Ge Mortgage Solutions Limited v Pihama
[2012] WASC 432
•15 NOVEMBER 2012
GE MORTGAGE SOLUTIONS LIMITED -v- PIHAMA [2012] WASC 432
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 432 | |
| Case No: | CIV:2700/2008 | 15 AUGUST, 15 NOVEMBER 2012 | |
| Coram: | EDELMAN J | 15/11/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs reserved | ||
| B | |||
| PDF Version |
| Parties: | GE MORTGAGE SOLUTIONS LIMITED DENNIS TANGINOA PIHAMA ANGELINE MARY PIHAMA |
Catchwords: | Practice and Procedure Costs Failure to attend a mediation conference Whether order should be made for defendants to pay plaintiff’s costs forthwith Turns on own facts |
Legislation: | Nil |
Case References: | Red Hill Iron Ltd v API Management Ltd [2012] WASC 323 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DENNIS TANGINOA PIHAMA
First Defendant
ANGELINE MARY PIHAMA
Second Defendant
Catchwords:
Practice and Procedure - Costs - Failure to attend a mediation conference - Whether order should be made for defendants to pay plaintiff’s costs forthwith - Turns on own facts
Legislation:
Nil
Result:
Costs reserved
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Ms B Taylor
First Defendant : In person
Second Defendant : In person
Solicitors:
Plaintiff : Gadens Lawyers
First Defendant : In person
Second Defendant : In person
Case(s) referred to in judgment(s):
Red Hill Iron Ltd v API Management Ltd [2012] WASC 323 (S)
(Page 3)
- EDELMAN J:
(This is the edited version of the judgment delivered orally at the conclusion of the directions hearing on 15 November 2012.)
1 This is an application by the plaintiff for an order that, in determination of the costs application made by the plaintiff on 15 August 2012, the plaintiff's costs of the mediation on 10 August 2012, including travel, be paid by the defendants forthwith, fixed in the sum of $1,426.07.
2 On Friday 10 August 2012, a mediation was supposed to be held in this matter. The defendants did not attend the mediation. The defendants had previously also failed to attend a strategic conference on 4 April 2012. On that occasion I was told by the defendants that letters from the Court and from the plaintiff were being sent to the wrong address.
3 On Tuesday 14 August 2012, the second defendant replied to an email sent by my associate. The email from my associate advised the parties of a directions hearing on Wednesday 15 August 2012. The second defendant said that she thought 'there were two times in Court this week'.
4 At the directions hearing on Wednesday 15 August 2012, the plaintiff sought an order that the defendants pay the plaintiff's costs of attending the mediation on 10 August 2012. Only the second defendant was present at the directions hearing on 15 August 2012. The first defendant was not present because he was in hospital. I adjourned this application for costs. I told the second defendant that she needed to make a declaration in front of a justice of the peace concerning the reasons for the defendants' absence at the mediation on Friday 10 August 2012. I made an order that, by 29 August 2012, the second defendant provide a statutory declaration to the Court and to the plaintiff concerning the reasons for failure to attend the 10 August 2012 mediation. The order for an explanation about the absence from the mediation was directed only to the second defendant. It is apparent that both defendants, who are married but are currently separated and living in separate houses, have a common interest in the litigation and are affected in the same way by case management decisions, including any confusion under which they might labour about those decisions.
5 On 27 August 2012, the second defendant made a statutory declaration before a justice of the peace. There was some delay in filing the declaration, but it has now been provided to the Court. The second defendant's declaration is not entirely clear, but it appears that she was
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- confused about the date for the mediation which she says she thought was due to occur on Monday 13 August 2012 and that she attended the Court on that date.
6 An affidavit of Ms Bonnie Taylor dated 9 October 2012 was filed for the plaintiff. Ms Taylor explained that the plaintiff had flown a representative of the plaintiff from Sydney for the mediation which the defendants did not attend on 10 August 2012. The costs of his travel were $997.07 and the total costs sought were the fixed amount of $1426.07. She also explained that the registrar conducting the mediation had attempted to call the second defendant's mobile number on 10 August 2012, but the phone rang out.
7 There is a reasonable basis for an order that the defendants should pay the plaintiff's costs thrown away as a result of the defendants' failure to attend the mediation which led to the plaintiff incurring costs unnecessarily. However, in circumstances in which (1) the defendants are unrepresented and unfamiliar with Court proceedings, and (2) I accept the second defendant's statement about her confusion concerning the timing of the mediation conference, I consider that on balance the better exercise of my discretion in relation to costs is to reserve the plaintiff's costs of the 10 August 2012 mediation.
8 The appropriate order is therefore that the costs of the 10 August 2012 mediation be reserved. If the plaintiff is successful in the litigation then it may be that it will be difficult for the defendants to resist an order for the reserved costs of the mediation against them: in this regard see Red Hill Iron Ltd v API Management Ltd [2012] WASC 323 (S) [36] (Beech J). On the other hand, if the defendants are successful in the litigation, then whether the plaintiff's costs of the 10 August 2012 mediation should be borne by (i) the plaintiff entirely, or (ii) the defendants in whole or in part, can be considered in light of my reasons for decision and any other case management issues which arise prior to trial relevant to this question.
9 Although I have not ordered that the defendants should immediately pay the plaintiff's costs of the 10 August 2012 mediation conference, and although I accept that the defendants have suffered from some confusion concerning Court dates, I will make one thing clear. Court hearing dates are extremely important. A failure to attend will often involve a show of disrespect to the Court, and to the other parties. If the defendants have any confusion about a date or time for a hearing then they should contact
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- the Court in advance and make sure that they do not miss the hearing or arrive late.
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