Del Borrello v Richardson
[2001] WASCA 153 (S)
•27 APRIL 2001
DEL BORRELLO -v- RICHARDSON [2001] WASCA 153 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 153 (S) | |
| Case No: | SJA:1220/2000 | 27 APRIL 2001, 3 APRIL 2006 | |
| Coram: | SIMMONDS J | 27/04/01 | |
| 16/08/06 | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHELA DEL BORRELLO ALLAN RICHARDSON |
Catchwords: | Order that non-party be made liable for costs whether non-party was effective litigant Whether contempt or abuse of process of court Whether interests of justice required order to be made |
Legislation: | Guardianship and Administration Act 1990 (WA), s 107(1)(a) Rules of the Supreme Court (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37(1) |
Case References: | Carborundum Abrasives Pty Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757 Del Borrello & Anor v Cook [2001] WASCA 12 Del Borrello & Anor v Ninyett [2001] WASCA 13 Del Borrello v Richardson [2001] WASCA 153 Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383 Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 Hayward v Giffard (1838) 150 ER 1399 Hearsey v Pechell & Ors (1839) 132 ER 1179 HPM Pty Ltd v Fear [2002] WASCA 249(S) Knight v F P Special Assets Ltd (1992) 174 CLR 178 Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 Money Tree Management Services Pty Ltd v The Deputy Commissioner of Taxation (No 2) [2000] SASC 63 Re Sturmer and Town of Beaverton (1912) 25 OLR 566 Vestris v Chapman (1998) 72 SASR 449 Del Borello v Friedman & Lurie (a firm) [1999] WASC 17 Del Borello v Friedman & Lurie (a firm) [2001] WASCA 348 Del Borello v Friedman and Lurie, unreported; HCt of Aust; Library No P64/2001; 24 October 2002 Del Borello v J Corp Pty Ltd, unreported; HCt of Aust; Library No P2/1996; 4 September 1996 Yates v Boland [2000] FCA 1895 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 16 AUGUST 2006 FILE NO/S : SJA 1220 of 2000 BETWEEN : MICHELA DEL BORRELLO
- Appellant
AND
ALLAN RICHARDSON
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MAGISTRATE P G THOBAVEN
File No : PE 2469 of 2000, PE 2471 of 2000
Catchwords:
Order that non-party be made liable for costs - whether non-party was effective litigant - Whether contempt or abuse of process of court - Whether interests of justice required order to be made
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 107(1)(a)
Rules of the Supreme Court (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D S McManus
Respondent : Mr M E Paterson
Solicitors:
Appellant : Brian Smith & Stewart
Respondent : Michael Paterson & Associates
Case(s) referred to in judgment(s):
Carborundum Abrasives Pty Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757
Del Borrello & Anor v Cook [2001] WASCA 12
Del Borrello & Anor v Ninyett [2001] WASCA 13
Del Borrello v Richardson [2001] WASCA 153
Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281
Hayward v Giffard (1838) 150 ER 1399
Hearsey v Pechell & Ors (1839) 132 ER 1179
HPM Pty Ltd v Fear [2002] WASCA 249(S)
Knight v F P Special Assets Ltd (1992) 174 CLR 178
Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155
Money Tree Management Services Pty Ltd v The Deputy Commissioner of Taxation (No 2) [2000] SASC 63
(Page 3)
Re Sturmer and Town of Beaverton (1912) 25 OLR 566
Vestris v Chapman (1998) 72 SASR 449
Case(s) also cited:
Del Borello v Friedman & Lurie (a firm) [1999] WASC 17
Del Borello v Friedman & Lurie (a firm) [2001] WASCA 348
Del Borello v Friedman and Lurie, unreported; HCt of Aust; Library No P64/2001; 24 October 2002
Del Borello v J Corp Pty Ltd, unreported; HCt of Aust; Library No P2/1996; 4 September 1996
Yates v Boland [2000] FCA 1895
(Page 4)
- SIMMONDS J:
Introduction
1 This is an application for a named person, not a party to the proceedings in which this application is made, to be made liable for all the costs of these proceedings, including the costs of this application.
2 The parties to the proceedings are Mrs Del Borrello, who at the date of commencement of the proceedings was a strata title owner in a building for which the other party, Mr Richardson, was then the strata title company manager. Mr Richardson seeks the costs order against Mr Peter Del Borrello who is the son of Mrs Del Borrello, and who at all material times, has been the donee of an enduring power of attorney for her.
3 The proceedings by Mrs Del Borrello against Mr Richardson arose out of conduct towards or affecting her, including conduct in relation to the building and meetings of its strata title management committee. The proceedings were for leave to appeal a decision by a Magistrate on an application for a restraining order against Mr Richardson. The proceedings were conducted on behalf of Mrs Del Borrello by Mr Peter Del Borrello, who is not a certificated legal practitioner. The application for leave to appeal was unsuccessful before Roberts-Smith J (as he then was) (Del Borrello v Richardson [2001] WASCA 153), and there was an appeal against that decision. The appeal was dismissed for want of prosecution.
4 In Richardson (supra), Mr Richardson was awarded his costs against Mrs Del Borrello. The further orders on the dismissal of the appeal were that the solicitor for Mr Richardson be released from his undertaking on behalf of Mr Richardson to refrain from seeking execution in respect of costs already taxed in the matter, until, among other things, further order of the court; that Mrs Del Borrello pay forthwith Mr Richardson's costs of the dismissed restraining order application, fixed by the Magistrate at $100.00, and that she pay his costs of the Full Court appeal and of the application to dismiss that appeal for want of prosecution, including all reserved costs. Following the dismissal of the appeal solicitors for Mr Richardson discovered that Mrs Del Borrello was no longer in her unit, but in a nursing home, suffering from dementia, and without property, with such money as she had having already been paid to the home for her placement and care.
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5 The application before me raises the issue of the application of the principles on which costs may be awarded against non-parties.
6 I begin by setting out the basis for the application before me, and the principles which guide the consideration of such applications. There is some, but limited, dispute as to those principles, and I will deal with that dispute. I then consider the application of the principles.
The basis for the application before me and the guiding principles
7 The application is brought under Supreme Court Act 1935 (WA), s 37(1) and Rules of the Supreme Court, O 66 r 1.
8 The Act, s 37(1) is as follows:
"37. Costs
(1) Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid."
"1. General rules as to costs
(1) Subject to the express provisions of any statute and of these Rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs."
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11 There is no closed set of categories of cases in which such orders may be made: Duskwood at [15]. One category is, however, recognised in Knight v F P Special Assets Ltd (1992) 174 CLR 178, per Mason CJ and Deane J, Gaudron J agreeing, at 193, where:
"The party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. When the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made."
12 There is also support in the English and Australian cases referred to by Dawson J in Knight (supra), at 202 for orders to be made against a non-party:
"Where that person is the effective litigant standing behind an actual party or where there has been a contempt or abuse of the process of the court."
13 The cases as referred to by his Honour for orders against the "the effective litigant" involved circumstances going beyond ones where persons simply had "an interest in the event of the suit" (Hayward v Giffard (1838) 150 ER 1399, per Lord Abinger, at 1400), to cases of the "real parties litigant" (as in Hayward of the "fictitious proceeding" represented by the old action of ejectment; or the putting up of a person who was without means to challenge the validity of a municipal by-law, in Re Sturmer and Town of Beaverton (1912) 25 OLR 566). It would undoubtedly be relevant, in determining whether a case was one of the latter sort, that the action was one which a party "would not have brought but for the instigation and countenance of" the non-party: Hearsey v Pechell & Ors (1839) 132 ER 1179, per Tindal CJ, at 1179, although Dawson J does not refer to this case.
14 The case referred to by Dawson J in Knight (supra) for orders in circumstances of contempt or abuse of the process of the court itself referred to "contempt of court, or …, in respect of this suit, of any thing in the nature of barratry or maintenance" (Hayward, per Lord Abinger, at 1400). It has since Knight been said, in Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383, Fed Ct, Hill J, at 390, a decision affirmed sub nomLevick v Deputy Commissioner of Taxation (2000) 102
(Page 7)
- FCR 155, in a case involving the award of costs against a solicitor who was the source of the argument which the Court concluded was advanced simply for the purposes of delay, that:
"Where the foundation for a third party cost order is said to be the case which has been advanced on behalf of the client by the solicitor, it is necessary, as suggested above, to draw the line between an argument which does not succeed and one that justifies a third party cost order. That line can most readily be found in the concept of abuse of the Court's process. A case which is advanced, not to vindicate the legal rights of an applicant, but for an ulterior purpose such as the production of gross delay will clearly enliven the jurisdiction of the Court to make an order against the solicitor: Flower & Hart v White Industries Ltd (1999) (No 2), 163 ALR 744."
"In so deciding I accept that an order for costs against a non-party will not be justified on the grounds only that the proceedings were doomed to fail. The Court must be satisfied that in the circumstances there has been an abuse of process. In reaching the conclusion that the ITR's conduct does amount to an abuse of process I adopt the observation of the Court of Appeal of England in Ridehalgh v Horsefield [1994] Ch 205 at 234 that while:
'[i]t is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, … in practice it is not hard to say which is which ...' "
"The power to make orders of this kind will rarely be exercised. As has been said by Lord Goff of Chieveley in Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965, at 980, it would, in the vast majority of cases, be unjust to make an award of costs against a person who was not a party to the relevant
(Page 8)
- proceedings. (See also In re Land and Property Trust Co plc [1991] 1 WLR 601 at 604; Symphony Group plc v Hodgson [1994] QB 179, at 192 - 3; Vestris v Cashman (1998) 72 SASR 449, at 467 and Flinn v Flinn [1999] 3 VR 712, at 760)."
17 It may be of importance to determine (Duskwood at [18]):
" … whether an application for security for costs has been made against the non-party or whether some other timely warning of an intention to claim costs against the non-party has been given."
18 However, the matter of a warning, by an application for security for costs against the non-party to the litigation, does not appear to me to weigh in this case, altogether apart from the limitations on the availability of such an order against an individual resident in the jurisdiction, on which see HPM Pty Ltd v Fear [2002] WASCA 249(S), Malcolm CJ, Murray J and Steytler J, at [9]. That is because, as I will explain below, there is no evidence the party now seeking costs against the non-party had any knowledge that the other party was in a financially weak position until after the appeal had been dismissed. It is not clear to me what other form of warning might meaningfully have been given in this case, and no other was referred to in the submissions for or evidence of Mr Peter Del Borrello.
19 A useful general statement of matters to bear in mind in applications such as the present is the following, from Vestris v Chapman (1998) 72 SASR 449, Lander J, Doyle CJ agreeing, at 468, quoted in Duskwood, Steytler J, at [25]:
"In exercising the discretion regard would be had to whether the non-party could have been joined as a party earlier in the proceedings and thereby obtained the protection of the rules of court; whether the non-party has had any warning that an application for costs against that party would be made; whether, in those circumstances, the non-party could have applied to be joined in the proceedings and thereby had the capacity to influence the proceedings or the non-party could have protected itself by making an offer in accordance with the rules; whether if a warning had been given the non-party could have terminated the proceedings by discontinuance, negotiation, payment or otherwise; whether the party who would otherwise be usually liable for costs can meet an order for costs and if
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- relevant the reason why that party cannot meet an order for costs; whether it was apparent at any earlier stage in the proceedings, and if so when, that the party could not meet costs; whether the moving party should have sought an order for security for costs; the relationship, if any, between the non-party and the party who would usually be liable for costs; whether the non-party has caused the proceedings; whether the non-party has funded the proceedings; whether the non-party stood to benefit by the litigation and if so how; whether the non-party had a direct or indirect financial interest in the litigation; and whether there has been any improper conduct on the part of the non-party.
None of the matters will necessarily be decisive."
20 Finally, I note there is a distinction, most clearly to be seen in the quotation from Knight (supra), per Mason CJ and Deane J, at 193, above, between circumstances that enliven the discretion to make the order sought in this case, and the exercise of that discretion.
21 I now turn to consider the aspects of this case said to be of importance for the application of the principles just considered.
The application of the guiding principles
22 The application for leave to appeal decided by Roberts-Smith J in Richardson (supra) was one of three applications for leave to appeal arising out of the dismissal of applications for misconduct restraining orders conducted by Mr Peter Del Borrello. All of the applications for restraining orders had been heard together and determined in the same way by the learned Magistrate on the same day, by dismissing the applications on the basis that (TS 13):
"All the matters which have been referred to today really come under the operations of the Strata Title regime and it seems to me that that's the appropriate place for these matters to be dealt with."
23 The application for leave to appeal decided by Roberts-Smith J was made, as I have indicated, on behalf of Mr Peter Del Borrello's mother. The other applications for leave to appeal were made by Mr Peter Del Borrello in his own name and in his mother's name, and named as respondents two unit holders in the strata property in which Mrs Del Borrello had a unit, against whom Mr Peter Del Borrello had
(Page 10)
- sought misconduct restraining orders naming himself as well as his mother as the persons to be protected. Those other applications for leave to appeal were also dismissed, in both cases by Steytler J: Del Borrello & Anor v Cook [2001] WASCA 12; and Del Borrello & Anor v Ninyett [2001] WASCA 13. His Honour gave reasons in the latter case which he adopted for the purposes of the former, and to which Roberts-Smith J made substantial reference in Richardson. It is not clear from the reasons of Steytler J in either case what the nature of the circumstances relied upon before the Magistrate for the misconduct restraining orders against the unit holders was, and the transcript of the hearing before the Magistrate does not provide any detail, except to suggest to me that the concern of the applicants for the orders might have been that the unit holders were instrumental in procuring resolutions on which the strata title manager had acted. However, Steytler J said, in Ninyett (supra) at [8], quoted in Richardson, Roberts-Smith J at [17], as to the "principal points sought to be made by the applicant":
"It was patently within his Worship's discretion to find, in the circumstances outlined to him (which essentially revolved around a dispute between the first applicant and the body corporate of the strata titled development in which she lived) that the dispute should more appropriately be dealt with by a Strata Titles Referee under Part VI of the Strata Titles Act."
25 I was invited to infer from this material that Mr Peter Del Borrello was the real party to the litigation. It was said this could be sufficient within the authorities to make it appropriate to order costs against Mr Peter Del Borrello. It was not necessary to show contempt of the court or abuse of its processes: Dawson J in Knight (supra), at 202, quoted above. I agree. However, I note that the establishment of the matter in either case enlivens my discretion, but does not require I exercise it.
26 I return to the matter of contempt or abuse below. In relation to the claim that Mr Peter Del Borrello was the real party to the litigation for the purposes of making a costs order against him, I note that the authorities
(Page 11)
- indicate it is not determinative to show that a person other than a party had instigated and had control of the litigation as well as having an interest in it: Duskwood (supra) (person who was "effectively" managing director of corporate party, and one of its two shareholders). It is relevant to consider whether or not the matter is being pursued bona fide by a person who is not acting "irresponsibly or improperly", in what the person considered was the best interests of the party for whom he was acting: see Duskwood, Steytler J, at [28].
27 At the same time I note the following, from HPM (supra), at [13]:
"[W]here proceedings are initiated and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in the result, it would rarely be just for such a person, pursuing his own interests, to be able to do so with no risk to himself should the proceedings fail. (See also Carborundum Abrasives Pty Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757.)"
28 However, the fact the degree (and it seems to me the nature) of the possible benefit from the litigation should be scrutinised, as well as whether the bringing of it was a reasonable course to pursue: Carborundum Abrasives Pty Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757, per Tompkins J, at 765, following the passage evidently referred to in HPM.
29 Here the evidence was that Mr Peter Del Borrello was concerned about conduct which affected his mother. From the litigation history I have described, involving claims by him on his own as well as his mother’s behalf, his personal interest in the appeal on behalf of his mother lay most clearly, it seems to me, in its bearing on his own proceedings. However, I consider, for reasons I return to below, that it is more likely than not it was his concern for his mother's interests as against the manager of the strata title company for her building, Mr Richardson, that underlay this litigation, rather than that bearing.
30 There is also evidence Mr Peter Del Borrello believed his mother had knowledge of and consented to his action in seeking misconduct restraining orders on her behalf. There is no evidence as to whether she would have so proceeded, or appealed in the events that happened, absent his action.
31 The evidence is also that she was competent at the time. Whether it could be said it was improper or irresponsible for Mr Peter Del Borrello to
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- persist with the application for leave to appeal against the dismissal of her action raises the issues I reach next.
32 It was in effect suggested it was improper or irresponsible for Mr Peter Del Borrello to have pursued the application for leave to appeal after the decisions by Steytler J in the other matters. This it was said would have indicated to Mr Peter Del Borrello that the litigation had no chance of success. The litigation had been pursued when, as holder of an enduring power of attorney for his mother, Mr Peter Del Borrello should have been aware of her financial status. Further, when he had been unsuccessful before Roberts-Smith J he had commenced an appeal, which he failed to prosecute.
33 I was particularly asked to note that an appeal was taken, not against either of Steytler J's decisions, in proceedings to which Mr Peter Del Borrello was a party, but rather against the decision of Roberts-Smith J, in the one proceeding to which Mr Peter Del Borrello was not a party.
34 Indeed, it appears to have been put that this case falls squarely within the category described in the quotation, above, from Knight per Mason CJ and Deane J, Gaudron J agreeing, at 192 – 193.
35 In this connection I was referred to other litigation than the three applications for leave to appeal, being proceedings in 1996, 1999, 2001 and 2002, which it was said showed Mr Peter Del Borrello was "no stranger to the Courts and their processes", at least to the extent of his awareness of the costs implications of litigation, which included that even a successful party is likely not to recover all of his or her costs from the unsuccessful party. Only Mr Richardson, alone of the three respondents to the applications for leave to appeal involving Mr Peter Del Borrello, had been legally represented, and I was invited to infer from this that Mr Peter Del Borrello had chosen to appeal against the dismissal of the application in Mr Richardson's case aware of the significantly greater costs implications in his case if he continued to be legally represented.
36 However, I am unable to conclude that the matters I have referred to show that that Mr Peter Del Borrello had behaved improperly or irresponsibly in pursuing the application for leave to appeal in respect of Mr Richardson, or in pursuing the further appeal. This question in my view also raises matters which go to whether it was a contempt or abuse of process for Mr Peter Del Borrello so to proceed in this case.
(Page 13)
37 I begin by noting that the continuance of litigation by a person with knowledge of the weak financial condition of the party in whose name the litigation is being conducted does not require that an order for costs against that party be made: Duskwood. On the principles I have referred to, those factors would point the Court towards the making of such an order, although I would note that there is a lack of direct evidence as to Mrs Del Borrello's financial condition except as it was following the dismissal of the appeal for want of prosecution. However, in my view Mr Peter Del Borrello, as the holder of an enduring power of attorney with respect to her affairs, would have been aware at all material times of the likely effect on her financial circumstances of the move into a nursing home such as occurred. I am prepared to conclude from that he was aware throughout of the risk, that here matured, she would be unable to meet a costs order against her.
38 But further matters need to be addressed. They are, in a case like this one, what prospects of ultimate success the person concerned might have considered the case had, so as to indicate there was no ulterior motive to the conduct of the litigation.
39 For Mr Peter Del Borrello it was strongly argued that the delay in taxing the costs of the application before Roberts-Smith J was a further reason for concluding that it would not be just to fix him liability for costs. It was not until February 2004 that those costs were taxed. Indeed I note that it was not until November 2003 that the orders on his mother's decision, including the order that Mrs Del Borrello pay Mr Richardson's costs to be taxed, were extracted. The decision of Roberts-Smith J in Richardson (supra) was reported as given on 27 April 2001, although it was not published until 14 May 2001. The appeal was lodged in May 2001 and the appeal was dismissed for want of prosecution on 2 March 2004, by McKechnie J. It does appear that there was some delay in taxing costs. However, in the transcript of the proceedings before McKechnie J there are a number of references by Mr Peter Del Borrello to negotiations to settle his mother's action against Mr Richardson. In view of those references, I do not ascribe any significance to the delay relied upon.
40 Returning to the matter of what prospects of ultimate success the person concerned might have considered the case had, there is no suggestion that Mr Peter Del Borrello had special expertise in matters going to the correctness of the Magistrate's decision on the restraining order applications. However, he had of course the decisions of Steytler J, and I believe I can assume he read and understood them. That, counsel for Mr Richardson says, should have been enough to indicate to
(Page 14)
- Mr Peter Del Borrello that persistence in what he sought was not appropriate.
41 However, it was not put to me that Mr Peter Del Borrello had the expertise to evaluate the likelihood of one member of this Court coming to a different view from that of another on what I am prepared to consider were the same circumstances. Such an evaluation would have raised questions of res judicata and issue estoppel of some nicety, to which Roberts-Smith J expressly referred in Richardson (supra) at [24].
42 In addition, Roberts-Smith J's reasons for decision went, in rather more detail than those of Steytler J, into Mr Peter Del Borrello's claim that he was denied a proper hearing before the Magistrate, and that the Magistrate did not determine the application for the restraining order on its merits and having regard to proper considerations. Roberts-Smith J said this (Richardson at [31] and [32]):
"It is in respect of these aspects that I have experienced the greatest difficulty. I want to say at once that I accept Mr Del Borrello's submission that this matter is not frivolous, neither in a technical legal sense in which that word is used in s 187 of the Justices Act nor in any other sense. It is absolutely clear that the matters he wishes to raise are serious to him and to his mother, the applicant, and I do not undervalue that for one moment.
The question for me though is not whether there is substance to the factual claims underlying the application for the restraining order but whether the proposed grounds of appeal against the decision of the Magistrate are reasonably arguable; that is, whether there is some prospect they could succeed were there to be an appeal. As I have already observed, these aspects were considered by Steytler J on the related applications before him. As to them, I respectfully agree with his Honour's reasons and conclusions and I adopt them.
I understand what Mr Del Borrello says when he explains he was not expecting and was not ready to present the cases on five complaints before the Magistrate on that day, but the case was not dealt with by his Worship in that way on that day. In effect his Worship approached the matter on the assumption that the applicant's allegations could or might be proved. His approach was that even if they were shown to be true, it was not a case in
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- which a restraining order was the appropriate remedy. That conclusion was open to his Worship, having regard to the considerations set out in s 35 of the Restraining Orders Act 1997 (WA), being the matters to which the Court is required to direct its attention."
43 This was not a case where there was a prior litigation history involving Mr Peter Del Borrello or of which he would have been aware in which there had been a pattern of failure attended by characterisation of the cases put to the court as "groundless", "manifestly untenable", "confused", "nonsense" and "an abuse of process", as in Money Tree Management, per Doyle CJ, at [6].
44 In those circumstances, I cannot conclude that Mr Peter Del Borrello's continuing with the proceedings in this Court in respect of Mr Richardson, after the dismissal of the proceedings in this Court in respect of the unit holders, clearly emerges as improper or inappropriate, let alone as an abuse of process. Nor, in view of the passages from the judgment of Roberts-Smith J that I have quoted, can I conclude that commencing an appeal against that decision, representing that of the second member of this Court to consider the circumstances, clearly emerges as improper or inappropriate, let alone as an abuse. It appears to me that it could have appeared to Mr Peter Del Borrello, who was not a lawyer, that in view of the difficulty to which Roberts-Smith J referred there might have been a reason to continue. That such a conclusion would have been very difficult to sustain does not it seems to me carry the point on impropriety or inappropriateness, let alone abuse.
45 However, I must weigh, as the applicant urged me to do, the fact that Mr Peter Del Borrello chose to appeal the decision in respect of Mr Richardson, not those in respect of the unit holders. Further, he had done this notwithstanding he had also arranged for an application to the Strata Titles Referee covering "the same issues that were raised in the initial restraining order proceedings" on behalf of his mother.
46 However, I have noted that there were no proceedings before the Magistrate in Mr Peter Del Borrello's name against Mr Richardson: the only such proceedings were in his mother’s name. I have also noted the previously quoted characterisation by Steytler J, in Ninyett (supra) at [8], of the matters before him as ones which "essentially revolved around a dispute between the first applicant [the mother] and the body corporate of the strata titled development in which she lived".
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47 I have also noted that an application made in the name of Mrs Del Borrello to the Strata Title Referee was partially successful. In particular the decision of the referee of 27 September 2002 included that the resolution of a re-convened meeting on 18 March 2001 of the annual general meeting, originally convened on 24 August 2000, re-appointing Mr Richardson as strata manager should be "invalidated". This part of his decision is a matter referred to in Mr Peter Del Borrello's affidavit of 23 January 2006 sworn for the application before me. This in my view indicates a particular concern of Mr Peter Del Borrello's in respect of Mr Richardson which is consistent with a determination that there was a particular need to proceed against him.
48 It does not appear to me to have been improper, inappropriate or abusive to pursue an appeal in this Court while also acting on the views expressed by the Magistrate as to the desirability of going to the Strata Titles Referee. In particular, there was a form of relief, invalidation of Mr Richardson's appointment as strata company manager, available in such proceedings not available in misconduct restraining order proceedings. It was put to me that the relief in the strata title proceedings would have been sufficient for the purposes of the other proceedings, and one of the orders of the Referee was indeed to prohibit the entry of the Strata Company or the Council on Mrs Del Borrello's lot. However, a misconduct restraining order might well have been wider than that.
49 Counsel for the applicant referred me to the responsibilities of a holder of an enduring power of attorney, such as Mr Peter Del Borrello, towards the person for whom they acted. Reference was made to the duty of the attorney to act "with reasonable diligence to protect the interests of the donee", under s 107(1)(a) of the Guardianship and Administration Act 1990 (WA). However, I do not consider it has been shown that Mr Peter Del Borrello had failed to act in the interests of the donee, in view of his concern for his mother to which I have referred. Whether he had failed to act with reasonable diligence to that end was not put to me, except it would seem by reference to the dismissal of the appeal against Roberts-Smith J's decision for want of prosecution. Whether or not that gave rise to a breach of s 107(1)(a), it does not seem to me that it represents on its own reason to make an order for costs against Mr Peter Del Borrello, although it is a factor which would incline me in that direction.
50 However, I must weigh that factor with the others to which I have referred, noting the caution that the authorities indicate I must bear in mind in this area. In view of the factors of the evidence of the concern of
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- Mr Peter Del Borrello for the interests of his mother, and the circumstances in which he took the litigation decisions he did, without professional assistance, I consider that, as I have analysed them, the factors of his control of the litigation, the background to that litigation and his (subordinate) interest in its outcome, the results of that litigation and the financial circumstances of the party whose litigation he controlled are not sufficient to cause me to make the order sought. That is, I do not consider that the interests of justice require me to make the order sought in this case. This is not say that orders like those sought here might not in suitable circumstances be appropriate against those conducting litigation without professional assistance. It is to say that the circumstances here are not, it seems to me, of that sort.
51 I would dismiss the application accordingly.
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