Parker v ACM Group Ltd
[2018] WADC 8
•15 JANUARY 2018
PARKER -v- ACM GROUP LTD [2018] WADC 8
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 8 | |
| Case No: | APP:93/2015 | 11 JANUARY 2018 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 15/01/18 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Objections not upheld | ||
| PDF Version |
| Parties: | ANDREW STEPHEN PARKER ACM GROUP LTD |
Catchwords: | Practice and procedure Objections to taxation Turns on its own facts |
Legislation: | Rules of the Supreme Court 1971 O 66 r 53(1)(a) and (b) |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
ACM GROUP LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BOON
File No : PER/GCLM 3688 of 2013
Catchwords:
Practice and procedure - Objections to taxation - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971 O 66 r 53(1)(a) and (b)
Result:
Objections not upheld
Representation:
Counsel:
Appellant : In Person
Respondent : Mr A Prentice
Solicitors:
Appellant : Not applicable
Respondent : Mossensons
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HEWITT: In this matter the appellant commenced an appeal by a notice dated 2 July 2015. The matter proceeded through various stages and by notice filed on 6 December (but dated 22 November 2016) the appellant purported to discontinue the appeal.
2 The matter came before Judge Stewart on 6 December 2016 that being a date fixed for a directions hearing at which the appellant was given leave to appear by audio-link. The judge ordered that the appeal be discontinued and that the appellant pay the respondent's costs of appeal and the application for leave to appeal to be taxed if not agreed. Pursuant to that order the respondent filed a bill of costs for taxation returnable on 16 November 2016. The document appeared to have been filed on 19 October 2017. There then followed a series of emails from the appellant objecting to the listing and seeking an adjournment of the date on various grounds. Notwithstanding the submissions by the appellant the taxation was listed and did proceed on the relevant day. As a consequence of that the appellant filed notices of objection to the bill of costs which are dated 15 November but filed on 16 November and it is those objections with which I am require to deal. The notice of objection filed is as follows:
Reasons for Objection
1. The Respondent is not the successful party in the Appeal.
2. The Respondent has engaged in conduct in Failing to communicate with me at my address for the service for documents in this Appeal; to obtain my unavailable dates for attendance for said Taxation hearing, to enable me to represent myself at any hearing.
3. The Registrar has, after receiving my written request for an adjournment, knowing that I am unavailable on the 16th November 2017; due to pre-existing family commitments away from Perth WA, and complex questions of fact and law that need to be determined by a competent court; has refused twice to provide me with alternative dates for which to attend said Taxation Hearing.
4. Due to my unavailability as outlined in 3 above, I am unprepared to fully oppose said Bill of Costs filed for Taxation.
5. On the basis of 4 above, I am being denied natural justice, and as such, my case against the Respondent is being jeopardised and compromised; by not being able to attend said hearing to represent myself; within a reasonable time frame with which to prepare myself.
6. Notwithstanding my objections in 4 & 5 above; below, I hereby in writing notify the Respondent and the Taxing Officer of the facts of the matter, in support of my contentions that all costs claimed in said Bill of Costs should be disallowed by the Taxing Officer viz:
6.1 The Respondent's originating Summons issued in February 2013; in the Magistrates Court was not served on me.
6.2 Mossensons lodged a false affidavit of service, on which to conduct vexatious litigation against me between 2013 and March 2017 when their client's case against me was dismissed, due to lack of prosecution, in the Perth Magistrates Court.
6.3 I am lodging a complaint with the appropriate authorities regarding this conduct in 6.2 above.
6.4 On my complaint to the Court, Mossesons were forced to withdraw said false affidavit of service.
6.5 The matter was vigorously defended between 2013 and 2017; as no money is owing to the Respondent by myself.
6.6 The Respondent is not the successful party in the Primary Court either.
6.7 As a result of the respondent's lack of prosecution between 2013 and September 2016; The Magistrates Court placed their case on the Inactive Case list.
6.8 The Respondent and Mossensons engaged in conduct, whereby after being served with a Notice (Copy attached) that their case was on the Inactive List as of 16, September 2016; Mossensons conducted further work from that date was in breach of said Notice.
6.9 Said Notice states that the only document that could be lodged in Court from 16 September 2016 onward were those stated on the Notice.
6.10 In breach of said Notice; Mossensons and its client; conducted unlawful work and lodged unlawful documents in the court after 16 September 2016.
6.11 Further Mossensons and its client engaged in conduct from 16 September 2016 in failing to apply to Court for their case against me to be removed from the Inactive Case List; whilst vexatiously and frivolously in an abuse of the Court process; conducted unlawful work in breach of said Notice.
6.12 I on the other hand complied with said Notice; as it would have been unlawful to lodge further documents in that case; apart from those in the Notice.
6.13 In the absence of the Respondent's consent under (c) in said Notice; and its conduct it engaged in by it failing to apply to remove their case from the Inactive Cases List under (a) in said list in said Notice; the Respondent had clearly indicated to me, that it was continuing to fail to prosecute their case.
6.14 Even if I was successful in my Appeal against the appealable decision in the primary court; there was no certainty that any application I would have made to remove the case from the Inactive Case List, would have been successful, based on the Respondent's intent to prosecute its case against me.
6.15 Further; the Respondent's conduct in their case; between 2013 and September 2016; in failing to prosecute their case, was indicative of their intent.
6.16 Their intent being to unlawfully conduct work on said case; and then claim it as lawful Costs, in an unlawful attempt to reduce their losses they were incurring throughout the case in having to pay solicitors costs throughout.
6.17 At the very least; all work Mossensons conducted from September 16 2016 is unlawful; said work itemised on their Bill of Costs being in breach of said notice; and therefore must be disallowed.
6.18 In support of my contentions in 6.17 above; Mossensons had a further 6 months from September 16, 2016, until on or around March 16, 2017; when their case against me was dismissed; in which to apply to remove their case from the Inactive Cases List.
6.19 They and the Respondent chose not to apply to remove their case from the Inactive Cases List at any time throughout this six month period.
6.20 As the burden of proof in my defended case was on the Respondent; it was incumbent on them to remove their case from the Inactive Cases List, not mine.
6.21 The fact that they chose not to apply to remove their case from said list, is primae facae evidence that their intent was never to do so; but rather to run up unlawful costs and attempt to claim them as lawful Costs to try and offset their losses they were incurring during their unlawful case against me.
6.22 this conduct outlined above by Mossensons they engaged in from September 2016 onward; is part of the complaint I am lodging with the legal Practitioners Complaints Committee against Mossensons.
6.23 Further; Since March 16 2017, a period of 7 months elapsed in which the Respondent has had every opportunity albeit the case was dismissed, to commence again to prosecute their case.
6.24 The facts of the matter are that at no material time from March 16 2017, when their case against me was dismissed, have Mossensons or their client, commenced action against me again.
6.25 Rather, they have conducted unlawful work; since September 16, 2016; in an attempt to have it accepted by the Court; whilst concealing from me that they were working up applications for costs; to enable them to draft Bills of Costs to lodge in both the District and Magistrates Court.
6.26 Until I received the Bill of Costs in late October 2017, I had never received advice from Mossensons they were applying for Costs Orders; I am entitled to be advised about, to enable me to oppose any such application.
6.27 Further, I am entitled at law to apply for a costs order as a self-represented litigant, for my allowable costs I am entitled to claim against the respondent.
6.28 Once I have obtained said orders, I will be claiming these as an offset to any allowable costs of the Respondent.
6.29 With regard to 6.25 above; due to its conduct; I rely on RSC o66 r 7 to hold Mossensons responsible for all items on said Bill of Costs viz:
7. Lawyer may be ordered to pay costs etc.
(1) Where in any proceedings costs are incurred by a party –
(a) as a result of any improper, unreasonable, or negligent act or omission; or
(b) which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that part to pay.
8. the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent) –
(c) to pay those costs personally or to indemnify any party who has been ordered to pay those costs; or
(d) not to claim any relevant costs or fees; or
(e) to refund any relevant costs or fees which may have been paid already.
6.27 The conduct engaged in in 6.25 above is also subject to a complaint I am currently drafting and lodging with the legal Practitioners Complaints Committee.
6.28 In addition to my objection to said Bill of Costs on the grounds the costs are unlawful; as outlined to the Registrar in my recent correspondence to him that is now on the Court Record; I have other grave concerns that need to be addressed by a Court.
6.29 Said grave concerns are encapsulated in said letters to the Registrar outlined in 6.28 above.
As an outcome of these concerns; I have placed instructions forthwith for the following legal action to be taken against Mossensons for relief against its unlawful conduct:
• An official complaint with the appropriate authorities regarding it lodging a false affidavit of service;
• A summons for damages against Mossensons for its conduct engaged against me between 2013-17;
• Applications for relief against Mossensons under RSC O66 r5; r7; r40;
As an outcome of these concerns; I have placed instructions forthwith; for the following legal action to be taken against Mossensons; ACM Group Ltd; its employees and agents for;
• Damages for Harassment
• Action for recovery of an award for Harassment in this case against the Respondent determined in my favour by the Financial Ombudsman Ltd, of which the Respondent has engaged in conduct in failing to pay me in the amount of $2,200 & interest; for which I claim an offset in the Bill of Costs.
6.30 In these circumstances; given my grave concerns already put on the Court record, my Objection to the Bill of costs needs to be heard fully; as I have already advised the Registrar; to enable questions of fact and law to be determined.
6.31 Any Allowance of any items in said Bill of Costs, to-day; prior to a proper case management plan of my grave concerns being addressed, will result as I have already stated on the court record, in my need to Appeal against the registrar's decision to allow unilaterally; based on Mossensons conduct in failing to communicate with me as my address for service of documents in this case; without providing me reasonable time to prepare my full objections; such unlawful coats. An email address is not my service address.
6.34 Finally; once I have had reasonable time to prepare my position, I will be ready to attend any subsequent Taxation of Costs hearing set down, but I stress, I must be provided with said reasonable time; pursuant to a case management plan.
Andrew Stephen Parker – Appellant
Signed at Mandurah W.A. 16.11.2016
(1) A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer –
(a) deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the taxing office to review the taxation in respect of those items or parts.
5 On the hearing of the objections the appellant did not attend and for the reasons that I have outlined I rejected the objections and have signed my certificate in the sum of $8,559.20. The time to appeal from this decision shall be extended to three weeks from its publication.
0
0
1