Ruby v Doric Constructions (Australia) Pty Ltd

[2013] WASCA 94 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	RUBY -v- DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD [2013] WASCA 94 (S)

CORAM : PULLIN JA

NEWNES JA MURPHY JA

HEARD	:	ON THE PAPERS
DELIVERED	:	5 JUNE 2013
FILE NO/S	:	CACV 36 of 2012

BETWEEN : RODNEY MARK RUBY

Appellant

AND

DORIC CONSTRUCTIONS (AUSTRALIA) PTY
LTD

First Respondent

STL ENGINEERING PTY LTD

Second Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram	: COMMISSIONER GETHING
Citation	:  RUBY -v- DORIC GROUP HOLDINGS PTY LTD [2012] WADC 58
File No	:  CIV 3670 of 2010

[2013] WASCA 94 (S)

Catchwords:

Practice and procedure - Costs - Appeal successful on point not raised below - No order as to costs - Application for certificate under Suitor's Fund Act 1964 (WA) - Relevant considerations

Legislation:

Suitor's Fund Act 1964 (WA), s 10(1), s 13(3)

Result:

No order as to costs of application to District Court
No order as to costs of appeal

Certificate under Suitor's Fund Act granted subject to condition

Category: B

Representation:

Counsel:

Appellant	:	On the papers
First Respondent	:	On the papers
Second Respondent	:	On the papers
Intervenor	:	Not applicable

Solicitors:

Appellant	:	Bradford & Co
First Respondent	:	Jarman McKenna
Second Respondent	:	Tottle Partners
Intervenor	:	Not applicable

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

Richards v Faulls Pty Ltd [1971] WAR 129

JUDGMENT OF THE COURT [2013] WASCA 94 (S)

1. JUDGMENT OF THE COURT: On 9 April 2013, we allowed an appeal against a decision of Commissioner Gething in the District Court. The commissioner had refused an application by the appellant for orders that the dismissal of the appellant's action pursuant to r 44G(1) of the District Court Rules 2005 (WA) (the Rules) be set aside and the action be removed from the Inactive Cases List. The commissioner ordered the appellant's former solicitors to pay the respondents' costs of the application.

2              The appeal was allowed on the ground that the proceedings were

never validly entered on the Inactive Cases List, and therefore could not be deemed to have been dismissed for want of prosecution pursuant to r 44G of the Rules. That was not a matter raised before the Commissioner and it was raised in this court only by way of an amendment to the grounds of appeal made in the course of argument on the appeal. The point was first raised in the outline of submissions filed in the appeal by the intervener, the Attorney-General for Western Australia.

1. There is now an issue between the appellant and the respondents as to the costs of the application before the commissioner and of the appeal.

4              The appellant contends that he should be entitled to the costs below,

the decision of the commissioner having been reversed, or alternatively, he says there should be no order as to costs. He also contends that he should be entitled to the costs of the appeal, including the costs of notices of contention filed by the respondents.

5              In support of the orders he seeks, the appellant argues that whilst his

former solicitors were guilty of delay which led to the purported entry of the case on the Inactive Cases List and its subsequent dismissal, the substantive costs came about because the second respondent opposed the dismissal of the case being set aside before the commissioner (the first respondent abided the commissioner's decision) and the respondents opposed the appeal, including by filing notices of contention in the appeal seeking to uphold the commissioner's decision on other grounds. It having been found on the appeal that the case was wrongly dismissed, the costs below and of the appeal should follow the event.

6              The respondents, on the other hand, contend that they should have

the costs of the appeal, it having been necessary only because the appellant failed to raise before the commissioner the point on which he succeeded in this court. They submit that the appellant's former solicitors should be ordered to pay the respondents' costs of the appeal.

JUDGMENT OF THE COURT [2013] WASCA 94 (S)

7              The second respondent also argues that the order as to costs below

should not be disturbed. It says the case was purportedly put on the Inactive Cases List and dismissed only because of delay in the action by the appellant's former solicitors and their failure to make an application to have the case removed from the List within the six month period thereafter. The case was put on the List and dismissed without any involvement on the part of the second respondent and, once it occurred, it was necessary for the appellant to bring an application to have the case restored. If the point on which the appeal succeeded had been raised and upheld below, the appellant (or his former solicitors) would still have been liable to pay the costs of the application.

8              The court has a wide discretion as to costs, but the general rule is that

a successful party is entitled to an order for its costs: Rules of the Supreme Court 1971 (WA), O 66 r 1. Ordinarily that will be a just outcome, on the basis that the successful party has unjustifiably been required to become involved in the litigation in order to vindicate its rights. The court may, however, depart from the general rule if, in the circumstances of the case, it would not result in a just outcome.

9              There is no doubt that undue delay on the part of the appellant (or his

former solicitor) was the reason the case was purportedly put on the Inactive Cases List, and it was dismissed because within the next six months no application was made by the appellant to have it removed. In the way in which these proceedings have come about the appellant (himself or by his former solicitors) is certainly not blameless.

10            It is, of course, the position that the second respondent opposed the

case being resurrected before the Commissioner and both respondents contested the appeal, unsuccessfully as it turned out. But the stance initially taken by the respondents is hardly surprising. The case was put on the Inactive Cases List by the District Court in accordance with what appears to have been its usual practice in such circumstances. It seems to have been accepted by the District Court and the profession generally that a notice from the court setting a date for a case to be entered for trial triggered an obligation which, if not complied with, had the result that the case was taken to be inactive and the Principal Registrar was required to put it on the Inactive Cases List. It was not appreciated that only an order fixing the date for entry could have that result.

11            Nevertheless, the point having been raised by counsel for the

Attorney-General in its written outline of submission on the appeal, which was filed and served before the hearing of the appeal, the respondents

JUDGMENT OF THE COURT [2013] WASCA 94 (S)

persisted in their opposition. That included seeking to amend the notices of contention to raise a point not raised below. Leave to amend the notices of contention was refused and the notices of contention dismissed.

12            In a case such as this, the outcome cannot be determined by

attempting to weigh the competing factors on finely calibrated scales. Such an endeavour would be futile. What the court is required to do, having considered all of the relevant factors, is to determine what is appropriate to do substantial justice between the parties in the circumstances of the case.

13            In the somewhat unusual circumstances of this case, we consider that

justice would be done if there was no order as to costs either below or on
the appeal.

14            In the event that the appellant is not ordered to pay its costs of the

appeal, the respondents have applied for a certificate under s 10(1) of the Suitor's Fund Act 1964 (WA) in respect of those costs. The appellant did not wish to be heard on the application.

1. Section 10(1) relevantly reads:

(1) Where an appeal against the decision of a Court in any proceedings

(a)	to the Supreme Court;
...

on a question of law succeeds, the Supreme Court may ... grant to the respondent to the appeal ... an indemnity certificate in respect of that appeal.

16            The appellant was successful on a question of law. The question is

whether the court should exercise its discretion to grant a certificate. The discretion is unfettered but it must be exercised judicially. The relevant principles were discussed in Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139. As the court pointed out in that case, the discretion is a discretion to grant, rather than a discretion to refuse, a certificate. An applicant for a certificate must therefore show some ground calling for the exercise of the discretion in his favour; it is not sufficient merely to show that the appeal has been decided in his favour.

17            In determining an application for a certificate, a relevant

consideration will be the degree to which the question of law involved in the appeal was a question of general application, rather than a question which turned on the facts of the particular case. In this case, the question

JUDGMENT OF THE COURT [2013] WASCA 94 (S)

of law involved was undoubtedly a question of general application. It concerned the practice and procedure of the District Court in relation to the Inactive Cases List and turned on the proper construction of the Rules. The decision of this court on the question corrected an evident misunderstanding by the District Court as to the circumstances in which cases which have not been entered for trial within a stipulated time may be placed on the List. That is a sufficient ground to warrant the grant of a certificate.

18            However, in the case of a corporate respondent, the court cannot

grant a certificate if the paid up capital of the company exceeds $200,000: s 13(3), Suitor's Fund Act. There is no evidence before us in relation to that. In respect of each respondent, the grant of a certificate will therefore be subject to the respondent filing within 14 days an affidavit of an officer of the company certifying (if it be the case) that its paid up capital does not exceed $200,000.

1. We would make the following orders:

   1.          there be no order as to the costs of the application to the District Court by the appellant by chamber summons dated 13 January 2012;

   2.          there be no order as to the costs of the appeal;

   3.          each respondent be granted an indemnity certificate in respect of its costs of the appeal, pursuant to s 10(1) of the Suitor's Fund Act, subject to that respondent filing within 14 days an affidavit of an officer of the company certifying that its paid up capital does not exceed $200,000.