Richardson v Leonard Cohen and Co (A Firm) [No 2]
[2007] WASCA 205
•3 OCTOBER 2007
RICHARDSON -v- LEONARD COHEN & CO (A FIRM) [No 2] [2007] WASCA 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 205 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:18/2007 | 20 SEPTEMBER 2007 | |
| Coram: | STEYTLER P BUSS JA MURRAY AJA | 3/10/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP RICHARDSON LEONARD COHEN & CO (A FIRM) |
Catchwords: | Practice and procedure Appeals Appeal against refusal to extend time to comply with springing order Previous appeal against imposition of same springing order Judge on previous appeal entered judgment for respondent Matter finally determined by earlier appeal |
Legislation: | Nil |
Case References: | FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Leonard Cohen & Co v Richardson [2005] WADC 172 Richardson v Leonard Cohen & Co [2006] WASCA 64 Richardson v Leonard Cohen & Co [2007] WADC 128 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RICHARDSON -v- LEONARD COHEN & CO (A FIRM) [No 2] [2007] WASCA 205 CORAM : STEYTLER P
- BUSS JA
MURRAY AJA
- Appellant
AND
LEONARD COHEN & CO (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
Citation : RICHARDSON -v- LEONARD COHEN & CO [2007] WADC 128
File No : CIV 970 of 2000
(Page 2)
Catchwords:
Practice and procedure - Appeals - Appeal against refusal to extend time to comply with springing order - Previous appeal against imposition of same springing order - Judge on previous appeal entered judgment for respondent - Matter finally determined by earlier appeal
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D H Solomon
Respondent : Mr B W Ashdown
Solicitors:
Appellant : Solomon Brothers
Respondent : Stewart Forbes
Case(s) referred to in judgment(s):
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Leonard Cohen & Co v Richardson [2005] WADC 172
Richardson v Leonard Cohen & Co [2006] WASCA 64
Richardson v Leonard Cohen & Co [2007] WADC 128
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1 JUDGMENT OF THE COURT: This is an appeal from a judgment of Sweeney DCJ in the District Court of Western Australia. At the conclusion of argument we dismissed the appeal and said that we would provide our reasons for doing so in due course. We now do so.
2 The appellant was one of three defendants to an action in the District Court (action). In the action the respondent, as plaintiff, claimed payment of the sum of $156,661.91. The amount claimed was said by the plaintiff to be legal fees due to it by the defendants arising out of the plaintiff's representation of them in prior legal proceedings.
3 The action was commenced on 14 April 2000. It has a long history. For present purposes, it is necessary only to mention events in that history that occurred on and after 21 April 2005.
4 On that day, the respondent filed a summons for judgment against the appellant and the second defendant in the action, Mr Bill Paligorov (the third defendant, a company, was by then no longer a party to the action). The summons sought a declaration that the two defendants had failed to comply with an order that had been made in respect of discovery of documents. There had been a prior history of failure, by the defendants, to comply with orders of that kind that had been made in the action. By the summons the respondent also applied for an order that judgment be entered in its favour for payment of the sum of $156,661.91 with interest at the rate of 8% per annum from 7 January 1999 and for an order for payment of its costs of the action and of the application.
5 The application was heard on 5 May 2005 by Deputy Registrar Hewitt. He declined to enter judgment as sought by the respondent. Instead, he made a 'springing' order. This order was that unless the defendants, within 10 days of service of the order, filed a further affidavit relating to discovery that satisfied specified requirements, 'their defence be struck out and judgment be entered for the plaintiff for the amount of its claim, interest and costs'.
6 The defendants did not file the required affidavit. Instead, by notice filed on 27 May 2005, they appealed against the decision of the Deputy Registrar. The appeal was heard by Sleight DCJ on 11 August 2005. He delivered judgment on 7 September 2005: Leonard Cohen & Co v Richardson [2005] WADC 172. He set out, at some length, the tortured history of the action [5] - [40]. Then, after referring to further affidavit evidence that had been prepared for the purposes of the appeal, he said:
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- The consequences of this appeal are that if I dismiss the appeal then the order of the Deputy Registrar will remain in place and the plaintiff will be entitled to extract a judgment pursuant to the springing order immediately. The appellants seek to have the order of Deputy Registrar Hewitt set aside. [46]
7 After commenting on the then legal representation of the defendants and referring to arguments that had been made on behalf of the respondent, Sleight DCJ mentioned that the appeal was brought pursuant to O 6 r 11 of the District Court Rules 1996 (WA) [49]. He said that it was a 'complete review of the matter de novo by way of an actual re-hearing of the application which led to the making of the order' [50]. He referred, in this last respect, to Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
8 Then, after referring to matters that are not presently relevant, Sleight DCJ expressed the opinion that, when the matter came before the Deputy Registrar on the application for judgment, the conduct of the defendants had been such that he 'would have been entitled to make an order for judgment relying upon O 26 r 15' [60]. The first paragraph of O 26 r 15, quoted earlier in Sleight DCJ's judgment, reads as follows:
If any party who is required by any Rules of this Order or by any order made hereunder, to give discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provisions of that Rule or with that order, as the case may be, then … in the case of a failure to comply with any such provision, … the Court may make such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly.
9 After giving reasons for the conclusion that an order for judgment could have been made under that rule, Sleight DCJ went on to say:
Notwithstanding that in my opinion Deputy Registrar Hewitt would have been entitled to give judgment under O 26 r 15 he generously gave the defendants a further opportunity to give discovery. He also, by the wording of his order, clearly intended to make it explicit as to what documents were required to be discovered.
Since the decision of Deputy Registrar Hewitt I have received further affidavits from the defendants which in my opinion, again manifest a disregard for the obligations of giving proper discovery. The affidavits of the defendants dated 10 August 2005 and 11 August 2005 respectively stating the documents are not in their physical control do not address the issue of their obligation to make enquiries of persons with whom
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- documents may be held on their behalf, and to give discovery of these documents.
In my opinion, the continuing disregard by the defendants of their obligation to give proper discovery justifies a judgment being entered against them under O 26 r 15. In my opinion, the history of this matter demonstrates that the defendants have deliberately attempted to frustrate the plaintiff's attempts to obtain proper discovery, and in doing so they have sought to avoid putting the [plaintiff] in the position [in] … which … [it] will be able to prepare adequately for trial.
In the circumstances I believe I should make an order under O 26 r 15 for judgment.
I will hear submission from counsel as to the appropriate wording of the orders. [63] - [67]
10 On 16 September 2005 judgment was entered in favour of the respondent against the defendants. By par 1 of the judgment the plaintiff was given leave to further amend its statement of claim. By par 2 of the judgment the defendants were ordered to pay the respondent $156,661.91. By paragraphs 3 and 4 the defendants were ordered to pay the respondent interest on the judgment sum at 8% calculated from 7 January 1999 and its costs of the proceedings and of the appeal.
11 On 15 September 2005 the defendants lodged an appeal to the Court of Appeal against the whole of the decision of Sleight DCJ. However, they failed to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). The appellants' case, including their grounds of appeal, was not filed within the required time. On 2 November 2005 the Court of Appeal Registry wrote to the defendants requesting that their case be filed forthwith. Subsequently, an attempt was made to file the appellants' case by facsimile transmission. There were defects in the document lodged. Also, no filing fee accompanied it, in breach of the requirements of the Rules. These difficulties were pointed out to the defendants by the Court of Appeal Registry. A directions hearing was subsequently held on 7 February 2006. The defendants were represented by a friend of the second defendant (Mr Ferral) who sought an adjournment on the defendants' behalf. This was seemingly sought upon the basis that there was a possibility that a firm of solicitors might be instructed. The Registrar explained to Mr Ferral that the appeal was at risk of being dismissed as a consequence of the serious delay in progressing it. The defendants were directed to file and serve their case as appellants no later than 14 February 2006. Orders were also made that, in the event that they did not comply with that direction, the appeal would be referred to a
(Page 6)
- single judge of the Court of Appeal to consider whether it should be dismissed under r 43(2)(g)(ii) of the Court of Appeal Rules.
12 Nothing was done by the defendants until 14 February 2006, when they again attempted to lodge their case by facsimile transmission. Again, no attempt was made to pay the necessary filing fee. The defendants' solicitors were alerted to this problem on 14 February 2006 and again on 16 February 2006. The appeal was subsequently referred to a single judge, Wheeler JA. When the matter came before her on 9 March 2006, the second defendant was represented by a solicitor. He told Wheeler JA that there was nothing in his instructions that would explain the delay to date. He said that he was instructed by the second defendant that, if the matter was to be further adjourned, the second defendant would attempt to instruct solicitors who would then progress the appeal.
13 Wheeler JA declined to grant a further adjournment. She dismissed the appeal of both defendants: Richardson v Leonard Cohen & Co [2006] WASCA 64. She said that there was no explanation for the considerable delay to date and that, having regard for this, together with the history of delays revealed in the reasons for decision of Sleight DCJ and the fact that the appeal appeared to have 'very slender merit', the appropriate course was to dismiss the appeal of both appellants upon the basis that they had not obeyed the Court of Appeal Rules or any order made under them [8].
14 Neither the appellant nor the second defendant sought to challenge the decision of Wheeler JA. Instead, on 21 September 2006, having instructed new solicitors, they filed another summons in the District Court action. They sought an order that the time for compliance with the order of Deputy Registrar Hewitt made on 5 May 2005 be extended 'to the date which is 7 days after the making of orders disposing of this application'. They also sought an order that the whole of the orders made by Sleight DCJ on 16 September 2005 be set aside. The application was heard by Deputy Registrar Hewitt on 3 October 2006. He dismissed it. He ruled that he had no power to make the orders sought because the action had been finally determined by the dismissal of the appeal against the judgment of Sleight DCJ.
15 By notice of appeal dated 4 October 2006 the appellant appealed against the decision of Deputy Registrar Hewitt made on the previous day. The ground of appeal was that the Deputy Registrar had erred in law in finding that he had no power to make the orders sought. The appeal was
(Page 7)
- heard by Sweeney DCJ on 12 January 2007. On that day, she dismissed it: Richardson v Leonard Cohen & Co [2007] WADC 128.
16 Counsel for the appellant contended, in that appeal, that Deputy Registrar Hewitt had had the power to extend time for compliance with the springing order made by him on 5 May 2005 notwithstanding what had transpired in the subsequent appeals to Sleight DCJ and to the Court of Appeal. He relied, in that respect, on O 3 r 5 of the Supreme Court Rules. This rule gives to the court a power to extend the period within which a person is required by any order to do any act in any proceedings even if the application or extension is not made until after the expiration of that period.
17 Sweeney DCJ considered that the appellant's argument was misconceived. She found that the action had been concluded by the entry of judgment by Sleight DCJ. She said, in this respect, that his judgment was not an order 'by which a person was ordered to do something within a particular time' [28]. She also found that the springing order that had been made by Deputy Registrar Hewitt was 'overtaken' by Sleight DCJ's judgment. She said that this had the consequence that an extension of time within which to comply with the springing order made by Deputy Registrar Hewitt on 5 May 2005 would have no effect. She went on to say:
Whether His Honour had entered judgment in his own right or not interfered with the springing order which self-executed, it is clear that the Court's intention was to enter judgment pursuant to O 26 r 15 of the Supreme Court Rules and that the basis for the Court's discretion being enlivened was not merely the failure to comply with the springing order, in which case the order would self-execute, but His Honour's finding of the continuing disregard by the defendants of their obligation to give proper discovery. That accords with the record of the result both in the judgment itself and the Court's file and also accords with Her Honour Wheeler JA's understanding of the outcome. [31]
18 In the appeal to this court, counsel for the appellant largely repeated the arguments that had been unsuccessfully made before Sweeney DCJ. He relied, in support of them, on FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. However, like Sweeney DCJ, we do not consider that that case assists the appellant. While it is true that Sleight DCJ might have enlarged the time limit contained within the springing order made by Deputy Registrar Hewitt, even though that time had by then expired, no such application was made. Instead, as Sweeney DCJ pointed out [33], the appellant chose to appeal against the making of the springing order. As Sweeney DCJ also pointed
(Page 8)
- out, the orders made by Sleight DCJ did not require anything to be done by the appellants within any specified time (or at all), with the result that no question of any extension of time for compliance with those orders (or any of them) could arise.
19 Counsel for the appellant acknowledged that his appeal to this Court could not succeed unless the Court was persuaded that Sleight DCJ did not himself order that judgment be entered against the appellant under O 26 r 15 of the Supreme Court Rules in lieu of the judgment that had followed from the springing order made by Deputy Registrar Hewitt on 5 May 2005, and that he did no more than dismiss the appeal against that order. He contends, in this respect, that it was not open to Sleight DCJ to do any more than dismiss the appeal, thereby confirming the judgment that had already been entered. He also contended that Sleight DCJ did not intend to do any more than this.
20 As to the first of these contentions, counsel for the appellant suggested that the very nature of the appeal, being an appeal against the decision to make the springing order, had the consequence that no other order could be made (if the appellant's arguments in support of the appeal were rejected) than one dismissing the appeal. He pointed to the fact that there was no cross-appeal contending that the default in compliance with the order for discovery was such that it should have led to the making of an order for an immediate judgment rather than a springing order.
21 As to the second contention, counsel for the appellant relied, in particular, upon what was said by Sleight DCJ in [40], [46] and [48] of his judgment. In the first of those paragraphs, Sleight DCJ described the matter before him as 'an appeal against the decision of Deputy Registrar Hewitt'. In the second of them, Sleight DCJ said (as we have mentioned) that the consequence of the appeal was that, if he dismissed it, the order of the Deputy Registrar would 'remain in place and the plaintiff will be entitled to extract a judgment pursuant to the springing order immediately'. In the third of the paragraphs relied upon, Sleight DCJ mentioned that the plaintiff's argument was that the appeal should be dismissed. Counsel for the appellant suggests that it is plain from all of this that Sleight DCJ intended to do no more, and did no more, than dismiss the appeal, leaving the springing order, and the judgment which automatically followed it, in place.
22 He submits that Sweeney DCJ was consequently wrong to dismiss the appeal upon the basis that she lacked the power to make the order sought. He said that she did have this power, because the appeal to
(Page 9)
- Sleight DCJ, and that to the Court of Appeal, went only to the issue of whether a springing order should have been made and the dismissal of the appeals left that order intact. On the other hand, he said, the application to Deputy Registrar Hewitt on 3 October 2005 went to a different issue. This was whether or not the District Court should relieve the appellant from an injustice by extending the time within which he was obliged to comply with the discovery orders that had been made, including the springing order made on 5 May 2005, and by setting aside the judgment that had resulted from the appellant's failure to comply with the springing order.
23 We will deal first with the appellant's contention that Sleight DCJ did no more than dismiss the appeal against the making of the springing order by Deputy Registrar Hewitt.
24 In our respectful opinion, Sweeney DCJ rightly concluded that Sleight DCJ intended to, and did, substitute for the judgment entered pursuant to the springing order made by the Deputy Registrar a judgment pursuant to O 26 r 15 of the Supreme Court Rules.
25 As will be apparent, Sleight DCJ commenced his analysis of the issues arising in the appeal by mentioning that it was 'a complete review of the matter de novo by way of an actual re-hearing of the application which led to the making of the order' [50]. We have said that he referred, in that respect, to Hazart. In that case, Malcolm CJ, mentioned that an essential condition of the validity of the delegated jurisdiction exercised by a District Court registrar was the existence of a provision for a complete review de novo by a judge of the District Court. He went on to say that, as was the case under the English Rules, an appeal from a registrar to a District Court judge is dealt with by way of 'an actual rehearing of the application which led to the order under appeal' (28). He said that the judge 'treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not made by him but against him, has the right as well as the obligation to open the appeal' (28).
26 Then, in [60] of his judgment, Sleight DCJ expressed the opinion that, when the matter came before Deputy Registrar Hewitt on the plaintiff's application for judgment, 'the conduct of the defendants had been such that the Deputy Registrar would have been entitled to make an order for judgment relying upon O 26 r 15'. After giving his reasons for that conclusion, he went on to say at [64] and [65] (as we have earlier mentioned) that the affidavits that had since been filed again manifested 'a
(Page 10)
- disregard for the obligations of giving proper discovery' and that, in his opinion, the continuing disregard by the defendants of their obligations to give proper discovery justified the entry of a judgment against them under O 26 r 15 of the Supreme Court Rules. We have also mentioned that he went on to say:
In the circumstances I believe I should make an order under O 26 r 15 for judgment. [66]
28 Counsel for the appellant's contention that, in the absence of a cross-appeal, it was not open to Sleight DCJ to do more than dismiss the appeal before him consequently falls away. Because we have found that Sleight DCJ made an order under O 26 r 15 for an immediate judgment in lieu of that entered pursuant to the springing order, it is irrelevant to this appeal whether or not he made any error in doing so. This is not an appeal against his judgment. An appeal of that kind has already been made to, and dismissed by, this Court.
29 Our conclusions require that the appeal to this Court be dismissed. It was for these reasons that we dismissed it at the conclusion of argument on the hearing of the appeal. As we have said, counsel for the appellant very properly acknowledged that, if we were to reach the conclusion that Sleight DCJ had (whether rightly or wrongly) set aside the orders made by the Deputy Registrar and substituted, in lieu, the orders to which we have referred, it followed inevitably that this appeal should be dismissed. It is accordingly unnecessary to deal with the other issues that were raised in the course of the appeal.
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