Frigger v Nigam
[2006] WADC 28
•10 MARCH 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMERS
LOCATION: PERTH
CITATION: FRIGGER -v- NIGAM [2006] WADC 28
CORAM: FENBURY DCJ
HEARD: 1 FEBRUARY 2006
DELIVERED : 10 MARCH 2006
FILE NO/S: CIV 1305 of 2005
BETWEEN: ANGELA FRIGGER
Appellant (Plaintiff)
AND
SHARAD CHANDRA NIGAM
Respondent (Defendant)
ON APPEAL FROM:
For File No : CIV 1305 of 2005
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEPUTY REGISTRAR HEWITT
File No :CIV 1305 of 2005
Catchwords:
Appeal against costs order made by Deputy Registrar - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Appellant (Plaintiff) : In person
Respondent (Defendant) : Mr S V Forbes
Solicitors:
Appellant (Plaintiff) : Not applicable
Respondent (Defendant) : Stewart Forbes
Case(s) referred to in judgment(s):
Frigger v Nigam [2005] WADC 127
Case(s) also cited:
Nil
FENBURY DCJ: This is an appeal against costs orders made by Deputy Registrar Hewitt on 13 October 2005.
The background to the matter is that Ms Frigger the appellant, who is the plaintiff and an accountant, sued the respondent, who is the defendant, a solicitor, for damages for professional negligence, the return of documents and other relief.
The case has been beset with difficulties arising from the complexity of the appellant's business set‑up and confused pleadings exacerbated by her lack of representation. Ms Frigger appeared before me upon the appeal, in person.
The writ was filed in the District Court Registry on 16 June 2005. In the seven to eight months since then a hefty court file has been created, containing some 35 documents. There have been two interlocutory matters requiring determination at special appointments. One was determined by a Commissioner of the Court and the other by a Judge.
The lengthy statement of claim contains upon allegations of misleading and deceptive conduct and professional negligence. The defence focuses on issues about the standing of Ms Frigger to sue personally, alleging that the defendant contracted with a company known as Computer Accounting & Tax Pty Ltd of which Ms Frigger was a director, rather than her personally.
It would be fair to say, as counsel stressed, that the defence has always maintained that Ms Frigger should not be the plaintiff and that the said company should be the plaintiff.
However this issue has not been the only issue in the proceedings so far.
Eventually Ms Frigger conceded the argument and the company was substituted for the plaintiff. This occurred following Ms Frigger's application to that effect by chamber summons filed 30 August 2005, which came before Deputy Registrar Hewitt on 8 September and again at special appointment on 13 October 2005.
In a draft judgment on the Court file, which was distributed on 25 October, the Deputy Registrar stated at p 3:
"After that potted history I will pause for a moment to overview the matter. The plaintiff by her own contention as she comes before the Court today is not the correct plaintiff in the action and she wishes to substitute the company Computer Accounting & Tax Pty Ltd which she now considers to be the correct plaintiff. That is a proposition which was identified by the defendant and relied upon by the defendant throughout the proceedings to date. It is a point which is now apparently conceded by the plaintiff, hence an application to substitute the company as the plaintiff.
In essence, the argument before me, in my opinion, largely devolved down to questions of practicality and costs. It is clear that a substantial amount of effort and costs have been incurred in running this action to this stage. It is clear also that if not all, then certainly a very substantial part of those costs will have been expended to no avail and nothing will have been achieved towards resolving the issues between these two parties by the efforts in this action to this stage. … (p 5). Whatever my decision today, it seems to me that my decision ought to recognise the fact that a substantial amount of costs have been incurred and have been wasted by the persistence of the defendant (sic…plaintiff) in proceeding with the action, against the defendant's insistence that she was not the correct plaintiff, and that the company was.
In a very real sense, as the matter comes before me the plaintiff concedes that the defendant's defence is sound and would succeed at trial. Were it not to be the case, then there would be no point in this present application. Should, then, I make an order which might permit the new plaintiff in some way to recover costs for work which is undertaken prior to the date of substitution. I do not think that would be a fair outcome.
I think a fairer outcome would be, if a substitution is to take place, that it should be on the terms that the cost of the action to the stage of substitution, which I regard as largely wasted, be paid by the existing plaintiff.
In that regard, I consider that the interlocutory proceedings which have taken place to date to have been wasted."
Having read the file I agree with the Deputy Registrar's views generally but I have some concerns about the reasonableness of ordering the plaintiff to pay the costs of the interlocutory proceedings.
As I have mentioned there was a special appointment hearing determined by Commissioner Schoombee. The Commissioner heard the argument on 17 June and delivered reasons and a judgment on 1 July 2005. From the face sheet of the unreported decision Frigger v Nigam [2005] WADC 127, in the catchwords the following appears:
"Practice and procedure – jurisdiction of District Court – Claim in detinue – Solicitor's lien over document – Documents owned by company – Application made by director personally – Payment into court of solicitor's outstanding fees – Production of documents to the court."
The reasons for decision comprise some 13 pages and 38 paragraphs. It could not be said that the issue of the plaintiff's standing was the only factor before the learned Commissioner. She also dealt with the question of the jurisdiction of the District Court; she dealt with aspects of the claim in detinue, and the law relating to a solicitor's lien over documents. The Commissioner first refers to the issue of whether Ms Frigger should have sued personally, at par 20 and then somewhat perfunctorily. The Commissioner then deals with other issues relating to a solicitor's lien when the solicitor has been discharged. In the result the Commissioner adjourned the application to a date to be fixed. She wished to give Ms Frigger the opportunity to file a further affidavit to explain why she said she was personally entitled to bring the action against the defendant as well as bring the application for the production of the documents in issue. The costs were reserved.
It seems to me that although the question of whether the plaintiff should sue personally was an issue in those proceedings it was not the only issue and some of the matters that were dealt with may have general implications in the trial of this action independent of the question of the substitution of the company for Ms Frigger as plaintiff.
I do have concerns about the fairness of Ms Frigger being ordered to pay the costs of the hearing before the Commissioner in any event.
The proceedings before Mazza DCJ occurred on 19 August 2005. This was Ms Frigger's application for an interlocutory injunction compelling the defendant to deliver to her files which were those of the defendant, her former solicitor. The application was issued on the same date as the writ was filed. As Mazza DCJ put it at transcript p 42:
"On the same day that the writ issued the plaintiff filed a chamber summons seeking an interlocutory injunction compelling the defendant to deliver to her the file; that is Mr Nigam's file. It is this application which is before me today. The defendant opposes the making of the proposed interlocutory injunction. In short terms, the defendant says that he is entitled to retain the files by virtue of a solicitor's lien until such time as his outstanding fees for professional services and disbursements are paid. Thos outstanding fees total as I understand it $17,401.77.
Further, the defendant alleges that the plaintiff has no right to the files because his retainer was not with the plaintiff but rather with a company of which the plaintiff was a director, namely Computer Accounting & Tax Pty Ltd. The application for the interlocutory injunction came before Schoombee C on 17 June 2005. …"
Mazza DCJ then referred to the need for the plaintiff to make an application for an order that Computer Accounting & Tax Pty Ltd "be joined as a party to the proceedings" and then observed:
"There is no application before the Court. Therefore there is no issue for me to determine. This matter, if it is to be pursued by the plaintiff, needs to be pursued and determined in the normal way; that is, by the filing of a chamber summons returnable before a registrar of this Court supported by an affidavit and the matter can be dealt with on its merits by the Registrar.
As to whether I should grant an interlocutory injunction, I have to decide a number of matters. It seems to me and I think what determines this application is that I am, in effect, being asked to determine the final issue. If I was to grant the interlocutory injunction sought by the plaintiff, the end result would be that there would be nothing more for the Court to determine, at least in a practical sense."
His Honour then went on to discuss the principles of granting an application for an interlocutory injunction and then said at T44:
"I cannot say, having carefully read all the affidavit material, that the plaintiff's case is so compelling that it would be a waste of time and resources to have a trial. As I have explained to Ms Frigger this afternoon, that is not to say nor is it to be understood, that I think that the plaintiff's case is a bad case; its just there isn't sufficient evidence upon which I could make the determination, as I have to at this stage of the proceedings, that her case is so strong that it would be a waste of time and resources to have a trial. Further, it appears from what I have been told today and what I have read from the material that was filed since the matter was before Commissioner Schoombee, that the plaintiff can get documents from sources other than Mr Nigam and that she has been able to instruct her present solicitors who are undertaking proceedings in the Full Court on her behalf sufficiently without those documents."
His Honour then commenced to wind up his remarks by saying at T44:
"In any event, I am not prepared to exercise a discretion to grant the interlocutory injunction sought by the plaintiff, and what I propose to do is this; I propose to in fact adjourn the application for an interlocutory injunction to the trial Judge. It can then be dealt with by that Judge.
As for the costs of the proceedings for the interlocutory injunction, they can be reserved to the judicial officer."
It seems to me that Mazza DCJ dealt with a number of substantial issues in the hearing apart from those that arise from Ms Frigger's need to substitute the company as plaintiff for herself. It could not be said that the costs involved in the hearing before Mazza DCJ are totally wasted by Ms Frigger's successful application to have the plaintiff substituted, being the matter which was decided by the Deputy Registrar, the subject of this appeal.
I can well understand the Deputy Registrar's view that there were significant costs wasted as a result of Ms Frigger's stance in this matter. But I think that his inclusion of all reserve costs in the order for costs made against Ms Frigger was not warranted.
I would allow this appeal to the extent that I would exclude the costs reserved in relation to the two interlocutory applications from the orders made by the Deputy Registrar.