Mann v Boyd
[2004] WASCA 184
•17 AUGUST 2004
MANN -v- BOYD & ORS [2004] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 184 | |
| Case No: | FUL:97/2004 | 3 AUGUST 2004 | |
| Coram: | MASTER SANDERSON | 17/08/04 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN ROBERT MANN LYNETTE MARIE BOYD LISA ANNE QUAIN COLIN LEONARD BOYD SHARON HILTON as beneficiaries of the J P BOYD FAMILY TRUST SHARON HILTON as Executrix of the Estate of JOAN PATRICIA BOYD (DEC) |
Catchwords: | Practice and procedure Application for leave to appeal costs order Turns on own facts |
Legislation: | Supreme Court Act, s 60(1)(e) |
Case References: | Martin-Smith v Woodhead [1990] WAR 62 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant (Second Defendant)
AND
LYNETTE MARIE BOYD
LISA ANNE QUAIN
COLIN LEONARD BOYD
SHARON HILTON as beneficiaries of the J P BOYD FAMILY TRUST
First Respondents (First Plaintiffs)
SHARON HILTON as Executrix of the Estate of JOAN PATRICIA BOYD (DEC)
Second Respondent (Second Plaintiff)
Catchwords:
Practice and procedure - Application for leave to appeal costs order - Turns on own facts
Legislation:
Supreme Court Act, s 60(1)(e)
(Page 2)
Result:
Application for leave dismissed
Category: B
Representation:
Counsel:
Applicant (Second Defendant) : Mr A D Wilson
First Respondents (First Plaintiffs) : No appearance
Second Respondent (Second Plaintiff) : No appearance
Solicitors:
Applicant (Second Defendant) : Frichot & Frichot
First Respondents (First Plaintiffs) : Verschuer Edward
Second Respondent (Second Plaintiff) : Verschuer Edward
Case(s) referred to in judgment(s):
Martin-Smith v Woodhead [1990] WAR 62
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is an application for leave to appeal. The application and the appeal, if leave is granted, relates solely to a question of costs. Accordingly, leave is required under s 60(1)(e) of the Supreme Court Act. The application was brought ex parte and came on in chambers. Because of the limited time available I reserved my decision and indicated to counsel for the applicant that I would publish short reasons at a later date. These are those reasons.
2 The main action between these parties is somewhat complicated. The proceedings have been marked by numerous interlocutory skirmishes and obvious bitterness between the protagonists. For much of the time the applicant has appeared in person, although from time to time he has been represented by solicitors. The action was set down for hearing on 30 June 2004. Notice of the hearing was given to the applicant on 13 April 2004. There can be no suggestion that the applicant was not given adequate warning as to the date of the hearing. Nor can the applicant have been in any doubt that it was intended to resolve the matter finally at that hearing.
3 When the matter was called on on 30 June Mr Wilson of counsel appeared for the applicant. Mr Wilson indicated that he had been approached on or about 26 June and had been instructed shortly thereafter. Mr Wilson had not even had the opportunity to file a notice of change of solicitor. (Another firm of solicitors was on the record as appearing for the applicant, although it appears that their retainer had been terminated and, as I have mentioned above, Mr Mann generally appeared in person.) Mr Wilson had clearly given the matter careful attention. He produced detailed written submissions. In particular, he submitted that the application was one which should not have been commenced by originating summons but rather by writ. He submitted that it was clearly a matter where there was a conflict on the evidence and in those circumstances it was inappropriate to use the originating summons procedure: see Martin-Smith v Woodhead [1990] WAR 62. Having read Mr Wilson's written submissions it was apparent that the point he raised as to the form of the action among other matters required careful consideration.
4 Counsel for the present respondents had not had any opportunity to consider Mr Wilson's submissions. She opposed the adjournment and submitted that the action should proceed on the basis that the applicant should not be permitted to put arguments that went to the form of the action or indeed any other argument which had not been raised prior to Mr Wilson's submissions. Clearly, that was an unacceptable position. Justice demanded that the adjournment sought by Mr Wilson should be granted. That is what I did.
(Page 4)
5 I then considered the question of costs. There was no explanation from the applicant as to why Mr Wilson was instructed so late in the day. With respect, it must have been apparent to the applicant that the respondents would need to fully prepare for the hearing of the matter, there being no suggestion that the matter would not proceed. In my view this was a proper case for an order for indemnity costs, such costs to be taxed and paid forthwith. That is the order that I made. It is from that order that the applicant seeks leave to appeal.
6 Having given the matter further consideration I am satisfied that the costs order made was in all the circumstances appropriate. Mr Wilson submitted at the time the order was made and again on the application for leave that the reason for the adjournment was, in truth, defects inherent in the respondents' application. In essence it was his submission that the matter could not proceed not because of late action taken by the applicant but because the respondent had not initiated the action in the proper manner. There is some merit to that submission. But it is a matter which could have been brought to the attention of the respondents' solicitors long before the morning of the hearing had the applicant instructed solicitors in a timely way. In my view the fact that he did not do so led directly to the adjournment on the morning of the hearing.
7 It is right, as Mr Wilson submitted, that a party should not be penalised because he or she is acting in person and is not familiar with the rules of the Supreme Court. I accept that the applicant could not have been expected to know, or by his own investigations ascertain, that it was arguable the proceedings had been commenced in the wrong form. But that is not the basis upon which the costs order was made. If the applicant had instructed solicitors when he was first notified of the date for hearing and difficulties in the form of the application would have quickly become apparent. These difficulties could have been drawn to the attention of the respondents' solicitors and, if necessary, an application could have been made in chambers to adjourn the special appointment. But it is simply unreasonable to leave it until the last minute to instruct solicitors, particularly when no explanation is offered as to why those solicitors were not instructed earlier. In my view it could not be argued otherwise. I was satisfied that an indemnity costs order with costs payable forthwith was appropriate when I adjourned the matter on 30 June and having reviewed the position I am still satisfied that the order was appropriate.
8 I would refuse the applicant leave to appeal on the question of costs.
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