Del Borrello v Friedman and Lurie (A Firm) [No 3]
[2014] WASC 204
•6 JUNE 2014
DEL BORRELLO -v- FRIEDMAN & LURIE (A FIRM) [No 3] [2014] WASC 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 204 | |
| Case No: | CIV:1868/1998 | 1 APRIL 2014 | |
| Coram: | LEE AJ | 6/06/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to discontinue granted | ||
| B | |||
| PDF Version |
| Parties: | PETER DEL BORRELLO FRIEDMAN & LURIE (A FIRM) |
Catchwords: | Practice and procedure Application for leave to discontinue Application unopposed Conditions required before leave to discontinue will be granted Costs upon discontinuance |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Clark v Richards [2003] WASC 5 Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348 Fox v Star Newspaper Co Ltd [1898] 1 QB 636 O'Neill v Mann [2000] FCA 1680 SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FRIEDMAN & LURIE (A FIRM)
Defendant
Catchwords:
Practice and procedure - Application for leave to discontinue - Application unopposed - Conditions required before leave to discontinue will be granted - Costs upon discontinuance
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Leave to discontinue granted
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr S F Popperwell
Solicitors:
Plaintiff : In person
Defendant : Denman Popperwell Lawyers
Case(s) referred to in judgment(s):
Clark v Richards [2003] WASC 5
Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876
Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348
Fox v Star Newspaper Co Ltd [1898] 1 QB 636
O'Neill v Mann [2000] FCA 1680
SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113
1 LEE AJ: The following account describes legal proceedings that have occupied the plaintiff for a period of 25 years. The present proceeding has been on foot in this court for 16 years. Costs incurred by the plaintiff have far exceeded the amount disputed by the plaintiff when the original litigation began.
2 In June and August 1988 the plaintiff, as developer, entered contracts with a builder to build for the plaintiff a group of four 'standard home units'. The plaintiff then made contracts with purchasers for the sale and delivery of possession of the units on completion.
3 In the course of the construction of the units a dispute arose between the plaintiff and the builder.
4 In 1989 the builder commenced proceedings in the District Court against the plaintiff claiming a sum of approximately $55,000 as the amount due from the plaintiff under the contracts.
5 The plaintiff filed a counterclaim for the loss of use of money said to have been caused to the plaintiff by the late completion of the units by the builder.
6 The trial of the matter in the District Court occupied four days in September 1992, three days in February 1993, and one day in March 1993.
7 The reasons for decision of the trial judge were delivered in February 1994 and the builder obtained judgment in the sum claimed and the plaintiff's counterclaim was dismissed.
8 In August 1998 the plaintiff, then unrepresented, commenced a proceeding in this court pursuant to which he sought damages from the defendant firm who had acted as solicitors for the plaintiff in the foregoing matter claiming negligence and breach of contract in the carrying out of the plaintiff's instructions.
9 The defendant firm was instructed to act for the plaintiff on 5 August 1992 and ceased to act for the plaintiff on 11 September 1992, the day after the trial of the matter had been adjourned, part-heard.
10 In March 1999 the defendant firm sought summary dismissal of the plaintiff's claim. That application was heard by a master of this court who, on 13 May 1999, ordered that summary judgment be entered against the plaintiff and that the plaintiff's action against the defendant firm be dismissed.
11 On 6 November 2001 a Full Court of this court (Kennedy, Wallwork & Murray JJ) allowed the plaintiff's appeal from that decision and set aside the orders of the master. (See: Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348.)
12 The Full Court accepted that although the plaintiff's case as then adumbrated was not strong it was sufficiently evident that it was not frivolous or vexatious and that issues of duress, unconscionable conduct, negligence and breach of contract were raised in the pleadings and should be determined at trial, leave being granted to the plaintiff to reframe the statement of claim to clarify those issues.
13 An amended statement of claim, again prepared by the plaintiff in person, was filed in December 2001. A defence, in bare form, was filed by the defendant firm in November 2007. In August 2009 that defence was struck out by order of a judge of this court (EM Heenan J). By leave granted by his Honour the defendant filed a more detailed defence on 31 August 2009.
14 Thereafter the matter wended its way towards trial. From 2010, and for significant periods beforehand, the plaintiff has been unrepresented.
15 In March 2014 the managing judge made an appointment to list a date for commencement of the trial. On 19 March 2014 the plaintiff filed an application for leave to discontinue pursuant to O 23 r 2(3) of the Rules of the Supreme Court 1971 (WA), stating that he was 'financially defeated'.
16 The application for leave to discontinue came on for hearing before me on 1 April 2014. The defendant firm did not oppose the order sought by the plaintiff.
17 The principles to be followed in applying the terms of O 23 r 2(3) are well known. The court has a wide discretion that is to be exercised to do justice between the parties. It may be expected that given that it is neither desirable nor in the public interest to compel a party to litigate against its will, normally leave to discontinue will be granted, unless such an order would visit injustice on the other side. (See Fox v Star Newspaper Co Ltd [1898] 1 QB 636; Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876, 879 (Graham J); SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113, 142 - 143 (Sweeney J), 161 - 162 (Lockhart J), 182, 184 - 185 (Sheppard J).) Although the equivalent Federal Court rule (O 22 r 2) considered in SCI Operations v TPC was expressed in somewhat different terms from those contained in O 23 r 2(3) and in the English precursor O 21 r 3, it attracted application of the same principles.
18 Although a grant of leave to discontinue may lead to an order for costs against the party receiving leave there is no principle that it must be so. The discretion to order costs remains with the court and the conduct of the parties, and any underlying cause for seeking leave to discontinue, may have a bearing on the terms of the order made, if any. (See Clark v Richards [2003] WASC 5 [27], [78] (McLure J); O'Neill v Mann [2000] FCA 1680 [13] (Finn J).)
19 I was satisfied that there was no reason to deny the leave sought and have the matter to proceed to trial. Nor was there any prospect of injustice to the defendant firm in the grant of leave. Indeed, to the contrary, dismissal of the claim would provide the benefit of a statutory bar against any purported resumption of the claim. Therefore, I was satisfied that it was appropriate that the plaintiff be permitted to withdraw from the litigation by dismissal of his claim. With regard to costs it was apparent that if an application for a costs order were made, litigation carried on over an extended period and the claims of the plaintiff as to the conduct of the opposing party raised issues that would require submissions to be lodged and considered before any order for costs could be made.
20 I ordered that the plaintiff have leave to discontinue and that the plaintiff's claim against the defendant firm be dismissed and that any order for costs, including orders relating to costs in the cause or costs reserved, be subject to liberty to apply until 1 May 2014.
21 No application was made for an order in respect of costs within the time allowed and, therefore, the final form of the order is that the plaintiff's claim be dismissed with no order as to costs.
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