Reilly v Jessop
[2012] WADC 93
•22 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: REILLY -v- JESSOP [2012] WADC 93
CORAM: COMMISSIONER GETHING
HEARD: 6 JUNE 2012
DELIVERED : 22 JUNE 2012
FILE NO/S: APP 75 of 2011
BETWEEN: RICHARD REILLY
Appellant
AND
NATASHA JESSOP
First RespondentEDWARD JESSOP
Second Respondent
Catchwords:
Magistrates Court appeal - Debt recovery - Repudiation
Evidence - Cross-examination
Legislation:
Nil
Result:
Appeal allowed
New trial ordered
Representation:
Counsel:
Appellant: Mr J Garas
First Respondent : Mr P J Urquhart
Second Respondent : Mr P J Urquhart
Solicitors:
Appellant: Corboy Legal
First Respondent : Arns & Associates
Second Respondent : Arns & Associates
Case(s) referred to in judgment(s):
Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141
Balenzuela v De Gail (1959) 101 CLR 226
Butler v Bennett [2007] WADC 107
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Cooke v Australian National Railways Commission (1985) 39 SASR 146
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Elkhoury v Farrow Mortgage Services Pty Ltd (in liq) (1993) 114 ALR 541
Holland v Wiltshire (1954) 90 CLR 409
House v R [1936] HCA 40; (1936) 55 CLR 499
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Meredith v Innes (1930) 31 SR (NSW) 104
MTI v SUL (No 2) [2010] WASCA 58
Paterson v Paterson (1953) 89 CLR 212
R v Cooper (Warwick John) (1986) 82 Cr App R 74
Regan v Gibson [2010] WADC 144
Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620
Western Australia v Watson [1990] WAR 248
Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd (in liq) [1936] HCA 6; (1936) 54 CLR 361
COMMISSIONER GETHING:
Introduction
By appeal notice dated 14 October 2011, the appellant appealed against a decision of her Honour Magistrate Hawkins dismissing a claim brought by the appellant against the respondents claiming an amount of $44,205. The amount was said to be owing under a contract by which the appellant provided architectural services to respondents in relation to renovations to a house owned by them in Nedlands. The magistrate found that the appellant had repudiated the contract mid way through, discharging the respondents from any liability to pay any further fees.
On 24 October 2011 the respondents filed a notice of respondents' intention in which they stated that they would argue that the magistrate's decision ought to be upheld on the grounds relied on by the magistrate.
The appellant obtained leave to amend the grounds of appeal at the commencement of the hearing. The three grounds that remained were that the magistrate erred in:
(a)denying the appellant's counsel the right to cross‑examine the first named respondent (Mrs Jessop) on earlier versions of an invoice from the appellant dated 21 December 2007 (Ground 1);
(b)finding that the appellant repudiated the contract, when the magistrate ought to have found that the appellant terminated the contract, but remained entitled to invoice and recover the sum claimed as a liability that had already accrued to him or as damages (Ground 4); and
(c)(in the alternative to Ground 4), finding that following the acceptance by the respondents of the appellant's repudiation, there was no basis for the appellant to invoice and recover further fees, and ought to have found that, despite the termination of the contract, the appellant was entitled to invoice and recover the fees claimed as a liability that had already accrued to him (Ground 5).
No party sought the leave of the court for further evidence to be admitted, and the appeal proceeded on the basis of the material and evidence before the magistrate: Magistrates Court (Civil Procedure) Act 2004 (WA) (MCCPA) s 40(4). This did not prevent the court on appeal from dealing with the issue of whether the magistrate erred in refusing to admit evidence: MCCPA s 40(6).
Background facts
In March 2007 the respondents, Mr and Mrs Jessop, met with the appellant to discuss renovation work on the house in Nedlands. There were some subsequent discussions which ultimately led to the appellant sending the respondents an email dated 3 April 2007. The email contained a covering letter, which provided in part: 'In preliminary discussions we have touched on the Architectural Service that is broken down into 4 stages. (see attached notes: Architectural terms and conditions)'. This document relevantly provided:
PROPOSED ARCHITECHTURAL WORK – Architectural service structure, terms and conditions 30/1/07
STRUCTURE OF ARCHITECHTURAL SERVICE
The architectural service outlining the four different phases of work from concept to completion.
a)Sketch Design – collecting information from the site, site survey, review Council planning requirements and preparation of basis concepts for discussion.
b)Design Development – formalising concepts in discussion to produce a workable design layout with Local Council planning assessment.
c)Documentation – preparing architectural construction documents, working drawings and specification.
d)Administration – obtaining builders prices and administering the contract agreement between the proprietor and the builder, advising on the payment of progress claims, and giving the builders instructions in regard to the works on your behalf. This should not to be confused with site supervision which is carried out between the builder and his subcontractors.
ARCHITECTURAL FEES
Architectural fees are also broken down into the four stages as listed above, and distributed on a monthly call. (percentages apply to 'the total project works value' only, and do not include a separate hourly rates billing structure that may be required for additional architectural work due to unforseen extended issues)
a)Sketch Design – 15% of the architectural fee.
b)Design Development – 25% of the architectural fee.
c)Documents – 40% of the architectural fee.
d)Administration – 20% of the architectural fee.
The typical architectural fee for this project is rated at 10% (excluding gst).
The 10% fee includes the four stages of the architectural service items above (a) to (d), with any disbursement costs met by the proprietor.
NOMINATED CONSTRUCTION COST
In view of the schedule of construction your nominated construction estimate will vary for the proposed project. (the estimate is exclusive of architectural and consultants fees)
The construction estimate will vary during design and the construction process. The estimate and costs will depend on the extent of your requirements in design, size and finishes. Although we will attempt at all times to minimise the allocation of building costs.
The construction cost, can be reviewed as the project develops and some adjustments can be made after receipt of indicative prices from builders if required.
We should advise that as result of builders 'pricing demands' building costs can be an amount 'in excess' of the nominated construction estimate. This pricing outcome by others, we can not guarantee and therefore we are unable to carry responsibility for arbitrary pricing by others. Although we do offer to adjust documents, within reason, to reduce a builder's price to reflect the approximately cost you may require.
The respondents in their statement of defence accepted that there was a contract which was partly written (being the document headed 'Proposed Architectural Work' which I have quoted above) and partly oral (comprising discussions between the parties) (Agreement).
Between May 2007 and December 2007 the appellant prepared sketches and ultimately design drawings for the renovations. He issued a series of invoices, which were paid, as follows (each amount is plus GST):
(a)on 5 July 2007, for sketch design of $6,750 (being 15% of 10% of a projected construction cost of $450,000);
(b)on 3 September 2007, for design development of $8,437 (being 75% of 25% of 10% of a projected construction cost of $450,000);
(c)on 3 October 2007, for design development of $2,812 (being 25% of 25% of 10% of projected construction cost of $450,000) and for documentation of $4,500 (being 25% of 40% of 10% of a projected construction cost of $450,000); and
(d)on 23 November 2007, for documentation of $9,000 (being 50% of 40% of 10% of a projected construction cost of $450,000).
On or about 17 December 2007 the respondents entered into a HIA Cost Plus Building Contract with a builder. The Building Contract contained the following special condition:
25.RICHARD REILLY ARCHITECT WILL BE THE ADMINISTRATOR OF THIS CONTRACT AGREEMENT, AS ARCHITECT. – THE BUILDER AND OWNER SHALL ONLY LIAISE WITH THE ARCHITECT CONCERNING THE AGREEMENT AND THE WORKS IN DOCUMENTS – ARCHITECTURAL A1, A2, A3, A4, ENGINEERING 11214-01 SPECIFICIATION. PAYMENTS TO THE BUILDER FOR WORKS DONE WILL BE MADE BY THE OWNER TO THE BUILDER ON 'ARCHITECT APPROVED' PRESENTATION OF THE SUPPLIER/CONTRACTORS INVOICES ACCORDING TO THE AGREEMENT.
Around this time tensions began to arise between the appellant and the respondents, in particular about the rising costs of the renovation project.
The appellant sent out a further invoice dated 21 December 2007. The substance of the invoice provided:
DOCUMENTATION
Construction Cost projection rate ($450,000.) –Adjustments (nil)
fee: (25% of 40% of 10% of Projected Construction Costs $4,500
Demolition Licence Application Fee (paid 3/12/07) $50
Energy Efficiency Submission $580
Disbursements, printing etc. $nil
Travelling $nil
DOCUMENTATION – FEE ADJUSTMENTS
Construction Cost projection rate ($450,000) –Adjustments to and fixed at ($500,000.)
fee: (80% of 10% of Projected Construction Cost Adjustment $50,000)
fees: $ 4,000
____________________________________________________________
FEE DUE: $9,130.00
GOVERNMENT TAX GST $913.00
TOTAL DUE: $10,043.00
____________________________________________________________
Terms Payment Due 7 Days Nett - Bank Transfer details available
It is evident from this invoice that the appellant has increased the construction cost used as the basis for calculating his fees from $450,000 to $500,000 and has, in the second item, claimed an adjustment based on this increase based on the invoices issued and paid at that time.
There are four versions of the 21 December 2007 invoice in the materials before me. The first version (21 December Invoice Version I) is dated 21 December 2007. It is in the Appeal Book annexed to a letter dated 2 May 2011 from the respondents' lawyers to the appellant's lawyers by way of informal continuing disclosure (AB 210, 224 ‑ 225). It is also in the bundle of materials in the Appeal Book described 'Documents the subject of ground 1 of the appeal notice' (AB 568 ‑ 569). The 21 December Invoice Version I contains the information quoted above, with the following handwritten notations:
(a)the notation 'Paid 21/01/08 chq 200241' at the top of the first page;
(b)the number '5,130' adjacent to the reference to 'Disbursements, printing etc … $nil';
(c)the amount of '$5,130.00' next to the amount of '$9,130';
(d)the amount of '$513.00' next to the amount of '$913.00'; and
(e)the amount of '$5,643.00' next to the amount of '$5,643.00'.
The second version (21 December Invoice Version II) only appears in the bundle of materials in the Appeal Book described 'Documents the subject of ground 1 of the appeal notice' (AB 551 ‑ 552). It has the following handwritten notes and annotations to it:
(a)the words 'RESENT 11 – 1 – 08' next to date at the head of the document;
(b)under the heading 'Documentation' the reference to '25% of 40%' underlined and the figure of '$4,500' circled;
(c)a note at the foot of the first page reading 'Could you please forward a receipt for this invoice and the last. Kind Regards Natasha';
(d)the amount of '$4,000' circled;
(e)the amount of '$5,130.00' next to the amount of '$9,130';
(f)the amount of '$513.00' next to the amount of '$913.00'; and
(g)the amount of '$5,643.00' next to the amount of '$5,643.00'.
I note that Mrs Jessop's first name is Natasha.
The third version of the 21 December invoice (21 December Invoice Version III) is annexed to the appellant's statement of intended evidence filed 7 October 2010 as annexure RR16 (AB 84 ‑ 85). It also appears in the bundle of materials in the Appeal Book described 'Documents the subject of ground 1 of the appeal notice' (AB 553 ‑ 554). It does not have any of the handwritten annotations referred to in [12] and [13]. It has the following changes in the typewritten text of the document (quoted in [10]), and:
(a)the date contains the additional; words 'RESENT – 12/2/08';
(b)below the reference to 'Terms Payment Due 7 Days Nett - Bank Transfer details available' a reference to an amount of $5,643 received 24 January 2008, and
(c)below (b), a reference to a balance owing of $4,400.
The amount of $5,643 corresponds to the handwritten note on the 21 December Invoice Versions I and II. From other material in the Appeal Book, it is evident that the respondents paid the amount of $5,643 to the appellant in January 2008.
The fourth version of the 21 December invoice (21 December invoice Version IV) is in the appeal book annexed to the letter dated 2 May 2011 from the respondents' lawyers to the appellant's lawyers by way of informal continuing disclosure (AB 210, 229 ‑ 230). It again appears in the bundle of materials in the Appeal Book described 'Documents the subject of ground 1 of the appeal notice' (AB 573 ‑ 574). It has the same typewritten text as the 21 December Invoice Version III, with the following handwritten notations:
(a)at the top of the first page 'Pd chq 200301 26/2/08 $5,500'; and
(b)on the second page, under the figure '$4,400', '1100', a line under that figure and '5500'.
From other material in the appeal book it is evident that the respondents paid the appellant the amount of $5,500 in February 2008.
The respondents alleged in their statement of defence filed in June 2010 that in or about December 2007 the Agreement was varied with the effect that the total renovation cost on which the appellant's fees would be based was fixed at $500,000. The variation agreement was partly oral and partly written. To the extent that it was written, it comprised the reference in the 21 December invoice which stated 'Adjustments to and fixed at ($500,000.)'. To the extent that it was oral it was said to comprise discussions between the 'defendant' and the appellant. There are two defendants/respondents. The statement of defence does not specify whom of Mr or Mrs Jessop the relevant conversation was with.
Over the ensuing months relations between the appellant and the respondents became increasingly strained, among other things because of the rising costs of the renovations pursuant to the cost plus contract.
Ultimately, by email dated 29 May 2008 the appellant sent the respondents a letter dated 27 May 2008, which provided as follows (AB 116):
RE: NEW RESIDENCE – 21 FLORENCE ROAD NEDLANDS
It has become apparent (from your site meetings with the builder 9/5/08, 23/5/08 and 26/5/08) that you are intent in having a direct relationship with the builder and that you have sought to have separate meetings with the builder with out my presence for the purpose of administering the contract agreement.
Accordingly I believe that you feel there is no longer any need for my service as administrator under the contract and you are making the relationship between myself and the builder very difficult as the builder is receiving instructions from two sources. As I do not believe that it is in the interests of the project I therefore have no option but to resign my architectural services and resign from the position of Architect for this project.
If you still require any design work it will be at hourly rates.
Also from site meeting 9/5/08 I understand that Mr Jessop is arranging with the builder to work on the building site himself. Due to personal injury risk and liability, we have previously recommended you not to participate in works on the builder's site.
Mrs Jessop replied by email dated 29 May 2008 requesting the appellant to provide her with all final architectural drawings. She then met with the appellant to finalise the cabinetry and electrical drawings. Subsequent to the completion of the cabinetry and electrical plans, the only other contact the appellant had with the respondents was to request further copies of the plans for which she offered payment.
The appellant asserted that he was entitled to fees based on a completed construction cost of $1,052,574. The first version of the final invoice was issued in September 2009, based on this construction cost. In the last version of the final invoice dated 17 November 2009, he claimed $40,205 plus GST, giving $44,625. He excluded the administration component of the Agreement, being 20% of the 10% of the completed construction cost. He claimed 80% of 10% of a completed construction cost of $1,052,574, being $84,205, less the amounts paid of $44,000 (net of GST), giving the $40,205.
Magistrate's decision
The magistrate identified four issues for determination:
(a)did the appellant repudiate the Agreement by his letter of 27 May 2008?
(b)if so, was this repudiation accepted by the respondents?
(c)alternatively, was the Agreement varied in February 2008 by the appellant agreeing to fix his fees construction costs of $500,000?
(d)if the answer to issues (a), (b) and (c) is no, did the respondents breach the Agreement and are they liable to pay him the sum of $44,205?
In relation to the first issue, her Honour identified that repudiation occurs when one party to a contract evinces an intention no longer to be bound by the contract. Her Honour found that at the time of receiving the appellant's letter of 27 May 2008, the relationship between the parties had deteriorated, in particular as:
(a)the respondents had queried payments the appellant had authorised that the builder be paid;
(b)the appellant had advised that he was not prepared to engage with Mr Jessop;
(c)the respondents had raised concerns with the appellant about their budget; and
(d)Mrs Jessop had queried why by 26 March 2008 100% of the design development fees had been paid, when the electrical and cabinetry plans had not been done.
In this context and given the text of the 27 May 2008 letter, the magistrate concluded that a reasonable person in the respondents' situation, when looking at the letter as a whole, would consider that the appellant was repudiating his contract with them (AB 20).
The magistrate was also satisfied that the respondents, following receipt of the appellant's letter of 27 May 2008, sufficiently manifested an election that they were treating the contract with the appellant as terminated. Her Honour then concluded:
Having accepted Mr Reilly's repudiation their contract with him was terminated. There was no basis therefore upon which Mr Reilly could issue the final invoice to them of September 2009.
The final invoice of September 2009 was the one which claimed fees based on the completed construction cost of $1,052,574.
The third and fourth issues were alternate defences which, on her Honour's view of the law, were not strictly necessary to consider. Quite appropriately, her Honour did so in case the matter went further.
In relation to the third issue, the respondents' case had changed at the commencement of the trial from that set out in the statement of defence (see [19]). Given the issues which follow in the appeal, it is instructive to quote the relevant passage from counsel for the respondents in his opening (AB 245 ‑ 246):
Your Honour, there are two critical documents in relation to this dispute. The first is the amendment to the claimant's fee arrangement, which is set out in one of his invoices that was re‑sent, but that amendment was made as a result of an oral conversation or an oral agreement between the claimant and Mrs Jessop in February of 2008.
…
This amendment, or this variation to the contract, was then set out in the claimant's invoice dated 21 December 2007, which was re-sent by the claimant to the Jessops on 12 February 2008. That document, your Honour, can be found as part of the bundle of tax invoices, RR16. I gather your Honour is familiar with that document?
Then, of course, the second critical document is the claimant's letter of resignation dated 27 May 2008. However, your Honour's determination of this matter will also necessarily involve an assessment of the credibility of the witnesses to be called by both sides and the plausibility there, explanations, are not just for those two documents but other documents which the defendants claim support their contention. I've already brought you Honour's attention to one such matter, and that is the email from Mrs Jessop to the complainant shortly after his letter of resignation requesting the plans and drawings.
Put simply, the defendants accept that the parties originally entered into an agreement that the claimant's fee for his service in this renovation would be 10 per cent commission on the completed project cost. However, this agreement was varied in February 2008 and then terminated completely and unconditionally by the claimant in May of 2008 by his letter of resignation. As your Honour is aware, that 10 per cent fee was broken down into four components comprising design, design development, documentation and administration.
Her Honour's finding was as follows (AB 23 ‑ 24):
Mr & Mrs Jessop maintain that as a result of discussions between Mr Reilly and Mrs Jessop in or about February 2008, Mr Reilly agreed to fix his architectural fees at a construction cost of $500,000.00. There is no dispute by Mr Reilly that if such an agreement was reached Mr and Mrs Jessop have paid in full for his architectural services.
Mrs Jessop had a clear recollection of the occasion. The reason she clearly recalled the event was because she was at home, in the dining room of the house she and her husband were renting, whilst construction was taking place. She saw Mr Reilly arrive. His arrival was unexpected. Mrs Jessop clearly recalls she went quickly to the front door to open it before Mr Reilly could knock as her small daughter was asleep in the front bedroom. She didn't want her daughter to be awakened. She recalled that Mr Reilly had not been expected and a conversation took place with him in respect to his fees. She recalled that during those discussions Mr Reilly agreed to fix his fee based on construction costs of $500,000.00. She recalled this discussion occurred in early February 2008. Shortly after that discussion, she then received a revised invoice from Mr Reilly dated '21 December 2007/present – 12 February 2008' which stated 'construction costs projection rates ($450,000.00) – adjustment to and fixed at ($500,000.00)'.
This is in contrast to Mr Reilly's evidence. When cross‑examined as to this event, he stated he couldn't recall such a conversation occurring. Later in his cross‑examination although he initially stated that he had no clear recollection of a conversation with Mrs Jessop concerning adjustment of his fees he then stated that such a conversation never took place. Further he suggested that reference to $500,000.00 in the abovementioned invoice, was due to Mr Jessop stating in his email to him dated 19 December 2007 that 'we truthfully have only budgeted for $500,000.00'.
I prefer the evidence of Mrs Jessop. Her recollection of this event was very clear. Further it is consistent with the receipt shortly thereafter of Mr Reilly's invoice resent 12 February 2008 referring to construction costs being fixed at $500,000.00.
This is in contrast to Mr Reilly's evidence which was inconsistent and implausible. At the outset he stated he could not recall any such event occurring but later was adamant that no such event ever occurred. Further Mr Reilly's evidence is inconsistent with his invoice dated 12 February 2008 which clearly made reference to fixing his fees at $500,000.00. Mr Reilly suggested this was merely an adjustment of his fees based on Mr Jessop's email of 19 December 2007. However I consider it is implausible that Mr Reilly would include the words 'fixed' in his invoice if it was simply an adjustment of his fees. For these reasons therefore I am satisfied that in or about February 2008 Mr Reilly agreed to fix his architectural fees to a construction cost at the rate of $500,000.00. Accordingly, Mr & Mrs Jessop do not owe any further monies to Mr Reilly.
In relation to the fourth issue, her Honour concluded that on the basis of her previous findings, she was not satisfied that the respondents were in breach of the Agreement. She therefore did not consider the respondents' to be liable to pay the appellant the sum of $44,205 plus GST as claimed.
Appeal framework
An appeal pursuant to MCCPA s 40 (1) is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1).
An appeal from a decision of a magistrate to the District Court is by way of rehearing: Regan v Gibson[2010] WADC 144 [7]; Butler v Bennett[2007] WADC 107 [10]. It is thus necessary for the appellant to demonstrate error in the court below: Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47 [14]; (2000) 203 CLR 194; House v R [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.
For the reasons which follow, it is sufficient that I deal with Ground 1 and the first part of Ground 5. This is a sufficient basis to allow the appeal and remit the action back to the Magistrates Court for retrial. As the facts which emerge at the retrial will not be identical to the facts before me (especially given Ground 1), there is no utility in me making any wider factual findings based on the evidence at first trial.
Ground 1
Ground 1 – Issues
Ground 1 of the amended appeal notice provides:
the learned magistrate erred in rejecting evidence by:
(a)denying the appellant's (claimant's) counsel the right to cross‑examine the first named respondent (defendant) on earlier versions of the appellant's invoice dated 21 December 2007; and
(b)thereby also precluding the admission in to evidence earlier versions of the appellant's invoice dated 21 December 2007
It relates to the alternative defence to the claim, in relation to which the magistrate found that at a meeting in or about February 2008 between Mrs Jessop and the appellant, the appellant agreed to fix his fees based on a construction cost of $500,000 (see [31] above).
The relevant portion of the transcript is at AB 482 ‑ 486. From my review of the transcript, the following occurred (with some detail added in to aid in understanding what occurred, as well as to seek to cross‑reference it to the documents which I have defined above):
(a)counsel for the appellant showed Mrs Jessop the 21 December Invoice Version III (that which appeared as RR16 to the appellant's statement of intended evidence);
(b)counsel for the appellant asked Mrs Jessop to confirm that her evidence was that the reference 'fixed at $500,000' was a confirmation of a discussion that she had with the appellant in February 2008 in which the two of them agreed that the appellant would fix his rate at $500,000;
(c)counsel for the appellant then sought to show Mrs Jessop another version of the 21 December Invoice;
(d)her Honour asked whether this document had been discovered;
(e)counsel for the appellant stated that it had been provided by the respondent's solicitors under cover of a letter dated 2 May 2011 which provided 'by way of further disclosure, a bundle of bank statements from our clients together with the related tax invoices, receipts and statements from your client' (AB 210);
(f)it appears from the transcript that the document in (c) was the 21 December Invoice Version I;
(g)counsel for the appellant has asked his client to check his files after the hearing the preceding day, and the appellant found what I understand was the 21 December Invoice Version II;
(h)the appellant did not give evidence about the 21 December 2011 Version I or Version II;
(i)counsel for the respondents stated that he had not been able to cross‑examine the appellant on the 21 December 2011 Version II (the appellant having given evidence the preceding day) and that the 21 December Invoice Version II had not been discovered, and should have been; and
(j)counsel for the appellant stated that the original document was sent by the appellant to the respondents, and that the original (the 21 December Invoice Version I) only came back to the appellant by way of the respondents' informal discovery.
Her Honour then ruled (AB 484):
HER HONOUR: It doesn't matter where it's come from. How does that matter? You had it during informal discovery and you now - - -
CORBOY, MR: I have not, no.
HER HONOUR: No.
CORBOY, MR: At the time I became aware that this was in existence or could be in existence and looked at the letter - - -
HER HONOUR: You may have come across it late but the real issue is whether, as a matter of natural justice, it would be appropriate to allow cross-examination in respect to a document your client – was in your client's power or possession and your client has failed to give any evidence about. It's taking this witness, the defendant, completely by surprise. I'm not going to allow it, Mr Corboy. I'm not going to allow it.
CORBOY, MR: Okay.
HER HONOUR: Not appropriate. The whole purposes of statements of intended evidence is to avoid this very issue of parties being taken by surprise. That's not a new concept, Mr Corboy.
CORBOY, MR: I'm aware of the concept.
HER HONOUR: That's a concept that, you know, has been around for a long time, and that's why we have statements of intended evidence, to ensure that this very problem does not arise. I'm not going to allow it, Mr Corboy.
CORBOY, MR: Okay.
Counsel for the appellant then cross‑examined Mrs Jessop on whether the appellant sent a invoice on 21 December 2007 (referring to the 21 December Invoice Version I without being able to put it in front of Mrs Jessop) with the words 'adjustment to and fixed at ($500,000)' printed on it. Mrs Jessop could not recall that that was the case, and subsequently that she did not know whether that was the case (AB 488).
Ground 1 – Appellant's submissions
Counsel for the appellant submitted that there were two relevantly critical findings which led to the magistrate accepting the alternate defence:
(a)the acceptance of Mrs Jessop's evidence that, shortly after the February 2008 meeting, she received a 'revised' version of the appellant's invoice dated 21 December 2007, resent on 12 February 2008, stating 'construction costs projection rates ($450,000) – adjustment to and fixed at ($500,000)', supposedly reflecting the agreement reached at the meeting (AB 23 ‑ 24); and
(b)the rejection of the appellant's evidence that no such conversation took place (AB 24) and that the adjustment of the construction cost of $500,000 was due to Mr Jessop stating in his email to Reilly on 19 December 2007 that 'we truthfully have only budgeted for $500,000' (AB 24).
The appellant in submissions stated that the relevant version of the 21 December Invoice was Version II (AB 551 ‑ 552), that containing handwritten notes by 'Natahsa'. However, from my review of the transcript, it is apparent that counsel for the appellant was seeking to cross‑examine Mrs Jessop on both the 21 December Invoice Version I and Version II. Hence both are included in the bundle in the Appeal Book relating to Ground 1.
The 21 December Invoice Version I (or Version II for that matter) is significant because it contains the reference to the costs being fixed at $500,000, well prior to the February 2008 meeting between the appellant and Mrs Jessop.
The appellant submitted that the fact that the document was not discovered did not prevent it from being used in cross‑examination of a witness: Cooke v Australian National Railways Commission (1985) 39 SASR 146, 149.
In relation to the reason given by the magistrate that the appellant had not given evidence about it, counsel submitted that this did not prevent cross‑examination on the document, and it could have been tendered as part of the appellant's case in cross‑examination, citing J D Heydon, Cross on Evidence (Lexis Nexis 8th ed) [17550]. In any event, the appellant did give evidence that the invoice sent on 21 December 2007 was adjusted from $450,000 to $500,000 and that the version of the invoice annexed to his statement was the copy re‑sent on 12 February 2008 (AB 84 ‑ 85, 270 ‑ 272).
Counsel further submitted that it could not reasonably be expected that the appellant would give evidence about the distinction between the original invoice and the re‑sent invoice in his statement of intended evidence, as the respondents' statement of defence asserted that the reference to $500,000 was inserted in December 2007, with no reference to the re-sent invoice in February 2008 (AB 32). In this regard, as I have set out [30], the respondents' case at trial differed from that in the statement of defence, as it was asserted that the relevant variation agreement was made in February 2008, not December 2007.
Ground 1 – Respondents' submissions
The respondents submitted that it was clear from Mrs Jessop's witness statement that the relevant agreement to fix the fee at $500,000 was made in February 2008 (AB 182).
The respondents' submissions were based on the fact that the document in dispute was the 21 December Invoice Version II (that containing the handwritten notes by 'Natasha'). On this basis, counsel submitted that it was appropriate that counsel for the appellant was denied the opportunity to cross‑examine on it as:
(a)the sworn discovery of both parties and the information discovery did not include the subject document;
(b)the witness statement of the parties did not include the subject document;
(c)the appellant had already completed his evidence without production or even reference to the subject document; and
(d)the document was not sought to be used until the respondent had given her evidence and was in the midst of cross‑examination.
Ground 1 – Determination
In the appeal book prepared by the appellant, there is a bundle of documents described as being 'documents the subject of ground 1 of the appeal notice'. This bundle relevantly includes the 21 December Invoice Version I and Version II. It is apparent to me from the transcript and from this bundle that counsel for the appellant, if allowed, was going to cross‑examine Mrs Jessop in relation to both documents. This conclusion makes eminent forensic sense.
The 21 December Invoice Version I was discovered informally by the respondents. Having chosen to only provide informal discovery, they cannot assert the fact that the document was not formally discovered as a basis for disallowing cross‑examination.
The 21 December Invoice Version II was neither formally nor informally discovered. I accept the appellant's submission that the fact that the document was not discovered did not prevent it from being used in cross‑examination of a witness: Cooke, 149. However, this is subject to 'costs and the due protection of the plaintiff against the element of surprise ‑ including, if justified, the recall of witnesses for further examination‑in‑chief' Cooke, 149. In that case, the document which was not discovered was surveillance footage of the injured plaintiff.
In the course of oral submissions in the appeal, counsel for the respondents drew the court's attention to MCCPA s 16(1)(q), which provides:
16. Court's powers to control and manage cases
(1)The Court may do all or any of the following for the purposes of controlling and managing cases and trials —
…
(q)refuse to admit into evidence a document that a party has deliberately not disclosed or provided in accordance with rules of court …
There is nothing in the transcript which suggests that the magistrate relied on this power to refuse counsel for the appellant the opportunity to cross‑examine Mrs Jessop. Neither is there anything in the materials before me to suggest that the failure to discover the 21 December Invoice Version II was deliberate. I do not consider that this section is relevant for the purposes of the appeal.
The 21 December Invoice Version II contained handwritten notes which appear on their face to have been made by Mrs Jessop. To the extent that these notes were said to constitute a prior inconsistent statement, it was open to counsel for the appellant to have cross‑examined Mrs Jessop about it pursuant to Evidence Act 1906 (WA) s 21. There is no requirement in Evidence Act s 21 or s 22 for the document to have been discovered prior to its use for this purpose.
Even if the 21 December Invoice Version II did not constitute a prior inconsistent statement, it could nonetheless be used for the purposes of cross‑examination. Likewise with the other versions of the 21 December Invoice. Specifically, a party to an action may, in cross‑examination, be asked to make admissions as to the contents of a document, whether or not made by him or her, if the contents are within his or her personal knowledge: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498, at 509; Paterson v Paterson (1953) 89 CLR 212, 225; R v Cooper (Warwick John) (1986) 82 Cr App R 74, 78 ‑ 79. By parity of reasoning, the party may also be asked other questions in relation to the document, such as whether and when they received it, provided that the questions are within his or her personal knowledge.
There are handwritten notes on the 21 December Invoices Versions I, II and IV. Counsel for the appellant was entitled to ask Mrs Jessop if she made the handwritten notes, a fact within her personal knowledge. If the any of these handwritten notes were those of Mrs Jessop, as the author, she was the appropriate witness though whom the relevant document could and should have been tendered, which could have been done in cross‑examination.
The magistrate referred to issues of natural justice, in particular to the fact that there was no reference to the 21 December Invoice Version I or Version II in the appellant's statement of intended evidence. The rules of natural justice or procedural fairness provide that 'before any one can be punished or prejudiced in his person or property by any judicial or quasi‑judicial proceeding he must be afforded an adequate opportunity of being heard': Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [39]; MTI v SUL (No 2) [2010] WASCA 58 [1], [2], [42]. In MTI, Newnes JA (with whom Pullin JA and Buss JA agreed) stated that the 'principle that a party must have an adequate opportunity to be heard ordinarily requires that the party affected be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material'. The opportunity also includes the right to test and/or rebut evidence relied upon by the moving party and to make submissions on matters of fact and law: International Finance Trust [39]; MTU [1], [2], [43].
In my view, in the case under appeal, the principles of natural justice supported, rather than opposed, the cross‑examination of Mrs Jessop based on the 21 December Invoice Version I or Version II. This is because, as I have set out above, the respondents' case changed between their statement of defence and the opening at the trial. In their statement of defence (filed 24 June 2010), the relevant agreement to fix the fees based on a $500,000 construction cost was said to have been entered into 'in or about December 2007'. In their opening, the agreement was said to have been in February 2008. The purpose of the statement of defence was, among other things, to 'furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it': Dare v Pulham[1982] HCA 70; (1982) 148 CLR 658, 664. The appellant's statement of intended evidence was filed after the statement of defence on 7 October 2010. In this context, it is understandable that the appellant's statement of intended evidence did not go into detail about the four versions of the 21 December Invoice. Again in this context, the rules of natural justice required the appellant to have been given some latitude in cross‑examination so as to be given a fair opportunity to meet the amended case being put forward by the respondents.
Had the magistrate allowed cross‑examination on the various versions of the 21 December Invoice, counsel for the respondents could have re‑examined Mrs Jessop on the documents put to her in cross‑examination: Meredith v Innes (1930) 31 SR (NSW) 104, 112. As set out in Cooke, if required, the magistrate could recalled the appellant for further examination‑in‑chief, or even cross‑examination.
In my view, the magistrate erred in not allowing counsel for the appellant to cross‑examine Mrs Jessop in relation to the 21 December Invoice Version I and Version II.
The denial of the opportunity to cross‑examine Mrs Jessop on the 21 December Invoice Version I and Version II was significant to the ultimate decision. The magistrate found that Mrs Jessop's evidence, which she preferred, was 'consistent with the receipt shortly thereafter of Mr Reilly's invoice resent 12 February 2008 referring to construction costs being fixed at $500,000' (AB 24). From the face of the 21 December Invoice Version I and Version II, it is apparent that the reference to construction costs being fixed at $500,000 was in the original version of the invoice, sent in December 2007, well prior to the February 2008 meeting referred to by Mrs Jessop.
A magistrate will commit an error if she improperly denies a party the right to cross‑examine a witness: Western Australia v Watson [1990] WAR 248, at 287 ‑ 294. As to the consequences of the erroneous rejection of evidence, in Balenzuela v De Gail (1959) 101 CLR 226, 232, Dixon CJ stated:
When material evidence has been erroneously rejected at the instance of the party who succeeds, then to deny nevertheless to the unsuccessful party the remedy of a new trial the Court must have some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so.
Applying this principle, I do not need to make any finding that the magistrate would have come to a different decision in relation to the wider issue of the agreement to fix the fees had Mrs Jessop been cross‑examined on the 21 December Invoice Version I and II. It is sufficient for me to find that I am not satisfied that the reception of the evidence would not have affected the result.
The issue to which Ground 1 relates only become live if either Ground 4 or Ground 5 is made out, and the appeal is successful. In that instance, Ground 1 means that if the appeal is successful, it would be appropriate to order a new trial in the Magistrates Court pursuant to MCCPA s 43(7)(c), rather than to proceed to determine all the factual issues in the appeal based on the evidence adduced at the first trial.
Ground 5
Ground 5 – Issues
Ground 5 provides:
in the alternative to ground 4, the learned magistrate erred in finding that following the acceptance by the respondents (defendant) of the appellant's (claimant's) repudiation, there was no basis for the appellant to invoice (and recover) further fees; and ought to have found that, despite the termination of the contract, the appellant was entitled to invoice and recover the fees claimed as a liability that had already accrued to him.
The invoice the subject of the action was for the difference between the appellant's fees based on a completed construction cost of $500,000 and a completed construction cost of $1,052,574. In this context, Ground 5 raises two issues:
(a)whether as a matter of law accrued rights can survive the repudiation of a contract; and
(b)if the answer to (a) is 'yes', whether the appellant's right to sue based on the completed construction contract had accrued.
Ground 5 – Appellant's submissions
The appellant submitted that the magistrate erred in law in that she appears to have wrongly assumed that the termination of the Agreement by repudiation extinguished the appellant's rights under the Agreement entirely. The appellant submitted that, as a matter of law, accrued rights such as payments which have been earned, may still be recoverable after repudiation, citing: Elkhoury v Farrow Mortgage Services Pty Ltd (in liq) (1993) 114 ALR 541, 546: McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457, 476 ‑ 477; and Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd (in liq) [1936] HCA 6; (1936) 54 CLR 361.
The appellant submitted that in the present case, he has the accrued right to a fee based a percentage of the completed contract price. By the date of termination, the first three phases (sketch design, design development and documentation) had been concluded and invoiced as to 100% of the budgeted final construction cost. The appellant had earnt his fee in respect of the first three phases, that fee being a percentage of the completed construction cost. The fact of the present case were thus on all fours with the decision in Westralian Farmers.
Ground 5 – Respondents' submissions
Counsel for the respondent accepted that rights which accrued to a party before termination may be enforced including the right to sue for damages for breach of contract, citing: McDonaldand Holland v Wiltshire (1954) 90 CLR 409, at 416. However, counsel submitted that:
(a)at the time of his 'resignation', the appellant had been paid all that he was owed;
(b)from the time of his 'resignation' to the time of the property settlement, the appellant performed no chargeable work for the respondents (though he did do some complimentary work);
(c)when the appellant resigned, he repudiated the Agreement and waived or abandoned any claim for further commission fees; and
(d)if there was further work, the appellant in the letter of 'resignation' made it clear that it would be done on an hourly basis.
Ground 5 – Determination
Ground 5 assumes that the magistrate was correct in finding that:
(a)a reasonable person in the respondents' situation, when looking at the appellant's letter 27 May 2008 of resignation as a whole, would consider that the appellant was repudiating the Agreement; and
(b)the respondents, following recept of the appellant's letter of 27 May 2008, sufficiently manifested an election that they were treating the Agreement as terminated.
The relevant issue for the appeal is the legal effect of this conduct.
A contract is terminated by repudiation when one or other party uses unequivocal words or conduct evincing an election to terminate the performance of a contract, though there is no requirement to use the word 'terminate': Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141, at [244].Termination of a contract by repudiation is a serious matter, and is not to be lightly found or inferred: Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620, 633. Attorney‑General of Botswana [243].
As Murphy J discussed in Attorney-General of Botswana, the term 'repudiation' is used in two senses: ([245] ‑ [247]):
245 The term 'repudiation' is used in different senses. First, it may refer to the renunciation of the contract, in the sense that the repudiating party's conduct evinces an unwillingness or inability to render substantial performance of the contract. The test is whether the conduct of that party is such as to convey to a reasonable person, in the situation of the other party, renunciation of the contract as a whole or of a fundamental obligation under it. Secondly, the term 'repudiation' may refer to any breach of contract which justifies the termination by the other party: Koompahtoo Local Aboriginal Land Council v Sanpine [[2007] HCA 61; (2007) 233 CLR 115] [44].
246 Termination for repudiation in either sense operates prospectively so that each party is released from all further performance of the contract, and rights accrued under the contract prior to termination remain enforceable (unless the contract otherwise provides): McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457, 476 - 477.
247 The valid exercise of a right to terminate is a species of election and the general principle is that an election between inconsistent rights, once made, is final: [Carter JW, Breach of Contract (2nd ed, 1991)] [1002], [1082], [1205].
248 Whether an election has been made is to be judged, not by the subjective intention of the party with the choice, but by that person's words and conduct: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1 [359]
The relevant passage from the decision in McDonald is in the judgment of Dixon J (476 ‑ 477):
When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. But when a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach …
This passage was referred to with approval by the Full Court of the Federal Court (Lockhart, Gummow and Lee JJ) in Elkhoury, 546. Their Honours went on to comment (546 – 547 some references ommitted):
As Professors Carter and Phillips point out ['The Liability of Debtors and Guarantors Under Contracts Discharged for Breach' (1992) 22 UWAL Rev 338, at 340]) this passage contains three basic propositions concerning discharge by acceptance of repudiation: (i) termination discharges both parties from further performance, (ii) discharge does not affect rights and obligations which have already been unconditionally acquired, and (iii) causes of action which have accrued from the breach continue. Proposition (iii) applies mainly to claims for damages, whilst (ii) applies particularly to claims for sums fixed by the contract.
Payments which have been 'earned' even by the party in breach are still recoverable after discharge … (It is unnecessary for the present case to consider the status of payments 'earned' before termination, but which under the now discharged contract are only due and payable at a later date; it has been said that the creditor must wait until the due date and, semble, cannot elect to sue forthwith for a discounted sum: see Carter and Phillips, supra, at 348–9).
The court in Elkhoury also referred to the decision in Westralian Farmers Ltd. In that case, the respondent (Commonwealth) had an agreement with a manufacturer of tractors in the USA relating to the importation of the tractors into Australia for sale. Commonwealth entered into an agreement pursuant to which the appellant (Westralian) was appointed its agent for the sale of the tractors. Westralian agreed to purchase a number of tractors from Commonwealth for a fixed price (which was to be paid to the manufacturer) and a percentage (which was to be paid to Commonwealth on arrival of each consignment of tractors into Australia). Orders were sent by Westralian directly to the manufacturer in the USA. Westralian took delivery of the goods in the USA. The agreement between Westralian and Commonwealth provided that it would come to an end if the agreement between Commonwealth and the manufacturer came to an end. The agreement between Commonwealth and the manufacturer came to an end on 3 February 1925, but the appellant had no notice of this until April 1925. Prior to 3 February 1925, Westralia ordered some tractors from the manufacturer and took delivery of them in the USA, but they did not arrive in Australia until after that date. Commonwealth sued Westralia for the percentages owed on these tractors and was successful at first instance.
The High Court held (by majority) that Westralian was liable to pay Commonwealth the amount of the percentages in issue. Its obligation to pay had arisen before, and was not extinguished by, the termination of the contract, payment of the percentage being merely postponed until the arrival of the tractors in Australia.
Dixon and Evatt JJ reiterated the principle in McDonald, that it is 'a rule of law that when a simple contract is discharged by the election of one party to treat himself as no longer bound after the other has committed a breach of the contract, rights and obligations which have already arisen from the partial execution of the contract shall remain unaffected' (379). Their Honours then stated (at 380):
In the present case the 32 tractors had been delivered before the termination of the contract. On behalf of the respondent company, which under the agreement occupies the position of a vendor, the price payable to the vendor's supplier had been paid by the appellant company and the property had under the agreement passed to it. In point of law the percentage formed part of the price payable to the respondent company as vendor. Its payment, however, was by the terms of the contract deferred until the arrival of the goods at Fremantle. This contingency depended upon external events constituting no part of the performance of the contract. The right to payment, no doubt, was at the time of the termination of the agreement contingent but it was a debt otherwise completely vested in the respondent company as creditor. The termination of the agreement did not prevent it becoming absolution the occurrence of the contingency.
In the same case, McTiernan J stated (386):
The arrival of the goods at Fremantle was not dependent on the subsistence of the contract after the goods were consigned to that port. Payment of the 'percentages' could not be demanded before that time, but all conditions necessary to create the plaintiff's right to payment were fulfilled in accordance with the contract while it was still in existence.
In the present case, the effect of the findings by the magistrate was that appellant's conduct amounted to repudiation by renunciation, as explained by Murphy J in Attorney-General of Botswana. In my view the magistrate erred in law in finding that once the Agreement had been repudiated by renunciation, there was no basis for the appellant to issue the final invoice to the respondents. The authorities that I have cited make it clear that termination for repudiation by way of renunciation 'operates prospectively so that each party is released from all further performance of the contract, and rights accrued under the contract prior to termination remain enforceable (unless the contract otherwise provides)' Attorney-General of Botswana [246]. The magistrate did not review the Agreement to determine whether or not it 'otherwise provided'.
This error of law is material in the sense that it may have had an impact on the outcome of the appeal. This is because there is evidence in the material before the magistrate and before me which makes it arguable that the Agreement did not expressly provide that accrued rights could not be enforced. In particular, the Agreement expressly provides that:
(a)the architectural fees are earned in stages, the first three of which will self‑evidently be completed prior to the building being completed;
(b)the architectural fee is based on the 'completed project cost'; and
(c)the construction cost is to be reviewed and adjusted as the project develops.
On the other hand, it is unclear on the material before me that the amount of the $1,052,574 was in fact the completed construction cost for the work to which the Agreement applied, or whether it related to other work as well. It was over double the 'fixed' estimate in the 21 December invoices.
On balance, I am not satisfied that the error of law would have had no bearing on the outcome of the trial. This error of law is thus a sufficient basis for the appeal to be allowed. Given my findings in relation to Ground 1, this means that a new trial needs to be ordered. That being so, it is not appropriate for me to deal with the issue identified in [66](b) above, and make factual findings in relation to the application of the principle of law set out in [80].
Ground 4
Ground 4 provides:
the learned magistrate erred in finding that the appellant (claimant) repudiated his contract with the defendants by his letter of 27 May 2008 and that such repudiation was accepted by the respondent (defendant); and ought to have found that the appellant terminated the contract by that letter, but remained entitled to invoice and recover the sum claimed as a liability that had already accrued to him or as damages.
As I have noted, the magistrate simply concluded that on the basis of her previous findings, she was not satisfied that the respondents were in breach of the Agreement. In view of the fact that there will be a retrial, with the real potential for different findings on the evidence, there is no need, nor utility, for me to review the evidence relating to this ground.
I do, however, observe that counsel on appeal put this argument with more precision and detail than did counsel at the trial before the magistrate in his opening submissions. Nor is the issue referred to in the statement of claim in the form in which it was argued before me. There needs to be some process of case management prior to the new trial by which the issues in dispute are clearly identified.
Determination of the appeal
For the reasons set out above, I am of the view that:
(a)the magistrate erred in law in refusing to allow counsel for the appellant to cross‑examine Mrs Jessop about the 21 December Invoice Version I and Version II; and
(b)the magistrate erred in law in finding that the repudiation of the Agreement meant that there was no basis for the appellant to issue the final invoice.
These errors are such that it is appropriate that I set aside the decision under appeal and order a new trial to be held in the Magistrates Court. Given the findings of credit made, fairness to the appellant dictates that the new trial should be before a different magistrate.
The costs of the initial trial and the appeal will no doubt now be out of all proportion to the amounts in issue. I would encourage the parties to participate in a further attempt at mediation when the case is remitted back to the Magistrates Court. If the case does not settle, then there are at least three issues which ought to be attended to by way of case management prior to the trial:
(a)there needs to be some process by which the issues in dispute at the trial are clearly identified;
(b)formal discovery should be ordered; and
(c)the issue of whether the parties should be required to file and serve revised or supplementary statements of intended evidence needs to be considered.
I will hear from counsel as to the final orders and costs. I found the appeal books prepared by the appellant's lawyers particularly helpful, and would be prepared to entertain submissions as to a special costs order for this task should that be required.
2
25
1