Nelson v Thompson

[2020] WASC 261

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NELSON -v- THOMPSON [2020] WASC 261

CORAM:   SMITH J

HEARD:   ON THE PAPERS AND BY WRITTEN SUBMISSIONS FILED 7 & 28 APRIL, 17 MAY & 17 JUNE 2020

DELIVERED          :   9 JULY 2020

FILE NO/S:   CIV 2404 of 2015

BETWEEN:   PETER STANLEY NELSON

Plaintiff

AND

JARROD THOMPSON

Defendant

FILE NO/S:   CIV 2266 of 2015

BETWEEN:   PETER STANLEY NELSON

Plaintiff

AND

PETER MOORCRAFT

Defendant

Catchwords:

Practice and procedure - Case management - Proceedings commenced by writ - An action in contract and an action in tort - Order for actions to be heard together and evidence in each action be evidence in both actions

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 83

Result:

Order made for actions to be heard together

Category:    B

Representation:

CIV 2404 of 2015

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	Popperwell & Co

CIV 2266 of 2015

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	In person

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

Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75

Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250

Nelson v Moorcraft [2014] WASCA 212

Nelson v Moorcraft [2014] WASCA 212 (S)

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80

Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34

SMITH J:

Introduction, the application for trial of matters together, and the result

1. By consent, on 31 January 2019, case management orders were made that CIV 2404 of 2015 be case managed together with CIV 2266 of 2015.[1]  At the time the orders were made, the plaintiff in both actions, Peter Stanley Nelson, was legally represented.

   [1] CIV 1740 of 2015 was an action commenced in the District Court in CIV ALB 3 of 2011 and following the decision of the Court of Appeal in Nelson v Moorcraft [2014] WASCA 212 was transferred to the Supreme Court and consolidated with 2266 of 2015 on 30 September 2015, as the statement of claim in CIV 2266 of 2015 pleaded all of the outstanding matters in the District Court action (CIV ALB 3 of 2011, that became CIV 1740 of 2015).

2. On 18 December 2019, Mr Nelson filed a notice of change of representation stating that he intended to act in person.

3. Prior to a case management directions hearing for both actions on 26 March 2020, Mr Nelson filed minutes of proposed orders in CIV 2404 of 2015 and CIV 2266 of 2015 seeking orders that CIV 2404 of 2015 be case managed separately from CIV 2266 of 2015.  The defendant in CIV 2266 of 2015, Peter Moorcraft (now also not represented by a legal practitioner) did not appear at the directions hearing.

4. The defendant in CIV 2404 of 2015, Jarrod Thompson, appeared at the directions hearing on 26 March 2020, by counsel, and sought orders that:

   (a)CIV 2404 of 2015 be tried at the same time as CIV 2266 of 2015; and

   (b)the evidence led at the trial in CIV 2404 of 2015 be evidence in CIV 2266 of 2015 and any evidence in CIV 2266 of 2015 be evidence in CIV 2404 of 2015.

5. Mr Nelson opposes the orders sought by Mr Thompson.  Although no written submissions were filed by Mr Moorcraft in respect of the orders sought by Mr Thompson; on 15 June 2020, Mr Moorcraft sent an email to the court in which he stated that it is his opinion that CIV 2266 of 2015 be consolidated with CIV 2404 of 2015.

Background ‑ the effect of the decision of the Court of Appeal in Nelson v Moorcraft[2]

[2] Nelson v Moorcraft [2014] WASCA 212.

1. In 2011, Mr Nelson commenced proceedings in the District Court against Mr Moorcraft.  The action concerned the proper construction of two deeds dated 3 September 2009.  The first being a Partnership Deed and the second being a Land Ownership Deed.

2. Both deeds were drafted by Thompson Legal Pty Ltd, on instructions by Mr Nelson and Mr Moorcraft.[3]

   [3] Re‑amended defence filed 7 April 2020 in CIV 2404 of 2015 [2] ‑ [3].

3. The action between Mr Nelson and Mr Moorcraft was tried in the District Court in Albany in October 2012.  Her Honour, Wager DCJ found that:[4]

   [4] Nelson v Moorcraft [2014] WASCA 212 [61]. (references to paragraphs of judgment omitted at first instance)

   (a)neither Mr Nelson nor Mr Moorcraft had breached the Partnership Deed prior to the dissolution of the partnership by mutual agreement on 15 November 2010;

   (b)the Land Ownership Deed had been discharged by frustration on 15 November 2010 because:

   (i)the Land Ownership Deed was entered into 'on the understanding by the parties that the [deed] would support the partnership in relation to the art studio and the bed and breakfast facility'; and

   (ii)if the Land Ownership Deed was 'to proceed it would be something radically different from that which was undertaken by the [deed]' because the partnership had been dissolved and there was ongoing hostility between the parties; and

   (c)Mr Nelson had not proven that Mr Moorcraft had breached the Land Ownership Deed prior to the deed being discharged by frustration. (footnotes omitted)

4. On appeal, the Court of Appeal found her Honour erred in finding that the Land Ownership Deed had been discharged by frustration but did not find her Honour erred in finding that the partnership was dissolved on 15 November 2010.[5]

   [5] Nelson v Moorcraft [2014] WASCA 212 [120] ‑ [122], [144], [155] ‑ [158] (Buss JA, Newnes JA agreeing); [217] ‑ [219], [227] (Murphy JA).

5. In the judgment of Buss JA, his Honour recited the following background circumstances as found by her Honour as follows:[6]

   [6] Nelson v Moorcraft [2014] WASCA 212 [5] ‑ [14]; it is noted that Mr Nelson in written submissions filed on 17 May 2020 takes issue with many of these facts found by the District Court and recited by Buss JA in this passage. However, as there was no dispute in the appeal in respect of these findings of fact it may now not be open to Mr Nelson to invite this court to make any findings of fact in CIV 2266 of 2015 that are inconsistent with these findings. This issue, however, need not be determined by the court in determining whether the actions should be tried together.

   In 2008 Mr Nelson and Mr Moorcraft became friends.  At the time neither of them was in full‑time employment.  Each was in receipt of a disability support pension.  Mr Nelson suffered from stress and physical health issues.  Mr Moorcraft suffered from depression.  Mr Nelson had been a senior art teacher at TAFE.  Mr Moorcraft had been a fashion retailer.

   Mr Moorcraft owned a large Tudor‑style house in Albany.  It was on a 10‑acre block.  The address was 141 Robinson Road, Albany.  Mr Moorcraft lived alone.  In these reasons I will refer to the land and fixed improvements at 141 Robinson Road as 'the Property'.

   Mr Nelson also lived in Albany.  He was no longer employed as an art teacher but wanted to create his own art school.

   Soon after becoming friends, Mr Nelson approached Mr Moorcraft about converting the Tudor-style house into a bed and breakfast facility to be called Moorcraft House.  Mr Nelson's idea was that they would operate the business in partnership.  He also proposed building an art studio on the Property.  Mr Nelson envisaged that he would have exclusive use of the art studio and his students would attend the bed and breakfast facility for morning tea.  He also envisaged that students and tourists would be encouraged to stay in the bed and breakfast accommodation and take advantage of the art studio and on‑site tuition.

   Mr Nelson and Mr Moorcraft agreed that Mr Nelson would pay for the construction of the art studio and would purchase an undivided one‑fourth share in the Property from Mr Moorcraft in return for the payment of an agreed sum.

   On 3 September 2009, Mr Nelson and Mr Moorcraft executed the Partnership Deed and the Land Ownership Deed.

   The large Tudor‑style house was then renovated, bed and breakfast furniture and fittings were purchased and two bedrooms were prepared for guests.

   Mr Nelson paid $40,000 to Mr Moorcraft.  Mr Nelson also paid the costs associated with the partial construction of an art studio, in very close proximity to the house, on the Property.

   In late 2010 the relationship between Mr Nelson and Mr Moorcraft broke down irretrievably.  They could no longer work together and they had different views about the future of the bed and breakfast facility, the partially constructed art studio and their obligations under the deeds.

   By letter dated 15 November 2010, Mr Moorcraft informed Mr Nelson that the partnership between them was dissolved.

6. Except for the order made at first instance by her Honour declaring that the Partnership Deed was dissolved on 15 November 2010, and the order that the parties were each entitled to 50% of the sum as may be found due on the taking of accounts of the Partnership assets and liabilities, relevantly the Court of Appeal set aside the following orders made at first instance:[7]

   (a)dismissing Mr Nelson's claim and upholding Mr Moorcraft's counterclaim; and

   (b)declaring that the Land Ownership Deed was void.

   [7] Nelson v Moorcraft [2014] WASCA 212 [63]; Nelson v Moorcraft [2014] WASCA 212 (S) [1].

7. The Court of Appeal remitted the matter to a trial judge (of the District Court) for further hearing and findings to be made in relation to the alleged breach of the Land Ownership Deed by Mr Moorcraft by effectively evicting Mr Nelson from the property at 141 Robinson Road, Albany and, if the breach occurred, to assess any damages payable by Mr Moorcraft to Mr Nelson.[8]

   [8] Nelson v Moorcraft [2014] WASCA 212 [166] ‑ [167] (Buss JA, Newnes JA & Murphy JA agreeing)

8. In making these orders, the Court of Appeal was not in a position to make orders to dispose of the disputes between Mr Nelson and Mr Moorcraft because there were disputes between the parties that were not properly pleaded or litigated in the District Court and were not the subject of a ground of appeal.[9]

   [9] Nelson v Moorcraft [2014] WASCA 212 [185] (Buss JA, Newnes JA agreeing).

9. Buss JA in his judgment took the unusual course of making the following observations and recommendations as to how the remaining disputes between Mr Nelson and Mr Moorcraft in respect of the Land Ownership Claim should be resolved:[10]

   [10] Nelson v Moorcraft [2014] WASCA 212 [182] ‑ [190] (Newnes JA agreeing).

   It scarcely needs to be said that the Partnership Deed and the Land Ownership Deed were badly drafted and that the parties have failed to identify and pursue the appropriate legal avenues for resolving their disputes.

   The relationship between the parties and the transaction they agreed upon have given rise to a personal, commercial and litigious nightmare.

   No doubt, each of the parties wishes to sever completely his relationship with the other, including the relationship created under the Land Ownership Deed.

   It is not in the interests of justice or otherwise appropriate for this court to endeavour, on appeal, to resolve disputes between the parties that were not properly pleaded or litigated at the trial and were not the subject of a ground of appeal.  Any attempt to adopt that course would involve this court acting, in part, as a trial court and would be likely to result, at best, in a piecemeal solution of some, but not all, of the controversies.

   The trial judge found that Mr Nelson had not paid the $85,000.  It is not apparent whether, since the trial, Mr Nelson has sought to pay or tender that amount, together with interest, to Mr Moorcraft.  As I have mentioned, Mr Nelson's contractual right and obligation to acquire an undivided one‑fourth share in the Property was upon and subject to the provisions of the Land Ownership Deed and subject, in particular, to his paying and applying the $175,000 in the manner I have described.  Also, as I have mentioned, before Mr Nelson acquires an undivided one‑fourth share in the Property, the part of the $175,000 which Mr Nelson has paid or applied, in accordance with Item 5 of the Schedule to the Partnership Deed or Item 4 of the Schedule to the Land Ownership Deed, will be secured by an equitable lien on Mr Moorcraft's estate and interest in the Property.

   Other matters that are not apparent include, for example:

   (a)whether, since the trial, Mr Nelson or Mr Moorcraft has breached any of the provisions of the Land Ownership Deed;

   (b)whether, since the trial, Mr Nelson or Mr Moorcraft has acquired a right to terminate the Land Ownership Deed or has purported to terminate the deed;

   (c)whether, since the trial, there has been any material change to the amount secured by the mortgage over the Property; and

   (d)whether, since the trial, there have been any material amendments to the state of the title to the Property.

   I hope that, with the assistance of this court's reasons, the parties will be able to resolve their disputes by negotiation and compromise.

   If the parties cannot resolve their disputes by negotiation and compromise then, subject to any facts, events or circumstances which have occurred since the trial and which are not apparent from the appeal books (including those matters I have mentioned at [186] ‑ [187] above), the appropriate course would appear to be as follows:

   (a)If Mr Nelson decides to commence proceedings against Mr Moorcraft for:

   (i)a declaration as to any ownership interest, security interest or other claim that Mr Nelson has or may have in or in respect of the Property;

   (ii)(if Mr Nelson has acquired an ownership interest in the Property) an order under s 126 of the Property Law Act 1969 (WA) for an order for partition or sale in lieu of partition of the Property and consequential orders, including, if the court directs a sale, the manner in which the proceeds are to be distributed;

   (iii)(if Mr Nelson has not acquired an ownership interest in the Property) an order for the enforcement of Mr Nelson's equitable lien on Mr Moorcraft's estate and interest in the Property which secures the part of the $175,000 that Mr Nelson has paid or applied;

   (iv)equitable compensation or damages, as appropriate, for any and all alleged breaches by Mr Moorcraft of the Land Ownership Deed, and for any and all alleged breaches of duty, to the extent that those matters are not raised in the District Court proceedings which are to be remitted to the trial judge; and

   (v)further or other relief including interest,

   those proceedings should be commenced in the General Division of the Supreme Court.

   (b)If Mr Nelson commences proceedings against Mr Moorcraft in the General Division of the Supreme Court then Mr Moorcraft may counterclaim for relief on any causes of action he allegedly has against Mr Nelson.

   (c)If Mr Nelson commences proceedings in the General Division of the Supreme Court against Mr Moorcraft then an application should be made for the District Court proceedings which are to be remitted to the trial judge to be transferred to the General Division of the Supreme Court so that all outstanding disputes between the parties may be heard and determined together. See s 76 of the District Court of Western Australia Act 1969 (WA).

   I would not ordinarily suggest a course of action for the parties to an appeal but I consider this case to be exceptional.  There is a real risk, given the badly drafted deeds and the history of the personal, commercial and litigious dealings between the parties, and bearing in mind that Mr Nelson has been self‑represented for most of the litigation, that, absent some guidance from this court, a satisfactory resolution of the disputes between the parties may not readily be achieved.

10. Following the judgment of the Court of Appeal, Mr Nelson commenced proceedings in this court in CIV 2266 of 2015 against Mr Moorcraft and in CIV 2404 of 2015 against Mr Thompson, and the remitted matter in the District Court was transferred to the Supreme Court and consolidated with CIV 2266 of 2015.

11. It should be noted that Mr Moorcraft has not sought to pursue a counterclaim against Mr Nelson in CIV 2266 of 2015.[11]

    [11] CIV 2266 of 2015; substituted defence filed 20 September 2019.

Legal principles ‑ whether actions should be tried together

1. Mr Thompson does not seek orders that the actions in CIV 2266 of 2015 and CIV 2404 of 2015 be consolidated but instead seeks orders that the actions be tried together.

2. The basis of the court's power to make orders to try two or more actions together was considered by Allanson J in Moondancer Holdings Pty Ltd v Navarac Pty Ltd.[12]  In that matter his Honour observed:[13]

   Order 83 of the Rules of the Supreme Court 1971 (WA) provides for consolidation of actions but does not expressly provide, as an alternative to consolidation, for an order that the actions be heard together. But it is not in contest that the court has the power to make such an order as part of its power to regulate its own procedures: see, for example, Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 [65]; but see Cameron v McBain [1948] VLR 245, 248.

   Further, the court is now expressly given power under O 4A r 2 to make any procedural direction that in its opinion it is just to make in a case to facilitate the attainment of the objectives of case management set out in O 1 r 4B. The order sought is within that power.

   What principles should guide the exercise of the court's discretion? Generally, the court must adopt a pragmatic approach. Everything depends upon the facts of the particular case. But as the order sought is one relating to case management, the court must have regard to O 1 r 4A and r 4B, and follow the course that best ensures the attainment of the objects set out in those rules.

   [12] Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250.

   [13] Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [3] ‑ [5].

3. In considering whether to make an order for two or more actions to be heard together and the evidence given in one proceeding be treated as evidence in the other proceeding or proceedings, Allanson J applied the factors that are taken into account on an application for a consolidation order.

4. The factors to be taken into account by the court in whether considering to make orders for consolidation pursuant to O 83 of the Rulesof the Supreme Court 1971 (WA) (the Rules) were set out by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd:[14]

   [14] Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75 [77] ‑ [81].

   There is no presumption against consolidation:  A Goninan & Company Ltd v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956 at [22]. Although made in the context of the differently worded NSW rule about consolidation, Austin J's observation applies equally to the WA rules.

   Each case depends on its own facts and circumstances, Cameron v McBain [1948] VLR 245 at 247; A Goninan & Company Ltd v Atlas Steels (Australia) Pty Ltd (at [22]); Saker v Creative Land Management Pty Ltd [2000] WASC 44 at [2].

   Austin J said of the NSW rule that it is to be construed as a flexible rule of convenience in the administration [of] justice, suggesting that the court has the power to do what is necessary and appropriate to permit effective consolidation with a view to final determination of the real issues between the parties, with justice to all concerned:  A Goninan & Company Ltd v Atlas Steels (Australia) Pty Ltd (at [42]).

   In Cameron v McBain (at 247) Herring CJ said that broadly the question on a consolidation application is whether in all the circumstances it is convenient, having regard to avoiding multiplicity of actions and to saving time and expense.

   Among the matters that may be relevant to the exercise of discretion regarding consolidation are:

   (1)whether it is convenient to consolidate the actions, including whether it will prevent multiplicity of actions and ensure savings of time and cost;

   (2)whether there are common questions of law or fact or a common transaction or series of transactions;

   (3)whether consolidation will cause prejudice or unfairness to any parties;

   (4)whether consolidation will be conducive to a just resolution of the issues; and

   (5)whether there are any practical matters which may make it inexpedient to consolidate:

1. In Sino Iron Pty Ltd v Mineralogy Pty Ltd[15] the Court of Appeal applied with approval the observations made by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd and went on to add that the application of O 83 is to be construed and applied by regard to O 1 r 4B of the Rules:[16]

   The observations of Nourse LJ (Woolf LJ & Fox LJ agreeing) in Arab Monetary Fund v Hashim (No 4), albeit directed to the relevant English rule, are also pertinent.  His Lordship said that the rule permitting consolidation 'ought to be broadly construed', and that 'it is not the leaning of our courts to restrict procedural powers which may be useful to them unless the wording of the rules or the interests of justice require it'.

   Further, O 83 must be construed and applied so as 'best to ensure the attainment' of (amongst other things) (1) promoting the just determination of litigation, (2) disposing efficiently of the court's business, (3) maximising the efficient use of available judicial and administrative resources, and (4) facilitating the timely disposal of business.

   [15] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [408].

   [16] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [409] ‑ [410]. (footnotes omitted)

Consideration of the matters raised by the parties in their written submissions

1. Mr Nelson, in his written submissions filed on 7 April 2020, points out that the actions plead different causes of action.  In CIV 2266 of 2015, Mr Nelson makes a claim against Mr Moorcraft for breach of contract, and in CIV 2404 of 2015, Mr Nelson's claim against Mr Thompson is in tort, which claim concerns the performance of the legal services that produced the Partnership Deed and the Land Ownership Deed.

2. Mr Nelson opposes the orders sought by Mr Thompson on grounds that:

   (a)there is no overlap of the issues to be determined in each action;

   (b)Mr Thompson has a vested interest in CIV 2266 of 2015 due to the threat of Mr Moorcraft bringing a separate action against Mr Thompson, and on this basis Mr Thompson should not have access to the documents filed in CIV 2266 of 2015;

   (c)the action against Mr Thompson in CIV 2404 of 2015 should be tried before CIV 2266 of 2015 so that an assessment of damages in the action against Mr Moorcraft can be offset against damages awarded in the action against Mr Thompson;

   (d)a trial of the actions together would result in further delay as the action against Mr Moorcraft in CIV 2266 of 2015 has been entered for trial but the action against Mr Thompson in CIV 2404 of 2015 has yet to be entered for trial; and

   (e)as both Mr Nelson and Mr Moorcraft are unrepresented and Mr Thompson has legal representation, Mr Nelson will be disadvantaged in the determination of the CIV 2266 of 2015 action as the proceedings in that action should be determined only after hearing two 'equally weighted' self-litigants.

3. Having considered the written submissions filed by Mr Nelson on 7 April 2020, 17 May 2020 and 17 June 2020, I am not persuaded that the contentions that he raises in (a) to (d) are correct.

4. Firstly, Mr Thompson has a legitimate interest in the outcome of the action instituted against Mr Moorcraft.  This interest arises because of the matters pleaded by Mr Nelson and Mr Moorcraft in CIV 2266 of 2015.  In any event, it is highly unlikely that Mr Thompson faces any proceedings against him by Mr Moorcraft, as such proceedings are likely to be, by the passage of time, statute barred.

5. Whilst the causes of action raised by Mr Nelson against Mr Thompson and Mr Moorcraft are different, I do not agree that there is no overlap of the issues pleaded in each action.  As Mr Thompson's written submissions filed on 28 April 2020 point out, Mr Nelson pleads in CIV 2404 of 2015 that Mr Thompson's alleged neglect (by failing to recognise a conflict between Mr Nelson and Mr Moorcraft's interests, their respective needs for independent advice, failing to appropriately advise Mr Nelson and document the terms of the relationship between Mr Nelson and Mr Moorcraft in accordance with Mr Nelson's instructions) caused:

   (a)Mr Moorcraft to initiate action (presumably the action to sever the relationship between the parties) against Mr Nelson as alleged at [18B];[17]

   (b)Mr Moorcraft to initiate a breach of the Land Ownership Deed as alleged at [18B(i)];[18]

   (c)a part of the action of Mr Moorcraft (allegedly) breaching the agreements found in the documents as alleged at [18B(ii)];[19] and

   (d)the business to be open to dissolution when the partnership was unilaterally dissolved as alleged in [18D].[20]

   [17] Further amended statement of claim filed 6 March 2020.

   [18] Further amended statement of claim filed 6 March 2020.

   [19] Further amended statement of claim filed 6 March 2020.

   [20] Further amended statement of claim filed 6 March 2020.

6. As Mr Thompson also points out, the pleas in [18A] to [18D] of the further amended statement of claim in CIV 2404 of 2015 necessarily invoke an assessment of the breakdown of the relationship between Mr Nelson and Mr Moorcraft, which evidence is directly relevant to the issues joined on the pleadings in CIV 2266 of 2015.  In particular, the breaches of the Land Ownership Deed alleged by Mr Nelson, the breakdown of the relationship between Mr Nelson and Mr Moorcraft, and the allegations concerning termination and abandonment of the Land Ownership Deed, pleaded in the further substituted statement of claim and the substituted defence in CIV 2266 of 2015 are relevant to the issues joined on the pleadings in CIV 2404 of 2015.

7. If CIV 2266 of 2015 is tried first and separately from CIV 2404 of 2015, the findings in CIV 2266 of 2015 would not bind Mr Thompson to those findings.  Unless a person is properly joined as a party to a proceeding or properly bound to the outcome, he or she is not bound by the judgment or order of the court.[21]

   [21] Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34, 70.

8. Further, there is a risk of inconsistent findings being made in the two actions because the evidence presented in each preceding may not be the same evidence.

9. Secondly, any damages awarded to Mr Nelson in CIV 2266 of 2015, if the action against Mr Moorcraft is successful, is likely to be relevant to any assessment of Mr Thompson's monetary liability, if any, to Mr Nelson in CIV 2404 of 2015.  That is, in the absence of any findings of damage in CIV 2266 of 2015, it may be very difficult to assess the extent of any damage in CIV 2404 of 2015.

10. When all of these matters are considered, I am satisfied that it will be convenient, efficient and promote the just determination of the litigation in both actions to hear the two actions together because there are common questions of fact and common transactions.  If the orders sought by Mr Thompson are made, the orders will ensure that all the parties in both actions are bound by the outcome and orders finally made by the court to dispose of both of the actions.

11. I do not accept that Mr Nelson will be disadvantaged if there is a single trial involving two self‑represented litigants and one litigant with legal representation.  To the contrary, the court is more likely to be assisted in such circumstances where at least one party is legally represented.

12. I do not accept that the trial of the actions together would result in an unnecessary delay, as no cogent reason has been put forward as to why CIV 2404 of 2015 could not be progressed quickly to trial.

13. For these reasons, orders will be made that the trial of the action in CIV 2404 of 2015 be heard at the same time as the trial of the action in CIV 2266 of 2015, and the evidence given in each proceeding be evidence in both actions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NM
Research Orderly to the Honourable Justice Smith

9 JULY 2020

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: NELSON -v- THOMPSON [2020] WASC 261 (S)

CORAM:   SMITH J

HEARD:   ON THE PAPERS

DELIVERED          :   1 OCTOBER 2020

FILE NO/S:   CIV 2404 of 2015

BETWEEN:   PETER STANLEY NELSON

Plaintiff

AND

JARROD THOMPSON

Defendant

FILE NO/S:   CIV 2266 of 2015

BETWEEN:   PETER STANLEY NELSON

Plaintiff

AND

PETER MOORCRAFT

Defendant

Catchwords:

Practice and procedure - Costs - Successful party entitled to order for costs - Turns on own facts

Legislation:

Nil

Result:

Plaintiff to pay defendant's costs of the application

Category:    B

Representation:

CIV 2404 of 2015

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	Popperwell & Co

CIV 2266 of 2015

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
Defendant	:	In person

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

Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Perpetual Nominees Ltd [2014] WASC 352 (S)

Nelson v Thompson [2020] WASC 261

Stanich v Bankwest a Division of Commonwealth Bank of Australia [2019] WASC 357 (S)

SMITH J:

1. By consent, on 31 January 2019, case management orders were made that CIV 2404 of 2015 be case managed together with CIV 2266 of 2015.  At the time the orders were made, the plaintiff in both actions, Peter Stanley Nelson, was legally represented.

2. On 18 December 2019, Mr Nelson filed a notice of change of representation stating that he intended to act in person.

3. Prior to a case management directions hearing for both actions on 26 March 2020, Mr Nelson filed minutes of proposed orders in CIV 2404 of 2015 and CIV 2266 of 2015 seeking orders that CIV 2404 of 2015 be case managed separately from CIV 2266 of 2015. 

4. The defendant in CIV 2404 of 2015, Jarrod Thompson, appeared at the directions hearing on 26 March 2020, by counsel, and sought orders that:

   (a)CIV 2404 of 2015 be tried at the same time as CIV 2266 of 2015; and

   (b)the evidence led at the trial in CIV 2404 of 2015 be evidence in CIV 2266 of 2015 and any evidence in CIV 2266 of 2015 be evidence in CIV 2404 of 2015.

5. Mr Nelson opposed the orders sought by Mr Thompson.  Mr Moorcraft, the defendant in CIV 2266 of 2015, opposed the orders sought by Mr Nelson, and consented to the orders sought by Mr Thompson. 

6. Mr Nelson and Mr Thompson filed written submissions and the applications for orders were determined on the papers.  On 9 July 2020, reasons were published, granting the orders sought by Mr Thompson (and refusing the orders sought by Mr Nelson).[22]

   [22] Nelson v Thompson [2020] WASC 261.

7. The costs of interlocutory proceedings are in the discretion of the court. 

8. The usual rule is that a successful party is entitled to be paid his or her costs by the unsuccessful party following a contested interlocutory application. 

9. In Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Perpetual Nominees Ltd, Le Miere J explained the rationale for this rule:[23]

   This is ordinarily a just outcome because a party who turns out to have given the applicant cause to have recourse to the court to enforce the rules or procedure of the court or to have unjustifiably resisted the application should be required to recompense the applicant for his costs.

   …

   A successful party may be deprived of his costs in some circumstances.  A court may deny costs to a successful party who has 'done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense':  Ritter v Godfrey [1920] 2 KB 47, 60 (Atkin LJ).

   [23] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Perpetual Nominees Ltd [2014] WASC 352 (S) [12] ‑ [13].

10. I am satisfied that Mr Thompson should have his costs of the application.

11. The fact that Mr Nelson is a litigant in person who is not legally qualified, or that at least one of the points put forward by Mr Nelson in his written submissions were not hopelessly misconceived,[24] is not a reason why the usual rule as to costs should be departed from. 

    [24] The point raised by Mr Nelson that the causes of action pleaded in CIV 2266 of 2015 against Mr Moorcraft (in contract) is different to the cause of action pleaded against Mr Thompson in CIV 2404 of 2015 was a point that required serious consideration by the court, but the point was not sufficiently persuasive in favour of an order of Mr Nelson when all the facts and circumstances were considered.

12. Mr Thompson seeks an order that Mr Nelson pay his costs fixed in the sum of $1,683.00, in any event.  Although Practice Direction at 4.7.1(7) provides that 'the Court will generally order that interlocutory costs ordered to be paid by a party are to be paid forthwith or by a particular date, rather than in any event', Mr Thompson does not seek such an order.

13. Allanson J recently referred to the principles of the fixing of costs, in particular, the principle that when fixing a particular amount of costs, the court must be satisfied that the amount be fair and reasonable:[25]

    The principles to be applied in fixing costs were stated by Newnes JA in Brookvista Pty Ltd v Meloni

    '… It was not in issue that when a costs order is made, the court may fix the amount of the costs payable rather than order that they be taxed.  The purpose of fixing costs is to avoid the expense and delay involved in taxation.  Consistent with that objective, in fixing the sum the court will not subject the costs to the detailed scrutiny often applied in taxation of costs.  It is appropriate instead to apply a "much broader brush" than would be applied on a taxation:  see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788 [197] ‑ [200]; Hadid v Lenfest Communications Inc [2000] FCA 628 [35].'

    But in fixing the amount of the costs, the approach of the court should be 'logical, fair and reasonable':  see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123; Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 [8]. And the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum: see Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 [22].

    [25] Stanich v Bankwest a Division of Commonwealth Bank of Australia [2019] WASC 357 (S) [11].

14. Mr Thompson's claim for costs is limited to the preparation of submissions.  The first set of submissions filed and served on behalf of Mr Thompson on 28 April 2020 were prepared by Mr Popperwell, a senior practitioner, who limited the claim for costs for the preparation of the submissions to 4 hours (being seven pages) being an amount of $1,540.  The second set of submissions were filed and served on 11 September 2020 were prepared on behalf of Mr Thompson by a senior practitioner, who limited the claim for costs for the preparation of these brief submissions (being one and a half pages) to 30 minutes, being an amount of $143.

15. Having regard to the fact that Mr Nelson is a self-represented litigant, and to Item 2.10 of the Schedule of Standard Costs Orders for Interlocutory Applications in Practice Direction 4.7.1.1, I am of the opinion that an amount of $1,500 of costs is a fair and reasonable amount.

16. For these reasons, I have made an order that Mr Nelson pay Mr Thompson's costs of the application (that CIV 2404 of 2015 be tried at the same time as CIV 2266 of 2015) fixed in the sum of $1,500 and payable in any event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NM
Research Orderly to the Honourable Justice Smith

1 OCTOBER 2020