Sims Sales and Marketing Pty Ltd v Westate Piping Services Pty Ltd
[2007] WADC 215
•13 December 2007
SIMS SALES AND MARKETING PTY LTD -v- WESTATE PIPING SERVICES PTY LTD [2007] WADC 215
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 215 | |
| Case No: | CIV:1297/2007 | ||
| Coram: | REGISTRAR KINGSLEY | 12/12/07 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part Defendant to pay costs on the applications forthwith on a solicitor/client basis | ||
| PDF Version |
| Parties: | SIMS SALES AND MARKETING PTY LTD WESTATE PIPING SERVICES PTY LTD |
Catchwords: | Practice O 59 r 9 Rules of the Supreme Court of Western Australia Application for indemnity took against solicitor personally Failure to engage in conferral process |
Legislation: | Magistrates Court (Civil Proceedings Act) 2004 |
Case References: | Youlden Enterprises v Health Solutions (WA) Pty Ltd [2006] WASC 161 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WESTATE PIPING SERVICES PTY LTD
Defendant
Catchwords:
Practice - O 59 r 9 Rules of the Supreme Court of Western Australia - Application for indemnity took against solicitor personally - Failure to engage in conferral process
Legislation:
Magistrates Court (Civil Proceedings Act) 2004
Result:
Application allowed in part
Defendant to pay costs on the applications forthwith on a solicitor/client basis
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M J Ahern
Defendant : Mr A D Wilson
Solicitors:
Plaintiff : Aherns Lawyers
Defendant : Frichot & Frichot
Case(s) referred to in judgment(s):
Youlden Enterprises v Health Solutions (WA) Pty Ltd [2006] WASC 161
(Page 3)
1 REGISTRAR KINGSLEY: The plaintiff brought two applications; the first dated 24 July 2007 seeking, pursuant to s 39 of the Magistrates Court (Civil Proceedings Act) 2004 that proceedings in the Fremantle Magistrate's Court be consolidated and transferred to the District Court to be heard in conjunction with this action and the second an application dated 24 July 2007 seeking specific discovery from the defendant.
2 After hearing argument from counsel for plaintiff and defendant, and having taken time to consider the matter, I dismissed the plaintiff's application to have the actions consolidated and transferred to this Court, but allowed the plaintiff's application for specific discovery. The matter before me now is on the issue of costs in relation to those applications.
3 The principle contention put by the plaintiff's counsel is that there has been no conferral as required under O 59 r 9. Citing Youlden Enterprises v Health Solutions (WA) Pty Ltd [2006] WASC 161, plaintiff's counsel submits that, in this matter, there has not been any communication by the defendant's legal representative with the plaintiff's legal representative to suggest that O 59 r 9 has been substantively complied with. The plaintiff's counsel goes on to submit, again citing Youlden Enterprises v Health Solutions (WA) Pty Ltd (supra), that any legal representative who declines or refuses to participate in the process of conferral without good cause is at risk of being ordered to pay the costs which flow from that refusal personally.
4 Plaintiff's counsel also cites O 66 r 1 in relation to his submission that the conduct of the defendant's legal representative is such that an excessive amount of costs have been unreasonably or unnecessarily incurred. Again, for this reason, plaintiff's counsel submits that pursuant to O 66 r 5 the costs of the hearing ought to be paid by the legal representative of the defendant personally.
5 Plaintiff's counsel also submits that indemnity costs should be awarded in any event because there is a discretion within the court to order indemnity costs where case management directions are not complied with and where a party, whose conduct unacceptably departs from the standards of litigation in a commercial court, ought to be sanctioned by the imposition of an indemnity costs order.
6 There is evidence in the affidavit of Marcus John Ahern sworn 31 July 2007 that there has been no response by the defendant's legal
(Page 4)
- representatives to the plaintiff's solicitors of overtures in relation to the applications.
7 In his affidavit Ahern deposes that letters dated 5 June 2007 and 16 July 2007 were sent to the defendant's solicitor but there was no response. In the memorandum of conferral dated 24 July 2007 Ahern refers to a series of letters commencing 23 April 2007 on the issue of discovery and that there has been no response by the defendant. The defendant's solicitors have not refuted these contentions.
8 On 26 October 2007 I ordered that the defendant's solicitor file and serve an affidavit on or before 5 November 2007 on the issue of non conferral and non compliance by the defendant of r 62 District Court Rules. The defendant's affidavit was filed on 7 November 2007 and whilst gives explanation as to non observance of r 62, is silent as to the reasons for non conferral.
9 The overwhelming evidence is that there has been non-conferral by the legal representatives for the defendant with the plaintiff. It is possible that as a result of the conferral the plaintiff's application for consolidation may not have proceeded. However, it is a case that the objective of conferral is to reduce disputation and to narrow issues. This can only be done by a constructive engagement between the legal representatives and that is what Youlden's case is directed to. That engagement did not take place at all. It may well be that this course of action was the defendants instructions after considered advice. However, I do note that the affidavit of the defendants solicitors was not sworn, nor filed, in compliance with the order of Court dated 26 October 2007.
10 Accordingly, whilst I am not prepared to find without more, that the defendant's legal representative conduct warrants an order for costs personally, I am prepared to find that there should have been an engagement by the defendant's legal representatives with the plaintiff to justify an order that the defendant pay the plaintiff's costs on both applications, forthwith on a solicitor/client basis.
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