Cristovao v Geoffrey Paul Dutton (trading as Dutton Legal Barristers and Solicitors)
[2016] WASCA 163
•21 SEPTEMBER 2016
CRISTOVAO -v- GEOFFREY PAUL DUTTON (trading as DUTTON LEGAL BARRISTERS AND SOLICITORS) [2016] WASCA 163
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 163 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:46/2016 | 2 SEPTEMBER 2016 | |
| Coram: | NEWNES JA MURPHY JA | 21/09/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO GEOFFREY PAUL DUTTON (trading as DUTTON LEGAL BARRISTERS AND SOLICITORS) |
Catchwords: | Practice and procedure Appeal against dismissal of summary judgment application in District Court Whether primary judge erred in finding triable issue Turns on own facts |
Legislation: | Nil |
Case References: | Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Cardno BSD Pty Ltd v Water Corporation [No 2] WASCA 161 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CRISTOVAO -v- GEOFFREY PAUL DUTTON (trading as DUTTON LEGAL BARRISTERS AND SOLICITORS) [2016] WASCA 163 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
GEOFFREY PAUL DUTTON (trading as DUTTON LEGAL BARRISTERS AND SOLICITORS)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : CRISTOVAO -v- GEOFFREY DUTTON t/as DUTTON LEGAL [No 2] [2016] WADC 66
File No : CIV 1628 of 2015
Catchwords:
Practice and procedure - Appeal against dismissal of summary judgment application in District Court - Whether primary judge erred in finding triable issue - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C Moss
Solicitors:
Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Wilson v Metaxas [1989] WAR 285
1 JUDGMENT OF THE COURT: This is an appeal from a decision of Eaton DCJ in the District Court in which his Honour dismissed an application by the appellant for summary judgment and granted the respondent unconditional leave to defend the action. The appellant requires leave to appeal: District Court of Western Australia Act 1969 (WA), s 79(1)(b). As the appeal notice was filed out of time, the appellant also requires an extension of time to appeal.
2 The appeal comes before the court pursuant to a registrar's notice to attend:
a) to consider the appellant's application for an extension of time to appeal and for leave to appeal; and
b) to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
We would dismiss the appeal for the reasons that follow.
Background
3 On 11 May 2015, the appellant commenced proceedings against the respondent in the District Court claiming damages for negligence. The essence of the appellant's claim was that the respondent, who at the material time was a certified legal practitioner and was acting for the appellant, had wrongly commenced proceedings on behalf of the appellant against a third party under the general procedure in the Magistrates Court rather than as a minor case. The appellant claimed that as a result he had incurred a liability to the third party in the sum of $50,000, which he claimed as special damages. He also claimed the sum of $45,000 for out of pocket expenses; a further sum, it seems, of some $50,000 in respect of expenses alleged to have been incurred because he had to remain in Australia; and damages for pain and suffering.
4 The respondent filed a memorandum of appearance and a defence. In the defence he pleaded, among other things, that:
1. the claim had been filed as a general procedure claim on the appellant's instructions; and
2. the matters complained of by the appellant concerned work out of court that was intimately connected with and affected the conduct of the proceedings in court so that he was immune from any liability to the appellant in relation to that work (the advocate's immunity).
5 The respondent denied that he was negligent and denied that the appellant had suffered the alleged or any damage.
6 The appellant applied to strike out portions of the defence. On 11 September 2015, the application came before Deputy Registrar Harman, who struck out the particulars to par 2(a) of the defence and otherwise dismissed the application. He ordered the appellant to pay 75% of the respondent's costs of the application. The appellant lodged an appeal from that decision.
7 Subsequently, but before that appeal was heard, the appellant filed an application for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA), supported by an affidavit. The respondent filed an affidavit in opposition to the application, deposing to the pleaded defences. On 18 May 2016, the appeal against Deputy Registrar Harman's decision and the application for summary judgment were both dismissed by the primary judge.
The reasons of the primary judge
8 The primary judge noted that the application for summary judgment was filed some nine months after service of the respondent's memorandum of appearance, well outside the 21-day period within which such an application may be filed without leave, and the appellant had failed to provide a satisfactory explanation for the delay. His Honour also found that there were at least two triable issues in the action, namely whether the respondent had filed the claim as a general procedure claim on the appellant's instructions and whether the respondent was protected by advocate's immunity. The primary judge refused to grant leave to bring the application for summary judgment and dismissed it. As he considered that the appellant was aware that the respondent relied upon a contention that would entitle him to unconditional leave to defend, his Honour ordered the appellant to pay the costs of the application.
9 On the appeal from the decision of Deputy Registrar Harman, the primary judge canvassed the appellant's various objections to the defence and concluded that they were without substance. His Honour found that the defence sufficiently defined the matters in issue and dismissed the appeal, with costs.
10 The appellant seeks to appeal against the decision to dismiss the application for summary judgment. An appeal notice was filed on 3 June 2016, out of time for an appeal against an interlocutory order. The appellant therefore requires an extension of time to appeal.
The grounds of appeal
11 The grounds of appeal are not in conventional form and are difficult to understand but as they were explained by the appellant at the hearing they were, in substance, that the primary judge erred in finding that:
1. there was a triable issue as to advocate's immunity;
2. the appellant was 'culpable' for the delay in making the application for summary judgment;
3. there was a triable issue as to whether the respondent had been instructed by the appellant to file a general procedure claim, as:
a) that defence had been struck out by Deputy Registrar Harman; alternatively,
b) that defence was not arguable.
12 The statutory requirement that leave must be obtained to appeal from an interlocutory decision is intended to reduce appeals from such decisions as much as possible. While there is a general discretion to grant leave to appeal, ordinarily it must be shown that the decision in respect of which leave is sought is wrong, or at least attended with sufficient doubt to justify the grant of leave, and, in addition, that substantial injustice would be done by leaving the decision unreversed: Wilson v Metaxas [1989] WAR 285, 294.
13 This appeal fails on both counts. No substantial injustice would be done if the decision were left unreversed. The action would simply proceed to trial and, if he were successful, the appellant would ordinarily be entitled to an order for costs if he was represented by solicitors or for such out of pocket expenses as he reasonably incurred in the litigation, if he was not. Indeed it is anomalous that the appeal can be brought at all. No appeal lies in respect of an order of a judge or master of this court dismissing an application for summary judgment and granting unconditional leave to defend: Supreme Court Act 1935 (WA), s 60(1)(b). There is no such limitation in respect of such an order of the District Court and nothing in s 79 of the District Court of Western Australia Act 1969 (WA) precludes such an appeal: see Cardno BSD Pty Ltd v Water Corporation[No 2] [2011] WASCA 161 [95] - [102]. We observe in passing that this anomaly should be corrected.
14 In addition, the decision of the primary judge is not attended with doubt. The principles relevant to a summary judgment application are so well known as to hardly require repeating. Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46].
15 In our view, the primary judge correctly dismissed the application. There was clearly a triable issue whether, as the respondent contended, he had acted on the appellant's instructions in filing a general procedure claim. Whether or not the instructions, which are alleged to be oral, were given by the appellant is an issue of fact that will ultimately turn on issues of credibility.
16 In the course of argument, the appellant took us to some correspondence annexed to an affidavit filed shortly before the hearing. No objection was taken by the respondent's counsel to the affidavit being received. The appellant sought to persuade us that it was evident from that correspondence that the respondent had simply filed the claim as a general procedure claim by mistake. We do not accept that. The effect of the correspondence is not self-evident and a proper understanding of it will require evidence as to the context and circumstances in which it occurred.
17 The appellant also argued that the respondent had invented the oral instructions in order to justify the receipt from the appellant of the sum of approximately $3,000 to institute the proceedings. We do not entirely follow the logic of that but in any event it raises a factual issue that could only be resolved at trial.
18 The contention that there was no triable issue must therefore be rejected. It is unnecessary to consider the defence of advocate's immunity.
19 The appellant also argued that in striking out par 2(a) of the defence, Deputy Registrar Harman had struck out the plea that the respondent had acted on the appellant's instructions, so that was no longer in issue. That is not the case. What was struck out were the particulars of that plea, not the substantive allegation, which remained intact. It therefore remains a live issue in the action.
20 As there was an issue that ought to be tried, it followed that the primary judge was correct to dismiss the application. We should add that, in the circumstances, the decision of the primary judge that the appellant should pay the costs of the application was one that was clearly open to him in the exercise of his discretion.
21 There is nothing in the appellant's challenge to the finding that he had failed to provide a satisfactory explanation for the delay in making the application and it is unnecessary to consider it in any detail. Having found that there was a triable issue, the primary judge was required to dismiss the application for summary judgment whatever the explanation for the delay. We should, however, say that on the material before us, the finding of the primary judge that there was no satisfactory explanation for it was plainly correct.
Conclusion
22 There will be orders that:
1. the appellant's application for an extension of time to appeal and for leave to appeal be dismissed; and
2. the appeal be dismissed.
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