Papotto v Atlas
[2013] WADC 4
•11 JANUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PAPOTTO -v- ATLAS [2013] WADC 4
CORAM: REGISTRAR KINGSLEY
HEARD: 15 NOVEMBER 2012
DELIVERED : 11 JANUARY 2013
FILE NO/S: CIV 3815 of 2010
BETWEEN: SALVATORE PAPOTTO
Plaintiff
AND
HASAN ATAMAN ATLAS
Defendant
Catchwords:
Practice - Application to have an order extending the validity of a writ set aside - Alternatively, to set aside service of the writ - Application based on material non disclosure
Legislation:
Nil
Result:
Material non disclosure found - In exercise of discretion application dismissed
Representation:
Counsel:
Plaintiff: Mr B Ashdown
Defendant: Mr S Popperwell
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Pynt & Partners
Case(s) referred to in judgment(s):
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
REGISTRAR KINGSLEY: On 9 December 2011 I extended the validity of the writ of summons filed 8 December 2010 to 9 June 2012. By an application filed 29 May 2012, the defendant seeks to have my order set aside and that, further or alternatively, service of the writ of summons be set aside.
The Ex‑parte O 7 r 1 RSC application
On 10 December 2010 by an endorsed claim, the plaintiff (Papotto) brought proceedings against the defendant (Atlas) his former solicitor, alleging a breach of the contractual tortuous and fiduciary duties owed by Atlas to Papotto. The indorsement states that in January 2005, Atlas failed to act on Papotto's instructions to make an application for bail pending the hearing of Papotto's appeal. Further when the appeal came on before the Court of Appeal in May 2005, the court determined that the appeal books were not in a satisfactory state to proceed with the application.
The hearing of Papotto's appeal was delayed from May 2005 until November 2005 when, on 1 November 2005, the Court of Appeal quashed Papotto's convictions, with the result that Papotto was immediately released from custody. Papotto alleges that the conduct of Atlas caused him to remain in custody unnecessarily for a period of approximately seven months and he claims damages.
The O 7 r 1 application was supported by an affidavit sworn by Karina Louise Hafford sworn 6 December 2011 (Hafford's first affidavit). The first three paragraphs provide a brief pre‑amble. Paragraph 4, Ms Hafford deposes that Atlas forwarded the claim of Papotto against him to his professional indemnity insurer, Law Mutual. I am not told when that occurred.
At par 5, Hafford deposes that Slater and Gordon (the firm Papotto has now instructed) have been in communication with Law Mutual in relation to the potential resolution of the plaintiff's claim against the defendant. However, the claim has not as yet been capable of reaching an informal resolution. At par 6, Hafford deposes she wrote to Law Mutual seeking confirmation that service of the writ of summons would be accepted. At par 7 Hafford deposes that on 1 December 2011, Law Mutual advised in writing that they were unable to obtain Atlas' instructions and were therefore unable to accept service on behalf of the defendant.
At par 8 of Hafford's first affidavit, she deposes that she conducted various internet searches to locate Atlas. She understood he is no longer on the role of practitioner of Western Australia and his business, Atlas Legal, is no longer in operation.
At par 9 Hafford deposes that her assistant conducted White Pages and Certificate of Title searches in an attempt to locate Atlas so that service could be affected.
Ms Hafford deposes in a second affidavit sworn 9 December 2011 (the second Hafford affidavit) that on 7 December 2011 she had located a listing for Atlas Legal on the internet and par 4, having telephoned the number in the listings, spoke with a man who identified himself as Atlas.
Hafford goes on to depose at par 5 that Atlas advised he was now a resident in Victoria and he confirmed that the defence of this claim was being handled by Law Mutual. Hafford deposes that Atlas requested that Hafford contact Law Mututal to ask that they accept service, or that Hafford provide his contact details to Law Mutual so that they could make contact with him.
On 7 December 2011, Hafford spoke to Ms Durack, an officer of Law Mutual, and confirmed that discussion in a letter dated 7 December 2011 (annexed and marked KLH-1 to Hafford's second affidavit). At par 8 of Hafford's second affidavit, Hafford deposes that her legal assistant advised that she telephoned Law Mutual on 9 December 2011 to determine whether Law Mutual had instructions to accept service of the writ but was unable to make contact with Ms Durack.
Having regards to the evidence contained in the two Hafford affidavits, I determined that the time for service of the ex‑parte application be abridged, and that the validity of the writ of summons be extended to 9 June 2012.
The defendant's application to set aside service of the writ or alternatively the order extending the validity of the writ of summons
Atlas through his solicitors entered a conditional appearance on 16 May 2012 and brought the application on 29 May 2012. On 15 June 2012 orders were made in relation to Atlas filing and serving an affidavit in support of the application with Papotto filing and serving any responsive affidavit thereafter.
In support of the application to set aside the order, Atlas filed and served an affidavit sworn 20 June 2012. The early paragraphs of his affidavit detail the background and events leading to the alleged cause of Papotto. Atlas deposes that he ceased practicing as a legal practitioner in Western Australia in June 2007 and that he relocated in August 2007 to Canberra, and then in October 2009 from Canberra to Victoria.
Atlas at par 14 deposes that in April 2010 he commenced practising as a legal practitioner in the style Atlas Legal from a home office at 17 Limpopa Square, Roxburgh Park. Atlas goes on to depose that he has continued to practice in the style of Atlas Legal, although he has relocated his office. As a result of undertaking his own internet searches through the search engine Google, his full name and his firm name were identified.
Atlas deposes at par 17 that Ms Anne Durack of Law Mutual told him, though he does not depose to when this conversation was held, she had the following communications with Slater and Gordon prior to 7 December 2011:
(a)a letter and copy letter addressed to Atlas in Canberra dated 15 September 2008 from Slater and Gordon to Law Mutual dated 25 February 2010;
(b)the letter from Ms Durack on behalf of Law Mutual sent Slater and Gordon dated 9 April 2010;
(c)a letter marked 'without prejudice' save as to costs received from Slater and Gordon dated 22 November 2011;
(d)a letter Ms Durack sent Slater and Gordon dated 1 December 2011; and
(e)a letter from Slater and Gordon to Law Mutual dated 2 December 2011.
Atlas deposes that he did not receive the letter dated 15 September 2008 from Slater and Gordon to him. At par 19, Atlas deposes that on 7 December 2011 he received a telephone call from Ms Hafford and in the course of that conversation, he told Ms Hafford that he resided in Victoria and, at par 20, he heard nothing more until 6 May 2012 when he was personally served with the writ of summons by a process server.
Papotto filed and served an affidavit sworn 13 November 2012 (Papotto's affidavit). Three paragraphs of the affidavit were subject to objection by the defendant's counsel and, ultimately, the objections were allowed. The offending word in par 4 and the sentences in par 7 and 16.3 were struck out.
In par 2 of Papotto's affidavit he deposes that he engaged Slater and Gordon to act on his behalf in October 2007. His instructions were that the claim was to be proceeded with without delay. At par 3 Papotto deposes that Slater and Gordon acted for him from October 2007 until September 2012. At par 5 Papotto deposes that on 10 June 2008 Slater and Gordon asked him if he could make enquires to see if he could locate Atlas. Papotto deposes that on 17 July 2008 his initial enquiries had not been successful but he was then advised by Slater and Gordon, he believes in July 2008, that they had located Atlas residing in the ACT.
At par 7 of his affidavit, Papotto deposes as to his belief that it was as a consequence of Slater and Gordon locating Atlas in July 2008 that the letter dated 15 September 2008 was forwarded to Atlas. Papotto deposes in par 10 that in late 2010 he was advised by Slater and Gordon that a writ of summons should be filed to protect his claim even though Slater and Gordon reassured him that it remained likely his claim could be resolved by direct negotiations with Law Mutual (Atlas' Insurer). Papotto deposes that he confirmed instructions to lodge the writ and serve it.
At par 11 of his affidavit, Papotto deposes that it was his understanding the writ would be lodged and served while settlement discussions proceeded with Law Mutual.
An ex-parte application
It is the duty of a party seeking an ex‑parte order to bring to the notice of the court all facts material to the determination of their right to an order. Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 682 is authority for the proposition that utmost good faith is required, and that the party inducing the court to act in the absence of the other party fails in their obligation unless they supply in place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in their defence to the application. This enables a court to make an informed decision in the absence of a party.
Thomas A Edison is also authority for the proposition that unless there has been full disclosure, the implied conditions upon which the court acts in forming its judgment are unfulfilled, and the order so obtained must invariably fail. However, if there has been no deliberate lack of candour and the matter which is not disclosed is not of a major character overall and was omitted in circumstances in which an extensive instruction has necessarily been taken in haste, the ex‑parte order will not necessarily be set aside: Westwind AirCharter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 88.
In Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, the Full Court stated that even in the face of material non‑disclosure, the court retained a discretion. The Full Court in Bell Group commented that it was very difficult to give a general definition of the extent of disclosure required because each case depended so much on its own facts. However, there are some guiding principles (see Brink's Mat Ltd v Elcombe (1998) 1 WLR 1350) which includes the conduct of the plaintiff, the importance of the undisclosed facts, the prejudice that may be caused by granting or refusing release and the public policy inherent in the rule requiring candour.
The distinct impression in each of the Hafford affidavits
The clear impression given in the Hafford affidavits is that Papotto instructed Slater and Gordon early in 2010. In the context of par 5, 6 and 7 of Hafford's second affidavit, the impression is that it is late 2011 when Slater and Gordon on behalf of Papotto are seeking to try and negotiate a resolution of the plaintiff's claim.
Further, none of the Hafford affidavits explain why an application for an extension of time was not made timeously and there would appear to be a deliberate decision made to postpone service of the writ. In my opinion, the most cursory of internet enquiry through a Google search engine would have disclosed the defendant's whereabouts.
In my opinion the information put before me by the two Hafford affidavits was misleading and as a result of that misleading information, I made the orders as sought.
Has there been material of non‑disclosure
In my opinion there has been material non‑disclosure. At no point in the two Hafford affidavits was I informed that Papotto engaged Slater and Gordon to act on his behalf in October 2007. I was not informed that in June 2008 Slater and Gordon asked Papotto to make enquiries to see if he could locate the defendant, nor was I informed that in Papotto's belief, Slater and Gordon had located the defendant residing in ACT in July 2008. Had I been informed of this information it is likely the orders would not have been made.
The exercise of the discretion
Whilst I have found there has been material non‑disclosure, there remains a discretion whether or not to discharge the orders made on account of the non‑disclosure. The discretion is broad and it is open to me to discharge the orders or renew the orders notwithstanding the non‑disclosure: Parola v Parola [2009] WASC 190, 45. Brinks is authority for the proposition that in the face of material non‑disclosure, the court can take into account a number of factors including, the conduct of the plaintiff, the importance of the undisclosed facts, the prejudice that may be caused by granting or refusing relief, and the public policy inherent in the rule requiring candour.
The conduct of Papotto has not brought about the non‑disclosure. Papotto deposes that he instructed Slater and Gordon to proceed with the claim without delay. Papotto deposes that he naïvely thought, as a large national law firm, that Slater and Gordon would pursue his case as fast as they reasonably could. Papotto could be criticised in not pressing Slater and Gordon as the years started to pass.
The importance of the undisclosed facts goes to the nature of an ex‑parte application: that it is an application in good faith and therefore requires the fullest disclosure. In this matter the undisclosed facts go to the fact that Slater and Gordon did not follow Papotto's instructions and conducted his action, at a leisurely pace, to the point when the limitation period was about to expire. It was only, I suspect, the realisation of the pending expiry of the limitation period that there was a flurry of activity.
The prejudice to Papotto in refusing the order is that this action can be dismissed. Papotto is then left to bring a fresh action some six years after the cause. There have been preliminary negotiations on behalf of Papotto which had reached a stage where Law Mutual requested a schedule of damages for the purposes of negotiation. All that work will now be lost. The prejudice to the defendant is to have a professional negligence claim on foot for, in modern times, an inordinate time.
Conclusion
I have determined that the orders made not be discharged. Whilst Papotto could be criticised for not pressing Slater and Gordon, there is nothing in Papotto's conduct that lead to the material non‑disclosure. In my opinion the greater prejudice in a discharge of the orders would fall on Papotto. Papotto would have to initiate fresh proceedings thereby causing greater delay, and increased uncertainty as to the outcome.
I have considered the importance of the undisclosed material and the public policy requirement of candour. I am of the opinion they are a separate issue and can be dealt with separately.
Accordingly, the defendant's application is dismissed.
Consequences of the material non‑disclosure
In my opinion the consequences of the material non‑disclosure rest with Ms Hafford. One of the consequences of the non‑disclosure is that I refer my decision to the Legal Practitioners Complaints Committee. However, there may be an innocent explanation as to why I was mislead.
That being the case, the firm Slater and Gordon, through its managing partner to file and serve an affidavit explaining why it was the information about when Papotto engaged the firm, his instructions to file and serve the writ, the delay in attending to those instructions was not disclosed on oath on the application to extend the validity of the writ.
The affidavit is to be filed and served on or before 25 February 2013.
Costs
Whilst the defendant has lost the application, in my opinion the usual order for costs ought not apply. In my opinion the costs on the defendant's application should fall on Slater and Gordon. That is an outcome submitted by Papotto's solicitor.
However, it would be inappropriate to order costs against Slater and Gordon without first giving them an opportunity to be heard. Accordingly, Slater and Gordon through its managing partner is to file and serve an affidavit showing cause why an order for costs, on the plaintiff and defendant's part ought not be made against the firm. That affidavit is to be filed and served on or before 25 February 2013.
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