a suitable person by reason of what occurred before the Principal Registrar on 9 March 2006.  On that occasion Mr De Alwis said that he intended to intervene.  It was argued that this application in relation to Mr De Alwis was also linked to the application to cross-examine various witnesses and that that cross‑examination went more towards matters pertaining directly to Mr De Alwis than to assist the plaintiff.  It was said that by the time the matter came on for hearing before her Honour the plaintiff well knew that Mr De Alwis was there, in part, to fight his own battles.

10. With regard to the application for cross-examination of witnesses I have noted the defendants' observations in this regard and in considering the matter her Honour at par 10 of her reasons delivered 19 May 2006 noted that that cross‑examination "would be likely to be a platform for Mr De Alwis to agitate his own matters".

11. Finally, there is the defendants' summons of 30 January 2007 for judgment, the action having become inactive.  The defendants argued that the matter did become inactive whilst the decision of her Honour Judge Crisford was on appeal.  However, the defendants gave notice to the plaintiff to take some action to reactivate the matter, but the plaintiff did nothing.  It was then that the application was filed.  The defendants acknowledge that that application has never been formally heard because the objective was achieved by the plaintiff taking steps to reactivate the matter.

The plaintiff's submissions

1. In relation to the affidavits in support of summary judgment counsel acknowledged that he was not surprised that those affidavits met the fate that they did.  However, he noted that the plaintiff was proceeding as an unrepresented litigant and that the issues that were at the heart of those affidavits had not yet been decided.  He argued that the affidavits whilst being difficult to deal with in their form still left unresolved the matters going to the plaintiff's claim which were contained therein.  In other words, it has not yet been dealt with.

2. It is on this basis that the plaintiff argues that the costs should be in the cause as is usual in a summary judgment application where unconditional leave is given to the defendants to defend.  The plaintiff says the fate of the costs in relation to these applications ought to be linked to the fate of the action itself.

3. So far as the application in relation to Mr De Alwis is concerned counsel stressed that the plaintiff was a litigant in person who was comfortable with Mr De Alwis.  He did not have that degree of sophistication or knowledge to know that Mr De Alwis would not be accepted by the Court as a person to assist him or represent him.

4. Counsel argued that these costs should also be costs in the cause and form part of the cause because the plaintiff was unable to progress the matter properly until he received proper advice of counsel. 

5. I did not detect from counsel for the plaintiff that the application in respect of the cross-examination of practitioners should be treated any differently.

6. As to the defendants' application for dismissal of the plaintiff's case counsel accepted that the plaintiff did not do anything.  He argued that the costs ought to be costs in the cause.  Again he argued that it should stand with the merits of the case and its fate should be linked to the fate of the action however it may be resolved.

Defendants in reply

1. The defendants argued that even if the case has merits, this does not deprive the defendants of costs incurred by the defendants on every step the plaintiff takes in getting to the ultimate resolution.  If a plaintiff takes the action down a dead‑end in the manner in which the plaintiff has in this case, then the plaintiff should pay those costs incurred.

General principles

1. Costs are in the discretion of the Court but generally costs will follow the event (O 66 r 1(1)).

2. Order 14 of the Rules of Court provides for summary judgment. By r 8 it is provided:

   "(1)if the plaintiff makes an application under r 1 and the case is not within this Order, or it appears to the Court that the plaintiff knew that the defendants relied on a contention which would entitle him to unconditional leave to defend, the Court may dismiss the application with costs, and may require the costs to be paid by the plaintiff forthwith."

3. Seaman at [14.8.1] notes that the usual order on dismissal of an application for summary judgment is that the costs be in the cause so that the party who is successful at trial recovers them: Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 920347; 13 December 1991.  However, it is also noted that in exceptional cases costs may be awarded against the plaintiff where the application should never have been made.  It is also suggested that the proper exercise of the discretion to award costs against the plaintiff may extend beyond exceptional cases and in particular to cases in which the plaintiff fails by virtue of defects in the application.

4. Order 14 r 2 provides that an application for summary judgment shall be made by summons supported by an affidavit verifying the facts on which the claim or part of the claim to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed.

Application of the principles to the case at hand

1. Dealing firstly with the summary judgment application and ancillary applications by the defendants to remove the affidavits, the plaintiff's applications were dismissed by consent and the defendants' applications were allowed by consent.

2. It seems to me that O 14 r 2, requiring the application to be supported by affidavit, requires that the affidavit be a proper affidavit in proper form complying with the rules and in particular complying with the specific requirements of O 14 r 2. It would follow that if an affidavit is struck out or, as in the present case, the affidavit is removed from the file there is not an affidavit to support the application. Scandalous and irrelevant material will be struck out or an affidavit may be taken off the file (O 37 r 7). One purpose for this is so that the other party is not required to respond to that material.

3. Here this has been done. Accordingly, the plaintiff was left with an application under O 14 of the Rules not supported by an affidavit.

4. The defendants also argued that the very nature of the proceedings did not lend themselves to a summary judgment application.  At the level of inquiry in which I am involved it is difficult to make that determination.  There is some merit in the argument.  But it is not an argument that has been fully developed before me by either side so as to enable me to determine that issue.  Nevertheless the affidavit material having been removed and the plaintiff consenting to that and to the application for judgment being dismissed leads me to the view that the application was brought without merit.  It is not a case where an application for judgment has been dismissed by consent by reason of the plaintiff having had an opportunity to consider material put forward by the defendants and coming to the realisation that there is in fact a defence on the merits.  In this case the application was dismissed, it never having reached that level of inquiry because it was so deficient in the way of proof by way of admissible evidence that it had to fail.

5. Accordingly, this is a case that, in my opinion, falls within that class of case referred to in Seaman at [14.8.1] where the plaintiff fails by virtue of defects in the application.

6. The plaintiff's argument that the substance of the affidavits has never been dealt with and put forward to be considered in the merits of the case at trial cannot survive as an argument once it is accepted that there is no proper affidavit before the Court.  The application fails and is in no different position to that where a plaintiff brings an application and fails to support it by affidavit.  In the circumstances the application was defective.

7. I am of the view that the defendants are entitled to their costs of those summonses which relate to the summary judgment and removal of the affidavits from the Court file and which comprise application numbers 1, 4 and 2 above.

8. The applications in respect of Mr De Alwis and cross-examination of practitioners were applications that were refused by her Honour Judge Crisford.  Those orders were appealed unsuccessfully by the plaintiff.  The Court of Appeal awarded costs of the appeal to the defendants.

9. Notwithstanding argument from the plaintiff's counsel, it seems to me that neither of the matters canvassed in these applications went directly or indirectly to the merits of the action.  They were matters that stood alone as steps in the proceedings.  To that extent they are quite unlike the usual order in summary judgment applications, that is to say, that they are costs in the cause.  None of the arguments put before me persuade me that the defendants should be deprived of their costs.

10. The Court is always sympathetic towards and conscious of the difficulties experienced by litigants in person.  I am not satisfied that the plaintiff would lack the degree of sophistication and knowledge to know that Mr De Alwis would be unacceptable to represent him.  I accept the argument from the defendants that certainly by a particular stage it should have been apparent to the plaintiff that there would be at the very least difficulties in continuing with Mr De Alwis.  After all the Registrar had made an order refusing him leave to appear. 

11. Whether the plaintiff had an appreciation of the position does not detract from the defendants' position.  These applications have been made and were unsuccessful.  In relation to these two applications I can see no logical reason why the costs here should be any different to those awarded on the appeal, that is to say, that the successful party should have those costs.  The defendants have asked for their costs as being successful on those applications and there is no reason why they should be denied those costs.

1. Whilst this Court has not expressly adopted Practice Direction number 5 of 2005 in the Supreme Court (the "Direction") in respect of costs orders in interlocutory proceedings, that is not to say that the principles adopted by the Supreme Court should not be applied in an appropriate case in this Court.

2. By that Direction the Supreme Court resolved to change its practice in making costs orders in interlocutory proceedings so that as a general rule the costs would be fixed and ordered to be paid forthwith.  The Direction set out a number of reasons for this.  In particular at par 3 of the Direction it was noted:

   "… the historical practice of ordering costs to be paid 'in any event' does not sufficiently serve the purpose of discouraging ill‑considered or needless interlocutory applications.  The overwhelming majority of actions settle and the orders not enforced.  The apparent benefit to parties in whose favour such orders are made is illusory."

3. In the present case the dispute is whether or not the defendants should have the costs.  However if one were to depart from the usual rule of costs following the event, then the reasoning in that Direction of discouraging ill‑considered or needless interlocutory applications would not be served.

4. I am of the view that the defendants are entitled to their costs of these two applications, being numbers 3 and 5.

5. Finally dealing with the defendants' summons dated 30 January 2007 for judgment.  Whilst this has not been dealt with in the sense of having a hearing it was an application that was brought because the plaintiff did not advance the case when required to do so by the defendants.  This is an action that has been on foot for over 2½ years.  The defendants are entitled to have the action progressed in a timely manner.  The defendants argued that it was analogous to a defendant's application for dismissal of a case for want of prosecution.  Following such an application a plaintiff might well take steps in the action to advance it but not escape the consequences of the defendants having been forced to make the application so as to achieve that end.  It seems to me that that is an appropriate analogy.

6. I am of the view that the defendants should have the costs of this application.

The timing of payment of costs

1. The next question that arises is as to whether the defendants should have those costs forthwith or in any event. 

2. I am of the view that in respect of all of the applications save for the defendants' application of 30 January 2007 (number 6), the defendants should have those costs forthwith.  The defendants have been put to not inconsiderable costs over a period of time. 

3. So far as the summary judgment application is concerned, as I have noted these applications were defective and should not have been brought in that form.  There are no matters to await the eventual outcome of the case which would impact upon the right to costs and when they should be paid.  Having regard to what was said in the Direction, and which I adopt as being appropriate to circumstances such as this, to delay payment "in any event" would not serve the purpose of discouraging ill-considered or needless interlocutory applications.  I am of the view that the applications for judgment were defective and should also fall within the category of applications that ought to be discouraged in a similar way.

4. In the circumstances I am of the view that these costs of applications 1, 2 and 4 should be paid forthwith.

5. So far as the costs in relation to the De Alwis and the cross‑examination applications (numbers 3 and 5), again these were ill‑considered or needless and ought to be discouraged.  As I have noted previously, there seems to be no reason why they should be dealt with any differently to the appeal.  That is to say that these costs should be paid forthwith. 

6. I take a different view with regard to the defendants' summons of 30 January 2007 (number 6).  This was not in my opinion a matter of any great moment.  The defendant can be adequately compensated in respect of these costs by them being awarded in any event.  Using the analogy adopted by the defendants to an application for dismissal for want of prosecution, such an order would be the normal order.  Such an application does not fall within that class of cases sought to be discouraged in the Direction.

Conclusion

1. In conclusion the orders in this matter will be:

   (1)The plaintiff do pay the defendants' costs of the plaintiff's chamber summons dated 30 January 2006, including all reserved costs, to be taxed, if not agreed, and paid forthwith.

   (2)The plaintiff do pay the defendants' costs of the defendants' chamber summons dated 8 February 2006 and the defendants' minute of amended chamber summons dated 3 March 2006, including all reserved costs, to be taxed, if not agreed, and paid forthwith.

   (3)The plaintiff do pay the defendants' costs of the plaintiff's motion dated 2 May 2006, including all reserved costs, to be taxed, if not agreed, and paid forthwith.

   (4)The plaintiff do pay the defendants' costs of the plaintiff's motion dated 15 May 2006, including all reserved costs, to be taxed, if not agreed, and paid forthwith.

   (5)The plaintiff do pay the defendants' costs of the defendants' chamber summons dated 30 January 2007, including all reserved costs, in any event.

   (6)The plaintiff do pay the defendants' costs of this application to be taxed, if not agreed, and paid forthwith.

   (7)The costs ordered to be taxed and paid forthwith be taxed as one set.