Farris v Boase

[2013] WASC 227 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	FARRIS -v- BOASE [2013] WASC 227 (S)

CORAM	: MASTER SANDERSON
HEARD	:  25 JUNE 2013
DELIVERED	:  25 JUNE 2013
PUBLISHED	:  4 JULY 2013
FILE NO/S	:  CIV 1707 of 2012
BETWEEN	:  RONALD SYDNEY PRITCHARD FARRIS Plaintiff

AND

TIMOTHY BOASE

Defendant

Catchwords:

Costs - Costs on a solicitor/client basis when litigant in person - Turns on own facts

Legislation:

Nil

Result:

Costs order made against defendant Category: B	[2013] WASC 227 (S)
Representation:
Counsel:

Plaintiff	:	Mr T M Clavey
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Clyde & Co Australia
Defendant	:	No appearance

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON [2013] WASC 227 (S)

1. MASTER SANDERSON: The remaining question in relation to this matter is costs. On 25 June 2013 I made the following costs orders:

(1)	The defendant do pay the plaintiff's costs of attendances in Master's Chambers on 9 April 2013 fixed in the sum of $451, on 12 June 2013 fixed in the sum of $451 and 25 June 2013 fixed in the sum of $451.
(2)	The defendant do pay the plaintiff's costs of the proceedings and incidental thereto to 20 August 2012 to be taxed on a party/party basis and from 21 August 2012 to be taxed on a solicitor/client basis.

2              When I published reasons in relation to this matter I invited the

parties to make submissions on costs. The plaintiff filed submissions dated 12 June 2013. The defendant filed two sets of submissions, one on 12 June 2013 and one on 19 June 2013. I then listed the matter for further oral submissions on 25 June 2013. Counsel for the plaintiff attended the hearing. The defendant did not. The defendant was in court when the date of 25 June 2013 was fixed. That being so I went ahead and made the orders. I indicated I would publish reasons for my decision. These are those reasons.

3              It must be acknowledged at the outset it is unusual to make a costs

order against a litigant in person on a solicitor/client basis. But as counsel for the plaintiff pointed out the present defendant is no stranger to litigation. In evidence during the course of the trial he indicated he had been involved in multiple Supreme Court and Federal Court proceedings - he said there were five or six actions excluding the present proceedings. So the defendant cannot argue he is naïve and unfamiliar with court proceedings.

4              Although costs are always discretionary they generally follow the

event. That is the starting point in this case. There is nothing in the conduct of the plaintiff which would in any way disentitle him from a costs order. He was successful in the action, the action was pursued with dispatch and without any unnecessary interlocutory skirmishing. The real question then was whether the plaintiff was entitled to the second of two orders that I made.

5              It was the plaintiff's position the defendant had pursued a hopeless

case. In my view that submission should be accepted. Further it seems to me an intelligent person such as the defendant when confronted with the plaintiff's arguments should have realised his defence could not possibly

MASTER SANDERSON [2013] WASC 227 (S)

succeed and have conceded the matter. There was no reasonable
alternative.

6              The plaintiff's solicitors made every endeavour to point out to the

defendant his case was hopeless. Filed in support of the costs application was an affidavit of Jessica Mabel McLaughlin sworn 12 June 2013. Annexure JMM2 is a copy of a letter sent by the plaintiff's solicitors to the defendant on 16 August 2012. The letter goes into great detail as to why the defendant's defence cannot succeed. Thereafter there followed an email exchange in which the defendant seems determined to ignore the strong arguments put against him. Counsel for the plaintiff's submitted, and I accept, by 20 August 2012 the defendant should have had a clear understanding of his position and have been well aware it was hopeless.

7              By open letter of 21 December 2012 the plaintiff offered to settle

these proceedings. A copy of that offer appears as annexure JMM7 to Ms McLaughlin's affidavit. There was some negotiation in relation to this settlement offer but it appears the defendant was never really serious about settling. The offer made by the plaintiff would have seemed to any reasonable person too good to refuse. But the defendant did refuse it and he must accept the consequences of his action.

8              There were two other matters raised by the plaintiff. First it was

alleged the defence was conducted for a collateral purpose. It was submitted the defendant would not give any undertaking not to use the transcripts because he wished to use these transcripts in other proceedings. While it may be correct the defendant wished to use the transcripts in other proceedings that can hardly be said to be collateral to the main action. Generally speaking when an allegation is made of some form of 'collateral' attack something beyond the present proceedings are contemplated. In my view that is not the case here.

9              Second it was alleged the defendant's conduct prolonged the trial. It

is certainly true the defendant's failure to comply with the order to provide witness statements meant it was not clear for the first half of the trial what case the defendant was running. The filing of an amended defence did not really assist the matter. But I do think this was rather due to the defendant's inexperience and unfamiliarity with the court process rather than anything else. The defendant's cross-examination of the plaintiff was rambling, but as I noted in my reasons, it was not assisted by the way the plaintiff gave his evidence. An experienced counsel may well have concluded the cross-examination of the plaintiff in relatively short order and the trial may have concluded in the one day originally allotted. But I

MASTER SANDERSON [2013] WASC 227 (S)

think it would be unreasonable to conclude the conduct of the defendant
was such the trial was prolonged by any deliberate act on his part.

1. Weighing all these matters in the balance I was satisfied the costs order proposed by the plaintiff was appropriate.