Dalecoast Pty Ltd v Monisse
[1999] WASCA 242
•11 NOVEMBER 1999
DALECOAST PTY LTD -v- MONISSE & ORS [1999] WASCA 242
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 242 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:25/1999 | 26 JULY 1999 | |
| Coram: | MALCOLM CJ OWEN J TEMPLEMAN J | 11/11/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Show cause order dismissed | ||
| PDF Version |
| Parties: | DALECOAST PTY LTD ANTHONY MAURICE MONISSE GUARDIAN INTERNATIONAL PTY LTD GUARDIAN PROTECTIVE COATING PTY LTD GRANT DESMOND BOYCE GARRY JOHN DWYER ANTHONY PETER WARREN ROBERT BRUCE ARUNDEL SMITH ALAN FREDERICK BAMFORD |
Catchwords: | Civil procedure Costs Solicitors ordered to show cause why they should not personally pay costs of appeal from Master who refused to grant leave to administer further interrogatories Order 30 Rules of the Supreme Court Order 66 r 5 Rules of the Supreme Court |
Legislation: | Nil |
Case References: | Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 Monitronix Ltd v Michael (1992) 7 WAR 195 Myers v Elman [1940] AC 282 Attorney v Gaskill (1882) 20 Ch D 528 Cassidy v Murray (1995) 124 FLR 267 D v D [1963] 1 WLR 194 Da Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 Esso Australia Resources Ltd v FCT (1998) 159 ALR 664 Garcia v National Australia Bank Ltd (1998) 155 ALR 614 Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170 Grant v Downs (1976) 135 CLR 674 Holden & Co v The Crown Prosecution Service [1990] 2 QB 261 Isaacs v Robertson [1985] AC 97 Jachimowicz v Jachimowicz (1986) FLR 459 Jackamarra v Krakauer (1998) 153 ALR 276 Jakeman v Jakeman and Turner [1964] WLR 90 Knaggs v J A Westaways & Sons Pty Ltd (1996) 40 NSWLR 476 Knight v F P Assets Pty Ltd (1992) 174 CLR 178 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 R & T Thew Ltd v Reeves (No 2) [1982] 1 QB 1283 Re a Barrister and Solicitor; Ex parte Attorney-General from the Commonwealth (1972) 20 FLR 234 Re Benedeich (No 2) (1994) 126 ALR 643 Ridehalgh v Horsefield [1994] Ch 205 Solomon Brothers (A firm) v Ginbey, unreported; SCt of WA (Master Sanderson); Library No 980526; 11 September 1998 Walsh v Law Society of New South Wales [1999] HCA 33 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DALECOAST PTY LTD -v- MONISSE & ORS [1999] WASCA 242 CORAM : MALCOLM CJ
- OWEN J
TEMPLEMAN J
- Applicant (Plaintiff)
AND
ANTHONY MAURICE MONISSE
First Respondent (First-Named Third Defendant)
GUARDIAN INTERNATIONAL PTY LTD
Second Respondent (First Defendant)
GUARDIAN PROTECTIVE COATING PTY LTD
Third Respondent (Second Defendant)
GRANT DESMOND BOYCE
GARRY JOHN DWYER
ANTHONY PETER WARREN
Fourth Respondents (Second To Fourth-Named Third Defendants)
ROBERT BRUCE ARUNDEL SMITH
ALAN FREDERICK BAMFORD
Fifth Respondents (Fourth Defendants)
(Page 2)
Catchwords:
Civil procedure - Costs - Solicitors ordered to show cause why they should not personally pay costs of appeal from Master who refused to grant leave to administer further interrogatories - Order 30 Rules of the Supreme Court - Order 66 r 5 Rules of the Supreme Court
Legislation:
Nil
Result:
Show cause order dismissed
Representation:
Counsel:
Applicant (Plaintiff) : Mr J G Giles
First Respondent (First-Named Third Defendant) : No appearance
Second Respondent (First Defendant) : No appearance
Third Respondent (Second Defendant) : No appearance
Fourth Respondents (Second To Fourth-Named
- Third Defendants) : No appearance
Solicitors:
Applicant (Plaintiff) : Solomon Bros
First Respondent (First-Named Third Defendant) : No appearance
Second Respondent (First Defendant) : No appearance
Third Respondent (Second Defendant) : No appearance
Fourth Respondents (Second To Fourth-Named
- Third Defendants) : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223
Monitronix Ltd v Michael (1992) 7 WAR 195
Myers v Elman [1940] AC 282
Case(s) also cited:
Attorney v Gaskill (1882) 20 Ch D 528
Cassidy v Murray (1995) 124 FLR 267
D v D [1963] 1 WLR 194
Da Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Esso Australia Resources Ltd v FCT (1998) 159 ALR 664
Garcia v National Australia Bank Ltd (1998) 155 ALR 614
Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170
Grant v Downs (1976) 135 CLR 674
Holden & Co v The Crown Prosecution Service [1990] 2 QB 261
Isaacs v Robertson [1985] AC 97
Jachimowicz v Jachimowicz (1986) FLR 459
Jackamarra v Krakauer (1998) 153 ALR 276
Jakeman v Jakeman and Turner [1964] WLR 90
Knaggs v J A Westaways & Sons Pty Ltd (1996) 40 NSWLR 476
Knight v F P Assets Pty Ltd (1992) 174 CLR 178
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
R & T Thew Ltd v Reeves (No 2) [1982] 1 QB 1283
Re a Barrister and Solicitor; Ex parte Attorney-General from the Commonwealth (1972) 20 FLR 234
Re Benedeich (No 2) (1994) 126 ALR 643
Ridehalgh v Horsefield [1994] Ch 205
Solomon Brothers (A firm) v Ginbey, unreported; SCt of WA (Master Sanderson); Library No 980526; 11 September 1998
Walsh v Law Society of New South Wales [1999] HCA 33
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
(Page 4)
1 MALCOLM CJ: In my opinion this application for leave to appeal should be dismissed for the reasons to be published by Templeman J.
2 OWEN J: I have had the advantage of reading in draft the reasons to be published by Templeman J. I agree with those reasons and have nothing further to add.
3 TEMPLEMAN J: On 29 July 1999, this Court dismissed an application for leave to appeal against the decision of an Acting Master who had refused to grant leave to the applicant to administer further interrogatories to the first respondent, who is one of the third defendants in the action.
4 In delivering his judgment, Malcolm CJ noted that all members of the court had been critical of the failure of the applicant's solicitors to deal with matters the subject of the proposed further interrogatories when formulating the first set. In those circumstances, the court was unanimously of the view that the solicitors should show cause why they should not bear the costs of the appeal personally.
5 The solicitors were therefore given leave to file submissions and any affidavit directed to this issue.
6 On 12 August 1999 the solicitors filed written submissions and an affidavit of Mr Jeremy Christopher Giles, the solicitor who had conduct of the matter for the applicant, under the supervision of Mr Douglas Solomon, the partner concerned.
7 Having considered those materials, I am of the view that sufficient cause has been shown why the solicitors should not be required to pay the costs personally. I now set out my reasons for reaching that view.
8 The matters taken into account by the Acting Master in the exercise of his discretion are set out in my earlier reasons, with which Malcolm CJ and Owen J agreed: Dalecoast Pty Ltd v Monisse [1999] WASCA 103. They included the following:
1 the further interrogatories (which were the second set) were directed to documents disclosed by the defendants on further discovery before the applicant administered its first set;
2 although the second set of interrogatories sought to elicit admissions about the authorship of these further discovered documents, they asked far wider questions which explored much of the applicant's case against the third defendants;
(Page 5)
- 3 it was open to the applicant to seek admissions pursuant to O 30 in order to prove the authorship of the further discovered documents, this being its primary concern;
4 a substantial period of time would be required to answer the second set of interrogatories;
5 case management principles did not require the administration of further interrogatories: this was unlikely to save time or to reduce the ambit of the litigation.
9 The application for leave to appeal against the decision of the Acting Master could have succeeded only if the decision was wrong, or attended with sufficient doubt to justify the grant of leave and if it would have resulted in substantial injustice to the applicant if left unreversed.
10 The decision of the Acting Master involved a considerable element of discretion. Indeed, as Owen J pointed out in his reasons, amendments made to the Rules of the Supreme Court in 1996 require a party to seek leave to administer any interrogatories. These amendments reflect the common experience to which Owen J referred: that the benefit to be obtained from delivering interrogatories is frequently outweighed by the inconvenience and expense to the other party in answering them.
11 In considering the application, this Court came to the view that the Acting Master had been entirely justified in exercising his discretion as he did. However, Mr Giles' affidavit has gone some of the way towards answering the criticisms implicit in the decision of the Acting Master. Mr Giles said, and I accept, that:
1 The first set of interrogatories had been prepared in draft form, but not settled, before the solicitors received copies of certain of the defendants' late-discovered documents (although all of those documents had been inspected by a director of the applicant and its accountant).
2 The applicant had been provided with draft answers to the first set of interrogatories before it sought to administer the second set. The solicitors were of the view that the answer to question 3.2.2 was "non responsive and insufficient". Mr Giles said also in his affidavit that he regarded the answer as "surprising". This is because the answer did not accord with an assumption he and Mr Solomon had made when drafting the question. (I note however that Bredmeyer M later held that the answer was sufficient.)
(Page 6)
- 3 By letter dated 10 November 1998, the solicitors sought to have certain of the defendants' documents tendered by consent. The solicitors regarded the letter as an informal notice to admit. However, the defendants' solicitors did not reply to the letter.
4 The applicant decided not to seek leave to appeal from the decision of Bredmeyer M that answer 3.2 was adequate. But because the solicitors believed it would be pointless to serve a formal notice to admit, they "contemplated the other option: namely, further interrogatories".
5 Mr Giles did not think it necessary to file an affidavit setting out the facts which justify the administration of a further set of interrogatories. He thought it sufficient to rely on documents on the court file. (I should say that while I accept Mr Giles' explanation, I do not accept his approach. If reliance is to be placed on documents, they should be exhibited to an affidavit so that the Judge, Master or Registrar has them to hand. And either the affidavit or supporting submissions should make plain the basis of that reliance. The judicial officer should not be required to search the court file to identify any documents which may be relevant to the application in question).
6 The question whether O 30 r 2 would avail the applicant was not argued before the Acting Master.
12 In lengthy written submissions filed by the solicitors in answer to the show cause order, it is said that the need for further interrogatories arose "as a direct result" of the Acting Principal Registrar's order of 11 November 1997, which gave the applicant only until 18 November, to make any application to administer interrogatories.
13 I do not accept that submission. I accept that it was not practicable by 18 November, for the solicitors to have considered the documents disclosed by the defendants on further discovery. However, this does not explain why the second set of interrogatories was drawn far more widely than necessary to prove the authorship of the documents. Nor does it explain why the solicitors did not serve a notice to admit the facts relating to authorship. The solicitors did not explore the question of tender by consent until their letter of 18 November 1998, some 12 months later. And the letter in which the request was made was not a notice under O 30 r 2. Further, it appears from the defendants' outline of submissions in opposition to the application to administer the second set of interrogatories, that they would have been receptive to a notice to admit
(Page 7)
- facts. It is true that the submissions referred to O 30 r 5, and not to O 30 r 2.
14 Even if the Acting Master had decided the application on the basis that O 30 r 5 was the appropriate provision for the applicant to invoke (which it was not) the fact remains that the applicant could have served a notice pursuant to O 30 r 2 for the purpose of seeking admission as to the authorship of the relevant documents. There was no need to seek leave to appeal from the Acting Master's decision.
15 The jurisdiction to impose personal liability for costs on a solicitor arises under O 66 r 5 in cases in which:
"… costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default …".
16 The solicitors' primary submission is that the court has no jurisdiction to order them to pay costs personally unless their conduct involves a serious dereliction of their duty to the court. That is the test stated in Myers v Elman [1940] AC 282 at 292, 303, 319. The test has been applied in this Court: Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 and Monitronix Ltd v Michael (1992) 7 WAR 195, 201.
17 I accept that to be the appropriate test. It is to be contrasted with the higher standard now prevailing in England. There, under E O 62 r 11, which is the corresponding provision to O 66 r 5, a personal costs order may be imposed on a solicitor who fails to act with reasonable competence. In the present case, the applicant's solicitors were of the view that since their client's only hope of avoiding a no case submission against the third defendant was to obtain answers to the second set of interrogatories, they had no alternative but to appeal against the decision of the Acting Master. While I do not accept his view as being justifiable (and it did not require wide-ranging interrogatories to be answered in any event) I do accept that the solicitors exercised their judgement to a certain extent in reaching their conclusion.
18 Although I think the problem confronting the solicitors could have been tackled more simply and efficiently than it was, the solicitors have persuaded me that their conduct did not involve a serious dereliction of their duty to the court.
19 I would therefore discharge the show cause order.
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