Holland v Hardcastle
[2008] WADC 39
•14 MARCH 2008
HOLLAND -v- HARDCASTLE [2008] WADC 39
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 39 | |
| Case No: | CIV:3330/1994 | 18 DECEMBER 2007 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 13/03/08 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | MARTIN STEPHEN HOLLAND PHILIP HOBSON HARDCASTLE |
Catchwords: | Practice Western Australia Application under the implied jurisdiction of the court to stay proceedings Plaintiff successful at trial and provided with liberty to apply but for 10 years has delayed in obtaining an order for costs No evidence of prejudice |
Legislation: | Nil |
Case References: | Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Busby v Australian Telecommunications Commission, unreported; FCA WAG 103 of 1986; 25 February 1992 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant
Catchwords:
Practice - Western Australia - Application under the implied jurisdiction of the court to stay proceedings - Plaintiff successful at trial and provided with liberty to apply but for 10 years has delayed in obtaining an order for costs - No evidence of prejudice
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr S F Popperwell
Solicitors:
Plaintiff : Bradford & Co
Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Busby v Australian Telecommunications Commission, unreported; FCA WAG 103 of 1986; 25 February 1992
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action was tried over a period of 10 days and on 16 December 1997, Judge Charters awarded judgment in his favour for $110,669.00 with liberty to apply. By consent special damages were later determined at $48,824.54.
2 Review of the court file reveals that an appeal was taken before the Supreme Court of Western Australia but no other activity until 2007. On 21 March 2007 the defendant filed a notice of change of solicitors and on 30 August 2007, notice of intention to proceed. The application before me filed on 9 October 2007 is for a permanent stay. The debate before me was had on the basis that a stay would preclude the plaintiff from seeking the costs of the action.
3 According to the terms of the application it is the action that the defendant seeks to have stayed. The action was the vehicle by which the plaintiff not only presented his cause of action but also brought the matters in dispute to trial. Judgment has disposed of it. Nothing remains to which a stay could attach.
4 In awarding judgment the court granted liberty to apply. The grant expresses both a facility for the parties to approach the court and a reservation of power to the court. Implicitly it revealed the intention that any application for costs would be brought before the trial judge. Ultimately it is a matter of considering whether a registrar has power to foreclose upon a facility provided by a judgment. Generally speaking r 8 of the District Court Rules 2005 provides that the power of a registrar is that which is available to a judge to be exercised in chambers. Order 66 r 1(1) provides that an award of costs of the action is a matter of discretion. The context in it is expressed suggests that where an action had been tried it would be exercised by the trial Judge. It is a matter of considering whether a registrar has the power to remove that discretion. I am satisfied that in formulating the r 8 the court intended to distinguish applications brought in chambers from matters that in the ordinary course would be before the court in the context of trial. For each of the reasons that I have canvassed the application should fail.
5 As each of those considerations only suggested themselves to me during the course of preparing these reasons, having made those observations I will address the submissions made by the parties.
6 The applicant carries the onus of persuasion. For the court to provide the result sought by the defendant it would have been satisfied that in all of the circumstances it was appropriate to do so. The applicant
(Page 4)
- referred to the fact that in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 the High Court of Australia had canvassed the concept "abuse of process" and in the reasons of the majority at p 267 had stated that:
"… the failure to take … procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court."
8 Be that as it may, I accept that inaction by a party at any time during the course of litigation would be amenable to characterisation as abuse of process and that the appropriate response to any such finding would properly be evaluated in context from which it had emerged.
9 In his affidavit affirmed on 9 October 2007 the solicitor with the conduct of the defendant's file provides nothing more than a chronology of events that transpired after judgment was given on 16 December 1997. The salient additional points are that the Full Court increased the judgment sum; that the plaintiff then applied to the High Court which on 20 October 1999 refused an application for special leave to appeal; and that in 2003, the plaintiff died. The defendant's solicitor filed a later affidavit evidently to put in what I take to have been a course of correspondence between solicitors. There is no evidence as to the likely impact on the defendant of the plaintiff seeking costs, having those costs taxed or payment. The onus being on the defendant it is appropriate to record that absent such evidence or evidence of any difficulty in its provision the inferences open to be drawn are all adverse to him.
10 In his affidavit of 13 December 2007 the plaintiff's solicitor deposes that:
"At the conclusion of this application it is my intention to file a bill of costs with an Affidavit in the format of the application and bill of costs attached to my Affidavit sworn 13 November 2007."
(Page 5)
11 No such application is attached to his earlier affidavit. The relevant documents attached to it are identified as a draft affidavit which was generated prior to the plaintiff's death and a draft bill of costs. As would be expected the draft affidavit is not attested. There is no evidence as to its content. As for the draft bill, it could never amount to more than the means of expression of the claims made by the representative of the deceased plaintiff's estate. Be that as it may, I consider that their content would properly inform the context in which the applicant brings his case. In the case of the draft affidavit I consider that the content that goes to the proposed case for a special order for costs ought to be admissible as it is against the plaintiff's interest. The reason for that conclusion is that an application for special costs would be a more onerous application for the defendant to address. By comparison addressing an application for costs may not necessarily involve anything more significant than reflecting upon the considerations now before me.
12 That content is as follows:
"6. Annexed hereto and marked with the letters 'KJB-1' is a copy of a pro forma bill of costs showing the amounts claimed as compared with the relevant limits in terms of the determinations from time to time.
7. I verily believe that as a consequence of the nature and complexity of this matter, the determinations do not make adequate provision for getting up, counsel fee on brief including the first day of trial, counsel fee on second and subsequent day of trial, solicitor attending trial and conducting further getting up during the course of the trial and the attendance of a law clerk at trial and further getting up during the course of trial.
8. During the course of the trial, a substantial amount of getting up was required as a result of:
(a) the case involved a highly technical medical negligence matter involving both substantial medical expertise and substantial engineering expertise;
(b) an intricate understanding of the medical issues, the size of screws, the angles and the relationship to neurological symptoms was required, to the extent that I, as counsel for the Plaintiff, had at
- hand, a permanent medical consultant to assist in terminology, x-rays, measurements and the like;
- (c) the case involved ongoing discussions with all witnesses throughout the case of the various opinions of local and overseas experts, an in depth study of the literature and the appropriateness or otherwise of the Graf Procedure.
- 9. The above needed a considerable amount of extra work during the course of the trial by me as Plaintiff's counsel, two solicitors from my office namely, Michael Zusman and Geoffrey Barrett, who attended at the trial and a law clerk from my office also attended at the trial. Those persons also worked in shifts, on occasions during the night, during the course of the trial." (Sic)
13 Turning to the content of the draft bill of costs, I note that apart from the services identified at par 7, prima facie, none of the balance of the claims seems in any sense unusual although some other items would express claims which would represent the maximum available under the relevant scale.
14 The force of the defendant's submissions in promoting the application was that in meeting the proposed application for a special costs it would be necessary for his solicitor to familiarise himself with the case and the circumstances in which particular services had been provided to the plaintiff.
15 The first feature of the defendant’s submission was that 10 years had elapsed since the date of the trial. Of itself the fact that after 10 years the plaintiff would propose to so engage the defendant does not speak of abuse of process. Although the court has demonstrated its interest in ensuring that litigation is concluded within a reasonable time, none of the different forms of management that it has had in place over the period would have responded to the context presented by the proposal. To the extent that the process of management is any more than a strategy to prevent litigation from languishing and actually engage the interests of the parties, I have noted that there is no evidence of any prejudicial impact on the defendant. To the extent that it would be considered that either the community or by extension the court had any interest in the prompt disposition of the vestiges of litigation, such a proposition would be open to doubt. There is no reason to consider that to have any costs issue now
(Page 7)
- determined would utilise any greater share of available "court time" or other publicly funded resource than would have been the case at any earlier time. In my opinion, properly considered, no interest of either the court or the community would outweigh the interests of the parties in having the application proposed determined on its merits. Whilst in putting its proposed application the plaintiff would immediately be presented with the difficulty presented by the retirement of the trial Judge and no doubt some resistance to any accommodation. The onus would rest on the applicant.
16 My final observation on that point is that it is appropriate to consider that the power that the defendant seeks to have exercised is derived from the presumed intention of parliament. As much as there is reason to consider that the parliament intended that the court would dispose of intractable disputes brought before it by trial; good governance would not elevate the considerations that underpin a managerial strategy over substantive interests in the absence of there being good reason to do so.
17 Another feature of the defendant's submissions was that his counsel been elevated to the bench of this Court. Of itself I do not understand what particular impact that fact would have on the defendant. The defendant has also changed his solicitor. It is open to the court to consider that over any given period a percentage of litigants will change solicitors and that any particular event may occur during a period of delay, however there is nothing to indicate that in this case the change was in any way either the consequence of or otherwise is attributable to the delay. Absent a particular order, any consequence of such a change is not properly visited upon its opponent. The only observation that I would make both in relation to counsel and solicitor is that in the event that either of them was called upon to provide either information or evidence I imagine that they would need to refresh their memories. I do not have any difficulty with the proposition that as a result of the change of solicitors it would be necessary for the new solicitor to familiarise himself with the case.
18 Ultimately it is a matter of considering extent to which the defendant's solicitor would be confronted by any difficulty either in the process of informing himself or calling evidence. In the absence of any evidence it is not inappropriate to consider that the defendant’s former solicitor's file is intact and that it would provide scope for insight into the circumstances in which particular services had been provided to the plaintiff to no different extent than would have been so revealed at any earlier time. Of course for some parts of particular services and indeed some services, even with the benefit of a complete file, one's opponent is
(Page 8)
- unlikely to discover a basis for real insight. That is simply in the nature of the circumstances in which particular services are provided. Whether such parts of any service or any service nominated by the plaintiff's solicitor in his proposed affidavit would trouble the defendant I am not aware. As for the trial itself the court file contains what appears to be a complete trial transcript. Recourse to it would tend to diminish any degree of prejudice in relation to that and at least parts of related services that may otherwise have been found.
19 I perceived that the strength of the defendant’s case is that in Busby v Australian Telecommunications Commission,unreported; FCA WAG 103 of 1986; French J, 25 February 1992 the court granted a permanent stay of taxation in circumstances where the beneficial party had not taxed its entitlement to costs for a period of some 3 years and 9 months. Part of the reasons for that decision is as follows:
"6. Under O. 37 r. 10 and in the exercise of its implied incidental power, the Court may order a stay of proceedings where there has been a delay which is intentional and contumelious or which gives rise to serious prejudice to the innocent party … In the present case, the delay in bringing in a bill of costs for taxation has been considerable, a period of some four years since the order was made, although no doubt it can be said that it was open to the Commission and appropriate for it to not to bring in the bill until the hearing and disposition of the appeal, which was dismissed in December 1988. The case is not one in which there is any evidence of contumelious or intentional default on the part of the Commission. The causes of the delay appear substantially to have been oversight.
7. On the question of prejudice, Mr Busby gave oral evidence that he had had intermittent employment over the past four years and that had he known that the costs of the application were to be pursued, he may have taken steps to so arrange his affairs as to make instalment payments for any costs taxed. I have no doubt from his evidence that his finances have, at all times, been marginal and his employment episodic. In order to facilitate his ability to seek employment he has undertaken the purchase of a motor vehicle for some $1,550 payable in instalments of about $200 per month.
- To finance that purchase he has had to trade upon the good will of his landlord and defer rental repayments to the point where they are now 5 or 6 weeks in arrears. While continuing to seek employment he has enrolled as a student at university with a view to obtaining qualifications that will increase his employability in areas related to laboratory or associated work.
- 8. It is right to say that the burden of showing prejudice justifying a stay rests upon Mr Busby. And one can speculate that his finances have been so precarious that the delay in payment of the costs has done little more that benefit him. On the other hand, honest people often arrange their affairs so as best they can in order to deal with their liabilities and it is reasonable to assume that Mr Busby would have arranged his affairs to deal as best he could with the impact of those costs had they been pursued with anything like reasonable vigour. The length of the delay and the marginal nature of his finances, lead me to conclude that if required to pay now he would suffer prejudice which is not to be dismissed by simply saying that he has not had to pay the money earlier. I do not know how or whether he could have done anything to meet or comprise the costs ordered had they been pursued earlier, but he has been deprived of any such opportunity and has undoubtedly operated in the last few years of the assumption that those costs would not be pursued.
9. Apart from the lost opportunity, the psychological stress on an individual of marginal means associated with the late revival of interest in this costs order is not be discounted. Non–compensable inconvenience and stress on individuals are significant elements of modern litigation … While it may be that, measured my reference to external criteria, the prejudice to the applicant is minor it nevertheless is, in my opinion, serious having regard to his own circumstances. On the other hand the damage to the respondent's interests arsing from the stay on the costs order is minor having regard to the amount in issue."
20 Along with Batistatos (supra) the case stands for nothing more than that an application had been dealt with on its merits. In the case before me there is no evidence or even any suggestion that the defendant would
(Page 10)
- have any difficulty in meeting the consequence of any order for costs. Returning to the earlier point I note that the case does not canvass what may be characterised as a court or community interest.
21 The analysis undertaken by his Honour is useful as it indicates the extent to which it was considered appropriate to evaluate the impact on the applicant of the failure of the Commission to obtain the benefit to which it had been entitled. Similarly in Batistatos the finding of prejudice was not simply a conclusion drawn from the fact that time had passed. Rather it was founded upon an appreciation that evidence that would have been available to the defendants had the action been earlier tried would be difficult or impossible for it to bring to any future trial. The reasons of the majority detail 6 aspects of difficulty proposed by the applicants. As much as there is no useful evidence put before me to establish any particular difficulty for the defendant, his submissions did not descend into any similar analysis of the case that he would confront.
22 I have considered that after the passing of 10 years it would be reasonable for the defendant’s solicitor to familiarise himself with the materials upon which an assessment of the plaintiff's proposed application would be made. As much as it is open to the plaintiff to seek costs it would be open to the defendant to seek the costs of both the plaintiff's proposed application and of any taxation upon it. Each scale item for those services permits recovery for preparation. It would be open for the defendant to seek a special order for the cost of those services.
23 There is no particular reason to consider the position of the plaintiff however to the extent that the effluxion of time may have had a bearing upon the plaintiff's provision of services in the form of either the proposed application or any taxation, in the process of taxing claims for those services it would be appropriate to apply the test that applies to all claims: that the beneficial party would recover to the extent that the relevant service had been provided in an efficient manner by a competent practitioner. It would be open to a taxing officer to consider that the measure of recovery for any such claim ought to reflect what would have been recovered had the application been brought and the taxation been conducted within a reasonable time of the conclusion of the trial.
24 In essence I am left with the prospect that the task that the plaintiff's proposed application would set for the defendant would be time consuming. It is difficult to see that such a conclusion could possibly justify foreclosing upon the prospect of the plaintiff obtaining the benefit of an order for costs. The significant difference between the case
(Page 11)
- presented to me and that before the court in Batistatos is that there is a real prospect that significant, useful and readily available resources are available to the defendant. If the defendant has a better case to put then it may be that court would come to a different conclusion, however on the evidence before me I am not satisfied that it would be appropriate to exercise discretion as he proposes.