Richardson v Leonard Cohen & Co - [2007] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RICHARDSON -v- LEONARD COHEN & CO [2007] WADC 128

CORAM: SWEENEY DCJ

HEARD: 12 JANUARY 2007

DELIVERED : Delivered Extemporaneously on 12 JANUARY 2007 typed from tape and edited by Trial Judge

FILE NO/S: CIV 970 of 2000

BETWEEN: PHILLIP RICHARDSON
Appellant (Third Defendant)
AND
LEONARD COHEN & CO
Respondent (Plaintiff)

Catchwords:

Application to extend time for compliance with springing order after judgment entered

Legislation:

Rules of the Supreme Court 1971, O 3 r 5, O 26 r 15, O 26 r 16

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Third Defendant) : Mr C S Williams
Respondent (Plaintiff) : Mr S V Forbes

Solicitors:

Appellant (Third Defendant) : Solomon Brothers
Respondent (Plaintiff) : Stewart Forbes

Case(s) referred to in judgment(s):

FAI General Insurance Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Leonard Cohen & Co v Richardson & Anor [2005] WADC 172
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Richardson & Anor v Leonard Cohen & Co (A Firm) [2006] WASCA 64

SWEENEY DCJ: This is an appeal from the decision of Deputy Registrar Hewitt on 3 October 2005 dismissing an application by the second and third defendants to extend the time for compliance with a springing order for discovery and to set aside orders made by Sleight J on 16 September 2005 entering judgment against them. It is necessary to set out the history of the matter.

History of action

The appellant is the third defendant to an action in this Court in which the plaintiff law firm seeks recovery of some $156,000 unpaid legal fees for representing the defendants in a previous Supreme Court action. The plaintiff law firm did not see the Supreme Court action to its conclusion but ceased to act prior to that matter settling between the parties. The writ for unpaid legal fees dates back to April 2000. The first defendant is now defunct and the claim against it is discontinued.
The matter was listed for trial on 16 January 2003, but adjourned by HH Jackson J. It is unnecessary for me to go into the reasons for the adjournment. His Honour made programming orders, including orders for further discovery on the part of the remaining defendants. The course of that further discovery and the plaintiff's attempts to compel the defendants to give discovery of, in particular, documents generated in the Supreme Court action after the plaintiff law firm had ceased to act, has been set out in the decision of Sleight J in Leonard Cohen & Co v Richardson & Anor [2005] WADC 172.
On 2 February 2005 the plaintiff's application for specific discovery was heard by Deputy Registrar Harman, who gave the defendants 14 days within service of the order to provide further discovery.
An affidavit of discovery was filed claiming privilege over a composite bundle of documents described as, "All court documents and correspondence relating to the Supreme Court action," listing and enumerating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WADC 128
Decision Date: 12 January 2007 typed from tape and edited by Trial Judge

CaseChat Overview and Summary

In the matter of Richardson v Leonard Cohen & Co, the parties were involved in a dispute concerning the enforcement of a springing order made by Deputy Registrar Hewitt. The appellant sought an extension of time to comply with this order after judgment had been entered. The case was heard by Sleight J and subsequently appealed to the court of appeal. The primary legal issues were whether the appellant had the right to appeal against the springing order and whether the court had the authority to set aside the judgment entered by Sleight J.

The court held that the decision in FAI General Insurance Ltd v Southern Cross Exploration NL provided that O 3 r 5 of the Supreme Court Rules empowered Sleight J to enlarge the time limit contained within the springing order made by Deputy Registrar Hewitt. However, the court determined that an application to extend time was not an appeal and could have been made instead of appealing the order. Furthermore, the court found that it had no power to set aside Sleight J's decision as there was no right of second appeal before the court and no right of appeal from a brother judge. The court also considered O 26 r 16 which allows for the revocation or variation of orders made under this order, including orders made on appeal, but found that the appellant's application was not within the scope of this rule.

The court concluded that the appeal was not valid as it was not an appeal in fact, and the appellant had no right to appeal against the springing order made by Deputy Registrar Hewitt. The court also found that it had no power to set aside the judgment entered by Sleight J as there was no right of second appeal before the court and no right of appeal from a brother judge. The court held that the appellant's application to extend time was not within the scope of O 26 r 16, which allows for the revocation or variation of orders made under this order, including orders made on appeal.

No orders were made by the court as the appeal was determined to be invalid. The court did not have the authority to set aside the judgment entered by Sleight J or to extend the time limit for compliance with the springing order made by Deputy Registrar Hewitt. The court's decision was based on the principles of appeal and the scope of O 26 r 16, and it was determined that the appellant had no right to appeal against the springing order or to extend the time limit for compliance with that order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant relies considerably on the decision of the High Court in FAI General Insurance Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, but in my view that does not assist the appellants. It establishes that O 3 r 5 of the Supreme Court Rules empowered Sleight J, had his Honour so wished, to enlarge the time limit contained within the springing order made by Deputy Registrar Hewitt notwithstanding that that time may have expired for compliance and notwithstanding that it may have self‑executed. There is nothing in the judgment which indicates that His Honour understood otherwise than that he had that power. An application might also have been made to this Court simply seeking an order to extend time in relation to the springing order made by Deputy Registrar Hewitt. Instead, the choice was made to appeal against that springing order, but in my view the decision of the High Court also provides authority for such an application to extend time. The same cannot be said however, in relation to the decision of Sleight J to enter judgment. Whether His Honour entered judgment, as he did, or refused to extend time, in my view I have no power to set aside His Honour's decision. I am not sitting as a Judge at first instance in relation to Deputy Registrar Hewitt's order of 5 May 2005. That order has been the subject of an appeal and that appeal determined. On this appeal I am being asked again to reconsider that order of 2 May 2005. There is no right of second appeal before this Court and no right of appeal at all from a brother Judge. An application to extend time is not an appeal in fact and such an application could, as I said, have been made, in respect of the springing order made by Registrar Hewitt on 5 May 2005, but instead the defendants appealed that order. No application to extend time from Judge Sleight's order can be made, his order having no time limit component contained within it. I have considered and I have asked the parties to consider in argument O 26 r 16 which is headed Revocation and Variation of Orders, and states:"Any order which has been made under this order, including an order made on appeal, may on sufficient cause being shown be revoked or varied by a subsequent order or direction of the court made or given at or before the trial of the cause or matter in relation to which the original order was made." In "Civil Procedure Western Australia" (Lexis Nexis Butterworths Australia 1990 Vol 1) at p 6468 and p 6469 at par 26.16.3 the learned authors state:"Pursuant to the rule one judge or master may vary the order of another judge or master, and in the case of an order which affects the position of a third party, it is sufficient ground for variation that the facts were not placed before the court on the earlier application as they should have been: Biala Pty Ltd v Mallina Holdings Pty Ltd (No 2) (1992) 13 WAR 11; 11 ACSR 785; 11 ACLC 1082. An order made by consent is within the rule, and the fact that the consent was given by mistake may be good cause to vary the order: Greenpark Pty Ltd v Odin Inns Pty Ltd (1989) WAR 322 at 324, 325."