Frigger v Clavey Legal Pty Ltd [No 4]
[2015] WADC 86
•24 JULY 2015
FRIGGER -v- CLAVEY LEGAL PTY LTD [No 4] [2015] WADC 86
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 86 | |
| Case No: | CIV:1221/2011 | 16 JUNE 2015 | |
| Coram: | SCOTT DCJ | 24/07/15 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' application struck out | ||
| PDF Version |
| Parties: | ANGELA FRIGGER HARTMUT FRIGGER CLAVEY LEGAL PTY LTD |
Catchwords: | Order 65 r 5 Rules of the Supreme Court Application for order for wasted costs against plaintiffs' barrister Abuse of process Order 65 r 5 not appropriate for disposition of application |
Legislation: | Rules of the Supreme Court 1971 O 65 r 5 |
Case References: | Harley v McDonald [2001] 2 AC 678 Michael v Freehill Hollingdale and Page (1990) 3 WAR 223 Re Bond Corporation Holdings Ltd 1990 1 WAR 465 Ridehalgh v Horsefield [1994] Ch 205 Wall v Lefever [1997] EWCA Civ 2092 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
HARTMUT FRIGGER
Second Plaintiff
AND
CLAVEY LEGAL PTY LTD
Defendant
Catchwords:
Order 65 r 5 Rules of the Supreme Court - Application for order for wasted costs against plaintiffs' barrister - Abuse of process - Order 65 r 5 not appropriate for disposition of application
Legislation:
Rules of the Supreme Court 1971 O 65 r 5
Result:
Plaintiffs' application struck out
Representation:
Counsel:
First Plaintiff : Ms A Frigger
Second Plaintiff : Ms A Frigger
Defendant : No appearance
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Defendant : Not applicable
Case(s) referred to in judgment(s):
Harley v McDonald [2001] 2 AC 678
Michael v Freehill Hollingdale and Page (1990) 3 WAR 223
Re Bond Corporation Holdings Ltd 1990 1 WAR 465
Ridehalgh v Horsefield [1994] Ch 205
Wall v Lefever [1997] EWCA Civ 2092
1 SCOTT DCJ: In this action the plaintiffs claimed damages against the defendant in which they alleged that the defendant, when acting for them, breached the terms of a contractual retainer, was negligent and breached fiduciary duties said to have been owed to them by it.
2 The defendant denied the plaintiffs' allegations and further pleaded that any damage allegedly suffered by the plaintiffs arising from the winding up of Computer Accounting and Tax Pty Ltd (in liq) (CAT) could not, in the action, be challenged because such challenge would constitute a collateral attack on the Supreme Court decision in which it was ordered that CAT be wound up.
3 On 12 March 2015 Herron DCJ delivered a reserved decision the reasons for which comprised 120 pages.
4 The trial was initially listed for hearing in June 2013 but was adjourned on the application of the plaintiffs due to difficulties in legal representation.
5 The trial was re-listed for hearing and was due to commence on 31 March 2014 before Derrick DCJ. By then the plaintiffs had appointed Mr Griffen as their solicitor in mid-March 2014 and Mr Brooksby was engaged by Mr Griffen as counsel for the trial. From the correspondence it appears that Mr Griffen was essentially a 'post box' leaving it to Mr Brooksby to undertake the lion's share of the work.
6 On 28 March 2014 Mr Brooksby informed his Honour, in essence, that due to the state of the pleadings and in order to adequately deal with the quantification and proof of the damages flowing from the breaches alleged by the plaintiffs, he was not in a position to properly present the plaintiffs' case by 31March 2014.
7 As a consequence his Honour adjourned the trial and ordered the plaintiffs to pay the defendant's costs of the adjournment and any costs thrown away to be taxed. Those costs are yet to be taxed.
8 By an amended chamber summons filed 29 January 2015 the plaintiffs claimed the following orders.
…
2. Pursuant to Rules of Supreme Court Order 66 r 5(2) an order that Mr John Brooksby appear before this Honourable Court and show cause why the following cost orders should not be made against him:
a. Rule 5(1)(c): Mr John Brooksby to indemnify the plaintiffs for the costs ordered to be paid by the plaintiffs of the defendant's costs thrown away as a result of the adjournment of the trial listed for 31 March 2014;
b. Rule 5(1)(c): Mr Brooksby pay the costs charged by Mr Peter Griffin to the plaintiffs in relation to:
i. instructing Mr Brooksby;
ii. dealing with Mr Brooksby's demands for payment;
iii. Mr Brooksby's complaints to the WA Bar Association and the Legal Practice Board.
c. Rule 5(1)(d): Mr Brooksby shall not claim any relevant fees or costs from Mr Peter Griffin in relation to these proceedings.
1. The Plaintiffs' Amended Ex Parte Chamber Summons dated 29 January 2015 be struck out in its entirety on the basis that:
1.1 the summons is an abuse of the process of the Court; and/or alternatively,
1.2 that the requirements of Order 66 r 5(1) of the Rules of the Supreme Court 1971 (WA) have not been satisfied by the plaintiff.
2. The plaintiffs do pay Mr Brooksby's costs of the application, to be taxed.
3. Such other or further orders as the court deems fit.
10 It is Mr Brooksby's amended summons which is to be dealt with by me.
11 Order 66 r 5 provides as follows:
5. Lawyer may be ordered to pay costs etc.
(1) Where in any proceedings costs are incurred by a party —
(a) as a result of any improper, unreasonable, or negligent act or omission; or
(b) which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that party to pay,
the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent) —
(c) to pay those costs personally or to indemnify any party who has been ordered to pay those costs; or
(d) not to claim any relevant costs or fees; or
(e) to refund any relevant costs or fees which may have been paid already.
(2) No order under this rule shall be made against a practitioner unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made, …
13 Ordinarily an application pursuant to O 62 r 5 would be determined by Derrick DCJ who was the judge who made the costs order against the plaintiffs upon the trial in March 2014 being adjourned. That is because an application relating to wasted costs generally arises out of specific acts or omissions alleged on the part of a practitioner during the course of the disposition of interlocutory proceedings or at trial the circumstances of which are readily able to be appreciated by the judicial officer involved in those proceedings.
14 In this case the matters which require consideration involve essentially the circumstances in which Mr Brooksby was retained prior to trial, his competency to undertake his role as counsel in this trial, the instructions given to him and the nature and quality of the work which was undertaken by him in preparation for the trial and the cost consequences of any finding adverse to him. In that regard it is reasonable to believe that Derrick DCJ, before whom the trial did not commence, would not be in any better position than me to determine the matters the subject of the plaintiffs' amended chamber summons.
15 Mrs Frigger acting for the plaintiffs and counsel for Mr Brooksby did not in the end object to the strike out application being dealt with by me.
16 In the amended chamber summons the plaintiffs seek an order that Mr Brooksby appear before the court and show cause why the orders sought for costs ought not be made against him. To that end that order sought by the plaintiffs is misconceived.
17 Order 66 r 5 does not contemplate nor authorise this court to make such an order. Order 66 r 5(2) provides only that:
No order under this rule shall be made against a practitioner unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made … .
18 That is a wasted costs order may not be made unless the practitioner is first given a reasonable opportunity to be heard.
19 Be that as it may that observation is not fatal to the plaintiffs' application. The plaintiffs are not represented. It seems to me that the original chamber summons was in terms consistent with O 65 r 5 and, if necessary, further amendment could be made to reflect the orders capable of being made under this order. In addition the nature of the 'show cause' order sought in the amended summons was not a matter raised by Mr Brooksby and would be unlikely to prejudice his position.
20 To strike out a proceeding as an abuse of process does not entail a finding that there is any intention on the part of a litigant to abuse the court's procedure. A superior court is, however, empowered to prevent a misuse of its procedure.
21 There are a number of recognised categories regarded to constitute an abuse of process. Those categories extend to a proceeding which is an inappropriate vehicle for the determination of a particular issue or issues. See for example; In the matter of ReBond Corporation Holdings Ltd 1990 1 WAR 465 [50].
22 I am of the view that the claims made by the plaintiffs against Mr Brooksby in their amended chamber summons give rise to issues of a kind which are inappropriate for determination pursuant to O 65 r 5. My reasons are as follows.
23 The costs orders which the plaintiffs seek against Mr Brooksby comprise:
(a) Mr Brooksby to indemnify the plaintiffs against their liability for the defendant's costs of the adjournment of the trial and any costs thrown away;
(b) Mr Brooksby to pay the costs charged by Mr Griffin to the plaintiffs in relation to:
(i) instructing Mr Brooksby;
(ii) dealing with Mr Brooksby's demands for payment;
(iii) Mr Brooksby's complaints to the WA Bar Association and the Legal Practice Board; and
(c) Mr Brooksby be not entitled to claim from Mr Griffen any relevant fees or costs from Mr Griffin in relation to the action.
24 From the affidavits sworn by Ms Frigger and the submissions made by her, the grounds for the plaintiffs' claims for these costs orders are that Mr Brooksby was in breach of the terms of his retainer and was negligent in undertaking his obligations as counsel in that:
(a) he failed to spend sufficient time preparing for trial;
(b) he had no experience in professional negligence claims;
(c) he had no experience in deeds of company arrangements and (relevantly) other matters under the Corporations Act 2001,
as a consequence of which the trial was adjourned, the orders for costs were made against them by Derrick DCJ and the other costs now claimed were unnecessarily incurred and/or were costs in respect to which they obtained no benefit (Ms Frigger's affidavit 7 August 2014).
26 In order for those matters to be considered there would inevitably need to be a proper examination and consideration of at least the following matters:
(a) the nature and substance of the issues which, when Mr Brooksby was retained, were likely to be in dispute between the plaintiffs and the defendant in the action;
(b) the evidence which would be required to be adduced by and on behalf of the plaintiffs to prove the issues for which they bore the burden of proof in the action and the issues raised against them by the defendant;
(c) the nature, content and sufficiency of the instructions given to and reasonably required by Mr Brooksby in undertaking his role as counsel;
(d) the nature and extent of the work reasonably required to be undertaken by Mr Brooksby to properly prepare for trial;
(e) the nature (not just the amount of time expended) of the work undertaken by Mr Brooksby in preparation for trial and the adequacy of such work;
(f) the extent of Mr Brooksby's knowledge and experience to competently act as counsel for the plaintiffs in the trial;
(g) the nature and content of the work undertaken by Mr Griffin;
(h) the extent to which the work undertaken by Mr Brooksby and Mr Griffin, or any of it, was in the circumstances of this case, which was ultimately tried, wasted.
27 Order 66 r 5 is designed to deal with applications made to the court in its inherent disciplinary jurisdiction over practitioners being a summary process concerned with the protection of a party to litigation: The nature of the power is both disciplinary and compensatory: Michael v Freehill Hollingdale and Page (1990) 3 WAR 223, 233.
28 This summary process is designed to be appropriate for reasonably obvious cases: see Wall v Lefever [1997] EWCA Civ 2092. In Wall Lord Woolf said:
The wasted costs jurisdiction is salutary as long as it is not allowed to be a vehicle which generates substantial additional costs to the parties. It should not be used to create subordinate or satellite legislation, which is as expensive and as complex as the original litigation. It must be used as a remedy in cases where the need for a wasted costs order is reasonably obvious. It is a summary remedy which is to be used in circumstances where there is a clear picture which indicates that a professional adviser has been negligent … .
29 In Ridehalgh v Horsefield [1994] Ch 205, 238 – 239 the Court of Appeal observed that wasted costs hearings should be measured in hours and urged the courts to be astute to control what threatened to become a new and costly form of satellite litigation.
30 In Harley v McDonald [2001] 2 AC 678, in reviewing the exercise by the New Zealand courts of the inherent jurisdiction to order barristers and solicitors to pay costs unnecessarily incurred, the judicial committee of the Privy Council observed (page 703, par 50):
As a general rule allegations of breach of duty relating to the conduct of the case by a barrister or solicitor with a view to the making of a costs order should be confined strictly to questions which are apt for summary disposal by the Court. ... The factual basis for the exercise of the jurisdiction in such circumstances is likely to be found in facts which are within judicial knowledge because the relevant events took place in Court or are facts that can easily be verified. …
31 The issues which fall to be determined in the plaintiffs' amended chamber summons cannot, in my view, be appropriately dealt with in a summary way. The issues are not reasonably obvious. The claims made by the plaintiffs against Mr Brooksby are essentially claims for damages in contract and/or negligence and ought be dealt with by writ of summons or by a claim in the Magistrates Court – depending on the amount claimed.
32 The very nature and breadth of the inquiry, some of the matters of which I have outlined, will necessarily involve an exploration of a number of issues which inevitably would require evidence to be called and tested in the usual way.
33 Given the nature of the matters which need to be considered, proceedings under O 66 r 5 are inappropriate for the determination of those issues.
34 In the premises the appropriate order is that the plaintiffs' amended chamber summons be struck out.
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