Tey v Optima Financial Group Pty Ltd - [2012] WASCA 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 192

CORAM: PULLIN JA
NEWNES JA

HEARD: 7 AUGUST 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: CACV 11 of 2012

BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GETHING
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WADC 20
File No  :APP 44 of 2009

Catchwords:

Practice and procedure - Appeal against indemnity costs order - Application to strike out appeal as having no reasonable prospect of success - Whether indemnity costs should be ordered against litigant in person - Grounds of appeal without merit

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B W Ashdown

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

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

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet (1989) 156 CLR 605
Michael Wilson & Partners v Nicholls [2011] HCA 48
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190

JUDGMENT OF THE COURT: This is an appeal against an order of Commissioner Gething in the District Court that the appellant pay the respondent's costs of an application to that court on an indemnity basis: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. The respondent has applied for the appeal to be dismissed, in substance, on the ground that none of the grounds of appeal have any reasonable prospect of success.
The history of the litigation between the parties up to this point is described in the reasons of this court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113. It is, however, appropriate to set out the background to this particular appeal.

Background

The appeal has its genesis in proceedings in the Magistrates Court in which the respondent obtained judgment against the appellant in the sum of $550, plus interest and costs of $368.05. The appellant appealed to the District Court. On 25 June 2010, Davis DCJ dismissed the appeal with costs. Her Honour did so under s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) on the ground that the likely costs of the appeal were disproportionate to the amount in issue and, further, that none of the grounds of appeal had any prospect of success. An appeal to this court against her Honour's orders, and a subsequent application for special leave to appeal to the High Court, were dismissed.
On 21 September 2011, the appellant filed a chamber summons in the District Court seeking leave to appeal against the costs order made by Davis DCJ on 25 June 2010.
On 3 October 2011, the respondent's solicitors wrote to the appellant inviting her to consent to orders dismissing the application for leave to appeal, with no order as to costs. The solicitors said that the appellant's application for leave to appeal was misconceived, pointing out that the appellant's appeal to this court against the orders made by Davis DCJ, and the application for special leave to the High Court, had included the costs order. The solicitors enclosed a memorandum of consent orders for signing by the appellant. They went on to say that if the appellant did not consent to the application being dismissed they would have to commence work to oppose it and would seek indemnity costs in the event that it was unsuccessful.
The appellant responded by letter dated 12 October 2011, in which she said that she was not yet in a position to make a decision one way or the other. She said that she would contact the respondent's solicitors by the end of that month. The respondent's solicitors wrote to the appellant on 18 October 2011, extending the time for acceptance of their proposal until Friday, 21 October 2011. They reiterated that costs would be sought on an indemnity basis if the appellant did not consent to the dismissal of the application.
The appellant did not accept the respondent's proposal within the time stipulated and nor, it seems, did she revert to the respondent's solicitors with a substantive response by the end of October 2011. Finally, by a letter dated 2 December 2011 to the court and copied to the respondent's solicitors, the appellant advised that she was withdrawing her challenge to the costs order. On 11 January 2012, the appellant filed a notice of discontinuance of the application for leave to appeal.
As the application was an interlocutory application, the appellant required leave to discontinue, or more correctly, withdraw it. The Commissioner decided that it should be dismissed. His Honour then turned to the question of the costs of the application. Having referred to Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 and Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95, his Honour concluded that the respondent was entitled to the costs of the application on an indemnity basis. He reached that conclusion for three reasons. First, the application was without any foundation and was bound to fail, and the appellant had been put on reasonable notice as to that. Secondly, the appellant had not accepted the respondent's proposal that the application be dismissed with no orders to costs. Thirdly, the dispute at the heart of the appeal involved an amount of $550 plus interest and costs of $368.05. The Commissioner concluded that the respondent had been put to expense far outweighing the amount in dispute.
The Commissioner had before him an affidavit of the respondent's solicitor setting out details of the work done by the respondent's lawyers and deposing to the respondent having incurred total legal costs of $14,376.99 in connection with the application. Taking into account the costs of the appearances before him that day, the Commissioner treated the respondent's total costs as being in the order of $15,000. He considered, however, that some work done in relation to an affidavit filed on behalf of the respondent for a previous appearance on the application should not be allowed. He determined that an appropriate amount of costs, on an indemnity basis, was $12,500 and accordingly fixed costs in that amount. He ordered the appellant to pay the costs by 24 February 2012.
The appellant appeals against the Commissioner's decision.

The grounds of appeal

There are three grounds of appeal, as follows:
1.The learned Commissioner erred in law by not giving sufficient weight to the principle that indemnity costs:
(a)should only be made in exceptional circumstances; and
(b)only rarely are indemnity costs orders made against a litigant in person.
2.The sum $12,500 awarded in favour of the respondent on an indemnity basis is excessive and subjective.
3.(a) The appellant is prejudiced. (b) Also this appeal should be put on halt until the appellant's s 36 application filed on 26 March 2012 in the Supreme Court of Western Australia is heard and judgment delivered.

The disposition of the application

The grounds of appeal have no arguable merit. Turning to the first ground, a complaint that in the exercise of discretion insufficient weight was given to a relevant factor does not reveal appealable error unless the failure to give adequate weight amounts to a failure to exercise the discretion entrusted to the court: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet (1989) 156 CLR 605, 614.
There is nothing to suggest that the Commissioner did not give proper weight to the exceptional nature of indemnity costs, much less that the weight he gave to it was such as to amount to a failure to exercise the discretion. The Commissioner expressly referred to the principle that an order for indemnity costs will only be made if there is some special or unusual feature in the case, ordinarily where there has been some element of improper or at least unreasonable conduct on the part of a party or their legal advisers [16] ‑ [18].
In the circumstances, the Commissioner was entirely justified in concluding that the appellant's conduct was 'most unreasonable' ([23]) and that this was an appropriate case for an order for indemnity costs. As mentioned earlier, the appellant had been put on notice that the application was without merit and the respondent had proposed that the application be discontinued with no order as to costs. The appellant was warned that if the proposal was not accepted promptly the respondent would incur legal costs in responding to the appeal and it would then apply for indemnity costs. Nevertheless, the appellant delayed for some two months before seeking to discontinue the appeal.
There is no substance in the contention that the Commissioner failed to give adequate weight to the fact that the appellant was a litigant in person, even putting aside the inadequacy of such a complaint as a ground of appeal. It was submitted by the appellant that not only will an indemnity costs order be made only in exceptional circumstances, it will rarely be made against a litigant in person. To the extent the submission suggests that a litigant in person stands in some special position we would not accept it. The question in all cases is whether there is some special or unusual feature in the case which justifies a departure from the general rule that costs are to be taxed on the relevant scale of costs.
Where it is alleged that a person's conduct was improper or unreasonable so as to justify an order for indemnity costs, the fact that the person was without legal representation will ordinarily be a relevant factor in determining whether such an order is justified. What might be considered conduct warranting an indemnity costs order where a party is legally represented may not appear in the same light when account is taken of the lack of legal expertise of a litigant in person. That will necessarily depend upon the particular circumstances of the case. But where, after taking into account the lack of legal representation, the conduct of an unrepresented party is such as to warrant an indemnity costs order the court should not be reluctant to make such an order. Litigants in person have the capacity to inflict a great deal of unnecessary expense and hardship on other parties and the court should not stay its hand where such censure is properly called for.
The appellant's lack of legal representation was not a factor of any significance in this case. The inappropriateness of her conduct in bringing a duplicate appeal ought to have been apparent to the appellant, if not before the duplication was brought to her attention, then certainly once it was. The recognition that it was inappropriate to attempt to pursue the appeal did not require any particular legal skill or knowledge, and certainly none beyond that which the appellant must have acquired over the course of this tortuous litigation. The appellant's lack of legal representation cannot be said to have played any significant part in her failure to accept the respondent's proposal and to bring the matter to an end promptly without putting the respondent to unnecessary costs.
The second ground of appeal is also without merit. It is evident from the appellant's written submissions that it proceeds upon the basis that the respondent should not have done the work which made up the claim for costs. There is no substance in that. In the absence of prompt agreement by the appellant to consent to discontinue the application, the respondent was not only entitled but bound to act on the basis that the application would proceed and to do what was reasonably necessary for that eventuality. There was affidavit evidence before the Commissioner of the work that had been carried out on behalf of the respondent and the costs it had incurred. Nothing has been put forward by the appellant which might be capable of impugning the manner in which the Commissioner exercised his discretion in arriving at the sum of $12,500. No error has been identified and none is apparent.
Ground 3 of the grounds of appeal is similarly without merit. The first part of that ground alleges that the appellant has been 'prejudiced'. The prejudice appears from the appellant's written submissions. It is simply that the Commissioner gave her 21 days to pay the costs rather than some longer period. That, it is said, led to interest on the costs running sooner and to the respondent issuing proceedings to levy execution against her home. The appellant does not suggest why the interests of justice required her to have a greater period of time to pay the money. There is no substance in this part of the ground of appeal.
Two things can be said about the second part of this ground of appeal. The first is that it has been overtaken by events. On 4 July 2012, the appellant's application under s 36 of the Magistrates Court Act 2004 (WA) to set aside the original decision in the Magistrates Court, was dismissed: Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248. (We note in passing that the appellant has appealed against that decision.) Secondly, in any event the existence of a subsequent and unrelated application to challenge the order of the magistrate provides no basis for the order sought by the appellant on the appeal.
None of the grounds of appeal has any prospect of success and it follows that the appeal should be dismissed. That leaves the question of the costs of the respondent's application.
The respondent previously gave notice to the appellant, by a letter dated 19 June 2012, that should the appeal be dismissed the respondent would seek the costs of the application on an indemnity basis. In the letter, the respondent set out in some detail the grounds of its contention that the appeal was manifestly without merit. The respondent asked the appellant to agree to the appeal being dismissed by consent. The appellant did not agree and the application to dismiss the appeal was then brought.
We would not make an order for indemnity costs. Whilst such an order would otherwise be justified, there is nothing before us to indicate that such an order is necessary to enable the respondent to recover costs that would not be recoverable under the scale of costs. The respondent is entitled to its costs of the application and the appeal, to be taxed on the scale. To avoid unnecessary expense, the costs of the three appeals constituted by this appeal and CACV 7 of 2012 and CACV 12 of 2012 (the latter two having been heard with this appeal but being the subject of separate reasons: Tey v Optima Financial Group Pty Ltd[2012] WASCA 193 should be contained in one bill of costs.
The respondent has also sought an extension of time to file the respondent's answer in the appeal. Such an extension is required if the respondent is to be entitled to the costs of preparing its answer. Rule 66(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides, in effect, that unless the court orders otherwise a party who files and serves a document out of time is not entitled to recover the costs of preparing and filing that document regardless of the outcome of the appeal.
The respondent's answer was filed and served seven days out of time. The respondent's solicitor has explained in an affidavit that the delay came about because he was waiting on a response to his letter to the appellant, sent some eight days after service of the appellant's case, inviting her to abandon the appeal.
We would grant the extension. The delay has been explained and the respondent's conduct was reasonable in the circumstances. There was no prejudice to the appellant. The respondent is entitled to the costs of its answer.

Other matters

There are two other matters with which we must deal. The first relates to an application by the appellant for an adjournment of the hearing and the second to an application by the appellant that we disqualify ourselves on the basis of a reasonable apprehension of bias. We will deal with them in turn.
The appellant was notified by a registrar's notice to attend dated 16 July 2012 that the respondent's application to strike out the appeal was to be heard on 7 August 2012. The appellant says she received the notice on 18 July 2012. The appellant wrote to the court on 20 July 2012 seeking an adjournment on the grounds that she had not had sufficient notice of the hearing and that she was intending to seek legal representation. She was informed by a letter dated 26 July 2012 that the hearing would not be adjourned. When this application was called on for hearing, the appellant renewed her request for an adjournment. She relied upon the same grounds. The appellant told us that she had not yet engaged a lawyer.
We refused the adjournment. The appellant was given sufficient notice of the hearing, particularly given that the application was not one which the appellant was entirely unprepared to answer. The appellant had filed a written outline of submissions in support of the grounds of appeal as part of her appellant's case, which was filed on 11 June 2012. On the question of legal representation, there was nothing before us to suggest that the appellant had not had sufficient time to engage a lawyer. The appellant did not file an affidavit setting out what she had done in that regard and the explanation she gave from the bar table was quite unsatisfactory. We should mention that the appellant has hitherto appeared in person in almost all of the many applications in this long-running litigation.
We also refused an application by the appellant that we disqualify ourselves on the basis of a reasonable apprehension of bias. The apprehension of bias was said to arise from a statement at the end of our reasons in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113 in which we said that the papers in that matter would be referred to the Attorney General for consideration of an urgent application for an order against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]. In Johnson v Johnson, the plurality pointed out (493) that in applying the test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation requires the judge to discard the irrelevant, the immaterial and the prejudicial.
The statement we made in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113 related to the number of unsuccessful appeals and applications the appellant had brought in relation to a judgment against her in the Magistrates Court totalling some $900 (inclusive of costs). We noted that up to that time the appellant had costs orders against her amounting to some $35,000 and there were a number of appeals and applications by the appellant still to be determined. The statement was not directed to the merits of unresolved appeals but to the plethora of unsuccessful litigation instituted by the appellant in respect of what was a very modest judgment sum indeed. It was, and is, our view that there needs to be monitoring of any new proceedings sought to be brought by the appellant to ensure that they are commenced only where there is a prima facie ground for the proceedings.

What we said was not capable of giving rise to a reasonable apprehension that we might not bring an impartial and unprejudiced mind to the resolution of the specific issues which arise in this appeal. It was for that reason we dismissed the application to disqualify ourselves.

Conclusion

None of the grounds of appeal has any prospect of success and the appeal should be dismissed.
We would make the following orders:
1.The appeal be dismissed;
2.The appellant pay the respondent's costs of:
(a)the application dated 10 July 2012; and
(b)the appeal,
to be taxed;
3.The time for the filing of the respondent's answer be extended to 11 July 2012.