Cristovao v Tan & Tan Lawyers Pty Ltd
[2017] WADC 36
•17 MARCH 2017
CRISTOVAO -v- TAN & TAN LAWYERS PTY LTD [2017] WADC 36
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 36 | |
| Case No: | APP:103/2016 | 15 MARCH 2017 | |
| Coram: | SCHOOMBEE DCJ | 17/03/17 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal refused | ||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO TAN & TAN LAWYERS PTY LTD |
Catchwords: | Appeal from Magistrates Court Appeal against competency of costs order made by magistrate Whether O 9A of the Rules of the Supreme Court 1971 applies in the Magistrates Court Competency of costs order where party indemnified by insurer Delay in bringing appeal |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40 District Court Rules 2005 (WA) r 6(1), r 50(1) Rules of the Supreme Court 1971 (WA) O 9A |
Case References: | Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Cristovao v Tan & Tan Lawyers Pty Ltd [2016] WADC 127 Marsh v Baxter [No 2] [2016] WASCA 51 Noye v Robbins [2010] WASCA 83 Simonsen v Legge [2010] WASCA 238 Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR(WA) 254 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
TAN & TAN LAWYERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BOON
File No : PE GCLM 7383 of 2010
Catchwords:
Appeal from Magistrates Court - Appeal against competency of costs order made by magistrate - Whether O 9A of the Rules of the Supreme Court 1971 applies in the Magistrates Court - Competency of costs order where party indemnified by insurer - Delay in bringing appeal
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40
District Court Rules 2005 (WA) r 6(1), r 50(1)
Rules of the Supreme Court 1971 (WA) O 9A
Result:
Extension of time to appeal refused
Representation:
Counsel:
Appellant : In person
Respondent : Mr S F Popperwell
Solicitors:
Appellant : Not applicable
Respondent : Denman Popperwell
Case(s) referred to in judgment(s):
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Cristovao v Tan & Tan Lawyers Pty Ltd [2016] WADC 127
Marsh v Baxter [No 2] [2016] WASCA 51
Noye v Robbins [2010] WASCA 83
Simonsen v Legge [2010] WASCA 238
Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254
1 SCHOOMBEE DCJ: This is an appeal by Mr Rogerio Cristovao pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) against the competency of a costs order made by Magistrate Boon on 2 July 2014 pursuant to which her Honour ordered Mr Cristovao to pay the legal costs incurred by Tan & Tan Lawyers Pty Ltd in the Magistrates Court proceedings before her.
Background
2 The proceedings by Mr Cristovao against Tan & Tan were instituted in the Magistrates Court at Perth on 17 May 2010. Mr Cristovao claimed damages for professional negligence. Magistrate Boon dismissed the claim and ordered Mr Cristovao to pay to the legal costs incurred by Tan & Tan, to be assessed, if not agreed.
3 A bill of costs submitted by Tan & Tan was assessed by Registrar Miles on 14 January 2016. Mr Cristovao submitted at that hearing that the registrar should not assess the bill of costs because Tan & Tan had failed to comply with O 9A of the Rules of the Supreme Court 1971 (WA) (RSC). This order requires a party to notify the Principal Registrar and any other party of the identity of a person who is an interested non-party, in other words, a party who provides funding or other financial assistance to the party conducting the case and who exercises direct or indirect control or influences the way in which the party conducts the case. The learned registrar did not accept Mr Cristovao's submission, ruled against him and proceeded with the assessment of the bill of costs.
4 Mr Cristovao appealed against the registrar's assessment. The appeal was heard by Magistrate Temby on 13 April 2016. Mr Cristovao again submitted that the registrar should not have assessed the bill of costs because Tan & Tan did not comply with O 9A of the RSC. Magistrate Temby dismissed the appeal.
5 By notice dated 1 May 2016 Mr Cristovao appealed to the District Court against the decision of Magistrate Temby. Again Mr Cristovao submitted that the registrar should have declined to assess the bill of costs because Tan & Tan had not complied with O 9A of the RSC. On 12 August 2016 Parry DCJ delivered ex tempore reasons dismissing the appeal. The reasons were subsequently published as Cristovao v Tan & Tan Lawyers Pty Ltd [2016] WADC 127.
6 Parry DCJ essentially held that Mr Cristovao's appeal was misconceived as O 9A of the RSC did not apply to proceedings in the Magistrates Court. His Honour also held that the appeal before him was a collateral attack on Magistrate Boon's cost order and should not have been brought in respect of Registrar Miles' assessment of the bill of costs.
7 Mr Cristovao appealed the decision by Parry DCJ in the Court of Appeal of Western Australia. The appeal was heard on 9 March 2017 and unanimously dismissed by Newnes & Murphy JJA, although the reasons are not yet available.
Appeal from Magistrates Court to District Court
8 Pursuant to s 40(1) of the MCCP Act and r 50(1) of the District Court Rules 2005 (WA) a party to a case that is not a minor case may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case. However, under s 40(3) an appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.
9 An appeal from the Magistrates Court to the District Court is by way of re-hearing which means that it is necessary for the appellant to demonstrate an error by the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]; Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254 [37]. The error must be a legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
Grounds of appeal
10 Mr Cristovao relies on four grounds of appeal before this court. Firstly he alleges that Tan & Tan did not disclose to Magistrate Boon the existence of a third party 'secret funder' contrary to O 9A of the RSC. Secondly, Mr Cristovao alleges that this non-disclosure caused him to 'misconceive' that the costs order made by Magistrate Boon was a nullity and should be set aside. Thirdly, this constituted a waste of the court's resources and fourthly that fair justice mandates that the case before Magistrate Boon be re-opened.
11 Under ground 4 Mr Cristovao raises five sub-grounds which state that the solicitors acting for Tan & Tan, Denman Popperwell Lawyers, had 'substantial interests in the outcome' of Magistrate Boon's decision, had entered into a champertous agreement with Tan & Tan, were only entitled to payment for their disbursements, other than counsel's fees, and sought to share in the financial outcome of the case before Magistrate Boon in a manner unrelated to the costs actually incurred by them.
12 It may be that Mr Cristovao tried to formulate a further ground of appeal, namely that Tan & Tan entered into a champertous agreement with their lawyers Denman Popperwell Lawyers. However, no evidence was provided of any written or oral legal services agreement between Tan & Tan and Denman Popperwell Lawyers or of any champertous charges claimed by Denman Popperwell Lawyers.
Delay in bringing the appeal against Magistrate Boon's costs order
13 Although Magistrate Boon dismissed Mr Cristovao's claim against Tan & Tan and made the costs order against him on 2 July 2014, the notice of appeal against that order was only filed on 7 December 2016. This means that there was a delay of almost 2 1/2 years in bringing the appeal.
14 Mr Cristovao has applied for this court to grant him an extension of time to file the appeal against Magistrate Boon's costs order.
15 In an affidavit, dated 6 December 2016, Mr Cristovao provides reasons for the delay. He essentially says that it was the fault of Tan & Tan who caused the delay by making him go through the process of having the bill of costs assessed, bringing the appeal against the assessment before Magistrate Temby and the subsequent appeal before Parry DCJ. Mr Cristovao submits that the costs order by Magistrate Boon was always void but that Tan & Tan and their solicitors 'Popperwell Lawyers' caused him to go through this 'rigmarole process'.
16 The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal have been comprehensively and succinctly set out in Simonsen v Legge [2010] WASCA 238 [8]. That case dealt with an appeal to the Court of Appeal from the decision of a single judge of the Supreme Court, but they also apply to an extension of time in relation to an appeal to the District Court from a decision by the Magistrates Court under s 40 of the MCCP Act: Smith v Mandurah Auto Pty Ltd [44].
17 The four major factors, although they are not the only ones, which a court should take into account in considering an extension of time to appeal are:
(i) the length of the delay;
(ii) the reasons for the delay;
(iii) the prospects of the appellant succeeding in the appeal; and
(iv) the extent of any prejudice to the respondent.
18 The length of the delay in this case is extraordinary – almost 2 1/2 years. The reasons for the delay set out in the affidavit do not touch upon the question as to why Mr Cristovao did not bring an appeal against the costs order by Magistrate Boon at an earlier stage, but instead sought to raise the alleged non-compliance with O 9A of the RSC at the hearing before the registrar when the bill of costs was assessed. As held by Parry DCJ this was a collateral attack on the costs order made by Magistrate Boon and the proceedings before Registrar Miles as well as before Magistrate Temby and Parry DCJ were misconceived. Mr Cristovao does not provide any explanation how that misconception occurred, other than to say that it was caused by Tan & Tan. He has not provided any reasons why the 'rigmarole process' of objecting to the assessment of the bill of costs and the two subsequent appeals were the fault of Tan & Tan or their solicitors.
19 I accept that Mr Cristovao was unrepresented throughout the various hearings arising from the proceedings in the Magistrates Court and may not initially have understood that he needed to bring an appeal against the costs order made by Magistrate Boon. However, it appears from the reasons provided by Parry DCJ that Magistrate Temby told Mr Cristovao at the hearing on 13 April 2016 that his appeal against the assessment of the bill of costs was in effect a collateral attack on the costs order made by Magistrate Boon. In spite of this information, it took Mr Cristovao nearly eight months to file the notice of appeal against the cost order made by Magistrate Boon.
20 There is also no explanation in the affidavit as to when Mr Cristovao found out that Tan & Tan had been indemnified by their insurers, Law Mutual, and why his understanding that O 9A applied to the proceedings before Magistrate Boon was not raised by him at the time of the proceedings.
21 As regards the prospects of Mr Cristovao succeeding in the appeal before this court, were he to be granted an extension of time, they are very slim, if not non-existent, for the reasons which I shall discuss below.
22 The fourth factor requires that the extent of any prejudice to the respondent be taken into account. The respondent, Tan & Tan, has been entitled to their costs since July 2014. They have clearly been prejudiced by not having being able to enforce their order for such a long time and would be further prejudiced if an extension of time were to be granted. It also seems from the affidavit regarding the delay filed by Mr Cristovao that Tan & Tan have obtained a sequestration order against Mr Cristovao, dated 22 November 2016, and Mr Cristovao has indicated that he wishes to have that set aside.
23 Taking into account the extraordinary length of the delay, the lack of cogent reasons for the delay, the minimal prospects of Mr Cristovao succeeding in the appeal and the prejudice to be suffered by Tan & Tan if they are prevented from executing the costs order, I am of the view that an extension for leave to appeal should not be granted.
The application of O 9A of the RSC in the Magistrates Court
24 I shall briefly deal with the merits of the appeal.
25 Parry DCJ held that O 9A of the RSC does not apply in the Magistrates Court. I agree with his Honour's reasoning. The Magistrates Court has its own rules, as provided for in the Magistrate Court Regulations 2005 (WA). Those rules do not incorporate O 9A of the RSC by reference or otherwise. There is also no equivalent provision in the two acts or the regulations applying to the Magistrates Court. The position is different in the District Court as O 6(1) of the District Court Rules 2005 provides that the RSC apply to and in respect of any case in the District Court.
26 This means that Tan & Tan had no obligation to disclose to Mr Cristovao whether any other party provided funding or financial assistance to it in conducting the defence of Mr Cristovao's case before Magistrate Boon.
27 The decision of Parry DCJ was upheld in the Court of Appeal. A District Court judge is bound by a decision of the Court of Appeal. Having had four judges come to the conclusion that O 9A of the RSC does not apply in the Magistrates Court, Mr Cristovao will simply have to accept this.
Whether a costs order in favour of Tan & Tan was competent
28 Mr Cristovao's grounds of appeal appear to state that the costs order was a nullity because Tan & Tan had not disclosed its 'secret funder'. In a letter by Mr Cristovao to Denman Popperwell Lawyers, dated 10 January 2017, the 'secret funder' is identified as Law Mutual. Insofar as the grounds of appeal also imply that the costs order was a nullity because it could not have been granted in favour of Tan & Tan in light of the fact that it had been indemnified by its insurer, Law Mutual, I shall briefly deal with that point.
29 There is no reason why a costs order could not have been granted in favour of Tan & Tan even though Law Mutual may have indemnified them for the costs of their defence and paid the costs incurred by the legal representatives appointed by Tan & Tan. A party to proceedings who instructs legal representatives is liable for their costs, even though a third party, such as the litigant's insurer has undertaken to pay the costs by way of indemnity. It is only when there is an agreement between the litigant and the third party that under no circumstances will the litigant be liable for the costs of its legal representatives, that the litigant's liability to its legal representatives is excluded: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495.
30 As discussed in Marsh v Baxter [No 2] [2016] WASCA 51 [33], the decision in Adams v London Improved Motor Coach Builders Ltd has been followed in Australia in a number of cases. In one of these cases, Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65 French J held that a litigant may recover its costs incurred to its legal representatives as long as the litigant remains under such a legal liability, even though the likelihood of the litigant being called upon to pay the costs is remote because of an indemnity granted to the litigant by a third party.
31 The position is no different even if the costs of the litigant have already been paid by a third party at the time the costs order is sought: Noye v Robbins [2010] WASCA 83 [322] - [331].
32 As held in Marsh v Baxter [No 2] [37] the onus of establishing that a litigant had no liability at all to its legal representatives for the costs incurred lies on the party wishing to establish this proposition. In the absence of proof of an agreement to the contrary, a solicitor who acts on instructions of a litigant on the record is entitled to look to that litigant for costs, even if the instructions have come from a third party.
33 Further where a third party provides an indemnity to a litigant for its legal costs, that third party is entitled to recover the costs from the litigant by reason of its rights of subrogation, even though this is not specified in any contractual agreement: Marsh v Baxter [No 2] [39].
34 Accordingly, even if Tan & Tan was indemnified by Law Mutual for the costs of its defence of the proceedings instituted by Mr Cristovao in the Magistrates Court, Tan & Tan is still entitled to a costs order in its name against Mr Cristovao. No evidence has been placed before this court to indicate that Tan & Tan had no legal liability to its legal representatives.
Appeal to District Court an abuse of process
35 Counsel for Tan & Tan submitted that the appeal to the District Court was an abuse of process because it involved the same legal issue that had already been ruled upon by Parry DCJ against Mr Cristovao. In light of my earlier findings, it is not necessary to deal with this point.
Conclusion
36 Accordingly, in light of the extraordinarily long delay, the lack of reasons for explaining that delay, the prejudice to be suffered by the respondent and the minimal prospects, if any, of succeeding on the appeal, leave to appeal is refused.
37 Even if an extension of time had been granted, the appeal would have been dismissed on its merits for the reasons set out above.
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