Ross v Ross [No 3]

[2008] WASC 159

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   ROSS -v- ROSS [No 3] [2008] WASC 159

CORAM:   WHEELER J

HEARD:   ON THE PAPERS

DELIVERED          :   4 AUGUST 2008

FILE NO/S:   CIV 2302 of 1995

BETWEEN:   RAYMOND ARTHUR ROSS

BERNADINE ROSS
Plaintiffs

AND

CLIVE MICHAEL ROSS
JENNIFER ROSS
First Defendants

Catchwords:

Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 2 r 1, O 3 r 5, O 29 r 2(1), O 72 rr 5A and 6

Result:

Directions given

Category:    B

Representation:

Counsel:

Plaintiffs:     No appearance

First Defendants           :     No appearance

Solicitors:

Plaintiffs:     In person

First Defendants           :     In person

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

Ross v Ross (Unreported, WASC, Library No 980679, 26 November 1998)

Ross v Ross [2004] WASCA 102

1. WHEELER J:  This application arises from orders that I made on 24 May 2004 in the judgment of Ross v Ross [2004] WASCA 102. The matter has a long and tortuous history, which I will attempt to set out briefly.

2. The first‑named plaintiff and the first‑named first defendant are brothers.  The second‑named parties were the first‑named parties' respective partners at all material times. 

3. The principal dispute arose from an agreement between the parties surrounding the construction of a house in Winthrop:  Ross v Ross (Unreported, WASC, Library No 980679, 26 November 1998). Among the orders I made in determining that dispute was an order that the matter be remitted to a registrar to take account of moneys paid by the first defendants towards the costs of construction.

4. The process of taking accounts was very protracted, resulting in some 13 hearing days interrupted by lengthy periods of adjournment.  I noted that

   [T]he wholly disproportionate expenditure of time and effort on this matter is explained by two factors.  The first is the extreme hostility and distrust between the parties …

   The second factor was … that there was in numerous - perhaps most - cases, a lack of direct evidence as to the precise expense being incurred and as to its purpose:  Ross v Ross [2004] WASC 102 [3]-[4].

5. In relation to the costs of the accounting, I considered that the first defendants should be ordered to pay a substantial proportion of the plaintiffs' costs, being the costs charged by solicitors, while they were acting, and the first‑named plaintiff's airfares, when he acted in person:  Ross v Ross [2004] WASCA 102 [26]. In order to avoid the risk of a protracted taxation, I gave the plaintiffs 28 days from the date of judgment (that being 24 May 2004) to file and serve written submissions as to the amount of the costs of the accounting, together with copies of any invoices and receipts relied upon [27], [29].

6. Those submissions were not filed within the time frame. 

Background to the present application

1. On 13 November 2007, the first‑named plaintiff contacted the court to have the outstanding costs matter resolved.  The plaintiffs were informed that they would need to seek an extension of time within which to file the documents.  They were instructed to file and serve an application for an extension before 28 January 2008. 

2. An application was received by the Supreme Court Central Office on 25 January 2008, but returned to the first‑named plaintiff for non‑compliance with certain rules and practice directions.  On 7 February 2008, an amended version of the application was accepted for filing.  It was accompanied by an affidavit sworn by the first‑named plaintiff setting out his reasons for failing to file the submissions within 28 days of the judgment.  The affidavit materially states:

   The first defendants ... appealed her Honour's decision [of 24 May 2004].  I believed the question of costs could not be dealt with until the appeal had been dealt with, although I now understand that would only be the case if the defendants had made application to stay the Orders. 

   On or about 15 October 2007 the first defendants filed a Notice of Withdrawal of Appeal. 

   …

   I have been unable to resolve the question of costs in respect of the accounting with the first defendants. 

3. A review of the court records reveals that a Notice of Appeal was in fact lodged on 14 June 2004 and the appeal was discontinued on 15 October 2007:  Ross v Ross (FUL 77/2004).

4. The first defendants were then given an opportunity to file written submissions in response to the application.  However, they advised the court that they had not been served with any documents as at 19 February. 

5. There was further correspondence from both parties about difficulties relating to service.  In a normal case, a simple exchange of letters between the parties would have sufficed, but this is not, as noted at [4], a normal case.

6. I have power under the Rules of the Supreme Court1971 (WA) to vary the court's procedure in a number of respects. In particular, O 1 r 4B provides:

   4B.    System of case flow management

   (1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of ‑ 

   (a)promoting the just determination of litigation;

   (b)disposing efficiently of the business of the Court;

   (c)maximising the efficient use of available judicial and administrative resources; and

   (d)facilitating the timely disposal of business at a cost affordable by parties.

   (2)These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1).

7. These principles are given content by O 2 r 1 (dealing with irregularities), O 72 rr 5A and 6 (service), O 29 r 2(1) (method of proof) and O 3 r 5 (extension of time).

8. Pursuant to these rules, I propose to make the following orders:

   1.Mr R Ross' application for extension of time and affidavit in support be treated as if duly filed and served on 14 August 2008;

   2.Mr R Ross to send to the Court, by 14 September 2008, copies of any further documents upon which he wishes to rely in respect of the costs of the accounting, together with any submissions he wishes to make (not to exceed three A4 pages).

   3.Mr C and Mrs J Ross to send to the Court, on or before 1 November 2008, their submissions, if any, in relation to both the application to extend time (not to exceed two A4 pages) and in relation to the amount of costs which should be allowed on the accounting, in the event that time is extended (not to exceed three A4 pages), together with copies of any supporting documents;

   4.All documents referred to in orders 1 ‑ 3 are to be addressed to my associate personally; and I direct that the court is to send a copy of any documents received to the opposing party within four days of receipt;

   5.Service of all documents save as set out in par 4 is dispensed with;

   6.The application to extend time and, if time is extended, the costs issue, is to be dealt with on the papers. 

9. The parties may, on or before 14 August 2008, provide me with submissions (not to exceed two A4 pages in length) either supporting or opposing any or all of the proposed orders.

10. Unless one of the parties objects, by letter directed to my associate, on or before 14 August 2008, the orders set out above will be the orders of the court.

11. If there is an objection, I will consider the written materials provided and determine any question arising on the papers.