Jones v The Architects Board of Western Australia
[2004] WASCA 219 (S)
•1 OCTOBER 2004
JONES -v- THE ARCHITECTS BOARD OF WESTERN AUSTRALIA [2004] WASCA 219 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 219 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1289/2003 | 24 AUGUST 2004 | |
| Coram: | TEMPLEMAN J SIMMONDS J | 1/10/04 | |
| 9/11/04 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Cause shown | ||
| B | |||
| PDF Version |
| Parties: | BARRY PETER JONES THE ARCHITECTS BOARD OF WESTERN AUSTRALIA |
Catchwords: | Costs Return of order nisi Long period between grant and return of order nisi On day of hearing substantial change from original grounds Adjournment Show cause notice as to whether practitioner personally responsible for costs thrown away Senior counsel briefed at late stage before hearing |
Legislation: | Rules of the Supreme Court 1971, O 66 r 5 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JONES -v- THE ARCHITECTS BOARD OF WESTERN AUSTRALIA [2004] WASCA 219 (S) CORAM : TEMPLEMAN J
- SIMMONDS J
DECISION : 9 NOVEMBER 2004 FILE NO/S : CIV 1289 of 2003 BETWEEN : BARRY PETER JONES
- Applicant
AND
THE ARCHITECTS BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Costs - Return of order nisi - Long period between grant and return of order nisi - On day of hearing substantial change from original grounds - Adjournment - Show cause notice as to whether practitioner personally responsible for costs thrown away - Senior counsel briefed at late stage before hearing
Legislation:
Rules of the Supreme Court1971, O 66 r 5
(Page 2)
Result:
Cause shown
Category: B
Representation:
Counsel:
Applicant : Mr G M G McIntyre SC
Respondent : Mr J D Allanson
Solicitors:
Applicant : Corser & Corser
Respondent : Deacons
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: This is the return of a show cause notice made under O 66 r 5 of the Rules of the Supreme Court 1971, which enables the Court to make a practitioner personally responsible for costs where costs are incurred by a party:
"As a result of any improper, unreasonable or negligent act or omission which … the Court considers it is unreasonable to expect that party to pay."
2 The matter arose out of an application for a writ of certiorari brought by an architect against The Architects Board of Western Australia following a disciplinary hearing. The matter came on before the Full Court on 19 May 2004, there having been a very long delay from 29 March 2003, when the order nisi was granted.
3 Shortly before the hearing, the Court was handed grounds which represented a very substantial departure from the original grounds. Originally there were nine grounds. Each of those grounds had been deleted and replaced by a different ground - although there was some overlap - and an additional general ground had been added.
4 When the matter came on for hearing, Mr McIntyre SC, who appeared for the applicant, sought leave to amend the grounds. Mr Allanson, for the respondent, required an adjournment. The Court was satisfied in all the circumstances, including the wholesale nature of the amendments that it was appropriate to grant an adjournment. The matter was subsequently reargued on the new grounds and a judgment was given.
5 In the course of the hearing on 19 May when the new grounds emerged, the Court was very concerned that there had been such a substantial departure from the original grounds at such a late stage and when the matter had been so long in gestation. In those circumstances the Court ordered the applicant to pay the respondent's costs thrown away by the adjournment. Further, the Court asked whether it was appropriate that the applicant himself should bear those costs when, prima facie, the situation required explanation by the legal representatives.
6 The applicant's solicitor has since sworn two affidavits explaining the situation. Essentially it is this: Mr McIntyre was briefed at a very late stage due to the unavailability of the applicant's solicitor who prepared the original grounds. The solicitor had intended to argue the matter himself but was otherwise engaged when another matter overran.
(Page 4)
7 Mr McIntyre briefed at that late stage, had a conference with the applicant in which the applicant himself asked that various grounds not previously raised be argued. Mr McIntyre told the Court that he considered those grounds and thought it was proper that he should pursue them. It was as a result of the applicant's instructions and Mr McIntyre's own view of the case which led to the grounds being amended at such a late stage.
8 I see nothing untoward in that. Although there was a departure from the original grounds, that is not to suggest that the formulation of those grounds was the result of any improper, unreasonable or negligent act or omission on the solicitor's part. The amendments simply represented or reflected a different view of the case in what is undoubtedly a difficult jurisdiction.
9 For those reasons it seems to me that the solicitor has shown cause why he should not be required to pay the costs personally and I would decline to require him to do so.
10 In approaching this issue I have had regard to the principles summarised conveniently by Dalpont in his work The Law of Costs, par 23.3, where it is said:
"The jurisdiction to order costs against a lawyer personally is exercised sparingly with care and discretion and only in clear cases and with considerable caution."
11 Various reasons are set out; and the second reason is particularly relevant:
"A court will be alert to the fact that it may not be privy to all the details and circumstances of the lawyer's instructions. In particular, where the allegation is that the lawyer has pursued a hopeless case, it may be impossible for the lawyer to defend that charge by, say, showing that the client has been advised of the improbability of success and has nevertheless insisted on proceeding without violating the client's privilege unless the client agrees to waive it."
12 This is not a case, I emphasise, in which it is said that the lawyer originally pursued a hopeless case, but it is, I think, relevant to point out the difficulty that a lawyer has in these circumstances when the events, as in this case, result from a change in instructions or particular instructions given by the client to the lawyer.
(Page 5)
13 In all the circumstances the only order I would make would be that the applicant's solicitor bear the costs of the show cause matter personally. The situation called for an explanation, which has been given, but in my view, the applicant should not have to pay for it.
14 SIMMONDS J: For the reasons given by his Honour Templeman J, I too would approach the matter in that way and make the orders suggested.
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