Papotto v Atlas [No 2]

[2013] WADC 47

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   PAPOTTO -v- ATLAS [No 2] [2013] WADC 47

CORAM:   REGISTRAR KINGSLEY

HEARD:   7 MARCH 2013

DELIVERED          :   9 APRIL 2013

FILE NO/S:   CIV 3815 of 2010

BETWEEN:   SALVATORE  PAPOTTO

Plaintiff

AND

HASAN ATAMAN ATLAS
Defendant

Catchwords:

Practice - Determination of consequences of earlier finding of material non-disclosure - Cost issue on application

Legislation:

Nil

Result:

Costs order made

Representation:

Counsel:

Plaintiff:     In Person

Defendant:     Mr S Popperwell

Solicitors:

Plaintiff:     Not applicable

Defendant:     Denman Popperwell

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

Brinks‑MAT Ltd v Elcombe (1988) 3 AER 188

1. REGISTRAR KINGSLEY: In my reasons for decision dated 11 January 2013 I was of the opinion that there had been material non‑disclosure in relation to an application to extend the validity of a writ. I gave an opportunity to the plaintiff's solicitor, Slater & Gordon, to explain why I was misled in relation to the events leading up to the plaintiff's application to renew the validity of the writ [36]. Mr Grech the managing director of Slater & Gordon Ltd has sworn an affidavit on 25 February 2013 attached to which is a Hafford statement of Karina Hafford, the solicitor who swore the affidavits supporting the plaintiff's application for an extension of the validity of the writ.

2. The plaintiff Mr Papotto has filed an affidavit sworn 1 March 2013 in response to Mr Grech's affidavit.  Whilst that was not ordered I have read the affidavit but am of the opinion it does not add anything more to what is already before me.

3. From Ms Harford's statement it appears that Ms Hafford commenced employment with Slater & Gordon in April 2011.  Her involvement with Mr Papotto's claim commenced in about June 2011.  Ms Hafford enquired of Law Mutual whether Law Mutual would accept service of the writ on behalf of the defendant.

4. By early 2011 Ms Hafford learnt that Law Mutual would not accept service of the writ and the application to extend the liberty of the writ was filed.

5. Ms Hafford states that she could not have disclosed the information required because she was ignorant of it.  This was because Ms Hafford missed a collection of pre‑2010 documents.  Ms Hafford missed these documents because she made two assumptions:

   1.that a manila folder labelled 'Duplicates' contained exactly that - the duplicates of documents already seen by Ms Hafford; and

   2.bearing in mind Ms Hafford had only recently joined the firm Slater & Gordon and that she had obviously familiarised herself with their standard operating procedure she did not believe that the documents the product of the retainer between the plaintiff and Slater & Gordon would be found on a manila folder entitled 'Duplicates'.

6. In addition Ms Hafford had conducted a search of the firm's electronic records concerning the plaintiff's actions.  The electronic documents dated from January 2010.  What Ms Hafford did not know was that documents before January 2010 were stored an alternate drive (as an aside this may be an issue for the firm Slater & Gordon to consider in its induction process of new practitioners and staff).

7. As a consequence Ms Hafford assumed that the plaintiff's engagement was with the firm dated back to January 2010 and Ms Hafford assumed that Slater & Gordon had been retained about that time.  Ms Hafford goes on to say that it was not until she read the affidavit of the defendant sworn 20 June 2012 that she learnt that Slater & Gordon were engaged prior to January 2010.  It was as a result of the defendant's June 2012 affidavit that she discovered that electronic documents generated as a product of the retainer before January 2010 were sometimes stored on an alternate drive.

8. Brinks‑MAT Ltd v Elcombe (1988) 3 AER 188 is one of a long line of authority for the proposition that an ex parte application requires the applicant to make proper enquiries before making the application.  The duty of disclosure requires not only material facts known to the applicant, but additional facts that should have been known had proper enquiry been made.

9. Ms Hafford did attempt to make those enquiries by searching the electronic records of the firm.  However because records were stored on an alternative electronic drive not known to Ms Hafford, her enquiry did not reveal all the retainer documents.

10. Having considered Ms Hafford's statement I am satisfied there is nothing in Ms Harford's conduct that warrants professional censure.  Ms Hafford, being new to the firm Slater & Gordon, relied on its internal procedures when making her enquiries that she had all necessary documents to prosecute Mr Papotto's claim.  I am satisfied that the non‑disclosure by Ms Hafford was through inadvertence and it is not necessary to take that issue any further.

Costs

1. I have been informed by Slater & Gordon by letter dated 25 February 2013 a copy of which appears to have been forwarded to the plaintiff and to the defendant's solicitor that the firm Slater & Gordon do not contest a costs order being made against it.

2. This is an appropriate concession and the appropriate order in the circumstances is that the plaintiff pay the defendant's costs on an indemnity basis and that the firm Slater & Gordon then indemnify the plaintiff as to those costs as found on taxation, or by agreement.