Troy and Company v Cameron - [2000] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TROY AND COMPANY -v- CAMERON [2000] WADC 73

CORAM: CHARTERS DCJ

HEARD: 10 FEBRUARY 2000

DELIVERED : 21 MARCH 2000

FILE NO/S: CIV 2426 of 1997

BETWEEN: TROY AND COMPANY
Plaintiff
AND
RICHARD LOCHIEL CAMERON
Defendant

Catchwords:

Practice and procedure - Application for recall of judgment, orders for costs - Amendment of statement of claim after judgment - Turns on its own facts

Legislation:

Supreme Court Act

Rules of the Supreme Court

Result:

1) Application for recall of judgment dismissed
2) Leave to amend statement of claim
3) Order for interest confirmed
4) The plaintiff to pay the costs of the hearing in chambers on 28 May and the defendant to pay the costs of the hearing on 17 August 1999

Representation:

Counsel:

Plaintiff: Mr S M Temby
Defendant: Mr R W Richardson

Solicitors:

Plaintiff: Phillips Fox
Defendant: A C Thorpe

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

Singh v Atombrook Ltd (1989) 1 WLR 810

Case(s) also cited:

Nil

CHARTERS DCJ: This matter comes before me as a consequence of orders upon a judgment delivered on 18 November 1999 and orders made on 14 January 2000. In respect of the latter I gave liberty to apply.
The defendant seeks a recall of the judgment of 18 November 1999 and the orders made on 14 January 2000.
The presentation of this application on behalf of the defendant has been disjointed. There has been no formal application for recall of the judgment, nor was there a minute of the relief sought until 9 February when a "Minute of Proposed Orders" was filed by the defendant seeking orders -
"1.The judgment dated and entered 18 November 1999 be recalled;
2.the orders of the Court of 14 January 2000 be recalled;
3.In lieu thereof there be judgment in accordance with the minute of proposed judgment herewith."
The proposed judgment contained orders that -
1.There be judgment for the plaintiff in the sum of $30,084.40;
2.The defendant do pay the plaintiff's costs of the action to be taxed;
3.The plaintiff do pay the defendant's costs of the chambers applications of 28 May and 17 August 1999 to be taxed.
Mr Richardson, by way of explanation, said Mr Thorpe formed the view that the application was part of the judgment process. A letter dated 29 December 1999 from the defendant's solicitors to the Listing Co‑ordinator sought a relisting so that "the existing judgment may be recalled". The matter of interest was not mentioned - simply that the judgment contained "errors and omissions". No outline of submissions has been put to me by the defendant in respect of the matter now canvassed either before judgment or for the purpose of the application presented for recall of orders made on 18 November 1999 and 14 January 2000. In the course of Mr Richardson's submissions assertions of fact were made which were simply wrong.
I first relate the relevant chronology.
Judgment was delivered for the plaintiff on 18 November 1999. The terms of the judgment were that the defendant pay to the plaintiff $30,084.40 with interest. The defendant was ordered to pay the plaintiff's costs to be taxed.
Although written submissions were put to me before delivery of judgment neither counsel had specifically addressed the question of interest. As a consequence upon delivery of judgment I invited counsel to put to me a minute for the calculation of interest, if such could be agreed, or attend before me for further submissions. The comment (on 18 November) of Mr Richardson, counsel for the defendant, was that he would "need to look at the minute and look at the pleadings because I unfortunately don't have them with me". He proposed that counsel for the plaintiff produce a minute of the proposed orders and added that he did not know what rate was being proposed. Mr Temby, for the plaintiff, mentioned a rate of 8 or 6 per cent depending on the date the invoices were rendered.
On 24 November 1999 the defendant's solicitors wrote to the plaintiff's solicitors and said that the claim for interest was misconceived. "There is nothing in the pleadings that entitles interest. The issue appears only in the prayer for relief and then there is no pleading as to the basis on which it is claimed. Accordingly, no claim for interest is sustainable. Given the history of this matter we would oppose any application to amend the writ and the statement of claim". The letter went on to deal with details of the claim for interest. A copy of this letter was not sent to me.
On 25 November 1999 the solicitors for the plaintiff advised my Associate that agreement could not be reached concerning the amount of interest payable on the judgment sum.
A minute of the judgment for the principal sum was sent to me by the plaintiff's solicitors and I approved this on 3 December 1999.
On 29 December 1999 the defendant's solicitors wrote to the listing coordinator of the District Court and said that the judgment extracted was done so without their knowledge and contained errors and omissions. They had asked the plaintiff's solicitors to recall the judgment and have the matter listed for argument. They asked that the matter be relisted on an urgent basis in order that the existing judgment may be recalled and it could not wait until I returned from vacation on 10 January 2000.
My Associate attended the Court on 7 January 2000 and was told that Mr Thorpe had agreed on 5 January to list the matter before me after 10 January urgently. My Associate arranged to have the matter listed for Friday 14 January and the parties were advised accordingly on 7 January. Listings noted that they awaited a call back from Mr Thorpe.
On 13 January Mr Thorpe telephoned my Associate to say that Mr Richardson had not been able to be contacted because he may be on holidays. My Associate advised him that the matter was still to proceed.
On 14 January Ms Robertson appeared on behalf of the plaintiff and there was no appearance by Mr Thorpe. I heard Ms Robertson and during her submissions she put to me the defendant's submission that interest could not be claimed because of non‑compliance with Order 20 rule 9(4) of the Supreme Court Rules. She sought amendment of the statement of claim to identify the statutory authority for the claim of interest. The plaintiff in the writ had claimed interest pursuant to s32 of the Supreme Court Act. I made the following orders:
1.Judgment would not be recalled but was to be amended to correct the title of the trial Judge.
2.The statement of claim was amended to include the authority for the claim for interest - s32 of the Supreme Court Act.
3.Interest was ordered to be paid in the sum of $4,633.80 calculated as follows:
11.7.1997 to 12.9.1997 - 63 days at 8% - $ 415.41
13.9.1997 to 14.1.2000 - 853 days at 6% - $4,218.40
Total$4,663.80
4.Defendant to pay the plaintiff's costs of the day.
5.Liberty to apply within 7 days.
I ordered liberty to apply to enable the defendant to present any argument if he challenged any of the orders made.
Following upon the liberty to apply the defendant now seeks:
(a)to have the judgment recalled on the basis that there was no entitlement to interest - the mandatory requirements of Order 20 rule 9(4) of the Rules of the Supreme Court had not been met and the issue of interest had never been addressed by the parties. There had been a denial of natural justice to the defendant;
(b)the judgment was incorrect in showing the hearing dates as including 24 February, 30 March, 5 May and 17 August 1999 for those were hearings in chambers. In this respect the plaintiff sought leave to have the judgment corrected under the slip rule. The point was of importance, Mr Richardson said, because the defendant should not be ordered to pay the costs of those appearances; and
(c)the entitlement to costs on the hearings in chambers be determined.
In the course of Mr Richardson's argument he submitted that the defendant had been denied natural justice as "we have never been heard on interest, whether or not there is any entitlement …". Indeed all the orders made on 14 January 2000 "were made without natural justice to the defendant". Moreover computation of interest on 14 January 2000 was wrong because it included interest having accrued before the writ was issued. This latter assertion, he later agreed, was incorrect.
He also put to me (alleging gross impropriety upon Mr Temby's part) that a bankruptcy notice was issued upon an extracted judgment claiming the principal sum ($30,084.40) and interest of $6,223.83: that was wrong, for the bankruptcy notice claimed only the judgment sum of $30,084.40 and interest, the interest not being quantified.
I shall deal in turn with the issues as I understand them to be.

(a) Correction of the judgment

The dates of hearings should of course not include hearings in chambers for the cost implications may be serious. The hearings on 24 February, 30 March and 17 August 1999 were in chambers.
Mr Temby said that he obtained the dates of hearings from the transcript. It may indeed be the case that the reasons for judgment prepared by me in which I recorded the hearing dates as including 24 February, 30 March, 5 May and 17 August 1999 from my perusal of the transcript contributed to the error. I have no difficulty in ordering that the judgment be amended in terms of Order 21 rule 10 - clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected.

(b) Claim for interest

The claim on behalf of the defendant is that there has been a failure to comply with Order 20 rule 9(4)(a) and (c) of the Rules of the Supreme Court which is in the following terms -
"(4)Where the plaintiff intends to claim interest, he must claim it specifically; and the Statement of Claim must -
(a)identify the part of the claim … to which the claim for interest relates;
(b)…
(c)where the claim for interest is pursuant to a statute -
(i)identify the statutory provision;
(ii)specify the rate claimed; and
(iii)state the date or dates from which interest is claimed."
I order that the plaintiff have leave to amend the statement of claim to accord with the calculation of 14 January and more specifically to:
(a)identify the part of the claim to which the claim for interest relates;
(b)identify the statutory provision of s32 of the Supreme Court Act;
(c)specify the rate claimed - reference is to be made to the earlier part of these reasons; and
(d)the dates from which interest is claimed - also to be taken from the earlier part of these reasons.
These are technical omissions and it is not suggested that an amendment to the statement of claim will prejudice the defendant.
Under Order 21 rule 5 of the Supreme CourtRules the Court may at any stage of the proceedings (even after judgment on the authority of Singh v Atombrook Ltd (1989) 1 WLR 810) allow the plaintiff to amend his pleading. It is plainly right that the plaintiff should do so. The omissions were clearly by oversight.
The rates and calculation of interest (which were determined on 14 January) are not challenged. Whilst the amendment to the statement of claim must logically precede the calculation of interest, there is no basis for a change of the calculation.
As I have said, the entitlement to interest was not addressed by the defendant's counsel prior to my delivering judgment. Mr Richardson's claim that it was not for the defendant to make such a submission in the absence of a basis for the claim put to the Court by the plaintiff, is rejected.
I am left with the impression that the question raised by the defendant of entitlement to interest was an afterthought.
The orders for interest made on 14 January 2000 will be confirmed once the amendments have been made to the statement of claim. The amendments sought are to be put to me by minute.

(c) Costs

The appearances before me with respect to the chambers hearings were all designed to programme effectively the continuation of the trial. Under these circumstances whilst the costs were reserved it is proper that the defendant should pay the costs with one exception - the hearing before Blaxell J on 28 May.
I should add that the trial was tortuous.
It was originally programmed for two days. During the defendant's counsel's opening I was told he would be calling two witnesses. At the conclusion of their evidence (at the end of the second day) I was told the defence case would not be closed as further evidence may be called. Mr Thorpe appeared for the defendant for those first two days. Thereafter Mr Richardson appeared as counsel, instructed by A C Thorpe.
During the opening of the defence case on 15 January 1999 Mr Thorpe said he would be calling Mr Cameron and Mr Willcox and I was told of the evidence they would give.
At the end of the evidence of Mr Willcox, Mr Thorpe said he could not close his case. I said if the matter was to be brought on for further oral evidence I would require a deposition of the evidence to be given and Mr Thorpe replied that he would like 10 days to report to me. I said I wanted written submissions within seven days unless further evidence was to be called. On 21 January Mr Thorpe said he was calling more evidence and asked for a hearing date. I gave him the date Monday 25 January.
Counsel appeared before me on 25 January when Mr Thorpe said three witnesses would be subpoenaed to give evidence. I was told the nature of the proposed evidence and ruled it to be inadmissible. I ordered written submissions to be lodged.
On 24 February Mr Richardson sought the recall of the earlier orders and said that he intended to call further evidence. He refused to tell me what the witnesses would say.
I recalled the order and ordered that the defendant within 21 days serve on the plaintiff a signed statement of the proposed evidence of each witness to be called and that that would stand as the evidence‑in‑chief subject to appropriate objections, the matter be relisted for a further day and closing submissions be lodged within seven days of the concluded hearing.
On 30 March I heard an application by the plaintiff for judgment for non‑compliance with the order of 24 February. I ordered compliance by 9 April 1999 and in default the evidence be treated as closed. Thereafter written submissions were to be filed. At the defendant's request I ordered costs to be in the cause.
As on 30 March I dismissed (with no order for costs) an application by the plaintiff for the striking out of the defence for failure to comply with orders to file and serve written statements of witnesses proposed to be called by the defendant.
There was a short hearing in chambers on 5 May, upon an application by the plaintiff to challenge admissibility of evidence - this was adjourned for hearing on one day.
On 7 May A C Thorpe requested a listing for two days hearing in July 1999. The listings officer notified A C Thorpe that the action was listed for 1 and 2 September.
On 28 May, Blaxell J ordered the matter be tried for one day on 1 September 1999. This came before his Honour following an application by the plaintiff for orders that -
(i)the defendant's case be closed;
(ii)the defendant's closing submissions be in writing and be filed and served within 7 days;
(iii)the plaintiff's closing submissions be in writing and be filed and served within 14 days thereafter; and
(iv)the trial dates of 1 and 2 September be vacated.
His Honour reserved the costs of that application.
The application in that form was substantially unsuccessful and the plaintiff must bear the taxed costs of the hearing on that day though an application of some kind was warranted to bring this action to a speedy conclusion.
Then on 17 August Mr Thorpe for the defendant sought to have the evidence of the defendant's remaining witness, Mr Keys, heard despite the fact that Mr Temby was prepared to agree the evidence as it appeared upon the deposition. Mr Thorpe required a number of unspecified documents to be proved. I made a number of programming orders for the conclusion of the trial. The costs of that hearing are to be in the cause and therefore, once taxed, to be paid by the defendant.
Mr Keys gave evidence on 1 September and written submissions were eventually filed.
The defendant's application for costs is by reference to the appearances on 28 May and 7 August 1999.