Farris v Boase [No 2]
[2014] WASC 168
•14 MAY 2014
FARRIS -v- BOASE [No 2] [2014] WASC 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 168 | |
| 14/05/2014 | |||
| Case No: | CIV:1707/2012 | 10 APRIL 2014 | |
| Coram: | PRITCHARD J | 10/04/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Matter referred back to taxing officer for further consideration | ||
| B | |||
| PDF Version |
| Parties: | RONALD SYDNEY PRITCHARD FARRIS TIMOTHY BOASE |
Catchwords: | Costs Taxation Objections Review by taxing officer Certificate of taxation signed in defendant's absence Application for suspension of costs order Application to stay certificate of taxation Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308; [2003] WASCA 307 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221 Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TIMOTHY BOASE
Defendant
Catchwords:
Costs - Taxation - Objections - Review by taxing officer - Certificate of taxation signed in defendant's absence - Application for suspension of costs order - Application to stay certificate of taxation - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Matter referred back to taxing officer for further consideration
Category: B
Representation:
Counsel:
Plaintiff : Mr T M Clavey
Defendant : In person
Solicitors:
Plaintiff : Clyde & Co Australia
Defendant : In person
Cases referred to in judgment:
Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308; [2003] WASCA 307
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
- (This judgment was delivered extemporaneously on 10 April 2014 and has been edited from the transcript.)
PRITCHARD J:
Introduction
1 Following a trial before the Master in June 2013 in which judgment was entered for Mr Farris, the Master made an order that Mr Boase pay Mr Farris' costs partly on a party/party basis and partly on a solicitor/client basis, with those costs to be taxed (the costs order). Mr Farris applied for the taxation of his bill of costs. The taxing officer undertook that taxation on 20 January 2014 and signed the certificate of taxation on that date (the certificate of taxation).
2 Mr Boase now applies to this Court for orders suspending the costs order indefinitely and staying the certificate of taxation (the Application). For the reasons which follow, I am not persuaded that Mr Boase has established any basis for suspending the costs order. That part of the Application should be dismissed.
3 Further, I am not persuaded that the preconditions for the grant of a stay of the certificate of taxation have been met because certain applications made by Mr Boase to have the certificate of taxation re-considered or re-opened by the learned taxing officer do not yet appear to have been considered by the taxing officer and because the taxing officer does not appear to have considered whether a stay should be granted in respect of the certificate of taxation. The appropriate course is to dismiss that part of the Application also, but to refer the matter back to the taxing officer for the consideration of those applications by Mr Boase which are still before him.
The Application: Suspension of the costs order
4 Mr Boase sought to suspend the costs order pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA), which states:
(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment.
(2) The court may deal with such an application in the absence of the person entitled to the benefit of the judgment if it is just to do so.
(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.
(5) When or after making a suspension order the court may make any necessary ancillary or consequential order including an order -
(a) that a means inquiry, default inquiry or interpleader proceedings be adjourned;
(b) that a means inquiry or default inquiry not be held for such period as the court specifies;
(c) as to the operation or effect of any order that has been made under Part 4 or 5 or section 101;
(d) that a person imprisoned under section 90 or 98 for a contempt of court be released from prison for such period and on any terms that the court specifies;
(e) that prohibits or restricts dealings with a judgment debtor’s property, or the payment of debts owed to a judgment debtor, while the suspension order has effect.
6 The principles governing applications for suspension and as to what will constitute special circumstances have been set out in a number of judgments of this Court. These were summarised by Templeman J in New Resource Holdings Pty Ltd v Lunt [No 3]1 by reference to the decisions in Ladang Jalong (Australia) Pty Ltd v Callander2 and Eastland Technology Australia Pty Ltd v Whisson.3 The considerations to which his Honour referred were as follows:
• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
7 The cases to which his Honour was referring are cases in which applications for suspension are sought pending an appeal against a decision. In other cases, applications have been made where the unsuccessful party has a counterclaim or other litigation against the successful party. The sorts of factors which will be relevant to determining whether special circumstances exist where suspension orders are sought in cases of that kind were referred to by Templeman J in New Resource Holdings Pty Ltd v Lunt [No 3].4 Those factors include:
• the nature of the plaintiff's claim;
• the extent of the identity between the parties;
• the interrelationship of the respective claims;
• the strength of the defendant's or related party's claim;
• the relative size of the claims;
• the likely delay between the merits of the defendant's or related party's claim being adjudicated; and
• the prejudice to the plaintiff if it is denied the fruits of its judgment until the defendant's or related party's claims are determined.
8 This case is in neither of the categories to which I have referred. The special circumstances Mr Boase relies on in this case arise from concerns he has about the manner in which his witness statement in the trial was handled by a staff member of the Court and about whether the learned Master may have seen or relied upon the content of the witness statement in its totality. It is unnecessary for present purposes to set out the details of those concerns. (I do observe, however, that Mr Boase's witness statement was admitted into evidence in the trial by consent and Mr Boase accepted that the content of the statement admitted into evidence - that is, the words used - was unchanged from that which he had submitted.) Mr Boase made a complaint about these matters to the Chief Justice (the complaint).
9 Mr Boase submits that the special circumstances in this case are that:
1. there is merit in his complaint;
2. the complaint has not been dealt with adequately;
3. the complaint concerns a serious matter;
4. the circumstances of this case are far more serious than the sorts of circumstances involved in cases in which suspension orders have usually been granted;
5. Mr Farris would not be adversely affected by a suspension order;
6. a suspension order is necessary to preserve the integrity of the litigation; and
7. the payment of the costs order would have a serious and adverse financial impact on Mr Boase and may result in his bankruptcy.
10 I am not persuaded that Mr Boase has established that special circumstances exist so as to warrant the suspension of a costs order.
11 I start from the position that Mr Farris is entitled to the benefit of the litigation, including the costs order he has obtained. I also accept that it is for Mr Boase to move the court to a favourable exercise of the discretion to suspend.
12 I now turn to the complaint, which is the basis for the alleged existence of special circumstances. There appear to me to be two difficulties which arise from Mr Boase's reliance on the matters about which he complains. First, I am not persuaded that the outcome of the complaint process could have any bearing on the costs order. Secondly, among the documents Mr Boase relied upon for the purposes of the Application was a copy of a letter dated 13 March 2014 from the Chief Justice to him, in which the Chief Justice advised that he had made inquiries into Mr Boase's allegations, found no evidence that substantiated the complaint, and that he was not undertaking ongoing inquiries into the complaint. In those circumstances, there is nothing to indicate that the matters about which Mr Boase complains could have any bearing on, or relevance to, the enforcement of the costs order.
13 Mr Boase appeared to be under the impression that it was open to me, in the exercise of the Court's inherent jurisdiction, to control its own procedure to assess the material which is the subject of his complaint, to conclude that that material prima facie substantiates the complaint, and that on the basis of such a finding Mr Boase would then be in a position to appeal to the Court of Appeal in respect of the judgment and orders made by the Master, including the costs order. I do not agree. Having regard to the material before me, I am not persuaded that there is any legal, or evidentiary, basis upon which it would be open to me to make such a finding.
14 I am not persuaded that the other matters to which Mr Boase referred, either alone or in conjunction with the subject of the complaint, constitute special circumstances. There was no evidence as to Mr Farris' financial circumstances. More particularly, there was nothing to suggest that if the costs order were set aside by a court at some stage in the future that Mr Farris would not be in a position to repay the costs. Mr Boase has not established that a suspension order would be necessary to avoid the situation where an appeal, or the complaint process, might be rendered nugatory. No evidence was presented by Mr Boase as to his financial circumstances.
15 In the absence of special circumstances, I am not persuaded that the suspension order should be granted and I will dismiss this part of the Application.
The Application: Stay of the Certificate of Taxation
16 In summary, the background with respect to Mr Boase's application to stay the certificate of taxation is this. The taxation of Mr Farris' bill of costs was listed before the taxation officer on 20 January 2014. On a number of occasions prior to the appointment, Mr Boase requested an adjournment of the appointment as he was working away in the country and was unable to return to Perth on that date. His request for an adjournment was refused by the taxing officer on 23 December 2013.
17 The taxation proceeded on 20 January 2014 in Mr Boase's absence. The learned taxing officer signed the allocatur and thus signed the taxing certificate.
18 Order 66 r 54 of the Rules of the Supreme Court 1971 (WA) (RSC) provides that, except as provided by that rule, the taxing officer shall not, after a certificate of taxation is signed, review his taxation or amend his certificate, except to correct clerical or manifest errors before payment. However, under O 54 r 5 RSC, if a party fails to appear on the taxation, the taxing officer may, upon an application in writing within seven days, set aside or vary his certificate of taxation on such terms as he thinks just. (For completeness, I also note that the court has an inherent jurisdiction to set aside a certificate which has been signed before the parties have time to bring in objections.5)
19 In this case, Mr Boase has sworn various affidavits, one of which includes a copy of an email dated 27 January 2014 in which he requested that the taxing officer set aside the certificate of taxation. Mr Boase submitted that he had not received any response to that request and that the documents submitted in his affidavit did not include any response to that request.
20 In the same email, Mr Boase indicated that he wished to object to two items in the taxation. He gave three grounds for his objections:
1. he was concerned that the items provided no details substantiating the work claimed to underpin the amount claimed;
2. the claims for costs charged by reference to six-minute units was not appropriate; and
3. he wished to object to the charge for photocopying.
21 Mr Boase sent an email to the taxing officer's associate on 30 January 2014 requesting a response to his application to set aside the certificate of taxation. He says he received no reply to that request.
22 Mr Boase sent a further email to the associate to the taxing officer on 31 January 2014 requesting the taxing officer state the ground and reason for his decision to reject Mr Boase's objections.
23 The position then is that Mr Boase's request that the taxing officer set aside the certificate of taxation does not appear to have been determined by the learned taxing officer.
24 Mr Boase also requested that the taxing officer grant a stay of the certificate of taxation pending a review. There is no indication that the learned taxing officer has considered that application.
25 I do not think it can be concluded that the learned taxing officer's failure to respond to these applications constitutes an intended refusal of these applications. It appears equally likely that it was not appreciated that those applications had been made given that they were contained in several of a large number of emails from Mr Boase to the taxing officer.
26 Returning to the Application, the Application relies on O 66 r 58 RSC. However, it is not apparent that the preconditions for the grant of a stay have been made. Order 66 r 58 RSC provides:
A party who has required the taxing officer to state the ground and reason of his decision on an objection for the purpose of applying to a judge to review the taxation, may request the taxing officer to grant a stay of proceedings either wholly or limited to the item or part of an item which is the subject of the objection, and in the event of the taxing officer refusing such stay may apply to a judge.
27 I should mention that the principles in relation to the rules to which I have referred (which are contained in Div 3 of O 66 RSC) were considered in some detail by the Court of Appeal in Rankilor v Circuit Travel Pty Ltd.6 It is not necessary to set out all of those observations for present purposes. It suffices to say that, in the circumstances I have outlined, the conclusion appears to be warranted that the taxation process before the learned taxing officer has not been finalised in the sense that the taxing officer has not resolved Mr Boase's application under O 66 r 54(5) RSC.
28 Counsel for Mr Farris conceded that that was so and submitted that, consequently, I did not have jurisdiction to grant a stay of the certificate of taxation pending a review by a judge of that certificate. He also submitted, as I understood it, that that was the case by virtue of the fact that there had not been a determination by the taxing officer to decline an application for a stay of his taxation certificate.
29 Setting aside or varying a taxation certificate under the rules to which I have referred involves an exercise of discretion. There are a number of issues in relation to the present matter which may bear upon the exercise of discretion. By way of example only, I note that there is room for argument as to whether at least some of the grounds for objections raised by Mr Boase in respect of the taxation concern matters of principle of the kind required to found an objection under the rules.
30 In addition, it is well-established that it is not possible to seek a review of a certificate of taxation unless the objector brought in an objection before the certificate was signed.7 In this case, Mr Boase did not bring in an objection before the certificate was signed, but that was because he did not have the opportunity to do so because the certificate was signed apparently at the conclusion of the taxation in his absence.
31 I simply mention these issues to indicate that there are a number of matters which will no doubt need to be taken into account by the taxing officer in considering, first of all, the application before him for the certificate of taxation to be set aside or varied as requested by Mr Boase and any subsequent applications that might remain extant. In mentioning these issues, of course, I do not mean to suggest that any exercise of discretion by the learned taxation officer is warranted one way or the other.
32 The appropriate course, it seems to me, is to dismiss the Application so far as it seeks a stay of the certificate of taxation, but to refer the matter to the taxation officer for further consideration of the extant applications before him.
1New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221 [27] - [28].
2Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203.
3Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308; [2003] WASCA 307.
4New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221 [40].
5 See Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621.
6Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [62] - [79] (Murphy JA, McLure P & Newnes JA agreeing).
7Rules of the Supreme Court 1971 (WA) O 66 r 53(1).
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