Quinlivan v Norris [No 2]
[2014] WADC 172
•18 DECEMBER 2014
QUINLIVAN -v- NORRIS [No 2] [2014] WADC 172
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 172 | |
| Case No: | APP:56/2013 | 31 OCTOBER 2014 | |
| Coram: | SCHOOMBEE DCJ | 18/12/14 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Certificate of taxation set aside | ||
| PDF Version |
| Parties: | LYNETTE PATRICIA QUINLIVAN CARMEL PATRICIA NORRIS MARK STEPHEN NORRIS |
Catchwords: | Practice and procedure District Court's implied jurisdiction to set aside certificate of taxation Whether proper notice given of taxation hearing Where party provided address for service, notice needs to be given at that address No implied consent to receive service of notice by email Fundamental breach of natural justice where party not given reasonable opportunity to attend a hearing Reason for lack of notice, delay, merits of case and prejudice to respondent, all relevant factors in exercise of direction whether to set aside |
Legislation: | Rules of the Supreme Court 1971 O 66 r 35 |
Case References: | Bellaire Pty Ltd v Roselink Enterprises Pty Ltd [2014] WASC 142 Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23 Cameron v Cole (1944) 68 CLR 571 Durney v Deakin University [2014] VSC 577 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156 Legal Practice Board v Frichot [2006] WASC 230 (S) Mossensons (a firm) v Coastline Associates (Unreported WASCA, Library No 970661, 2 December 1997) Murcia & Associates (a firm) v Grey (2001) 25 WAR 209 Taylor v Taylor (1979) 143 CLR 1 Thorne v Thorne [1979] 1 WLR 659 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CARMEL PATRICIA NORRIS
First Respondent
MARK STEPHEN NORRIS
Second Respondent
Catchwords:
Practice and procedure - District Court's implied jurisdiction to set aside certificate of taxation - Whether proper notice given of taxation hearing - Where party provided address for service, notice needs to be given at that address - No implied consent to receive service of notice by email - Fundamental breach of natural justice where party not given reasonable opportunity to attend a hearing - Reason for lack of notice, delay, merits of case and prejudice to respondent, all relevant factors in exercise of direction whether to set aside
Legislation:
Rules of the Supreme Court 1971 O 66 r 35
Result:
Certificate of taxation set aside
Representation:
Counsel:
Appellant : Mr D J Garnsworthy
First Respondent : Mr J Eastoe
Second Respondent : Mr J Eastoe
Solicitors:
Appellant : Mr D J Garnsworthy
First Respondent : Jonathan Eastoe
Second Respondent : Jonathan Eastoe
Case(s) referred to in judgment(s):
Bellaire Pty Ltd v Roselink Enterprises Pty Ltd [2014] WASC 142
Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23
Cameron v Cole (1944) 68 CLR 571
Durney v Deakin University [2014] VSC 577
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156
Legal Practice Board v Frichot [2006] WASC 230 (S)
Mossensons (a firm) v Coastline Associates (Unreported WASCA, Library No 970661, 2 December 1997
Murcia & Associates (a firm) v Grey (2001) 25 WAR 209
Taylor v Taylor (1979) 143 CLR 1
Thorne v Thorne [1979] 1 WLR 659
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
1 SCHOOMBEE DCJ: Ms Quinlivan has applied to this court to set aside the certificate of taxation signed by Deputy Registrar Hewitt and for the bill of costs to be remitted for taxation before another registrar.
2 The background to this application is that Ms Quinlivan had filed an appeal in the District Court against a decision by a magistrate, but the appeal was dismissed. Subsequently, counsel for Mr and Mrs Norris presented a bill of costs for taxation by a registrar. The taxation hearing took place on 27 March 2014 and Deputy Registrar Harman signed the certificate of taxation in the amount of $10,527.60 on 9 April 2014.
3 Ms Quinlivan alleges that she had no notice of the hearing of the taxation and would have opposed some of the amounts allowed by the learned registrar, particularly the amounts for work done by the solicitors, as she was of the view that most of the work for the appeal had been done by counsel.
District Court's implied jurisdiction to set aside a certificate of taxation
4 Ms Quinlivan has brought the application as part of the appeal from the Magistrates Court. She has relied on r 58A of the District Court Rules 2005 which deals with an application made in the course of an appeal. However, this is not the correct procedure, as the appeal has already been concluded.
5 There is provision in O 66 r 55 of the Rules of the Supreme Court 1971 for a party to apply to the District Court for a review of a taxation by a registrar, but this procedure only applies if the party has previously objected to the taxation pursuant to O 66 r 53. Ms Quinlivan has not previously asked the registrar to review his taxation under r 53.
6 There is also provision in O 34 r 3 of the Rules of the Supreme Court for any judgment or order to be set aside by the court where one party has not appeared at the trial. However, the wording of this rule seems to limit it to a non-appearance at a trial.
7 Counsel for Ms Quinlivan submitted that her application should be regarded as an application based on the court's implied jurisdiction to exercise any incidental powers which are necessary for the exercise of its jurisdiction. I am prepared to consider the application made under r 58A of the Rules of the Supreme Court as an application based on the court's incidental powers. Counsel for Mr and Mrs Norris accepted that there would be no prejudice to them arising from the court treating the application as such.
8 In Murcia & Associates (a firm) v Grey (2001) 25 WAR 209 [16] Steytler J held that the District Court does not have inherent jurisdiction, but has incidental powers which are necessary for the exercise of such jurisdiction as is conferred upon it. Those powers are sufficient to, at the very least, enable the District Court to correct irregularities in, and frauds upon, its own procedure and rules and to prevent abuses of its process.
9 In Cameron v Cole (1944) 68 CLR 571, 589, the Federal Court of Bankruptcy made a sequestration order in the absence of the debtor who had inadvertently not been given notice of the hearing. Rich J held that it was a fundamental principle of natural justice, applicable to all courts, whether superior or inferior, that a person against whom a claim had been made must be given a reasonable opportunity of hearing and presenting his case. If that principle was not observed, the person affected was entitled, ex debito justitiae, to have any determination which affected him set aside and any court in which that principle was not observed had inherent jurisdiction to set aside the relevant order.
10 InTaylor v Taylor(1979) 143 CLR 1, 8 - 9, the husband had applied to the Family Court of Australia for a variation of an order, but through no fault of her own the wife was neither present nor represented at the relevant hearing. Gibbs J held that the majority of the High Court in Cameron v Cole had accepted that both a superior and an inferior court had inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present its case. Gibbs J stated that 'assuming there was a real question to be tried', justice required that an order made in breach of a fundamental principle of natural justice, should be set aside, and that the matter should be reconsidered on its merits.
11 In Mossensons (a firm) v Coastline Associates (Unreported WASCA, Library No 970661, 2 December 1997 7 – 10, an application was made to set aside a certificate of taxation on the basis that the magistrate, who was the taxing officer, had refused to withhold signing the settled bill of costs so that objections could be made by the applicant. This was not a case about one party not attending at the hearing of the taxation. Ipp J, with whom Pigeon J agreed, came to the conclusion that the Supreme Court had inherent jurisdiction to set aside a taxation certificate. Ipp J referred to the decision in Thorne v Thorne [1979] 1 WLR 659, 664 where Comyn J held that the High Court had inherent powers to set aside a taxation certificate, if it was 'proper to do so'. Comyn J considered that it was proper to do so, because the solicitors had provided a satisfactory explanation for their oversight in filing objections to the bill of cost and there had only been a short delay in bringing the application to set aside the certificate.
12 Ipp J came to the conclusion that Comyn J had regarded the exercise of the court's inherent jurisdiction to set aside a certificate of taxation as a matter of discretion which should only occur if it was 'proper to do so'. Ipp J held that in determining whether it was 'proper' to set aside a taxation certificate, a court would have regard to the applicant's prospects of success on a review before a judge under O 66 r 55.
13 Ipp J proceeded on the understanding that if the certificate of taxation was set aside, there would be a review of the taxation by a judge under O 66 r 55 of the Rules of the Supreme Court. That rule provides that a judge will only rectify any error made by the registrar if it was an 'error in principle'. Ipp J held that an 'error in principle' would only be established if it was shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question. As the applicant had only contended that a higher allowance should have been granted in respect of certain items, it could not be said that the taxing officer had made an 'error in principle'. Accordingly, the application to set aside the certificate of taxation was refused.
14 Templeman J held in Mossensons that it was unnecessary to decide whether the court had an inherent jurisdiction to set aside a certificate of taxation. However, his Honour refused the application, stating that in exercising the discretion whether the certificate should be set aside, nothing precluded the court from considering the merits of the objections which the applicant wished to take. Where there were only a few hundred dollars in issue, Templeman J declined to exercise the discretion.
15 Neither in Thorne v Thorne nor in Mossensons was the issue that the applicant had not appeared at the hearing before the taxing officer and had been denied natural justice. The decisions by the High Court inTaylor v Taylor and Cameron v Cole were not referred to in Mossensons.
16 In Legal Practice Board v Frichot [2006] WASC 230 (S) an application was made to set aside a judgment holding that the applicant had been in contempt of court because he had continued to act as a legal practitioner even though he had been struck off the role of practitioners. The applicant had not attended the hearing of the originating motions seeking orders punishing the applicant for contempt of court, because notice of the hearing had been sent to a post box address. The applicant had previously responded to communications sent to him at that address, but stated on affidavit that on this occasion he did not receive the notice and insisted that he should have been served at a street address.
17 Hasluck J held at [56], [96] and [113] that the application could be brought under O 34 r 3 of the Rules of the Supreme Court and that under that rule an affidavit regarding the merits was not essential. However, Hasluck J stated that generally a court required an affidavit regarding the merits, an explanation for the absence of the party at the hearing and for any delay in bringing the application. Any prejudice suffered by the respondent to the application would also be relevant.
18 Hasluck J relied on Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 , 243 in this regard. In Vacuum Oil a trial had proceeded in the absence of the applicant and orders had been made against him. The applicant's solicitors had originally received notice of the trial, but had ceased to act for the applicant prior to the trial. The respondents to the application were in no respect in default regarding the failure of the applicant to appear.
19 Jordan CJ held that the court had an inherent discretion to set aside a judgement obtained in the absence of a party. In exercising that discretion a court would necessarily consider whether any useful purpose would be served by setting aside the judgement and how it came about that the applicant did not attend the hearing. As a general rule the court required an affidavit showing that the applicant had a good defence on the merits and providing an explanation of his absence. Where there had been gross negligence on the applicant's part the court would be more disposed to require at least a reasonably clear case of merits to be shown before setting aside the judgment.
20 Hasluck J also referred at [91] – [94] to Taylor v Taylor and came to the conclusion that, although the power of the court to set aside a judgement in its inherent jurisdiction had not been fully explored at the hearing before him, the court's inherent jurisdiction would have provided another avenue of relief for the applicant. Even if the inherent jurisdiction applied the court still had to be satisfied that the applicant was not in default, had a sufficient explanation for his absence and a good defence on the merits of the case.
21 Hasluck J refused to set aside the orders declaring the applicant to have been in contempt, essentially because the applicant had only complained about the notice of the hearing not having been sent to his street address and had not emphatically denied that he had received the notice sent to the post box address. Further, the applicant did not have a good defence on the merits.
22 In Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156 an application was brought to set aside an order dismissing an appeal for want of prosecution. The applicant did not attend the hearing of the respondent's application to dismiss the appeal by reason of a misunderstanding by his counsel regarding the orders made by the judge. Roberts-Smith J held at [33] – [44] that the application should be granted in the exercise of the inherent jurisdiction of the court. Roberts-Smith J referred to Taylor v Taylor and emphasised that the salient point was that the applicant did not have the opportunity to put its case on the application to dismiss the appeal for want of prosecution.
23 Roberts-Smith J accepted that the final outcome of another hearing of the application to dismiss for want of prosecution might be that it was granted, but came to the conclusion that this was not something he should decide at that stage.
24 In Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 298,Mason P, with whom Priestley JA and Beazley JA agreed, held that even a local court had power as an incident of its function as a court of justice to set aside a judgement where one of the parties was not given notice of the cross-claim in respect of which the judgment was granted. Mason P referred to Cameron v ColeandTaylor v Taylorfor the proposition that such a power arises in common law ex debitojustitiaeand not as a matter of discretion, or subject to terms.
25 In Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23, a party had not received notice of a hearing before the Consumer, Trader and Tenancy Tribunal (Social Housing Division). Neither she, nor the Housing Commission nor the Tribunal were at any relevant sense at fault. Basten J, with whom Giles JA and Handley JA agreed, held at [17], [81] and [110] that the party was entitled to have the order of termination made at the hearing set aside, because she had not been accorded procedural fairness. Basten J noted that the statutory provisions dealing with the method of service of a notice of a hearing were not intended to replace or qualify an important aspect of procedural fairness, namely that a party should have a reasonable opportunity to be heard. The decision by the judge a quo in the District Court, setting aside the order on the grounds of procedural unfairness, was upheld.
26 The above decisions all indicate that even an inferior court has incidental powers to set aside a taxation certificate on the basis of a denial of procedural unfairness.
27 In Cameron v Cole and Hoskins v Van Den-Braak it was held that an applicant is entitled to have a certificate of taxation set aside ex debito justitiaewhere there was a fundamental breach of natural justice. This means that where the applicant was denied a reasonable opportunity to appear at the hearing, he or she does not have to show a good case on the merits, but is entitled to a rehearing of the case. It seems that in Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty LtdRoberts-Smith J also decided that where an applicant had not appeared at a hearing, even where this was due to a misunderstanding by his counsel, the resultant order should be set aside and that it was not necessary to investigate the merits of the applicant's case.
28 However, in Legal Practice Board v Frichot and Vacuum Oil Co Pty Ltd v Stockdale an explanation for the failure to appear at a hearing and for any delay in bringing the application was required and the merits of the applicant's case were held to be relevant. In Mossensons the court also held that the inherent power to set aside a certificate of taxation involved a discretionary decision pursuant to which the court should take into account matters such as the merits of the objections to the taxation.
29 In Taylor v Taylor Gibbs J held that justice required that an order made in breach of a fundamental principle of natural justice should be set aside 'assuming there was a real question to be tried'. This seems to indicate that Gibbs J also considered the merits of the case to be relevant.
30 On the basis of the latter four decisions it appears that in exercising the implied power to set aside a certificate of taxation a court should take into account matters such as the reason why the applicant did not appear at the hearing, whether there is any reasonable explanation for the failure to do so, the length of the delay in bringing the application to set aside the certificate and the prospects of success on a renewed taxation. At the same time it should be kept in mind that where an applicant has not been given a reasonable opportunity to appear at the hearing, this is a fundamental breach of natural justice, and a factor which should be given considerable weight.
Whether there was proper notice of the taxation hearing and whether Ms Quinlivan is to be blamed for any absence of notice
31 The first question is whether Ms Quinlivan did not receive proper notice of the hearing of the taxation, whether she or Mr and Mrs Norris are to blame for this and whether she has provided any explanation for any omission on her part.
32 A bill of costs is treated by the Registry of the District Court like a chamber summons. It is issued by the court with a date for a hearing and it is then up to the party wanting to have the bill of costs taxed to make sure that it is served upon the opposing party in accordance with the Rules of the Supreme Court.
33 Order 66 r 34 of the Rules of the Supreme Court states that a notice of taxing costs need not be given to any party who has not entered an appearance or taken any part in the proceedings to which the costs relate.
34 Order 66 r 35 provides that where notice is required, two clear days' notice of taxing costs together with a copy of the bill of costs shall be given to the other party by the party whose costs are to be taxed. This rule refers to 'notice shall be given', rather than to 'notice shall be served'.
35 There does not seem to be any explanation in the Rules of the Supreme Court as to what is required when a party has to give notice to another party. However, it is important to note that this particular notice is notice of a hearing at which a decision adverse to the other party may be made.
36 According to O 72 r 5(3) ordinary service, in contrast to personal service, may be affected by the document being delivered or posted to the postal address stated to be the opponent's service address in a document filed by the opponent in the proceedings.
37 Order 72 r 8 provides that where by virtue of the Rules of the Supreme Court any document is required to be served on any person, but is not required to be served personally, and at the time at which service is to be effected that person has no address for service, the document need not be served on that person unless the court otherwise directs.
38 In this case, Ms Quinlivan provided her service address in the original notice of appeal as being a street address in Mount Claremont. She also provided a telephone number and a facsimile number, but no email address.
39 Mr Eastoe, counsel and solicitor for Mr and Mrs Norris, submitted that notice of a hearing of taxation did not have to be 'served' in the manner as is required for 'service' in O 72 of the Rules of the Supreme Court. Counsel stated that there were at least 60 separate rules in the Rules of the Supreme Court which required particular pleadings, notices or documents to be 'served', while O 66 r 35 only referred to 'notice…shall be given.'
40 In Legal Practice Board v Frichot Hasluck J stated at [70] and [73] that in general documents subsequent to the originating process need not to be personally served, but are served at the address for service stated by the other party. Pursuant to O 72 r 5 service of a document may be effected by leaving it at the service address or by sending the document by post to the service address.
41 Mr Eastoe submitted that he had on many occasions in the course of the appeal sent letters and documents to Ms Quinlivan by emailing them to the lawyer.com address. He attached examples of such emails to his affidavit, dated 22 September 2014, filed in opposition to the current application.
42 One of these emails, dated 25 February 2014, attached a letter asking Ms Quinlivan to provide her unavailable dates for the taxation. It also stated that, given her failure to respond to earlier letters concerning the costs of the appeal, it would be assumed that she had no unavailable dates should she fail to respond again. Another email, dated 10 March 2014, was sent to the same email address attaching a letter to the District Court Registry, advising them that Ms Quinlivan had not replied to a letter requesting her unavailable dates. A further email to Ms Quinlivan, dated 14 March 2014, attached the bill of costs for taxation. The bill of costs was endorsed with the hearing date of 27 March 2014.
43 Although Mr Eastoe referred in his letter to the District Court and in emails to Ms Quinlivan to 'letters' having been sent to her in the past, it seems that these letters were all attachments to emails.
44 Ms Quinlivan stated in her affidavit, dated 20 October 2014, in support of this application, that she did not receive any of these emails. She said the service provider of the lawyer.com address had informed her on 16 January 2013 that her credit card had expired and that unless she updated her credit card details, they could not ensure that her service would not be interrupted. Ms Quinlivan produced an email from a service provider called mail.com premium mail to that effect.
45 In her affidavit Ms Quinlivan further stated that she had provided a street address as her registered address for service, but was not served with hard copies of the letters or the bill of costs. She also said that she did not agree to receive service of documents by email.
46 Ms Quinlivan explained in the affidavit that she had also provided the bigpond email address to Mr Eastoe. On 11 April 2014 Mr Eastoe sent an email to both, the bigpond email address and the lawyer.com address, advising Ms Quinlivan that the certificate of taxation had been signed in the amount of $10,527.60.
47 It is common cause that Mr Eastoe did not send the bill of costs or the emails concerning Ms Quinlivan's unavailable dates to the bigpond address. Mr Eastoe submitted at the hearing of the application that the fact that he had earlier sent documents and notifications concerning the appeal by email to the lawyer.com address and that Ms Quinlivan had responded, meant that she had impliedly consented to receiving documents and notices at that address. Mr Eastoe submitted that if this address was no longer functioning, it would have been Ms Quinlivan's duty to inform him of that.
48 Mr Eastoe also stated, in his affidavit dated 6 October 2014, that his email system was such that it produced a mail delivery failure notice if an email did not reach its intended destination. He said he had not received such a notice in respect of any of the emails in which he had dealt with unavailable dates or had provided the bill of costs to Ms Quinlivan. Accordingly, he assumed that the emails had reached their destination.
49 I accept on the basis of the affidavit filed by Ms Quinlivan that she did not receive the emails dealing with unavailable dates or giving her notice of the hearing date for the taxation. It is telling that she responded immediately, once the certificate of taxation was sent to both email addresses.
50 It is somewhat surprising that the taxation hearing proceeded even though Mr Eastoe knew that Ms Quinlivan had provided him with two different email addresses and that he had only given her notice of the hearing by sending the bill of costs to one of those addresses. After the costs had been taxed and the certificate of taxation signed by the registrar, Mr Eastoe sent the certificate of taxation to both email addresses. I am not implying that Mr Eastoe did anything improper by not already sending the notice of the hearing to both addresses, but one would have expected alarm bells to ring when Ms Quinlivan did not turn up at the taxation hearing. It is not clear what information regarding the service of the notice of the hearing was provided to the learned registrar. It is possible that the learned registrar may have been advised that Ms Quinlivan had been informed by letter of the hearing date, being in fact a letter attached to an email.
51 Ms Quinlivan had provided a telephone number in the original notice of appeal, but it does not seem that any attempt was made to contact her by telephone on the day of the hearing. It also does not appear that there was any attempt to notify Ms Quinlivan in some manner immediately after the taxation hearing had taken place, so that she could still object to the taxation prior to the certificate of taxation being signed.
52 It is telling that Ms Quinlivan stopped responding to any emails sent to the lawyer.com address well before the taxation hearing at the end of March 2014. The emails that Mr Eastoe relied upon as having been replied to, were all sent prior to the end of 2013. Taking all these circumstances into account, one would have expected a solicitor to realise that it was at least a possibility that Ms Quinlivan had not received any of the communications since the beginning of the year and that some attempt should be made to communicate with her in some other manner to advise her of the hearing date.
53 I am of the view that Ms Quinlivan was not properly given notice of the taxation hearing pursuant to O 66 r 35. It is true that it would have been helpful if she had advised Mr Eastoe that one of her email addresses was no longer reliable or in use. Hasluck J referred in Legal Practice Board v Frichot at [35] to the fact that the applicant in that case, having been a lawyer, should have been aware of the importance of providing a service address and could not complain where he had not done so and had been sent the notice of the hearing to a post box address.
54 However, Ms Quinlivan had provided an address for service on the notice of appeal and, although the taxation hearing was not strictly speaking part of the appeal, it certainly flowed from the appeal and there is no reason why the service address should no longer have been applicable. Mr Eastoe should have ensured that the notice of the hearing was served, that is either delivered to or posted, to the service address. The fact that Ms Quinlivan had responded in the past to documents sent to the lawyer.com address does not mean that she had waived any right to be served an important document, such as a notice of a hearing, at her service address.
55 This situation is quite different to a case such as Durney v Deakin University [2014] VSC 577, where a university student had agreed, as part of his enrolment information, to the university sending him important information to his student email address. It was in this content that McMillan J held that the student could not complain about not having received notice of a hearing date where he had not accessed his email.
56 Mr Eastoe submitted that Ms Quinlivan had impliedly agreed to receiving documents and notifications at the lawyer.com address, by previously responding to documents sent to that address.
57 It may be useful to refer to the decision by Master Sanderson in Bellaire Pty Ltd v Roselink Enterprises Pty Ltd [2014] WASC 142 and the existence of the Electronic Transactions Act 2011. In Bellaire, a trust deed required that a unit holder who wished to dispose of his or her units had to offer a right of first refusal to other unit holders to buy the units for a certain price before they could be sold to an outsider. The trust deed provided that the notice to the other unit holders had to be given in writing. The deed did not specify how the notice was to be served.
58 Master Sanderson referred to s 4(2)(a) and s 4(2)(b) of the Electronic Transactions Act which provide that, with certain exceptions, a transaction is not invalid for the purposes of a law of the state because it took place by electronic communications. Things that could or had to be done under a law of the state in relation to the giving of information in writing, could generally be done by electronic communication. Master Sanderson held that this section was applicable to the giving of the notice under the trust deed.
59 Master Sanderson also referred to s 9(1) which provides that where a person is required to give information in writing under a law of this jurisdiction, that requirement is taken to have been met if the person gives the information by means of an electronic communication and where the person to whom the information is required to be given consented to the information being given by means of an electronic communication. Section 5 (1) of the act defines 'consent' as including consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.
60 Master Sanderson came to the conclusion that because the recipients of the notice by email had not provided any explanation as to whether they had received or not received the notice and had never raised the failure to receive the notice until the purchaser of the units had applied to be registered as holder of the units, it could be inferred that they had impliedly consented to receiving the notice by email.
61 Neither the Electronic Transactions Act nor any of the authorities referred to above were provided to the court by either counsel. The application of this act was therefore not properly canvassed before me. However, I am not persuaded that the relevant provisions of the Electronic Transactions Act apply to a notice of a court hearing to be given pursuant to the Rules of the Supreme Court. The Rules of the Supreme Court contain specific provisions relating to service of documents relevant to litigation conducted in the Supreme Court and District Court and override any general provisions in another act.
62 The Rules of the Supreme Court have been promulgated under s 167 of the Supreme Court Act 1935 and apply in the District Court according to r 6 of the District Court Rules.
63 In my view any notice required to be given under the Rules of the Supreme Court, particularly a notice of a hearing at which orders adverse to the recipient of the notice may be made, needs to be served in accordance with O 72, although not personally. Order 71A r 3 of the Rules of the Supreme Court allows service by email, but only if the other party has provided an email address as the address of service.
64 In this case Ms Quinlivan did not provide an email address as her address of service in the notice of appeal. The mere fact that she had responded to some letters sent to an email address does not mean that she impliedly agreed to change her address for service from a street address to an email address. Mr Eastoe took the risk that Ms Quinlivan would not receive service of the notice of the hearing if he sent it to an email address and not to her address for service. Ms Quinlivan cannot be blamed for not receiving the notice at the email address, because she did provide a street address for service and at no stage agreed that she could be served at the email address. She was entitled to expect that notice of a hearing would be served at the address she had provided for service.
65 In Legal Practice Board v Frichot the orders made were not set aside because the applicant had not provided an address for service and under those circumstances it was held that the respondent did the best it could by sending the notice of the hearing to the post box address at which the applicant had in the past received documents. This is a different situation to the present case.
66 Mr Eastoe also submitted that Ms Quinlivan had notice of the hearing because the Registry of the District Court had telephoned her secretary and had asked for her unavailable dates for the hearing. There is no substance in that submission. Although the secretary may have been the agent for Ms Quinlivan, no notice of the actual date of the hearing was given to the secretary and in any event this was not in accordance with the rules of service which require delivery or posting of the notice to the stated address of service.
67 In my view Ms Quinlivan was not given a reasonable opportunity to appear at the taxation hearing and this is a fundamental breach of natural justice.
68 However, based on the authorities that I have discussed, I will also consider the factors of delay, the merits of Ms Quinlivan's case and the potential prejudice to Mr and Mrs Norris before I make the decision whether the taxation certificate should be set aside.
Delay in bringing the application to set aside the certificate of taxation
69 Counsel for Mr and Mrs Norris submitted that Ms Quinlivan had delayed unreasonably, because she only brought her application on 14 July 2014, approximately three months after she was advised that the certificate of taxation had been signed.
70 It should be noted, however, that Ms Quinlivan sent an email to Mr Eastoe on 14 April 2014 (from the bigpond address) advising him that she had been unaware of the hearing and that she would request the court to have the taxation relisted. She also sent a letter on the same date to the principal registrar of the District Court stating that she had not received any documents or email with regard to the hearing of the taxation and asking that the matter be relisted.
71 Ms Quinlivan filed an affidavit, dated 5 September 2014, in which she explained that an application was made in early 2014 by the Department of Children's services, at the behest of her ex-partner, to take her young son into the Department's custody. She said she became very upset as a result of these proceedings and had to seek medical help for her emotional problems. She also had to appear on at least six occasions in the Children's Court. She stated that the Department currently has temporary custody of her son, and that she is still in the process of trying to obtain access to him. Ms Quinlivan explained that these matters distracted her and prevented her from effectively dealing with the issue of the costs of the appeal.
72 This is not a particularly detailed explanation regarding exactly what happened between 14 April and 14 July 2014. The events referred to are described in very general terms.
73 The usual factors taken into account where an application is made to extent the time for bringing an application or an appeal are the length of the delay, the explanation provided for that delay, whether there is an arguable case and any prejudice occasioned by the delay to the other party: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198.
74 In this case there has been a relatively long delay, but not excessively so. Some explanation has been provided and, importantly, both Mr Eastoe and the Registry of the District Court were informed immediately upon Ms Quinlivan realising that the hearing had proceeded without her that she wanted it relisted.
75 Other than having to wait for payment of their money, Mr and Mrs Norris did not put forward any particular prejudice suffered if another taxation hearing should occur.
76 Accordingly, I would not give the factor of delay considerable weight.
Prejudice to the other party and rules of case management
77 Counsel for Mr and Mrs Norris did not submit that they would suffer any prejudice if the certificate of taxation would be set aside. However, counsel argued that it would be contrary to the rules of case management if another taxation hearing was to be conducted in circumstances where Ms Quinlivan had only herself to blame for the oversight in advising Mr Eastoe that the lawyer.com address was no longer reliable and where there was no indication that the outcome of a further taxation hearing would be different to the first one.
78 It is not apparent whether the rules of case management are relevant to the decision whether an order made in the absence of a party should be set aside. In any event, the bill of costs is not lengthy and a renewed hearing would not take up much of the court's time and resources. Further, even if the rules of case management were relevant, this would only be one factor to be taken into account in exercising the court's discretion. In my view, the fact that Ms Quinlivan was not given a reasonable opportunity to attend the taxation hearing, because she was not given proper notice, weighs heavily amongst all the other factors to be taken into account.
The merits of Ms Quinlivan's objections to the certificate of taxation
79 It is difficult to express any view about the prospects of Ms Quinlivan being able to reduce the bill of costs at a subsequent hearing, as this court is not in a position to assess what work was done by whom and to what extent this was reasonable. Mr Eastoe submitted that the learned registrar had in any event disallowed the costs of the solicitor's attendance at the hearing of the appeal which, in his view, was over-generous to Ms Quinlivan.
80 Mr Garnsworthy did not provide any other grounds on which the bill taxed by the learned registrar could be objected to, but the merits of such an objection would in any event be difficult for this court to assess.
Orders
81 Accordingly, I will set aside the certificate of taxation and order that the bill of costs be remitted for another taxation hearing. The main reason is that a fundamental breach of natural justice occurred when Ms Quinlivan was not given proper notice of the taxation hearing, and none of the other factors that I have considered sufficiently balance the scale against a renewed hearing.
82 Ms Quinlivan has asked that the bill of costs be taxed before another registrar. There is no particular reason why it should be heard before another registrar but because the learned registrar might have the perception that Ms Quinlivan has complained about his conduct at the hearing (which she has not) it may be better that the rehearing be conducted by another registrar.
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