Glendinning v Cuzens - [2009] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GLENDINNING -v- CUZENS [2009] WASCA 21

CORAM: PULLIN JA
NEWNES AJA

HEARD: 8 OCTOBER 2008

DELIVERED : 23 JANUARY 2009

FILE NO/S: CACV 34 of 2008

BETWEEN: HEATHER GLENDINNING
Appellant
AND
HARLEY STEWART FRANKLYN CUZENS
First Respondent
LESLEY FRANCES CUZENS
Second Respondent
FRANKLYN WILLIAM CUZENS
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1182 of 2007

Catchwords:

Practice and procedure - Inadequate indorsement of claim on writ - Writ set aside - Function of indorsement of claim - Whether writ should be set aside where indorsement inadequate - Whether plaintiff should have leave to amend indorsement - Relevant considerations

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 6 r 1(2), O 20 r 19(1), O 20 r 2(2)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Mr P N Bevilacqua
First Respondent           :     In person
Second Respondent      :     Mr P B O'Neal
Third Respondent          :     Mr P B O'Neal

Solicitors:

Appellant:     Butcher Paull & Calder
First Respondent           :     In person
Second Respondent      :     McCallum Donovan Sweeney
Third Respondent          :     McCallum Donovan Sweeney

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Dodoro v Knighting [2004] VSCA 217
Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148
Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326
Little v State of Victoria [1998] 4 VR 596
Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165
Morgan v Banning (1999) 20 WAR 474
Pontin v Wood [1962] 1 QB 594
Re Luck (2003) 203 ALR 1
Salter Rex & Co v Ghosh [1971] 2 QB 597
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168
Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741
Wickstead v Browne (1992) 30 NSWLR 1
Wilson v Official Trustee in Bankruptcy [2000] FCA 304

PULLIN JA: I agree with Newnes AJA.
NEWNES AJA: This is an appeal against a decision of Master Sanderson made on 6 March 2008 setting aside the appellant's amended writ of summons, pursuant to O 6 r 1(2).
The writ of summons in the action was issued on 23 February 2007 with an indorsement of claim. It seems that at that stage the appellant was not represented by solicitors. The indorsement on the writ was as follows:
By reason of contributions made by the Plaintiff and declarations by the Defendants that she would benefit from such contributions the Plaintiff claims as against each of the Defendants a constructive trust in relation to her contributions and a consequential order for equitable compensation to be assessed.
The contributions made by the Plaintiff were both direct and indirect, financial and non‑financial and were made in respect to:
(a)a farm in Dowerin owned by the Defendant's being Certificate of Title Volume 2053 Folio 712 and Volume 1676 Folio 488;
(b)at property at Baskerville being Certificate of Title Volume 1943 Folio 317;
(c)a farming partnership between each of the Defendants;
(d)a property at 371 Padbury Avenue, Millendon;
(e)properties at Gidgegannup and East Fremantle acquired by the Defendants.
The indorsement was amended, without leave, on 22 June 2007. The appellant was apparently then represented by her current solicitors. It appears from a notation on the writ that the appellant relied upon O 21 r 3 to make the amendments. The amended indorsement, as it appeared on the writ, was as follows:
By reason of contributions made by the Plaintiff and declarations by the Defendants that ~~she~~ the Plaintiff would benefit from such contributions the Plaintiff claims as against each of the Defendants a constructive and/or resulting trust and fraud in relation to her contributions and seeks a consequential order for equitable compensation to be assessed.
The contributions made by the Plaintiff were both direct and indirect, financial and non‑financial and were made in respect to:

(a)~~a farm in Dowerin owned by the Defendant's being Certificate of Title Volume 2053 Folio 712 and Volume 1676 Folio 488~~ farming enterprise in Dowerin;
(b)at property at Baskerville being Certificate of Title Volume 1943 Folio 317 owned by FW, LF & HS Cuzens and H Glendinning;
(c)a farming / livestock enterprise between each of the Defendants and the Plaintiff ~~partnership between each of the Defendants~~;
(d)a property at 371 Padbury Avenue, Millendon being Certificate of Title Volume 1355 Folio 864 and a licensed equestrian business;
(e)properties at Gidgegannup and East Fremantle acquired by the Defendants a contracting business.

The writ was served on the second and third respondents on 13 November 2007. When it was served on the first respondent does not appear from the material before us.
The second and third respondents entered a conditional appearance on 23 November 2007. Their solicitors wrote to the appellant's solicitors on 28 November 2007 saying they had instructions to apply to set aside the writ on the ground that the indorsement was defective and enquiring whether the appellant would consent to that application. The indorsement was said to be defective in that it failed to provide adequate notice of the nature of any claim, attempted to incorporate additional causes of action without the leave of the court (contrary to O 21 r 1(3)(b)), and failed adequately to disclose sufficient factual information to determine when any cause of action accrued and whether any limitation issues arise.
We were told from the bar table that there were subsequently some discussions between the solicitors, but those discussions clearly did not resolve the matter. On 7 December 2007, the second and third respondents applied by chamber summons for an order that the writ be set aside pursuant to O 6 r 1(2), alternatively that the indorsement on the writ be struck out pursuant to O 20 r 19(1), alternatively that the amendments to the indorsement be struck out for failure to comply with O 21 r 1. The last of those orders was sought on the ground that the amendments added claims for a resulting trust and fraud, and that, pursuant to O 21 r 1, leave of the court was required to make an amendment which added a cause of action.
On 20 December 2007, Acting Master Chapman made orders by consent that the application be heard at a special appointment and directed the respondents to file and serve an outline of submissions and list of authorities by 14 January 2008. The appellant was required to file an outline of submissions and list of authorities by 21 January 2008. The respondents complied with those directions but the appellant did not.
On 29 January 2008, and again on 29 February 2008, the respondents' solicitors wrote to the appellant's solicitors enquiring whether the appellant intended to file and serve an outline of submissions. They received no response.
The respondents' application came on for hearing at a special appointment before Master Sanderson on 6 March 2008. No affidavit evidence or submissions had been filed by the appellant. At the outset of the hearing counsel for the appellant conceded that the indorsement was deficient. He orally sought 21 days in which to file a further minute of amended indorsement to provide further particulars of the claims. That was opposed by the respondents' counsel who submitted that it was not appropriate in light of the conduct of the appellant on the application and, in any event, the defects in the indorsement could not be cured by further particulars and the writ should be set aside.
In very brief ex tempore reasons, the learned master declined to accede to the course proposed by the appellant. The learned master said:
… the indorsement is clearly deficient. In my view, as was submitted by counsel for the [respondents], it is a case which goes further than the ABB Engineering case and, consistent with that authority, I am satisfied that the writ ought to be struck out.
The learned master therefore ordered that the amended writ of summons be set aside pursuant to O 6 r 1(2). I should say that it is not clear whether the learned master had regard to the original indorsement or the amended indorsement, but I do not think that anything turns on that for present purposes.
The appellant has applied for leave to appeal against that decision. On 21 April 2008, Buss JA ordered that the application for leave to appeal be heard with the appeal.

The ground of appeal

There is one ground of appeal. It is as follows:
The learned master erred in law by setting aside the amended writ in that there was no defect in the amended writ that could not be cured by either particulars or an appropriate amendment.

The appellant's submissions

The appellant submitted that while the indorsement was deficient it could be cured by amendment or the provision of further particulars. This was not a case where the amendment would introduce a new cause of action or otherwise prejudice the position of the respondents. To set aside the writ was contrary to the accepted rationale that interlocutory processes were a means, not an end. Special care needed to be taken where the effect of setting aside a writ may prejudice the position of the plaintiff in respect of a relevant limitation period. In the present case, the setting aside of the writ gave rise to possible limitation problems for the appellant.
It was submitted that in the circumstances the learned master erred in setting aside the writ and thereby putting an end to the action.

The respondents' submissions

The second and third respondents submitted that leave to appeal should be refused. The decision of the learned master did not finally determine the rights of the appellant and no substantial injustice would be caused if the decision were left to stand. The appellant could simply commence a new action with a properly drawn indorsement of claim. There was no evidence that any relevant limitation period had expired.
It was further submitted on behalf of the second and third respondents that the learned master had not erred in the exercise of his discretion. On the basis of the appellant's concession at the hearing that the indorsement was defective, the courses open to the learned master were to grant leave to amend the indorsement or to set aside the writ. The learned master was entitled to take into account in exercising his discretion that:
•both the amended and unamended indorsements were defective;
•the amended indorsement was made without leave although it sought to introduce new causes of action;
•the appellant had failed over a considerable period of time to remedy the deficiencies in the indorsement although they were brought to her attention immediately after service of the writ and were obvious;
•the nature of the proposed further amended indorsement was not specified; and
•there was no evidence of prejudice if the appellant had to commence new proceedings.
The first respondent, who appeared in person, adopted the submissions of the second and third respondents.

The disposition of the appeal

Leave to appeal

The parties approached this appeal on the basis that the order of the learned master setting aside the writ was an interlocutory order within the meaning of s 60(1)(f) of the Supreme Court Act 1935 (WA) and therefore leave to appeal was required. In the course of argument, however, the question arose whether, the writ having been set aside and the action thereby brought to an end, the order was a final order.
There does not appear to be any authority precisely on point, but there is a long line of authority in other jurisdictions in which it has been held that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: see Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326, 1328; Salter Rex & Co v Ghosh [1971] 2 QB 597, 601; Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741; Wickstead v Browne (1992) 30 NSWLR 1, 11; Little v State of Victoria [1998] 4 VR 596; Wilson v Official Trustee in Bankruptcy [2000] FCA 304; Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165; Dodoro v Knighting [2004] VSCA 217; although it has been held that in such a case leave to appeal will usually be granted if there is any doubt about the decision at first instance: Little v State of Victoria (601).
And in the recent decision of the High Court in Re Luck (2003) 203 ALR 1, it was held ([9]) that an order staying or dismissing an action or refusing leave to commence or proceed with an action on the ground that the action is frivolous, vexatious, an abuse of process or does not disclose a reasonable cause of action, is an interlocutory order.
In this State, the decision of the Full Court in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148, appears to be inconsistent with those authorities. In that case, the statement of claim had been struck out on the ground that it disclosed no reasonable cause of action and the action dismissed. The Full Court held that while the order striking out the statement of claim was an interlocutory order, the order dismissing the action was a final order as 'nothing could be more final than a dismissal of the action'.
While the decision in Florida Investments has been applied in this State in a number of subsequent cases, it is likely that in an appropriate case it will be necessary for the decision to be reconsidered.
In the present case, we have not had the benefit of full argument on the question of whether the order of the learned master setting aside the writ was a final or an interlocutory order, and I do not think it is necessary to determine that question. The appellant approached the appeal on the basis that leave to appeal is required and that is the way the parties have argued the matter. I would deal with the appeal on that basis. For reasons that I will come to, I would grant leave to appeal in any event.

The merits of the appeal

The rules of this court, by O 6 r 1, provide:
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In the case of non‑compliance with paragraph (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.
It was not suggested that the effect of the inadequate indorsement on the writ rendered the writ a nullity, nor in my view could it have been. The failure properly to endorse the claim on a writ is an irregularity: O 2 r 1, and see The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412.
What will constitute an adequate indorsement on a writ is not something that can be reduced to hard and fast rules. As McLure JA pointed out in ABB Service Pty Ltd v Hetherington [2001] WASCA 235 (ABB Service):
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole [11].
But in determining whether an indorsement on a writ is adequate, it is necessary to bear in mind that an indorsement serves three important functions:
1.it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2.it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475; and
3.it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
See ABB Service [7] ‑ [10].
It was not in issue on the appeal that both the original indorsement and the amended indorsement were defective. That was conceded before the learned master and by counsel for the appellant on the appeal. In my view, that concession was properly made. Both forms of indorsement were clearly defective.
Where, on an application by a defendant, it is established that an indorsement is defective, there are four courses that may (depending upon the nature of the application) be open to the court. The court may:
•set aside the writ (O 6 r 1(2));
•strike out the indorsement in whole or in part (O 20 r 19(1));
•grant leave to the plaintiff to amend the indorsement (O 6 r 1(2), O 20 r 19(1)); or
•order the plaintiff to provide further particulars of the indorsement (O 6 r 1(2)).
In the present case, although the respondents' application was made on various alternative grounds, the learned master exercised his discretion under O 6 r 1(2) to set aside the writ.
There can, of course, be no inflexible rule as to the exercise of the discretion under O 6 r 1(2). But in the exercise of the discretion the lodestar must always be what the interests of justice require in the particular circumstances of the case. What will be appropriate in a particular case will necessarily depend upon the circumstances of the case, but to set aside a writ may have significant consequences, particularly in relation to the plaintiff's position in relation to a limitation period, and it is therefore a step to be taken only where it is necessary in the interests of justice.
Indeed, it has been suggested that a writ should only be set aside by reason of defective or irregular indorsement where the indorsement shows that the action is an abuse of process: Pontin v Wood [1962] 1 QB 594. I would not be inclined to limit the discretion in that way, but, in my view, where an indorsement of claim is deficient the plaintiff should ordinarily be allowed a reasonable opportunity to put it into a proper form, so long as that can be done without irremediable prejudice to the defendant. In the absence of such prejudice, little purpose is likely to be served by setting aside the writ and leaving it to the plaintiff to commence a fresh action (if that course is still open). The consequence is likely to be simply that further time will be lost and more expense incurred without any significant countervailing benefit. Such a course would be inconsistent with the stipulation, contained in O 1 r 4B, that the practices and procedures of the court are to be applied so as best to ensure the just, efficient, and timely determination of litigation at a cost affordable to the parties.
Where the relevant limitation period has, or may have, expired after the writ was issued, the consequence that the plaintiff will, or may, be left without a remedy if the writ is set aside is an important factor to be weighed in the balance in determining where the interests of justice lie.

In the present case, the question, then, before the learned master was how, in the particular circumstances, the interests of justice would best be served.
As I have said, the learned master found that the indorsement was so deficient 'that, consistent with the decision in [ABB Service]', the writ ought to be set aside. The learned master did not, however, state how consistency with the decision in ABB Service led to such a result. In my view, with respect, it did not.
In ABB Service, the indorsement on the writ stated that the plaintiffs' claim was for damages for breach of s 52 of the Trade Practices Act 1974 (Cth) and negligent misstatement with respect to representations alleged to have been made by the defendant between 1 July 1996 and 28 February 1997 in connection with a contract between the defendant and the third party for the performance of civil engineering works. The indorsement was held to be deficient in failing to specify the form of the alleged representations, to whom they were made, how a duty of care arose and how loss was said to have been caused.
In the course of her judgment, McLure JA (with whom Wheeler JA agreed) concluded that it was not appropriate to allow the plaintiffs general leave to amend the indorsement as such an order 'may be to unfairly advantage the [plaintiffs] in relation to causes of action time barred after commencement of the action' [21]. Her Honour also considered that the nature and extent of the deficiencies in the indorsement were such that they could not be cured by particulars.
McLure JA concluded that the appropriate course was for the court to consider and, if appropriate, accede to any application by the plaintiffs to amend the indorsement, on the basis that such an application could be dealt with by expressly reserving the defendant's rights in relation to any limitation issues which may or would arise.
A subsequent application to amend the indorsement was allowed: ABB Service Pty Ltd v Hetherington [2001] WASCA 417.
I consider, with respect, that the learned master erred in concluding that the decision in ABB Service required that the writ in the present case should be set aside. Nothing said in ABB Service required that result. Whether or not the deficiencies in the indorsement were more (or indeed, less) serious than those in the indorsement considered in ABB Service does not seem to me, with respect, to be a relevant issue.
Having, erroneously in my view, concluded that it followed from the decision in ABB Service that the writ should be set aside, in my respectful opinion the learned master failed to give proper consideration to the alternative courses that were open to him. In particular, the learned master did not give proper consideration to the appellant's application, in effect, for leave to amend the indorsement.
In my view, the deficiencies in the indorsement in the present case were not obviously incapable of being cured by appropriate amendments. Any question of the respondents' rights in respect of limitation issues which might be raised by amendments to the indorsement could be dealt with by expressly reserving the respondents' rights in that regard: ABB Service [23], and see Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 [42].
Nor, in my view, were the deficiencies in the indorsement such as otherwise to require that the writ be set aside.
It follows that I consider, with respect, that the exercise of the learned master's discretion miscarried.
The question, then, is whether a substantial injustice would be done if the decision were not reversed. It was submitted on behalf of the respondents that there would be no substantial injustice as the appellant could commence a new action. The respondents argued that no conclusion could be drawn from either version of the indorsement that any limitation issue would arise in respect of a new action. On the evidence, the only consequence for the appellant was costs.
In my view, a substantial injustice would be done if the decision is allowed to stand. The appellant's action was brought to an end by the decision of the learned master to set aside the writ. I have concluded that the learned master's decision was not a proper exercise of his discretion. The writ having been set aside and the appellant's action brought to an end, I do not think it is an answer for the respondents to say that the appellant can commence a fresh action. Nor is it clear whether a fresh action would result in the appellant facing, or potentially facing, new limitation issues. It may.
Accordingly, I would grant leave to appeal, allow the appeal and set aside the order of the learned master.
Having reached that conclusion, I consider that the appropriate course is for this court to exercise the discretion afresh.
As I have said, I consider that in the absence of prejudice to the defendant, a plaintiff should ordinarily be allowed a reasonable opportunity to rectify a defect in an indorsement of claim. In the present case, there are no circumstances which would cause me to conclude that the plaintiff should not have that opportunity.
It is the case, as counsel for the respondents submitted, that the appellant's conduct in connection with the amended indorsement was quite unsatisfactory. The concession made by the appellant's counsel at the outset of the special appointment in March 2008 that the indorsement was defective stands in stark contrast to the position taken by the appellant's solicitors in late 2007 when the respondents' criticisms of it were rejected. The failure to make that concession earlier has meant that a good deal of time, and significant costs, have been wasted. In addition, although the concession was ultimately made, the appellant did not seek to put before the learned master a minute of any proposed amended indorsement but simply sought leave to amend at large. The same approach was taken on the appeal.
The appellant has also done herself no credit by her (or her solicitor's) disregard of the directions of the court in respect of the special appointment and the failure to respond to the correspondence from the respondents' solicitors in that regard.
But the power to set aside a writ does not exist to punish parties for failing to comply with the rules of court; it exists to enable the court to do justice between the parties. In the present case, if it is still open to the appellant to commence fresh proceedings, the resolution of the dispute between the parties will not be advanced by requiring her to do so. If, on the other hand, the relevant limitation (or any relevant limitation) period has expired since the writ was issued, the interests of justice do not, in my view, require that the appellant be deprived of a remedy to which she may have been entitled.
The delay that was caused by the appellant's failure to acknowledge the deficiencies in the indorsement prior to the special appointment would be a relevant factor to the extent it might indicate some lack of good faith or have led to the respondents being prejudiced or potentially prejudiced. It was submitted on behalf of the respondents that, in the absence of a proper explanation, it is to be inferred that the appellant's conduct was the result of a deliberate tactical decision.
I would not be prepared to draw such an inference. The delay should have been explained, but there is nothing, apart from delay and the appellant's failure to comply with the interlocutory directions, to suggest a deliberate tactical decision on the part of the appellant. It is also not easy to envisage what tactic might be involved. The circumstances seem to me to indicate simply a failure by the appellant or her solicitors (and it is not possible to say which) to deal with the matter in a timely and appropriate way.
The respondents did not point to any specific prejudice that arises from the appellant's delay or, so long as its position on any limitation issue was protected, any prejudice that would arise if the appellant were permitted to amend the indorsement. As to the latter, any application to amend the indorsement can be dealt with by expressly reserving the respondents' rights in relation to any limitation issue that may arise. I am satisfied that any other prejudice to the respondents could adequately be compensated by an appropriate order as to costs.
In the circumstances, I consider the appellant should be given an opportunity to amend the indorsement to put it into a proper form. I do not consider that this is a case where it is appropriate to require the appellant to provide further particulars of the indorsement. It does not seem to me that that is likely adequately to address the deficiencies in the indorsement.
I would therefore allow the appellant 14 days in which to make an application to this court for leave to amend the indorsement of claim, any such application to be accompanied by a minute of the proposed amended indorsement. This court would consider and determine the application. I would hear the parties on any necessary directions for that purpose.
If no application to amend the indorsement is made within that time, I would set aside the writ.

Conclusion

I would:
1.grant leave to appeal and allow the appeal;
2.set aside the order of the learned master.
I would further order:
3.that any application by the appellant to amend the indorsement be made to this court within 14 days; and
4.if no such application is made within 14 days, the writ be set aside.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GLENDINNING -v- CUZENS [2009] WASCA 21 (S)

CORAM: PULLIN JA
NEWNES JA

HEARD: 8 OCTOBER 2008 & ON THE PAPERS

DELIVERED : 23 JANUARY 2009

SUPPLEMENTARY
DECISION :3 JULY 2009

FILE NO/S: CACV 34 of 2008

BETWEEN: HEATHER GLENDINNING
Appellant
AND
HARLEY STEWART FRANKLYN CUZENS
First Respondent
LESLEY FRANCES CUZENS
Second Respondent
FRANKLYN WILLIAM CUZENS
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1182 of 2007

Catchwords:

Costs - Late concession as to inadequacy of indorsement of claim by appellant in court below - Appellant to bear costs below - Costs of appeal should follow event - No disentitling conduct of appellant shown - Turns on own facts

Legislation:

Nil

Result:

Appellant to pay respondents' costs below
Respondents to pay appellant's costs of appeal

Category: B

Representation:

Counsel:

Appellant:     No appearance
First Respondent           :     No appearance
Second Respondent      :     No appearance
Third Respondent          :     No appearance

Solicitors:

Appellant:     Butcher Paull & Calder
First Respondent           :     In person
Second Respondent      :     McCallum Donovan Sweeney
Third Respondent          :     McCallum Donovan Sweeney

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

Glendinning v Cuzens [2009] WASCA 21

JUDGMENT OF THE COURT: On 23 January 2009, this court granted leave to appeal and allowed an appeal against a decision of Master Sanderson setting aside the appellant's amended writ of summons: Glendinning v Cuzens [2009] WASCA 21. The orders of the Master were set aside and the appellant was given leave to make an application to this court within 14 days to amend the indorsement on the writ, failing which the writ would be set aside.
The appellant duly brought such an application and, on 15 May 2009, this court granted leave to amend the indorsement, reserving to the trial judge the date upon which the amendment is to take effect. The appellant was ordered to pay the costs of that application.
The court ordered that the question of costs was otherwise to be decided on the papers and directions were made for the filing and service of written submissions. The written submissions on costs have been filed and served and the costs of the appeal and below now fall for determination.

Background

The relevant facts are set out in the judgment delivered on 23 January 2009. They can be sufficiently summarised for present purposes as follows. The appellant issued a writ of summons on 23 February 2007 with an indorsement of claim. At that stage the appellant was unrepresented. The indorsement was amended without leave on 22 June 2007. At that stage the appellant was apparently represented by her current solicitors.
On 13 November 2007, the writ was served on the second and third respondents, who entered a conditional appearance. Their solicitors subsequently wrote to the appellant's solicitors contending that the indorsement on the writ was defective. The appellant's solicitors did not take any steps to amend the indorsement and, on 7 December 2007, the second and third respondents applied for an order that the writ be set aside, alternatively the indorsement be struck out, and alternatively that the amended indorsement be struck out.
Orders were made by consent on 20 December 2007 that the application be heard at a special appointment and directions made for the filing and service of outlines of submissions and lists of authorities. The respondents complied with the directions but, despite promptings by the respondents' solicitors, the appellant did not. When the matter came on for hearing at the special appointment on 6 March 2008, no affidavit evidence or submissions had been filed by the appellant. At the outset of the hearing, counsel for the appellant conceded the indorsement was deficient and sought 21 days to file a further minute of amended indorsement. At that stage no proposed amended indorsement was proffered. The Master declined to allow further time and ordered that the amended writ of summons be set aside.
As we have mentioned above, the decision of the Master was set aside by this court and the appellant was subsequently granted leave to amend the indorsement on the writ.

The respondents' submissions

The respondents seek an order that the appellant pay their costs of the application before Master Sanderson and their costs of the appeal. They argue that, having failed to acknowledge that the indorsement was defective until the hearing before Master Sanderson, it is just that the appellant bears the costs of that application. It was submitted that even had Master Sanderson made the substantive orders ultimately made by this court, the appellant would have had to bear the costs of the application.
It was submitted in relation to the costs of the appeal that, as on the application before Master Sanderson, the appellant did not proffer any minute of proposed amended indorsement but simply sought unconditional leave to amend at large. It did not obtain that relief. While ultimately the appellant obtained leave to amend the indorsement it was subject to a condition to preserve the respondents' rights in relation to any limitation issue. The respondents therefore acted reasonably in opposing the appeal on the basis it was brought. They argued that it was the unsatisfactory conduct of the appellant throughout that materially contributed to the necessity for the appeal.

The appellant's submissions

It was submitted on behalf of the appellant that although there was delay on the part of the appellant in conceding that the indorsement was defective, the respondents sought to have the writ set aside and maintained that position throughout. It was never suggested by the respondents that if an acceptable amended indorsement was put forward they would change their position. The effect of the decision of this court is that the appellant should have been given an opportunity to amend the indorsement. But for the approach the respondents took, the appeal would have been unnecessary. Accordingly, the appellant should have the costs of the appeal. The costs of the application before Master Sanderson should be the respondents' costs in any event.

Decision on the costs of the primary application

It is quite clear that the appellant must bear the respondents' costs of the application before Master Sanderson, given that the concession as to the inadequacy of the indorsement of claim was made only when the application came on for hearing. We would not accede to the submission by the appellant that those costs should be payable in any event. Nor would we interfere with the amount of $2,000 assessed by the Master. We would order that the appellant pay the respondents' costs of the application, fixed in the sum of $2,000.

Decision on the costs of the appeal

That leaves the question of the costs of the appeal. An order for costs is compensatory in nature and the general rule is that a successful party is entitled to their costs. While a successful party may be deprived of their costs in special circumstances, we are not satisfied that such circumstances exist in the present case.
It is the case that on the hearing of the appeal (as below) the appellant did not put forward any proposed amended indorsement of claim. The absence on the hearing of the appeal of an acceptable proposed indorsement did not, however, involve the respondents in any additional costs or otherwise cause them any prejudice. The respondents' position was that the order of the Master setting aside the writ should be upheld, so that no question of the terms of any proposed amended indorsement arose. After the appeal was upheld, the appellant was required to make, and made, an application for leave to amend the indorsement and that application was granted, subject to the reservation as to the date upon which it took effect. The respondents have already obtained from this court an order that the appellant pay their costs of that application.
We do not accept the respondents' submission that the conduct of the appellant leading up to the special appointment before Master Sanderson is a relevant consideration in determining where the costs of the appeal should lie. While that conduct was relevant to the costs of the original application, it did not bear in any material sense upon the costs of the appeal. At first instance, the respondents overreached in seeking an order setting aside the writ. On the appeal, the respondents opposed that order being overturned and did not accept that the appellant should have any further opportunity to amend the indorsement. The respondents having failed on the appeal, the costs should follow the event.
We would therefore order:
1.the appellant pay the respondents' costs of the application before Master Sanderson, fixed at $2,000; and
2.the respondents pay the appellant's costs of the appeal to be taxed.