Staley v Pivot Group Pty Ltd [No 5] - [2010] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STALEY -v- PIVOT GROUP PTY LTD [No 5] [2010] WASC 124

CORAM: KENNETH MARTIN J

HEARD: 15 APRIL 2010

DELIVERED : 15 APRIL 2010

PUBLISHED : 1 JUNE 2010

FILE NO/S: CIV 1776 of 2009

BETWEEN: JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
Plaintiffs
AND
PIVOT GROUP PTY LTD (ACN 008 459 685)
Defendant

Catchwords:

Indemnity costs orders - Application to inspect parties' solicitors' file with litigation still pending - Undertaking by counsel not conducting trial - Application refused

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiffs: Mr D J Garnsworthy
Defendant: Mr M L Bennett & Ms C L Donald

Solicitors:

Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal

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

Giannarelli v Wraith [No 2] (1991) 171 CLR 592
Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355

KENNETH MARTIN J:
(This judgment has been delivered extemporaneously on 15 April 2010 and has been edited from the transcript.)

This is an application brought by the plaintiffs concerning costs. It concerns the costs award on an indemnity basis that I made on 1 December 2009 in favour of the defendant. By order 3, I ordered that the plaintiffs pay the defendant's costs thrown away by reason of the adjournment required on day two of the trial on 22 September 2009.
The terms of sub‑orders 3.1.1, 3.1.2 and 3.1.3, essentially awarded indemnity costs to the defendant, by reference to circumstances in which the trial had been unable to proceed past its second day (as I explain in Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355).
I ordered by sub‑order 3.1.1 that those costs be fixed without limits under any applicable cost determination, on a basis that the defendant be entitled to indemnity in respect of the costs incurred, except to the extent that such costs were not reasonably incurred. I also made orders permitting the defendant to tax its costs immediately. I granted liberty to apply.
The taxation regarding these costs has since been commenced by the defendant, but remains incomplete. On 6 April 2010 Registrar Powell made orders now extracted, which are appended to Ms Donald's affidavit (affirmed 14 April 2010), in these terms:
On the oral application by the plaintiff for their counsel to inspect the defendant's file for the purposes of the indemnity costs order dated 1 December 2009 ('Order') it is ordered that:
(1)The application be refused.
(2)The defendant have the costs of the application to be paid by the plaintiff in any event.
(3)The taxation of the bill filed 24 February 2010 pursuant to the Order be adjourned sine die.
The application by the plaintiffs' counsel to me this morning in my CMC List is in terms of a minute, said to be brought pursuant to the liberty to apply included in my orders of 1 December 2009. The plaintiffs' application is supported by an affidavit of the plaintiffs' solicitor, Mr Kevin Staffa, affirmed 13 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Staley v Pivot Group Pty Ltd [No 5]

Details

AGLC: Staley v Pivot Group Pty Ltd [No 5] [2010] WASC 124
Case: [2010] WASC 124
Decision Date: 1 JUNE 2010

CaseChat Overview and Summary

Staley was a former employee of Pivot Group who had commenced proceedings against his former employer. Pivot Group had applied for indemnity costs in relation to a number of issues, including the claim for aggravated damages. Staley sought an order for inspection of the solicitors' file of Pivot Group to assist in responding to this application. Pivot Group opposed the application on the basis that the litigation was not concluded, and the inspection was not necessary given that Pivot Group had provided detailed written submissions on the indemnity costs application. Pivot Group also argued that the application for inspection was brought by counsel who was not conducting the trial. Staley relied on authorities that suggested that an inspection of a solicitor's file is a matter of right. Staley argued that the written submissions did not adequately address the claim for aggravated damages, and that the inspection was necessary to address this issue. Staley also submitted that the application was brought by counsel, but the matter was to be dealt with by a solicitor. Pivot Group submitted that the inspection was not a matter of right when the litigation was not concluded. The Court held that there was no right of inspection when the litigation was not concluded. The Court also found that it was appropriate to consider the identity of the person who was bringing the application. The Court was not satisfied that the application was being brought by a person who had appropriate authority. The application for inspection was dismissed.

Orders