Palermo v Tel.Wa Pty Ltd
[2021] WASC 229
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PALERMO -v- TEL.WA PTY LTD [2021] WASC 229
CORAM: REGISTRAR GRIFFIN
HEARD: ON THE PAPERS
DELIVERED : 13 JULY 2021
PUBLISHED : 13 JULY 2021
FILE NO/S: CIV 1425 of 2014
BETWEEN: ANTHONY PALERMO
Plaintiff
AND
TEL.WA PTY LTD
Defendant
Catchwords:
Costs - Matter dismissed for want of prosecution - Application for costs pursuant to O 4 r 28(4) - Whether plaintiff should pay defendant's costs - Whether costs should follow the event - Whether costs should be in the cause of subsequent action
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
The plaintiff is to pay the defendant's costs, to be taxed if not agreed
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| Defendant | : | Jiang Law |
Case(s) referred to in decision(s):
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
REGISTRAR GRIFFIN:
This is the defendant's application that the plaintiff pay its costs in action CIV 1425 of 2014 (2014 Action).
The application is made by way of letter dated 27 August 2020. That is because the 2014 Action was dismissed for want of prosecution by operation of O 4A r 28(1) of the Rules of the Supreme Court 1971 (WA) (RSC) on 4 October 2019. Thus, no documents can be lodged via ECMS.
The parties agreed that this application should be determined on the papers. I made directions for the provision of evidence and submissions. The defendant provided submissions dated 14 June 2021 and an affidavit of John Joseph Palermo sworn 24 March 2021 (Palermo Affidavit). The plaintiff relies upon an affidavit of Kai Huan Tee affirmed 16 April 2021 (Tee Affidavit) and submissions filed on 5 July 2021.
By way of background, it is important to note that the plaintiff has commenced a new action, CIV 1977 of 2020 (2020 Action) which essentially raises the same causes of action against the defendant as the 2014 Action, as well as against two other parties.
Outcome
For the reasons set out below, I grant the defendant's application that the plaintiff pay the defendant's costs of the 2014 Action to be taxed if not agreed.
2014 Action
The 2014 Action was commenced by writ of summons dated 28 March 2014.
The Palermo Affidavit outlines the progress of the 2014 Action:
…
3.I have refreshed my memory of this action by referring to a printout of the Court's eCourt's Portal for this matter…
4.I understand from my solicitors at the time and JP-I that, on around 28 March 2014, this action was commenced by the Plaintiff.
5.Between 28 March 2014 and 21 August 2014:
a)I instructed my solicitors at the time to file various documents in the action on behalf of the Defendant;
b)I understand from my solicitors at the time and JP-I that the Plaintiff filed various documents in the action; and
c)I attended a number of Court hearings together with my solicitors at the time.
6.I understand from my solicitors at the time and JP-I that, between around 22 August 2014 and around 22 December 2016, save for the Defendant filing a Notice of Change of Address for Service and the Plaintiff filing two Notices of Change of Representation, no procedural step was taken in the action.
7.I understand from my solicitors at the time and JP-I that, on around 23 December 2016, the Plaintiff filed an Amended Reply and Defence to Counterclaim.
8.I understand from my solicitors at the time and JP-I that, between 24 December 2016 and 20 March 2019, no procedural step was taken in the action.
9.I understand from my solicitors at the time and JP-I that, on around 20 March 2019, the Court issued a letter to the parties.[1]
10.I understand from my solicitors at the time and JP-I that, between around 21 March 2019 and 4 October 2019, no procedural step was taken in the action.
11.I understand from my solicitors at the time and JP-I that, on around 4 October 2019, the Court issued a letter to the parties.[2]
[1] On 19 March 2019, the Acting Principal Registrar wrote to the parties advising the matter had been placed on the Inactive Cases List.
[2] On 4 October 2019 the Principal Registrar wrote to the parties advising the matter had been dismissed for want of prosecution by operation of O 4A r 28(1) RSC.
Reasons
The plaintiff does not dispute the accuracy of this chronology and submits that 'the controversy is whether a costs order ought be made in favour of the defendant or whether the costs of this action ought be in the cause of the 2020 Action'.[3]
[3] Plaintiff's submissions in opposition to the defendant's application filed 5 July 2021 [4] – [5].
Based upon the chronology, the 2014 Action did not progress beyond close of pleadings.
The chronology shows that there were significant periods of time in which there was no activity at all in the 2014 Action, especially the period of about 2 1/2 years between 24 December 2016 and 20 March 2019. Significantly, after receiving the notification that the matter was on the Inactive Cases List, and liable to dismissal for want of prosecution if it remained there for six continuous months, the plaintiff took no action to remedy that state of affairs. This resulted in the eventual dismissal of the 2014 Action by operation of law.
The defendant applied for its costs on 27 August 2020, pursuant to O 4A r 28(4) of the RSC which allows any party to the case to apply for an order for costs and permits the court to make such an order.
The defendant submits that given costs usually follow the event, that the plaintiff failed to diligently prosecute this matter and the case was dismissed for want of prosecution, that it follows that the defendant is entitled to its costs.[4]
[4] Defendant's submissions in support of the application filed 14 June 2021 [13].
The plaintiff relies upon the Tee Affidavit, which deposes only to the fact that the plaintiff has commenced the 2020 Action, which, at the time of the affidavit, had progressed to the stage of inspection.
The plaintiff submits that an action being dismissed for want of prosecution does not automatically result in a requirement for the plaintiff to pay the defendant's costs, and in support of that proposition notes that O 4A r 28(4) of the RSC allows for applications and the making of costs orders.[5] This is contrasted with the automatic entitlement to costs following discontinuance (O 23 r 3 RSC). It is also noted that the 2014 Action was not decided on its merits and thus the court is 'deprived of the factor that usually determines whether or how it will make a costs order'[6] Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (Lai Qin).[7]
[5] Plaintiff's submissions in opposition to the defendant's application filed 5 July 2021 [7].
[6] Plaintiff's submissions in opposition to the defendant's application filed 5 July 2021 [8].
[7] Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622.
I have considered the Lai Qin decision. It is not authority for the proposition that costs cannot be awarded where there has been no hearing on the merits. His Honour McHugh J observed '[i]n an appropriate case, a court will make an order for costs even where there has been no hearing on the merits and the moving party no longer wishes to proceed with the action'.[8] Of course, in this case, the moving party did not (contrast with 'did not wish to') proceed with the action for reasons which have not been explained.
[8] Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622, 624.
Accordingly, I do not consider that the fact that there has been no decision on the merits a bar to making a costs order in this matter.
The plaintiff submits further that the costs incurred in the 2014 Action will not be wasted, as the issues are the same in the 2020 Action. Thus, it is said, the work product from the 2014 Action will be reproduced in the 2020 Action. The parties have the benefit of that work product in the 2020 Action.[9]
[9] Plaintiff's submissions in opposition to the defendant's application filed 5 July 2021 [10] – [12].
I do not find that argument persuasive. It does not assist me to understand why it is that a party's failure to properly progress a matter should sound in its favour with respect to costs.
I accept that there is no automatic entitlement to costs where a matter is dismissed for want of prosecution; conversely, it is axiomatic that the normal order is that costs follow the event.
There is, and has been, no explanation for the reasons for the delay in the 2014 Action. The 2014 Action did not progress in a timely manner, and certainly not in a way that furthered the court's goal as set out in O 1 r 4A of the RSC of:
[T]he elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
This is not a case where the court is asked to have regard to particular extenuating circumstances which would lead to the conclusion that costs should not follow the event. It is not, for example, the case that the plaintiff was unable to progress the 2014 Action due to matters beyond his control such that it would be in all the circumstances unjust to order that the plaintiff pay the defendant's costs of the 2014 Action. (If that was the case, no evidence in that regard has been placed before me.)
Accordingly, I find that costs should follow the event in the 2014 Action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Associate
13 JULY 2021
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