Ross v Ross [No 4] - [2008] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ROSS -v- ROSS [No 4] [2008] WASC 181

CORAM: WHEELER J

HEARD: ON THE PAPERS

DELIVERED : 21 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:

Nil

Result:

Orders made

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] WASC 102
Ross v Ross [No 3] [2008] WASC 159

WHEELER J: For the background to this matter, I refer to my earlier reasons in Ross v Ross (Unreported, WASC, Library No 980679, 26 November 1998); Ross v Ross [2004] WASC 102 and Ross v Ross [No 3] [2008] WASC 159.
These brief reasons arise out of the parties' response to the last of those sets of reasons and orders. In the orders which, in those reasons, I proposed to make, there were detailed programming orders which would have permitted me to deal with Mr R Ross' application for an extension of time and, if successful in that application, his application in relation to costs, on the papers.
For reasons which are set out in my earlier decisions, it appears to me that this dispute has already occupied an amount of time, and has incurred costs to the parties (by way of lost time and disbursements, rather than by way of legal costs, and in the case of Mr Ross, by way of airfares) which are disproportionate to the amount of money involved. The purpose of those programming orders was therefore to avoid the expense of a further oral hearing. However, it now appears to me that an oral hearing is necessary.
In the orders which were actually made on 4 August 2008, as opposed to orders which were merely proposed, I directed that the parties could, before 14 August, provide me with submissions either supporting or opposing any or all of the proposed orders. Mr R Ross and Mrs B Ross have not made relevant submissions.
Strictly, Mr C Ross and Mrs J Ross have also not provided me with submissions either supporting or proposing any or all of the proposed orders. However, within the time limited for the making of such submissions, I received from those parties a copy of a letter which they had written addressed to his Honour the Chief Justice. Much of that material is irrelevant to the proposed orders. However, there is one matter, on page 3 of that letter, which is relevant to the proposal that the application for extension of time be dealt with on the papers. It reads as follows:
Justice Wheeler has accepted without reservation the Plaintiff's affidavit and his claim that '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 an application to stay the Orders' (Page 4 [2008] WASC 159).
The Plaintiff's claim is demonstrably false because the matter of costs and the requirement for an application to stay the Orders was dealt with exhaustively by Justice Wheeler and the Plaintiff personally in Ross v Ross (FUL 77/2004).
Further, in the final paragraph of that letter, there appears this passage:
For all of the above reasons, the defendants oppose all of Justice Wheeler's proposed orders and request that the matter be closed and finally dismissed due to the Plaintiff's failure to comply with the specific instructions of the court that the application for extension be filed and served by 28 January 2008.
Although that letter was in form, as I have noted, not a submission in relation to the proposed orders, it does deal, in the two passages I have quoted, directly with those proposed orders. Further, although in form it was not a submission to me, it was provided directly to me and within time. I therefore deal with it as if it were a submission as ordered.
It appears from the passages quoted from the letter to which I have referred, that there is a dispute of fact about the plaintiffs' reasons for failing to file and serve written submissions within the 28 days ordered on 24 May 2004. Factors relevant to the decision whether or not time should be extended would include the reasons for the delay, whether there was any prejudice to the defendants, and a consideration of whether, in the light of those matters and any other relevant factors, the interests of justice require an extension of time.
It is generally inappropriate, and often impossible, to determine disputed factual issues on affidavit evidence. Since there is apparently a dispute of fact in relation to a relevant issue, it appears to me that the only satisfactory way of resolving that dispute is the holding of an oral hearing, at which Mr R Ross would be able to give evidence, and would be open to cross‑examination. I therefore now make orders directed to the programming of such a hearing.
The correspondence most recently received from the parties reveals an ongoing dispute about service. Mr R Ross complains that he has addressed quantities of material to Mr C Ross and Mrs J Ross at an address which he believes to be their address for service, and that it has been returned to him, marked either "left address" or "unclaimed". The photocopy documents which he has annexed to his letter to the court appear to indicate that he has indeed sent those materials to the relevant address for service. However, Mr C Ross and Mrs J Ross have consistently advised the court that they have never received any documents from Mr R Ross. They further complain that he does not have an address for service within Western Australia. They do not consider that they should be required to serve him with materials at the address which he has indicated in New South Wales, either because they maintain that he has not served them, or because it is not an address of the kind required by the Rules of the Supreme Court 1971 (WA), or for both reasons. Not only is it impossible to determine this dispute on the papers, but the entire dispute is a complete waste of the resources of the parties and the court. I therefore also propose, as indicated in my earlier reasons, to make orders varying the usual requirements for service.
The orders which I now make are these:
1.The application by the plaintiffs to extend the time limited by order 4 of the orders made by me on 24 May 2004 be the subject of a hearing, to be listed for one day.
2.The question of what costs should be awarded to the plaintiffs (if their application to extend time succeeds) be listed for the same day as the hearing the subject of order 1.
3.On or before Friday, 29 August 2008, the plaintiffs and first defendants must advise my associate of their unavailable days, if any, in the months of November 2008 and February 2009.
4.On or before 19 September 2008, the plaintiffs file a document, not to exceed two A4 pages (exclusive of the heading), setting out, in numbered paragraphs, any assertions of fact upon which they wish to rely in respect of the application to extend time.
5.On or before 3 October 2008, the first defendants file a document, not to exceed three A4 pages (exclusive of the heading), advising in respect of each paragraph of the document the subject of order 4, whether the contention of fact is accepted or disputed, and setting out in numbered paragraphs any assertions of fact upon which they wish to rely, in relation to the application to extend time.
6.On or before 17 October 2008, the plaintiffs file in the court a document of one page in length (exclusive of the heading), advising in relation to each assertion of fact by the first defendants, whether it is accepted or disputed.
7.On or before 3 October 2008, the plaintiffs are to file in the court a book of documents, with consecutively numbered pages, containing:
(a)a schedule, in summary form, of all costs of the accounting claimed by them; and
(b)copies of all supporting documents upon which they seek to rely.
8.On or before 24 October 2008, the first defendants file in the court a response to the plaintiffs' schedule of costs, setting out:
(a)what costs, if any, they accept have been incurred; and
(b)what costs, in their submission, should be ordered to be paid by them.
9.Service by the parties of the documents the subject of orders 4 to 8 inclusive is dispensed with. Instead, I direct that my associate send copies of each of the documents referred to in those orders to the opposing parties within five working days of their acceptance for filing.