Scott Printers Pty Ltd v INTOOWISHON Pty Ltd
[2010] WADC 103
•8 JULY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SCOTT PRINTERS PTY LTD -v- INTOOWISHON PTY LTD [2010] WADC 103
CORAM: REGISTRAR KINGSLEY
HEARD: 3 JUNE 2010
DELIVERED : 8 JULY 2010
FILE NO/S: CIV 2866 of 2008
BETWEEN: SCOTT PRINTERS PTY LTD (ACN 008 719 515)
Plaintiff
AND
INTOOWISHON PTY LTD (ACN 118 167 552)
Defendant
Catchwords:
Practice - Costs of hearing - Turns on own facts
Legislation:
Nil
Result:
Orders made
Representation:
Counsel:
Plaintiff: Mr R C Ioppolo
Defendant: Mr B L Oakley
Solicitors:
Plaintiff: Talbot Olivier
Defendant: Wojtowicz Kelly Legal
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Yici Pty Ltd v Sun Wah Marine Products (HK) Co Ltd [2009] WASC 324
REGISTRAR KINGSLEY: In December 2008 the plaintiff entered judgment against the defendant in the sum of $86,744.70 together with interest. The judgment debtor brought an application to set aside judgment in August 2009. That application was heard on 22 February and 16 March 2010.
In my reasons delivered 11 May 2010 I concluded that the evidence presented by the judgment debtor did not persuade me to exercise my discretion to set aside judgment. However, I did find that the judgment debtor had raised issues which amounted to a set‑off.
At the adjourned hearing on 3 June 2010 the judgment creditor's counsel filed a minute of proposed order, as did judgment debtor's counsel, together with an affidavit in support of a costs order.
I made orders that the judgment debtors application to set aside judgment be dismissed. Further, pursuant to s 15 Civil Judgments Enforcements Act 2004, enforcement of the judgment entered 12 December 2008 was suspended until further order.
It is now incumbent on the judgment debtor to issue proceedings – there being no defence against the judgment creditor for the claims the judgment debtor has. I am assured by the judgment debtor's counsel that those claims will be brought in the District Court. The judgment creditor has an interest in ensuring the judgment debtor's claim is progressed expeditiously. I therefore order that the judgment debtor is to commence proceedings in this Court within 28 days.
As for costs there are three hearings to consider:
•the means enquiry;
•the first day of hearing;
•the second day.
Means Enquiry
The means enquiry was first listed for hearing on 22 July 2009 and costs were reserved. The means enquiry was adjourned to 26 August 2009.
On 26 August 2009 the judgment debtor had filed her application to set aside judgment. The means enquiry hearing was adjourned sine die and costs reserved.
In my opinion the costs of both means enquiry hearings ought be the judgment creditor's costs. The means enquiry hearings were to abide the outcome of the judgment debtor's application to set aside judgment. The application was dismissed but enforcement suspended. The means enquiry application was appropriate and the judgment creditor ought not have to await the outcome of the judgment debtor's application to recover its costs.
First day of hearing
The first day of hearing was occupied with the judgment creditor's counsel's objections to two affidavits of the judgment debtor. For the most part, I upheld those submissions. Also raised by judgment creditor's counsel was an objection to a communication at p 33 of the judgment debtor's affidavit sworn 22 September 2009 as being a "without prejudice", and therefore privileged, communication. That objection was also allowed.
The objections were taken, in accordance with the authorities, by the judgment creditor's counsel filing a schedule of objection on the day of hearing and then making oral submissions on each objection. It would appear there was no specific notice of the proposed objections given to the judgment debtor's solicitor.
Judgment creditor's counsel has put in evidence a series of email communications dealing with the judgment debtor's affidavits. On 16 December 2009 the judgment creditor's counsel emailed the judgment debtor's counsel advising that, in his opinion, the affidavits do not depose to facts that support a defence to the claim for payment. There is no suggestion in that email of any specific objections to the contents of the affidavits of Holland.
Having regard to the decision in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 I question whether it is now appropriate to deal with objections to affidavits in this manner. Aon (supra), of course, focused on amendment to pleadings but raised general principles in relation to the conduct of actions. The Court noted that a just resolution of an action remains the paramount purpose but that speed and efficiency, in the sense of minimum delay and expense are seen as essential to a just resolution of proceedings.
In my opinion, the concept of conducting a proceeding with minimum delay and expense, may require litigants to put their opponent on notice as to the specific issues and objections giving rise to the application. This, of course, is a rational for the O 59 Rules of the Supreme Court conferral process. See Yici Pty Ltd v Sun Wah Marine Products (HK) Co Ltd [2009] WASC 324 at [19]:
"The purpose and object of the rule [Rules of the Supreme Court O 59 r 9] is to award parties to proceedings in the court losing time and money as a consequence of interlocutory disputes that might be either avoided or narrowed as a consequence of the conferral which is required by the rule …"
In my opinion, Aon's case extends this reasoning beyond the conferral process to a more considered approach to an interlocutory application. By detailing objections in this case to an affidavit much earlier, there is an opportunity for a litigant to review those objections, and if there is substance, consider preparing a further affidavit. Any remaining objections can then be dealt with more efficiently with a consequential reduction in judicial resources.
For these reasons I am of the opinion the attack on the judgment debtor's affidavit could have been conducted more efficiently. Whilst the judgment creditor's submissions were, for the most part, successful I am prepared to allow the judgment creditor's costs to the extent of 50 per cent.
The second day
The second day of hearing dealt with the substantive issues. The judgment creditor was ultimately successful in not having judgment set aside. In my opinion the judgment creditor is entitled to the costs of the second day. For the judgment creditor the action is at an end and it should not have to wait for its costs.
Orders
1.The judgment debtor's application by chamber summons dated 26 August 2009 be dismissed.
2.Pursuant to s 15 Civil Judgments Enforcement Act 2004 enforcement of the judgment entered 12 December 2008 be suspended until further orders.
3.The judgment debtor do commence proceedings to determine its claims against the judgment creditor within 28 days.
4.As for costs:
(a)the judgment debtor pay the judgment creditor's costs of the means enquiry to be taxed;
(b)as for the hearing on 22 February 2010 the judgment debtor pay 50 per cent of the judgment creditor's costs as found on taxation;
(c)as for the hearing on 16 March 2010 the judgment debtor pay the judgment creditor's costs to be taxed.
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