Odour Elimination Services Pty Ltd and Anor v Duxberry Nominees Pty Ltd and ORS

[2006] WASCA 116

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ODOUR ELIMINATION SERVICES PTY LTD & ANOR -v- DUXBERRY NOMINEES PTY LTD & ORS [2006] WASCA 116

CORAM:   PULLIN JA

HEARD:   19 MAY 2006

DELIVERED          :   19 MAY 2006

FILE NO/S:   CACV 29 of 2006

BETWEEN:   ODOUR ELIMINATION SERVICES PTY LTD

First Appellant

PETER JOSEPH LUCAS
Second Appellant

AND

DUXBERRY NOMINEES PTY LTD
First Respondent

PETER RITCHIE
Second Respondent

WILLIAM GRAY RITCHIE
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :COMMISSIONER ARCHER

Citation  :ODOUR ELIMINATION SERVICES PTY LTD & ANOR -v- DUXBERRY NOMINEES PTY LTD & ORS [2006] WADC 12

File No  :CIV 2350 of 2002

Catchwords:

Practice and procedure - Extension of time

Costs - Solicitor ordered to pay costs

Legislation:

Nil

Result:

Application to extent time in which to file Appellant's Case granted
Application to extend time in which to file Respondent's Answer granted

Category:    B

Representation:

Counsel:

First Appellant               :     Mr K E Yin

Second Appellant          :     Mr K E Yin

First Respondent           :     Mr S R Sirett

Second Respondent      :     Mr S R Sirett

Third Respondent          :     Mr S R Sirett

Solicitors:

First Appellant               :     Galic & Co

Second Appellant          :     Galic & Co

First Respondent           :     Gibson Tovey & Associates

Second Respondent      :     Gibson Tovey & Associates

Third Respondent          :     Gibson Tovey & Associates

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

Nil

Case(s) also cited:

Nil

1. PULLIN JA:  This is an appeal against the judgment of Archer C in the District Court dated 10 February 2006, whereby she dismissed the plaintiff's claim and awarded judgment to the first defendant in a sum in excess of $50,000 on the counterclaim, with costs.  The plaintiffs appealed by an appeal notice dated 3 March 2006.  The rules then required the filing of the Appellant's Case within 35 days.  It was not filed within time and, on 20 April, the respondents filed an application for dismissal under r 43 because of the failure of the appellant to file their case by 7 April 2006.  The appellant then filed an application to extend time for lodging the Appellant's Case, also dated 20 April.  Both applications are before me.

2. The appellant's application for an extension of time is supported by an affidavit of Mr Galic, the appellant's solicitor, blaming his heavy workload for the failure of his client to comply with the rules.  In that affidavit he said that he anticipated the case was to be filed and served not later than 26 April.  That date came and went without any case being filed and this matter was then listed for hearing with notice on 2 May.  A notice was sent to the parties informing them that the appeal had been called on to consider the following issues:  the respondents' application for dismissal of the appeal for non‑compliance with the rules and the appellants' application for an extension of time to file the Appellants' Case.  The notice also indicated that no written submissions were required in relation to the two applications, save that the appellants' solicitors:

   "… should file and serve any affidavit and submissions they wish to rely on concerning the possibility that if an extension of time is granted the appellants' solicitors should be ordered to pay the respondents' costs of both applications.  Any such affidavit or submissions must be filed and served by 4 pm on 15 May 2006".

3. No such affidavit was filed.  This morning Mr Yin appeared both for the appellants and for Mr Galic, who had instructed Mr Yin to ask for an adjournment to deal with the question of costs and whether or not the solicitors should be ordered to pay the costs.  Mr Yin, in appearing, said that he had an affidavit which had been received from Mr Galic yesterday.  It has not been filed so far as the court records are concerned, and Mr Yin is understandably reluctant to give a personal undertaking to file the affidavit.  Mr Yin tells me that his instructions from Mr Galic are to ask for an extension of time which might permit Mr Galic to appear to make submissions about why he or his firm should not be ordered to pay costs.

4. The affidavit of Alison Frances Gibson filed on behalf of the respondents in this matter indicates that there has been a history of delay through the litigation and, of course, further delay in relation to this appeal.

5. The Appellant's Case was actually filed on 18 May, and I am told by the respondents that there may be complaints about the grounds and that they wish to examine the grounds and consider the possibility of an application to strike some of them out, but they have only had a short time to consider them.  In the normal course their Respondent's Answer would have to be filed within 21 days of the Appellant's Case.

6. In light of what I have set out above, I will make the following orders.  First, I will extend the time for the filing of the Appellant's Case to 18 May 2006.  Secondly, I will extend the time for the respondents to file their case to allow them 28 days to do so.  Thirdly, I will deal with the issue of costs.  Mr Galic has had the opportunity today to make his submissions on the issue of costs, but has failed to file any affidavit by the time ordered, and has failed to file any submissions on the subject.  There is no doubt that the court has power to order that a solicitor should pay costs where the costs have resulted from any improper or unreasonable and negligent act or omission and the court may order a practitioner it considers to be responsible to personally pay the costs in question.

7. Before any order is made, the court must give the practitioner a reasonable opportunity to show cause why the order should not be made and in my view, adequate opportunity has been given.  Mr Galic again seeks to run the case at his own program and to ask for some more time to make those submissions, despite having failed to comply with the order that was made requiring the filing of an affidavit or any submissions.  As a result, I propose to order that the appellants' solicitors pay the respondents' costs of both applications on an indemnity basis, and I also order that the appellants' solicitors do not charge the appellants for any costs in relation to either of the applications or the preparation of affidavits in relation to either application.