Quann v Wilson and Atkinson (A Firm)
[2015] WASC 229 (S)
•19 FEBRUARY 2016
QUANN -v- WILSON & ATKINSON (A Firm) [2015] WASC 229 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 229 (S) | |
| Case No: | CIV:1200/2015 | ON THE PAPERS | |
| Coram: | LE MIERE J | 19/02/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY EDWARD QUANN WILSON & ATKINSON (A Firm) |
Catchwords: | Costs of application Application for an order for indemnity costs Indemnity costs Party and party costs |
Legislation: | Nil |
Case References: | Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 Quann v Wilson & Atkinson (A Firm) [2015] WASC 229 Yarra Australia Pty Ltd v Oswal [2012] WASCA 264 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WILSON & ATKINSON (A Firm)
Defendant
Catchwords:
Costs of application - Application for an order for indemnity costs - Indemnity costs - Party and party costs
Legislation:
Nil
Result:
Application successful
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Metaxas & Hager
Defendant : Rowe Bristol Lawyers
Case(s) referred to in judgment(s):
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Quann v Wilson & Atkinson (A Firm) [2015] WASC 229
Yarra Australia Pty Ltd v Oswal [2012] WASCA 264
1 LE MIERE J: The plaintiff applied by originating motion for an order that the defendant be restrained from acting as solicitors or counsel for the plaintiffs in action CIV 1395 of 2013 in this court. I dismissed the plaintiff's application: Quann v Wilson & Atkinson (A Firm) [2015] WASC 229 (Quann v Wilson). The defendant has applied for an order for indemnity costs against the plaintiff. The application is made on two bases:
(1) the application was commenced and continued in proceedings where the plaintiff, properly advised, should have known that he had no chance of success;
(2) the plaintiff unreasonably rejected a Calderbank offer made before the hearing of the application.
2 The principles relating to the award of indemnity costs were referred to by Murphy JA, with whom McLure P relevantly agreed, in Yarra Australia Pty Ltd v Oswal [2012] WASCA 264 [33]:
There must be some special or unusual feature of the case to warrant an award of indemnity costs: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225, 233. The categories of cases in which an indemnity costs order may be made are not closed: Colgate-Palmolive Co v Cussons (233). In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397, 401, Woodward J said that indemnity costs were appropriate where the action 'has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success'. As Pullin J observed in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [25], an order for indemnity costs may be seen as a 'mark of disapproval on the part of the court about the improper or unreasonable conduct of litigation'. It is sufficient to enliven the discretion to award indemnity costs that, for whatever reasons, a party persists in what should on a proper consideration seem to be a hopeless case: Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [6].
3 In my view, from the moment the application was filed, the plaintiff, properly advised, should have known that the application had no chance of success. The plaintiff put his case on two bases. First, the plaintiff invoked the court's jurisdiction founded on the right of the former client to the protection of his confidential information. Secondly, the plaintiff invoked the court's inherent jurisdiction to control the conduct of its officers.
4 I will first address the plaintiff's case based on his claim for the protection of his confidential information communicated to the defendant whilst the defendant was his solicitor. At the hearing of the application the plaintiff confined his case to the allegation that the confidential information to be protected is the advice given by Mr Czislowski, a lawyer then employed by the defendant, to the plaintiff and the companies in his group between January 2007 and October 2008. I found that the plaintiff had not established that the advice given by the defendant to the plaintiff and any companies or trusts related to him between January 2007 and October 2008 is or might be relevant to the matters in issue in CIV 1395 of 2013: Quann v Wilson [14]. That finding was not based upon any evidence led by the defendant. The evidence adduced by the plaintiff was not capable of establishing that the legal advice given by the defendant to the plaintiff and companies in his group is or may be relevant to any issue in CIV 1395 of 2013. Counsel for the plaintiff relied upon the reference to Harbour Pines Investment Trust in paragraph 6.4 of the defence to support the assertion that the advice provided by Mr Czislowski was or may be relevant to the issues in dispute in CIV 1395 of 2013. However, counsel was unable to articulate why advice about the taxation implications of the sale of the Hay Street property in July 2006 by Cobra Hill Holdings as trustee for the Cobra Hill Unit Trust was relevant to whether or not D S Clarke Nominees had purchased units in the Harbour Pines Investment Trust.
5 The undertakings offered by the defendant went to the issue of whether there was a real risk of disclosure of the plaintiff's confidential information, that is whether there was a real risk of disclosure of the legal advice given by the defendant to the plaintiff between January 2007 and 7 October 2008. I briefly set out my findings on that issue in a summary way. In view of my finding that the plaintiff had failed to establish that the legal advice given by the defendant is or may be relevant to any issue in CIV 1395 of 2013 it was strictly unnecessary to do so. However, I did so because the point had been argued and the matter might have gone on appeal.
6 The second basis of the plaintiff's application was that the court should restrain the defendant from acting against its former client, the plaintiff, under its inherent supervisory jurisdiction because it was necessary to do so in order to ensure the due administration of justice. The test to be applied is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice: Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 [30] (Steytler P), quoting Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 [76].
7 I set out briefly eight circumstances which I considered to be relevant to this issue. The critical finding was that the plaintiff had not established that advice given by the defendant pursuant to the relevant retainer of the defendant was or may be relevant to the matters in issue in CIV 1395 of 2013. I also referred to the undertakings given by Mr Romano and the current staff of the defendant firm including an undertaking not to speak to Mr Czislowski and Mr Wilson about the plaintiff, his entities or CIV 1395 of 2013. Those matters go to the question of whether there is a real risk of disclosure of instructions given to or advice given by the defendant to the plaintiff and his companies in 2007 or 2008. The undertakings were offered by Mr Ramano and the staff of the defendant firm. I did not require the defendant to give those undertakings as the plaintiff asserts in its written submissions. Insofar as the plaintiff's application was based on the inherent jurisdiction of the court over its officers, the application was bound to fail whether or not the undertakings given had been offered.
8 In summary, in my view, from the moment the application was filed, the plaintiff, properly advised, should have known that the application had no chance of success.
9 In the circumstances it is not necessary to give any detailed consideration to the defendant's argument based upon its Calderbank offer. However, in my opinion, it was unreasonable for the plaintiff to persist with his application after the defendant offered relevant undertakings.
10 There should be an order that the plaintiff pay all the costs incurred by the defendant of and incidental to the application except insofar as they are of an unreasonable amount, or have been unreasonably incurred, so that subject to the above exceptions, the defendant is completely indemnified by the plaintiff for its costs of the application. The plaintiff should pay the costs of the defendant's application for indemnity costs but on a party and party basis.
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10
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