Huntingdale Village Pty Ltd as Receiver and Manager of Huntingdale Village Pty Ltd v Corrs Chambers Westgarth
[2013] WASCA 275
•5 DECEMBER 2013
HUNTINGDALE VILLAGE PTY LTD AS RECEIVER AND MANAGER OF HUNTINGDALE VILLAGE PTY LTD -v- CORRS CHAMBERS WESTGARTH [2013] WASCA 275
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 275 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2013 | 20 SEPTEMBER 2013 AND ON THE PAPERS | |
| Coram: | NEWNES JA MURPHY JA | 5/12/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | HUNTINGDALE VILLAGE PTY LTD AS RECEIVER AND MANAGER OF HUNTINGDALE VILLAGE PTY LTD SILKCHIME PTY LTD AS RECEIVER AND MANAGER OF SILKCHIME PTY LTD VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED) WARWICK ENTERTAINMENT CENTRE PTY LTD AS RECEIVER AND MANAGER OF WARWICK ENTERTAINMENT CENTRE PTY LTD PARAGON APARTMENTS (RECEIVERS AND MANAGERS APPOINTED) CORRS CHAMBERS WESTGARTH |
Catchwords: | Competency of appeal Appeal from a registrar's decision Whether registrar's procedural directions given in an application to extend time to request taxation and to provide itemised bill of costs is a 'case management direction' Whether such application is a 'cause' or 'matter' Whether the appeal from the registrar to the master was 'final' Whether substantial injustice would be done in any event if decision left unreversed Leave to appeal |
Legislation: | Rules of the Supreme Court 1971 (WA), O 4A r 1, O 4A r 2, O 60A r 4, O 60A r 6 Supreme Court Act 1935 (WA), s 4(1) |
Case References: | Dodds v Kennedy [2011] WASCA 32 Harrison v Hocking [2000] WASC 188 Huntingdale Village Pty Ltd (receivers & managers appointed) v Corrs Chambers Westgarth (a firm) [2013] WASC 156 Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 354 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUNTINGDALE VILLAGE PTY LTD AS RECEIVER AND MANAGER OF HUNTINGDALE VILLAGE PTY LTD -v- CORRS CHAMBERS WESTGARTH [2013] WASCA 275 CORAM : NEWNES JA
- MURPHY JA
- First-named First Appellant
SILKCHIME PTY LTD AS RECEIVER AND MANAGER OF SILKCHIME PTY LTD
Second-named First Appellant
VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
Third-named First Appellant
WARWICK ENTERTAINMENT CENTRE PTY LTD AS RECEIVER AND MANAGER OF WARWICK ENTERTAINMENT CENTRE PTY LTD
Fourth-named First Appellant
PARAGON APARTMENTS (RECEIVERS AND MANAGERS APPOINTED)
Fifth-named First Appellant
AND
CORRS CHAMBERS WESTGARTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : HUNTINGDALE VILLAGE PTY LTD (RECEIVERS & MANAGERS APPOINTED) -v- CORRS CHAMBERS WESTGARTH (A FIRM) [2013] WASC 156
File No : LPA 4 of 2010
Catchwords:
Competency of appeal - Appeal from a registrar's decision - Whether registrar's procedural directions given in an application to extend time to request taxation and to provide itemised bill of costs is a 'case management direction' - Whether such application is a 'cause' or 'matter' - Whether the appeal from the registrar to the master was 'final' - Whether substantial injustice would be done in any event if decision left unreversed - Leave to appeal
Legislation:
Rules of the Supreme Court 1971 (WA), O 4A r 1, O 4A r 2, O 60A r 4, O 60A r 6
Supreme Court Act 1935 (WA), s 4(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
First-named First Appellant : Mr A Metaxas
Second-named First Appellant : Mr A Metaxas
Third-named First Appellant : Mr A Metaxas
Fourth-named First Appellant : Mr A Metaxas
Fifth-named First Appellant : Mr A Metaxas
Respondent : Ms J Taylor
Solicitors:
First-named First Appellant : Metaxas & Hager
Second-named First Appellant : Metaxas & Hager
Third-named First Appellant : Metaxas & Hager
Fourth-named First Appellant : Metaxas & Hager
Fifth-named First Appellant : Metaxas & Hager
Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Dodds v Kennedy [2011] WASCA 32
Harrison v Hocking [2000] WASC 188
Huntingdale Village Pty Ltd (receivers & managers appointed) v Corrs Chambers Westgarth (a firm) [2013] WASC 156
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 354; (2001) 25 WAR 311
1 REASONS OF THE COURT: By application dated 30 May 2013, the respondent, a firm of solicitors, applied, inter alia, to dismiss the appeal as 'incompetent'. That application was heard with the appellants' application for leave to appeal. In relation to the latter matter, the respondent contended, in effect, that the appellants' application for leave should be dismissed in any event, including on the basis that no substantial injustice would be done if the decision under appeal was left unreversed.
2 The allegation as to incompetence of the appeal involved the proposition that the appellants were seeking to appeal a decision of Master Sanderson which was final. The contention was that the master was dealing with an appeal from a registrar's decision under O 60A r 4 of the Rules of the Supreme Court 1971 (WA) (the Rules), and that by O 60 r 4(3), an appeal to a master from a procedural decision of a registrar is 'final'.
Background
3 The background is set out in the learned master's reasons for decision under appeal: Huntingdale Village Pty Ltd (receivers & managers appointed) v Corrs Chambers Westgarth (a firm)[2013] WASC 156 (master's reasons). The long and convoluted history of litigation between these parties need not be recounted here. For present purposes, the following matters should be noted.
4 On 1 February 2010, the appellants had applied by letter to the Principal Registrar for orders, inter alia, that the respondent solicitors provide itemised bills of cost and that the appellants be granted an extension of time to request taxation of such itemised bills pursuant to the Legal Practice Act 2003 (WA). The appellants' application was designated the file number 'LPA 4 of 2010' and is hereafter referred to as 'the taxation application'.
5 At or around that time, the appellants had commenced other proceedings, designated COR 223 of 2009, in which there was an application on foot to join the respondent to those proceedings and to seek certain orders for relief against them, including, inter alia, an order that the respondent solicitors' costs, the subject of LPA 4 of 2010, be taxed. We were informed by counsel for the appellants at the hearing of this matter that the appellants' application in that regard in COR 223 of 2009 had not been advanced, but also had not been withdrawn.
6 On 1 August 2012, in LPA 4 of 2010, the appellants filed a minute of proposed amended application, seeking to join Norman Phillip Carey and seeking to advance the proposition that no extension of time was required to tax the bills because the bills had never been served on the appellants (master's reasons [11] - [12]).
7 On 9 October 2012, Registrar Dixon made certain procedural orders with respect to the timetabling of the appellants' application of 1 August 2012 in LPA 4 of 2010. After that, it seems that the taxation application was admitted to the CMC list managed by Le Miere J, although his Honour subsequently removed it on 8 November 2012 on the basis that he considered that he had no power to extend time for taxation (master's reasons [20]).
8 Before the taxation application was removed from Le Miere J's CMC list, the respondent, by email dated 2 November 2012, applied for a vacation of the procedural orders made by Registrar Dixon on 9 October 2012. The respondent continued to pursue this application after the removal of the taxation application from Le Miere J's CMC list (master's reasons [19] - [20]).
9 By a letter dated 18 February 2013, Registrar S Boyle wrote to the parties, advising them, relevantly, that she had vacated the procedural orders made by Registrar Dixon on 9 October 2012 in LPA 4 of 2010. The registrar then directed the parties to address certain jurisdictional issues, including whether each of the appellants was a 'party charged' and entitled to seek taxation of costs in the terms of s 228 of the Legal Practice Act 2003 and whether each of the corporate appellants in receivership was able to exercise a right to compel taxation of a bill of costs that had been rendered in the course of the receivership. The registrar also made procedural orders with respect to the timetabling of the issues raised by her letter (master's reasons [21] - [22]).
10 The appellants appealed to the master against Registrar Boyle's orders, relevantly, including on the ground that the registrar did not have power to vacate the orders made by Registrar Dixon on 9 October 2012 without notice to the appellants and without affording the appellants an opportunity to be heard.
11 The appeal by the appellants from Registrar Boyle's decision was headed 'notice of appeal pursuant to O 60A r 4' and in submissions filed in support of the appeal, the appellants said:
Order 60A is applicable in this appeal because the Registrar has not yet commenced a taxation and so she is not yet acting as a taxing officer.
The master's reasons
12 The learned master dismissed the appeal on the basis that the grounds of appeal were without merit. Relevantly, in relation to the appellants' contention that the registrar was without power to vacate the orders made by Registrar Dixon on 9 October 2012, the learned master found, in effect, that the registrar had power pursuant to O 4A of the Rules, inter alia, to give directions, to direct the parties to comply with a timetable and to make any necessary directions, and that the Rules did not require that in every case parties will be heard before an interlocutory order is made under O 4A of the Rules (master's reasons [24] - [32]).
13 Having dismissed the appeal, the master observed that it was necessary to revise the timetable proposed by Registrar Boyle on 18 February 2013. The master noted that prior to the hearing of the appeal, the respondent sought a number of orders by chambers summons dated 12 April 2013, including an order that the taxation application be stayed until the final determination of two related proceedings, namely COR 223 of 2009 and CIV 1940 of 2010. Counsel for the appellants objected to the chamber summons on the basis that there was short service and no application for an abridgment of time. The master accepted this objection and proceeded on the basis that the respondent's submission was to the effect that the master should exercise his power under O 60A r 6(2) of the Rules and amend the registrar's orders so as to include a stay of proceedings (master's reasons [34]).
14 The master recited O 60A r 6(2) of the Rules which provides, relevantly, that the master may cancel or amend any interlocutory order or case management direction made by the registrar. Subsequently, the master ordered that the taxation application be stayed until final determination of COR 223 of 2009 and CIV 1940 of 2010. The learned master made this order on the ground that there was a large degree of overlap between the proceedings, particularly in relation to the jurisdictional issues raised in the registrar's letter dated 18 February 2013 (master's reasons [37]).
The appeal to this court
15 The appellants appealed against the master's decision. An appeal to this court from an interlocutory decision of the master is only permitted if leave is granted pursuant to s 60(1)(f) of the Supreme Court Act 1935 (WA).
16 The five grounds of appeal advanced by the appellants contend, in effect, that the master erred in finding that Registrar Boyle had power to vacate Registrar Dixon's orders without notice to the parties or affording them an opportunity to be heard; that the master erred in failing to find that the registrar's conduct gave rise to a reasonable apprehension of bias; that the master erred in failing to give sufficient reasons as to the appellants' contention of bias; and that the master erred in ordering that the taxation application be stayed until the final determination of related proceedings, especially because the respondent in the taxation application is not a party in the related proceedings.
Disposition
17 At the outset, it is convenient to refer to O 60A r 4. Those relevant parts of O 60A r 4 read as follows:
4. Appeals from registrars' decisions
(1) Subject to subrule (6), a person affected by an order or decision of a registrar may appeal from it.
(2) The appeal must be made to a master unless a judge orders otherwise.
(3) The decision of a master on an appeal from a procedural decision of a registrar is final.
…
(5) A procedural decision means –
(a) a case management direction made under Order 4A;
…
(6) This rule does not apply to an order or decision of a registrar -
…
(c) when acting as a taxing officer.
19 The principal issue between the parties was whether Registrar Boyle's decision to vacate Registrar Dixon's orders and to make new timetabling orders was a 'procedural decision' so that the decision of the master on appeal was 'final' pursuant to O 60A r 4(3). If that is the case, the proposed appeal to this court would be incompetent with the consequence that the application for leave to appeal should be dismissed.
20 'Case management direction' is defined by O 4A r 2(1) of the Rules to mean (unless the contrary intention appears) any procedural direction that in the court's opinion is just to make in a 'case' to facilitate the attainment of the objects of positive case flow management. The broad scope of this definition is ascertained by reference to O 4A r 2(2), which provides a non-exhaustive list of what a case management direction may do. Relevantly, a case management direction may direct the parties to comply with a timetable for procedural steps that are needed in the 'case'. O 4A r 2(3) further states that a case management direction may include any ancillary direction that is needed for the purpose of the direction and may amend or cancel another case management direction.
21 By O 4A r 1, the term 'case' is defined to mean 'any action, cause, or matter, that is an original proceeding between a plaintiff and a defendant'.
22 The terms 'action', 'cause', 'matter', 'plaintiff' and 'defendant' are not defined by the Rules. However, these terms are given definition in the Supreme Court Act. The Rules were made under s 167(1) of the Supreme Court Act and are 'subsidiary legislation' within the meaning of that term in the Interpretation Act 1984 (WA). Subsection 44(1) of the Interpretation Act provides that definitions in an Act apply to subsidiary legislation made under that Act. It follows that defined words and expressions in the Supreme Court Act have the same respective meaning in the Rules.
23 Section 4(1) of the Supreme Court Act provides the following definitions for 'action', 'cause' and 'matter':
action means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include any criminal proceeding;
cause includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding;
matter includes every proceeding in the Court, not in a cause;
24 'Plaintiff' and 'defendant' are also defined in s 4(1) of the Supreme Court Act. Those definitions read as follows:
plaintiff includes every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise;
defendant includes any person served with any writ of summons or other process, or served with notice of, or entitled to attend any proceedings;
25 The appellants argued that the taxation application was not a 'case' that could be case managed because the application was commenced by way of letter and not by way of writ, originating summons or originating motion pursuant to O 4 r 1 of the Rules. The appellants also contended that there was not a plaintiff or a defendant to the taxation application. As such, the taxation application made pursuant to the Legal Practice Act 2003 was not, consistent with the definition of 'case' in O 4A r 1 of the Rules, 'an action, cause, or matter, that is an original proceeding between a plaintiff and a defendant'. According to the appellants, it followed that the appeal to the master was not an appeal from a 'procedural decision by a registrar', and that under O 60A r 4(3) read with O 60A r 4(5) of the Rules, the master's decision was not final.
26 It may be noted that on 9 March 2006, a practice direction issued by the Acting Principal Registrar detailed two ways in which an application for an extension of time to request taxation of costs pursuant to the Legal Practice Act 2003 could be made: first, by way of letter addressed to the Principal Registrar setting out the matters relied upon in support of the application; and second, by originating motion supported by an affidavit sworn by the applicant. (Consolidated Practice Direction 4.7.4, published in 2009, provided a procedure for an application for an extension of time under the Legal Profession Act 2008 (WA)).
27 As to the question of whether the appeal to the master was 'an appeal from a procedural decision of a registrar', it is first necessary to consider if the taxation application can be properly described as a 'case'; that is, 'any action, cause, or matter, that is an original proceeding between a plaintiff and a defendant'. The respondent contended that the taxation application is an 'action, cause or matter'.
28 The taxation application will fall within the definition of 'cause' in s 4(1) of the Supreme Court Act if it is established that the taxation application is an 'original proceeding between a plaintiff and defendant'.
29 It is evident from the appellant's solicitor's letter dated 1 February 2010 that it was an application for an extension of time under the Legal Practice Act 2003 as at 1 February 2010. The application was original in nature rather than appellate. The letter shows that it was accepted for filing on 1 February 2010 by the Supreme Court Central Office, and that the appellants paid a fee of $386 in respect of that filing. The letter, by its terms, described itself as 'the Application'. It was assigned the file number LPA 4 of 2010. The appellants also filed an extensive affidavit of Norman Phillip Carey at that time in support of the application.
30 With these features, and in these circumstances, the taxation application has all the hallmarks of an 'original proceeding' and there is no reason to think that it is not.
31 Further, the appellants are properly characterised as 'plaintiffs' because, consistent with the definition set out above at [24], they seek relief under the Legal Practice Act 2003 against the respondent by way of a 'form of proceeding'. The respondent is plainly entitled to attend the proceedings commenced by the taxation application and thereby satisfies the definition of 'defendant'.
32 Accordingly, the taxation application is a 'cause' in that it is an 'original proceeding between a plaintiff and a defendant', and is thereby a 'case' pursuant to O 4A r 1 of the Rules.
33 Alternatively, if not a 'cause', the taxation application would, in any event, be a 'matter'. In Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 354; (2001) 25 WAR 311 [19], Murray J said that nothing could be more all-encompassing than the definition of 'matter' in s 4(1) of the Supreme Court Act.
34 Consequently, Registrar Boyle's orders dated 18 February 2013 were made in a 'case'. The master's finding that the orders were case management directions prescribed by the Rules under O 4A r 2 is undoubtedly correct. The registrar's orders were a 'procedural decision' for the purpose of O 60A r 4(5)(a) of the Rules. As the appeal to the master was an appeal from a procedural decision of a registrar, the appeal to the master was final and the appellants cannot appeal from the master's decision to this court. The appeal as a whole is incompetent, subject to a consideration of one further issue raised by the appellants, discussed below.
35 A final issue remains concerning the competence of the appeal. The appellants contended that to the extent that the appeal alleges error on the part of the master in making an order for a stay of the taxation application, that part of the appeal is competent as it was made on the respondent's chamber summons and not pursuant to the master's powers on appeal under O 60A r 6(2) of the Rules. At the hearing before the master, it is clear that the parties made submissions in respect of the appeal and not the chamber summons, but that the master accepted the respondent's submission that in determining the appeal he should amend the orders of the registrar and make provision for a stay. The master did not err in doing so and properly exercised his powers to order a stay pursuant to O 60A r 6(2) of the Rules. The appeal as it relates to the appellant's challenge to the master's order for a stay is also incompetent.
36 The appeal must be dismissed.
37 In any event, even if the appeal was competent, the appellants would need to satisfy this court that leave to appeal against an interlocutory decision should be granted. The appellants would, generally speaking, need to establish that the decision below was wrong or attended with sufficient doubt to justify a grant of leave, and that substantial injustice would be done if the decision remained unreversed, Moreover, the decision below is a decision concerning practice and procedure, in respect of which special restraint is to be exercised by an appellate court: Dodds v Kennedy [2011] WASCA 32 [5] and the cases there cited.
38 The appellants' fundamental contention is that leave should be granted because the appeal raises serious issues about the conduct of the matter below and because the appeal is concerned with the taxation of bills totalling $5.8 million. In our view, that does not demonstrate that substantial injustice would be done if the decision remained unreversed. The appellants could, while the stay remains in force, pursue their application to join the respondent to COR 223 of 2009 and seek relief against the respondent in those proceedings. Even if the appeal were competent, the appellants have not satisfied this court that there is a substantial injustice such as to warrant the grant of leave to appeal from the master's decision to order a stay of proceedings.
39 The following orders should be made:
1. Application for leave to appeal refused.
2. Appeal dismissed.
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