Ross v Ross [No 5]

[2008] WASC 278

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ROSS -v- ROSS [No 5] [2008] WASC 278

CORAM:   WHEELER J

HEARD:   5 NOVEMBER 2008

DELIVERED          :   1 DECEMBER 2008

FILE NO/S:   CIV 2302 of 1995

BETWEEN:   RAYMOND ARTHUR ROSS

BERNADINE ROSS
Plaintiffs

AND

CLIVE MICHAEL ROSS
JENNIFER ROSS
First Defendants

CLYDE LYNDON ALLEN
CARINE INGA ALLEN
Second Defendants

Catchwords:

Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 3 r 5

Result:

Costs orders made

Category:    B

Representation:

Counsel:

Plaintiffs:     In person

First Defendants            :     In person

Second Defendants        :     No appearance

Solicitors:

Plaintiffs:     In person

First Defendants            :     In person

Second Defendants        :     No appearance

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

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381

Ross v Ross [2004] WASC 102

Ross v Ross [2008] WASC 159

Ross v Ross [2008] WASC 181

WHEELER J: 

Background

1. This application has its source in orders I made on 24 May 2004 in Ross v Ross [2004] WASC 102. The background is further set out in two subsequent sets of reasons published on 4 August 2008 and 21 August 2008, being Ross v Ross [2008] WASC 159 and Ross v Ross [2008] WASC 181. As explained in those matters, the second defendants had no role in any proceedings, so references to "the defendants" are to the first defendants.

2. In brief, on 24 May 2004, I made a number of orders.  Relevantly, they were as follows.  I ordered that a stay of execution ordered on 5 February 1999 be discharged.  The result of that was that a sum of $4,524, being the balance of a previous judgment, became due and payable within a reasonable time by the defendants to the plaintiffs.  I also ordered that the plaintiffs file and serve on the defendants, within 28 days of delivery of the judgment, written submissions as to the amount of the plaintiffs' costs of an accounting, together with copies of any invoices and receipts relied upon.

3. However, shortly after delivery of that judgment in May 2004, the defendants lodged an appeal.  No stay was applied for or granted.  On 15 October 2007, the defendants withdrew the appeal.

4. The plaintiffs had not filed any submissions as to costs within 28 days of the decision of May 2004, as ordered.  However, in November 2007, more than three years later, the plaintiffs advised the court that they wished to have the outstanding costs matter resolved.  They, therefore, applied for an extension of time to file material in relation to the costs matter.

5. For the reasons detailed in my sets of reasons published this year, I ordered that the matter be listed in order to hear oral evidence and submissions on the questions of whether an extension of time should be granted to the plaintiffs within which to make their costs application, and if time were extended, what the quantum of the costs should be.

Extension of time

1. The court has power to extend time for the filing of submissions pursuant to O 3 r 5 of the Rules of the Supreme Court1971 (WA), and also has an inherent power to extend time: Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381. The relevant matters I need to consider in deciding whether to grant an extension of time are the length of the delay, the reasons for the delay, and the extent of prejudice, if any, to the parties.

2. The length of the delay is not in dispute.  It is approximately three years and seven months.  That is a very long time.

Reason for the delay

1. Mr Raymond Ross, the male plaintiff, has essentially had the carriage of the matter.  During the course of the accounting before Registrar Rimmer, the plaintiffs were initially legally represented.  However, as I have noted in earlier reasons, that accounting was very prolonged, and involved disputes over what were, at times, extremely small sums.  No doubt because it became uneconomic for the plaintiffs to be legally represented, during the course of the accounting, their legal representation ceased and they were represented only by Mr Raymond Ross.  The defendants, Mr Clive Ross and Mrs Jennifer Ross, represented themselves throughout those proceedings. 

2. The reason for the delay given by Mr Raymond Ross in his oral evidence before me was in the following terms:

   When your Honour published the reasons and judgment in my favour, I presumed that was the end of the matter and I was going to follow the orders, except Mr Clive Ross lodged an appeal immediately and I, for some reason - I can't think why - assumed at the time that it meant the matter would carry on and the costs matter would have to be dealt at the end of the proceedings, which meant at the end of the appeal proceedings.  I've since discovered that was something I had - a conclusion I had arrived at in error ...

3. Later in his evidence, Mr Raymond Ross explained that he discovered his error much later, and not long before the appeal was withdrawn.  That came about because he consulted new solicitors, Terrace Law, about the lack of progress, as he saw it, in the appeal, with a view to having the appeal finalised one way or the other.

4. The defendants submit to me that this explanation for the delay should not be believed.  There are a number of issues going to Mr Raymond Ross' credibility which were raised.  They can be summarised briefly as follows.  Mr Raymond Ross was cross‑examined with a view to demonstrating that he had not been truthful in identifying the suburb in New South Wales in which his house was located.  However, his explanation was that it is on the border of, essentially, three suburbs, and the map tendered by the defendants as evidence is not inconsistent with that explanation.  He was cross‑examined about his assertions in an affidavit that he had "served" documents, but it appears that any apparent inconsistency resulted from his sometimes using the term to refer to "service" (really, the notification) of unsealed copies of court documents, and at other times meaning the formal service of sealed copies.  Cross‑examination also established that while Mr Raymond Ross had suggested that his new solicitors had made "numerous" calls or attempts to contact the defendants, this was an exaggeration.  I explain in a moment why I place relatively little weight upon those matters. 

5. In addition, a witness, Mrs Perkin, was called to give evidence of Mr Raymond Ross' reputation; she knew him well, being his sister, and it was her evidence that he should not be believed upon his oath.  So far as Mrs Perkin's evidence was concerned, it appears that she had been involved in some sort of dispute concerning property with Mr Raymond Ross, and that Mr Clive Ross had been assisting her with it.  She was cross‑examined by Mr Raymond Ross, based upon his past dealings with her, with a view to establishing that she could not be believed upon her oath.  That course of cross‑examination revealed considerable hostility between her and Mr Raymond Ross.  Although I accept that her views are sincerely held, they do not assist me at all, formed as they plainly were during the course of protracted family disputes, the detail of which I am unaware.

6. It should also be noted that the cross‑examination by Mr Raymond Ross of Mr Clive Ross, and by Mr Clive Ross of Mr Raymond Ross, led to exchanges that showed longstanding and deep hostility between them.  A tendency to hyperbole and exaggeration in longstanding family disputes is, unfortunately, not uncommon.  Both Mr Raymond Ross and Mr Clive Ross have each made allegations that the other is or has been avoiding service of documents; each has produced some credible material in relation to those claims, but it is simply not possible to get to the bottom of them.  The upshot of all of that is that, to a considerable extent, apparent exaggeration or inconsistency may be attributable to a lack of honesty; but it may equally be due to strength of feeling, combined with a desire to make life difficult for the other party.  They are not, therefore, matters to which I give much weight in the present case. 

7. Mr Clive Ross also cross‑examined Mr Raymond Ross about certain aspects of the schedule of costs which he had prepared.  That cross‑examination did reveal inadequacies.  However, it seems to me that its effect ought to be to lead me to reduce the amounts claimed in some circumstances, rather than to disbelieve Mr Raymond Ross altogether. 

8. Finally, in cross‑examination, Mr Raymond Ross was shown an affidavit which he had sworn in December 1998, and it was pointed out that a document annexed to it said that he and Bernadine Ross opposed "any stay of execution" in relation to the orders which I had earlier made.  It was submitted that this demonstrated that Mr Raymond Ross was, at all times, aware of the concept of a stay of execution and was aware that the institution of an appeal did not operate, of itself, as a stay.  However, that document, Mr Raymond Ross said, had been prepared by his then solicitor.  It was the case that he was represented by a solicitor at the time.  It seems to me not to be possible, based upon that one reference, to attribute to an unrepresented person, some five or six years later, an understanding of the operation of the institution of an appeal upon orders made at that later time.

9. The most important matter pointed to by Mr Raymond Ross, in support of his explanation for the delay, was the fact that the effect of my orders in May 2004 was that a sum of some $4,524 was due and payable to him, which sum he had made no apparent attempt to claim until he consulted Terrace Law in late 2007.  That is consistent with his having earlier taken a view that the appeal, in effect, suspended the operation of the orders which I had made.  There is no sensible reason why he would otherwise not have earlier claimed that amount.  That seems to me a particularly important consideration, having regard to the strength of feeling between Mr Raymond and Mr Clive Ross, to which I have referred.  It seems most unlikely that Mr Raymond Ross would allow Mr Clive Ross, for such a lengthy period, simply to retain moneys which were payable by Mr Clive Ross to him.  I, therefore, accept Mr Raymond Ross' explanation for the delay.

Prejudice to either party

1. The prejudice to the plaintiffs if time is not extended is clear; they will be deprived of a substantial sum of costs which have been incurred and which would otherwise be payable to them.  So far as Mr Clive Ross and Mrs Jennifer Ross are concerned, Mr Clive Ross gave evidence that, at the time at which they discontinued the appeal, they did so, in part, because the "time limit period" for the making of the costs application had passed.  They took the view that that would enable them simply to "walk away" from the proceedings.  They did not take legal advice at the time at which they discontinued the appeal, about the effect of discontinuance, or about what might happen in relation to the costs.  During the course of his submissions, Mr Clive Ross acknowledged that the court retained a discretion to extend time.

2. As I understood Mr Clive Ross' evidence, it did not seem to me that he was asserting that he had positively believed that the plaintiffs would be unable even to apply for an extension of time in relation to the costs; rather, it appeared to me that the tenor of his evidence was that he believed that it was likely that the plaintiffs would not be successfully able to do so.  Mr Clive Ross is plainly an intelligent man, and has been engaged in occupations which involve an understanding of legal matters, having been a police officer and having also been employed by the Commissioner of Taxation.  He displayed an awareness of the rules of court.  In those circumstances, it appears to me that the effect of his evidence was that he and Mrs Jennifer Ross had taken a calculated risk in discontinuing the appeal, believing that there would probably not be costs consequences for them if they did so.

3. While it would, of course, be an unfortunate result for Mr Clive and Mrs Jennifer Ross if the view which they had taken was incorrect, that is a consequence which not infrequently follows from the taking of a step in litigation.  They could have consulted a legal adviser, had they wished to be certain of their position.  They could have negotiated with the plaintiffs' solicitors, or with Mr Raymond Ross personally, with a view to discontinuing on the basis that there would be no further orders as to costs, but they did not take that course.  Further, one must set against any prejudice to them the fact that they have had the use of more than $4,000 which was properly payable to Mr Raymond Ross for a very considerable period of time, because of the institution of the appeal which they ultimately discontinued.  Similarly, whatever costs may ultimately be paid by them, they have had the use of that money to date, rather than being required to pay in 2004. 

4. In my view, it is in the interests of justice to grant an extension of time to Mr Raymond Ross, so that time is extended until the date on which he, in fact, filed his application for costs and supporting documents.  I turn, therefore, to the question of the quantum of costs.

Quantum of costs

1. There are four elements of the quantum of costs claimed by Mr Raymond Ross.  Before I determine what proportion of them should be allowed, I turn briefly to the question of what I find to have been proved.  It is true that, as Mr Clive Ross pointed out during the course of his cross‑examination of Mr Raymond Ross, the documents filed in support of the application are, in a number of respects, unsatisfactory.  Some of the accompanying documents are simply invoices, with no receipts or proof of payment.  Mr Raymond Ross gave evidence, however, that those accounts had been paid.  Some are receipts.  In some cases there are simply cheque butts, and in others there are handwritten notations by Mr Raymond Ross which purport to show the amount actually paid.

2. In broad, the approach which I have taken to these claimed costs is as follows.  By way of background, in the accounting proceedings, Mr Raymond Ross challenged the accuracy and completeness of the record‑keeping of the defendants.  Before me, Mr Raymond Ross had argued, in relation to that accounting, that the record‑keeping was so flawed that I should not accept the registrar's report.  However, I took the view that the registrar was entitled to conclude that, since the house in question had manifestly been built, costs would have been incurred in its construction and that it was open to him, in relation to certain items, to make the best estimate that he could based upon the materials which were before him. 

3. While it is odd, as Mr Clive Ross suggested, that, having criticised the defendants' record‑keeping, Mr Raymond Ross was not more careful in his own record‑keeping, concerning his costs, it is nevertheless, in my view, in the interests of justice that a similar approach should be taken to his records as was taken in the accounting proceedings.  That is, I accept that he was legally represented during some of the accounting.  I accept that he resides in Sydney and that it was appropriate for him to attend the accounting in Perth.  I, therefore, accept that he incurred legal, airfare and accommodation costs.  Based on the materials before me, I am, therefore, prepared to make an estimate of those costs.  I do so in the following way. 

4. So far as the solicitors' costs of the accounting are concerned, these are claimed at items 1 to 10 inclusive and 15 of Mr Raymond Ross' schedule.  The total amount claimed under those headings is $8,551.80.  The majority of the documents are solicitors' accounts, and I accept the amounts shown on them. 

5. However, there are three documents which require different treatment.  Documents 5 and 9 appear to be reconciliations of some kind, showing amounts paid and amounts yet to be paid.  In relation to each of them, Mr Raymond Ross has asterisked the amounts which he claims from those documents.  They are not on solicitors' letterhead.  There is nothing on the face of the documents to assist in understanding them.  I disregard those amounts in total.  So far as document 15 is concerned, it is a cheque butt recording an amount paid, and recording what was said to be a solicitors' invoice number.  As Mr Clive Ross points out, the invoice number shown on that cheque butt does not appear to match up with the sequence of invoice numbers on those accounts which are in evidence.  I disregard that amount entirely.  The amount I find to have been paid in respect of items 1 to 10 inclusive and 15, therefore, totals $6,396.70. 

6. The next set of solicitors' costs (items 27 to 29 inclusive) are those of Terrace Law.  They post‑date the orders which I made.  They are not costs of the accounting, although they appear to be largely related to these proceedings - that is, to this application for an extension of time and for costs.  I return to those items later.  However, for the purposes of the costs of the accounting, I disregard them entirely.  For the purposes of fixing the costs of the accounting, then, the amount claimed appears to be $2,733.69 under this head, but the amount I would allow is nil.

7. So far as airfares are concerned, the claim is for eight airfares, totalling $10,307.77.  The amounts paid for airfares vary considerably.  That is not surprising, since it is a notorious fact that airfares vary depending upon factors such as demand, the time at which the passenger wishes to travel, and the closeness in time of the making of the booking to the date of travel. 

8. However, there are two airfare items, being items 19 and 23, where the amount is substantiated by an entry on a cheque butt, without any evidence of what fare was actually paid.  While I accept that Mr Raymond Ross did travel on these occasions, and would have incurred airfares, it is also the case that it appears that he travels for other purposes also.  It is not possible simply from a cheque butt to be certain that the whole of the amount shown on that cheque butt relates to an airfare for travel to Perth, as opposed to some other travel, or an airfare to Perth combined with other travel‑related costs.  In relation to those items, therefore, I have adjusted them so that, instead of the claimed amounts of approximately $1,400 in each case, I have substituted the amount of $564, which is the cheapest of the airfares shown on the plaintiffs' schedule (item 25).  In lieu of the total claimed, then, I would find the amount properly claimable to be $8,530.73.

9. Finally, the remaining amounts claimed relate to accommodation.  Of those items, I would disallow items 12 and 22, for which the only evidence in each case is a cheque butt entry.  Again, because it is simply an amount shown on a cheque butt, it is not possible to ascertain how much of that amount is properly claimable as relating to accommodation.  I would also disallow all but 70 cents of item 26.  That amount is said to be a claim for accommodation, but the account itself is an account for 70 cents, apparently for a telephone call.  The total amount for accommodation, then, I would reduce from the claimed $1,341.16, to $423.10. 

10. The total amount properly claimable in relation to costs I have, therefore, ascertained as being $15,350.53.  I said in my earlier reasons in 2004 that it was appropriate that the plaintiffs should be awarded a substantial portion of their costs.  It is not, therefore, appropriate to award the full amount.  It is also not appropriate to award the full amount, since it is likely that, on a taxation, some amount of the solicitors' costs would be taxed off. 

11. Taking a global approach, it seems to me that the amount which should be awarded to the plaintiffs in respect of the costs of the accounting is the sum of $12,000.  

Costs of the application

1. Finally, the question arises as to the costs of this proceeding.  The plaintiffs have been successful in the application for an extension of time and have been awarded a significant portion of the costs which they sought.  It is appropriate that they should be awarded some costs in respect of the application.  Further, the oral hearing was required largely because the defendants raised the question of the credibility of Mr Raymond Ross' explanation for the delay.  It would be appropriate that they bear the costs incurred by Mr Raymond Ross and properly claimable by a litigant in person, in respect of that appearance.  Those would, of course, be travel and accommodation costs.  The submissions in relation to the inadequacies in the documents supporting the plaintiffs' claim for costs could have been made in written submissions, and adequately dealt with on the papers. 

1. I have, in previous reasons, noted the very great disproportion between the amounts in issue in this matter, the amount of public time and expense, and the time and expense incurred by the parties, in dealing with it.  In my view, it is not appropriate that there be further disputes concerning the costs of the application for an extension of time, and for the costs of the accounting.  I, therefore, propose to fix those costs.

2. I note that the amounts paid by Mr Raymond Ross to Terrace Law amount to a little over $2,500.  I have already noted that the greater proportion of those amounts appear to be attributable to advice and work relevant to the application for an extension of time, although some proportion is apparently attributable to the discontinued appeal proceedings.  As I have noted, on a taxation one might expect some portion of even those costs attributable to this application to be taxed off.  I take those matters into account.  I also take into account the fact that Mr Raymond Ross has had to travel to Perth for the purposes of this application.  I take into account the fact that the plaintiffs were seeking the court's indulgence in seeking an extension of time, but that, nevertheless, as noted above, they were largely successful in the application.  Having regard to all of those matters, it seems to me appropriate to fix the costs payable by the defendants to the plaintiffs in relation to this application at $2,000. 

3. However, the parties have not had an opportunity to be heard on the question of costs.  I, therefore, grant leave to each party, on or before 12 December, to file submissions (not to exceed two A4 pages) concerning the costs of the application.  If any are filed, I will deal with them without further oral submissions.  If those submissions cause me to alter my provisional view, I will publish supplementary reasons and orders on 13 January 2009.

Conclusion

1. The orders will, therefore be:

   (1)In relation to the costs of the accounting, the defendants pay to the plaintiffs the sum of $12,000.

   (2)In relation to the costs of the present application, the defendants pay to the plaintiffs the sum of $2,000.

   (3)Order (2) is to take effect on 14 January 2009, unless earlier recalled or varied.