Unmack and Unmack v White

Case •

[2009] WADC 7

•

22 JANUARY 2009

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   UNMACK & UNMACK -v- WHITE & ANOR [2009] WADC 7

CORAM:   BOWDEN DCJ

HEARD:   16 JANUARY 2008

DELIVERED          :   22 JANUARY 2009

FILE NO/S:   CIV 2760 of 2005

BETWEEN:   UNMACK & UNMACK

Plaintiff

AND

RUSSELL JOHN WHITE
First Defendant

SHAWN WILLIAM REISS
Second Defendant

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DEPUTY REGISTRAR HARMAN

Citation  :[2008] WADC 151

Catchwords:

Application to set aside default judgment - Chamber summons filed alleging default in answering interrogatories when party was not in default - Default judgment set aside

Legislation:

District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004
Rules of the Supreme Court 1971 (WA)

Result:

Extension of time within which to appeal granted
Leave to amend grounds of appeal granted
Default judgment set aside
Costs, as between plaintiff and second defendant, in the cause

Representation:

Counsel:

Plaintiff:     Mr S F Popperwell

First Defendant              :     No appearance

Second Defendant         :     Mr R J Eaton

Solicitors:

Plaintiff:     Pynt & Partners

First Defendant              :     Not applicable

Second Defendant         :     Hammond Worthington

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

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

Gallo v Dawson (1990) 64 ALJR 458

Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Jackamarra v Krakouer (1998) 195 CLR 516

R v Carroll (2002) 213 CLR 635

Rogers v The Queen (1994) 181 CLR 251

  1. BOWDEN DCJ:   This is an application for an extension of time within which to appeal and an application to amend the grounds of appeal.  The plaintiff appeals from the decision of learned Deputy Registrar Harman delivered on 10 October 2008 whereby the Deputy Registrar ordered that:

    (1)judgment entered against the second defendant on 1 February 2008 be set aside;

    (2)the plaintiff pay the second defendant's costs of this application.

  2. Pursuant to the District Court Rules such an appeal must be commenced within 10 days after the date of the decision or such longer period as a Judge may allow (District Court Rules 2005 r 15(2)).

Extension of time and amending grounds of appeal

  1. The appeal was filed one day out of time and the original grounds of appeal related only to the second order made by Deputy Registrar Harman relating to costs.  By submissions filed on 14 January 2009 the plaintiff sought leave to amend the grounds of appeal to contend that the Deputy Registrar erred in setting aside the default judgment.

  2. The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties.  The discretion can only be exercised upon proof that strict compliance will work an injustice upon the applicant.  It requires regard to be had to the history of proceedings, the conduct of the parties, the nature of litigation and the consequences to the parties of the grant or refusal of the application for an extension of time (Gallo v Dawson (1990) 64 ALJR 458).

  3. Factors to be considered in exercising the discretion are whether there are arguable grounds of appeal, the length of the delay, the reasons for delay and the prejudice that would be suffered by the respondent (second defendant) should the application succeed (Jackamarra v Krakouer (1998) 195 CLR 516).

  4. Ultimately the question is "what does justice in all notions or senses of it that are relevant require in the circumstances of this case" (Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398 at 414).

  5. In this case the delay is very small.  The appellant, as I will endeavour to show in these reasons has some merit in the arguments he puts forward and although there is always prejudice suffered by a party when an extension of time is granted, that is outweighed by the public interest in having the arguments ventilated before the Court and ruled upon.

  6. Accordingly, I do grant an extension of time within which to appeal and allow the amendment so that the grounds of appeal relate to both orders made by the learned Deputy Registrar on 10 October 2008.

The law relating to appeals

  1. An appeal from the Registrar to a Judge in chambers is a complete review de novo by the Judge which is dealt with by way of an actual hearing of the application which led to the order under the appeal.  I am required to treat the matter as though as it has come before me for the first time (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).

  2. In considering the justice in the circumstances of this case one does have to have regard to the history of this case.

History

  1. The somewhat complicated history of this matter is that in March 2005 the plaintiff commenced proceedings in the Perth Local Court against the first and second defendants claiming an amount of money for professional legal services provided to them.  The second defendant successfully objected to the matter being dealt with in that court on the basis that he resided at 32 Zenobia Street, Palmyra (hereinafter referred to as "Palmyra") and filed the appropriate Objection to Jurisdiction (4 April 2005 ) stating that he required the action to be transferred to the court nearest his residence.  The matter was then transferred to the Fremantle Magistrates Court.

  2. The plaintiff made application for summary judgment which was heard on 27 May, 11 July and 29 July 2005.  On the latter date the application was dismissed.

  3. In August 2005 the defendants filed a counterclaim against the plaintiff and in September 2005 the parties agreed to have the matter transferred to the District Court pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act2004.  The Magistrates Court advised the District Court the matter had been remitted to that court in December of 2005.

  4. On 7 June 2007 the solicitors acting for the second defendants, who also act for the first defendant (Hayter & Co) requested the District Court urgently issue a timetable for the case or, alternatively, provide a date for entry of trial.  The reason for this was that it appears that the normal District Court timetabling had not been applied perhaps because the matter was not initiated in the District Court but rather transferred to it.  The letter further stated that:

    "Despite various requests made by me to the plaintiff he has failed and/or refused to enter the matter for trial".  (Hayter & Co letter, 7 June 2007)

  5. The matter was listed for a pre‑trial conference on 9 August 2007, however solicitors for the defendants advised the Court that they had not been advised of that date and would not be able to attend and the pre‑trial conference was re‑listed for 14 August 2007.

  6. On 9 August 2007 solicitors for the second defendant (Hayter & Co) filed a chamber summons for an order ceasing to act (ceasing to act application).  That application was accompanied by Mr Hayter's affidavit of 9 August where he deposed at par 3:

    "From telephone conversations with the first defendant and the solicitors for the plaintiff I believe that the second defendant is overseas and may not be returning to Australia until October 2007."

    And at par 4:

    "The second defendant on 23 July 2007 instructed me that I am no longer to represent him in these proceedings."

  7. On 14 August 2007 Mr Hayter appeared at the pre‑trial conference, although the ceasing to act application had been filed it had not been heard and in any event Hayter & Co were still the solicitor for the first defendant. There is no evidence on the file establishing that a copy the ceasing to act application had been served on the plaintiff.  It is inconceivable in my opinion that at the pre‑trial conference on 14 August Mr Hayter would not have advised the plaintiff's solicitor and the Court that he would not be acting for the second defendant and had no instructions from him.

  8. Two days after the pre‑trial conference of 14 August 2007 the plaintiff made an application for leave to administer interrogatories for answer by the second defendant (plaintiff's application for interrogatories).  An affidavit, sworn and filed on 21 August 2007 by Mr Goodlet in support of that application deposed at par 6:

    "I was surprised to find at the pre‑trial conference in this action on 14 August 2007 that the second defendant was absent despite his instructions and, his lawyer's insistence at the listing conference that this matter be entered for trial immediately.  To the best of the knowledge of his lawyer he was overseas in Thailand for an indefinite period of time, since disposing of his residence, denying the plaintiff the opportunity to discuss any material matter with the second defendant."

  9. In any event on 24 August 2007 the ceasing to act application was heard and an order made that upon compliance with O 8 r 7 of the Rules of the Supreme Court of Western Australia Hayter & Co ceased to be solicitors of record for the second defendant. Order 8 r 7 provides, inter alia:

    "That unless and until the solicitor (a) serves on every party a copy of the order and (b) files in the central office a certificate signed by him that the order has been duly served as aforesaid he is considered to be the solicitor of the party until the final conclusion of the matter including the appeal therein."

  10. The certificate referred to was filed by Hayter & Co on 4 October 2007.  It is not possible to ascertain from the court record the exact date of the service on the plaintiff of that order, however the order could not have been served before 25 September 2007 because Mr Hayter had very prudently written to the court requesting that a "clear copy order in duplicate" be signed and sealed to enable him to effect service (letter, Hayter & Co, 25 September 2007 to District Court Registry).

  11. On 6 September the plaintiff's application for interrogatories was granted by Registrar Hewitt

  12. On 10 September 2007 the proposed interrogatories to be answered by the second defendant were filed, they by their terms allowed the second defendant 14 days to provide answers.

  13. On 13 September 2007 the plaintiff filed a chamber summons to strike out the defence of the second defendant due to his failure to answer within 14 days of the due service of the plaintiff's interrogatories the subject of the order made on 6 September 2007 and seeking judgment be entered against the second defendant (the strike‑out application).  This application was made before the 14 days allowed to the second defendant to provide answers had expired and the second defendant was not in default of any order made by the court.  The strike‑out application was supported by an affidavit of Mr Goodlet sworn 12 September 2007 and filed on the 13th whereby Mr Goodlet deposed that:

    "par 2.The plaintiff pursuant to the order made herein on the 6th day of September 2007 accordingly served the second defendant by delivery to  care of his solicitor on that date a copy of the said interrogatories the subject of the order.

    …

    3.I have become aware that the second defendant has sold his residence in Western Australia and is now living in Thailand the precise address of which I have been unable to learn.

    4.I have reason to believe that the address of the second defendant in Thailand is known to his solicitor who has just now declared his intention to remove himself from the court record as the solicitor for the second defendant and his address for service within the jurisdiction.

    5.I wish to anticipate the circumstances by the immediate service on him of this process."

  14. The strike‑out application was heard on 2 October before Deputy Registrar Hewitt who ordered that unless the second defendant within 14 days answer or object to answering the interrogatories filed on 10 September 2007 his defence be struck out and judgment entered for the plaintiff in the amount of its claim with costs ("the revoked order").

  15. On 15 October 2007 the Deputy Registrar wrote to the plaintiff and first defendant's solicitors advising, inter alia:

    "That order has not been extracted and accordingly I retain the power to vary the order if I think it appropriate.  I have decided to exercise that power and have accordingly revoked the orders made on 2 October 2007 and substitute the following:

    (1)The application be adjourned sine die.

    (2)Deputy Registrar Hewitt be disqualified from any further hearing of the application.

    (3)Costs of the hearing on 2 October 2007 be in the cause.

    My reasons for taking this course are as follows:

    (a)I was a member of the plaintiff firm approximately 25 years ago and am personally acquainted with Mr W Goodlet who is principal of the firm.  As such I think a reasonable apprehension of bias could arise and I should not have heard the application.

    (b)I have formed the view that the plaintiff's pursuit of interrogatories has been for the sole purpose of obtaining a judgment in default and as such is an abuse of process."

  16. The plaintiff responded to this letter pointing out that the plaintiff had lodged a minute of the order on 4 October 2007 that is, 11 days before the decision of 15 October 2007 to revoke it pointing out that the "second defendant is now unrepresented and there is no service address on the court record making it impossible for anyone including the Court to communicate with him" (Unmack & Unmack letter to court, 17 October 2007).

  17. The Deputy Registrar responded pointing out that a judgment and not a draft of the order was presented and it was the order that needed to be extracted in accordance with the court's practice and drawing the plaintiff's attention to O 8 r 9 which provided a deemed address for service on a party whose solicitor had withdrawn and had not appointed a new solicitor or filed a notice of acting in person (letter of Deputy Registrar Hewitt, 18 October 2007.) The Deputy Registrar also stated that in his view although Mr Hayter had remained on the record until his application was processed and the formalities of the rules observed, he was clearly not instructed by the second defendant at the hearing of the application (a reference to the plaintiff's strike‑out application heard on 2 October 2007).

  18. The plaintiff then requested that the matter be relisted before a different officer of the court and all parties were advised that the plaintiff's strike‑out application of 13 September 2007 would be listed for a hearing before a Registrar on 16 November 2007 at 9.30 am in the general chambers list.  Efforts were made to serve this notice on the second defendant by District Court staff who contacted the second defendant's former solicitor and were advised that they had no address for him.  One of the court staff noticed that the court did have his email address on court documents and accordingly sent an email to that address.  Unfortunately, the email was sent to the wrong address.

  19. However before 16 November 2007 the matter was dealt with at a callover list, the callover being held because the plaintiff had unpaid trial fees and it is the court's practice to have a callover prior to the trial to remedy that situation.

  20. When the matter came on at the callover list on 29 October 2007 the Principal Registrar made orders in terms of the revoked order made by Registrar Hewitt (the springing order).  The first defendant's solicitors immediately advised that they were not notified of the hearing (Hayter & Co letter, 31 October 2007), whereupon the court advised of the reasons the matter was in the callover list and enquired if they wished to make an application to vary the springing order.  The advice received by the court was that no application would be made (Hayter & Co letter, 5 November 2007).

  21. Ultimately the plaintiff made an application dated 29 November seeking an order for substituted service of the springing order (substituted service application).  It appears from an examination of the court file that the date given for hearing of the substituted service application was originally 4 December 2007, however "4" has been whited out and "3" substituted in writing.  The result being that the "3" does appear to be "13" as referred to in par 17 of the second defendant's affidavit in support of his application to set aside default judgment.

  22. In his affidavit sworn 28 November and filed 29 November 2007 in support of the substituted service application Mr Goodlet deposed to the fact that solicitors were no longer acting for the second defendant and that he "could not ascertain the present whereabouts of the second defendant beyond the knowledge that he has returned from overseas and is contactable at an address known to his former solicitor who still represents his former co‑defendant" (par 3).  He further deposed to the fact that he had endeavoured to arrange for the second defendant's former solicitors to serve the documents and had written to the second defendant's ex‑wife seeking details as to the second defendant's residence to no avail and had written to the second defendant at his last known residential address and had not received a reply nor had the letter been returned to him (pars 5, 6, 7, 8).

  23. The substituted service application was heard on 3 December 2007 and, inter alia, the following orders were made:

    "1.The plaintiff do have leave to serve the order dated 29 October 2007 on the second defendant by personally serving a copy of the order in a sealed envelope addressed to the second defendant on Russell John White at his residence at 59C Daly Street, South Fremantle.

    2.The service of the order dated 29 October 2007 on the second defendant by the means set out in par 1 be deemed sufficient service for the purpose of that order."

  24. Accordingly, in compliance with the court order the sealed envelope containing a copy of the order was served on the first defendant at the first defendant's residence (affidavit of Mr Goodlet, 18 January 2008 at par 2 and annexures WLG4) on 19 December 2007.

  25. On 18 January 2008 an application to strike out the defence for the second defendant and enter judgment against the second defendant in favour of the plaintiff was filed together with the supporting affidavit (default judgment application).

  26. On 1 February 2008 the defence of the second defendant was struck out and judgment entered for the plaintiff.  That judgment was extracted on 22 February 2007.

  27. On 25 June 2008 the Sheriff, executing the appropriate warrant, left a card under the windscreen of the second defendant's motor vehicle leading to the second defendant making enquiries and, on his case, became aware that he had been required to answer interrogatories and that default judgment had been entered against him (Sean William Reiss' affidavit, pars 19–23).  The solicitor he first approached was unable to act due to a conflict of interest, this caused some delay (pars 21‑23), however on 6 August 2008 an application to set aside the default judgment was filed, it being heard on 21 August 2008 with a decision delivered on 10 October 2008 by Deputy Registrar Harman.

The appeal

  1. At the hearing of this matter I was greatly assisted by both written and oral submissions by Mr Popperwell for the plaintiff and Mr Eaton for the second defendant.

The plaintiff's submissions

  1. The plaintiff's position is that the application for interrogatories heard on 6 September 2007 was heard in the presence of the second defendant's solicitors who, although the beneficiaries of an order made on 24 August 2007 relating to their removal from the court record, were still the solicitors on record until that order was complied with in full (O 8 r 7 RSC).

  2. The plaintiff contends that the Principal Registrar's springing order of 29 October 2007 was properly served by the plaintiff posting it to the second defendant's residential address (as per affidavit of Mr W Goodlet, 28 November 2007 and S Gage, 22 October 2008) and by virtue of O 8 r 9 RSC a party's service details are taken to be the party's geographical address stated on the most recently filed document until either the Court orders otherwise or a notice under r 4 or r 5 is filed.

  1. The plaintiff further submits that service shall deemed to be effected by properly addressing and posting by pre‑paid post, a document as a letter to the proper address of the person to be served and unless a contrary is proven service is deemed effected at the time when the letter would have been delivered in the ordinary course of the post; O 72 r 5(3), (4), (5) RSC.

  2. The plaintiff points out that the document was sent to the Palmyra address which the plaintiff contends is the second defendant's geographical address or last known geographical address because the original Local Court summons bore that address.  (I also note that is the address specified in the notice of objection to jurisdiction filed by the second defendant.)

  3. Therefore the plaintiff contends that the springing order was served in accordance with the rules and the plaintiff's later application for substituted service of the springing orders was unnecessary.

  4. Additionally the plaintiff draws the court's attention to the second defendant's affidavit sworn and filed 6 August 2008 saying that it is deficient because it fails to directly address the question of whether or not the second defendant received a copy of the springing order.  The second defendant deposes (par 15) to being unaware of the hearing set down for 29 October and further deposes (pars 19‑20) that he was not aware that judgment had been entered against him, however he does not depose anywhere in the affidavit to not receiving a copy of the springing order.

  5. The plaintiff's contention is that the judgment was regularly obtained.  The plaintiff accepts that notwithstanding this I have a discretion to set aside the judgment as a result of non‑compliance with the springing order when one considers the circumstances in which the springing order came to be made, the reason for non‑compliance with it, the prejudice to the second defendant if judgment was not set aside and the prejudice to the plaintiff if it was.

  6. Clearly by the plaintiff's actions in applying for an order for substituted service it recognises that it had not been able to serve the process on the second defendant.  Indeed in Mr Goodlet's affidavit sworn on 28 November 2007 he specifically stated that the former solicitors for the second defendant declined to accept service, that he could not ascertain the present whereabouts of the second defendant beyond the knowledge that he had returned from overseas and expressed his frustration at being unable to find a more effective way of getting the document to the second defendant.  There is an implicit acknowledgement by the very making of that application that a further order of the court was required to ensure that the second defendant received the document in question.

  7. The ultimate question is of course what is necessary for justice to be served in this particular case. It is entirely possible for the documents to have been served in compliance with O 8 r 7 RSC and by the effect of O 8 r 9 and O72 r 5 for that service to be "deemed effective service" and for the second defendant not to have received it. The question is whether or not the second defendant actually had notice of the springing order.

The second defendant's submissions

  1. The second defendant says that the plaintiff has abused the process of the court.  They say that the plaintiff made the application for interrogatories at a time when he knew the second defendant was out of the jurisdiction and therefore unable to answer them and knew that Mr Hayter was no longer acting and made the application for interrogatories as a basis to obtain a springing order and ultimately default judgment.

  2. However, it must be borne in mind that shortly after filing the application for interrogatories Mr Goodlet deposed in his affidavit to the fact that the second defendant was living in Thailand, the precise address which he had been unable to learn and deposed to the fact that the solicitor for the second defendant had declared his intention to remove himself from the court record and declared that he "wished to anticipate the circumstance by the immediate service on him of this process" (Goodlet affidavit sworn 12 September 2007).  The Court had this before it when both the revoked order and the springing order were made.  The plaintiff's application for substituted service shows that it accepted, at least at that time, that the orders had not been brought to the attention of the second defendant and was seeking the court's assistance to serve the orders in a way that would.  In those circumstances I do not consider that it is an abuse of the process of the court.

  3. The second defendant says that you can tell by the brevity and nature of the interrogatories that they are an abuse of process.  I disagree with this submission.  The interrogatories are extremely brief; however it would appear to me that it would only be at the trial that a Judge having heard all of the evidence from the relevant parties considering the issues therein raised would be able to make such a conclusion. A Judge may reach that conclusion, however I do not think that simply from the brevity and nature of the interrogatories that one could say that they were an abuse of the process of the court.

  4. It is quite clear that "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and in some cases minds may differ as to whether they do constitute an abuse": R v Carroll (2002) 213 CLR 635 at 657; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 per Steytler P at [21]. It is also clear that the categories of circumstances which constitute an abuse of process include proceedings invoked for an illegitimate purpose (Rogers v The Queen (1994) 181 CLR 251 at 286) or are proceedings that are such as to "bring the administration of justice into dispute" (Rogers (supra)).  It is also clear that any procedural step in the course of proceedings that has been properly instituted is capable of being an abuse of the court's process (Commonwealth of Australia v Albany Port Authority (supra) per Steytler P at [21]).

  5. I am prepared to accept that the filing of a chamber summons alleging a default by a party before any actual default may be an abuse of process of the court.  To make an application to obtain an order against a party you know is out of the jurisdiction so as that party cannot comply with the order thereby enabling you to obtain default judgment may also be an abuse of process of the court, however, where the court has been advised by affidavit in the terms of those filed in this case and the party alleged to have committed the abuse of process has applied to the court for an order for substituted service thereby seeking the court's assistance in ensuring that the  order is effectively served on the party leads me to conclude that such a finding ought not be made in this case.

  6. When one considers that the terms of the order for substituted service made on 30 December 2007 were that the springing order be served on the first defendant in a sealed envelope addressed to the second defendant then unless the order including a provision that the sealed envelope have endorsed upon it not only the name of the second defendant but some indication that it contains an urgent court order, the breach of which may have significant consequences and that it is to be provided to the second defendant urgently there remains a real risk that notwithstanding service in accordance with that order, the second defendant may not have been aware of the order.

  7. If the court is satisfied that the second defendant had not been served or otherwise been informed of the springing order, judgment ought to be set aside because of the prejudice that the failure to do so would cause the second defendant.

  8. Clearly, the second defendant has an arguable defence to the action brought by the plaintiff and the reasons for the delay in making this application is adequately explained his affidavit.

  9. The combination of the circumstances of this case including the circumstances in which the springing order came to be made, that is, a chamber summons filed before there was any default on behalf of the second defendant and the serious consequences which would flow to the defendant if judgment is not set aside, lead me to the conclusion that it ought be set aside and I so order.

  10. I accept that there is prejudice to the plaintiff, that being the loss of a judgment.  However the effect of my order will be that both parties will be entitled to have their day in court and this mitigates any prejudice suffered by the plaintiff.

  11. Insofar as the appeal relating the order by the Deputy Registrar that the plaintiff do pay the second defendant's costs of this application, I have pointed out that the default judgment was obtained by a process which commenced with the plaintiff filing a chamber summons alleging default by the second defendant when at the time of the filing of the chamber summons the second defendant was not in default.  This practice is not to be encouraged.  Mr Goodlet in his affidavit refers to "anticipating the circumstances", however it clearly needs to be stated that the filing of a chamber summons alleging default before there is an actual default is inappropriate and in most circumstances would amount to an abuse.  It is also clear that default judgment was obtained when the plaintiff served the orders pursuant to a court order for substituted service in the manner ordered by the court.  The Principal Registrar could do little other than make the order he did as that was the only method of service suggested by the affidavit of Mr Goodlet (par 5, affidavit of 28 November 2007) which accompanied the application of the plaintiff.

  12. The second defendant spends a lot of time out of the jurisdiction and as the affidavit of Mr Hayter of 9 August 2007 makes clear, the second defendant instructed Mr Hayter to no longer represent him.  The second defendant had sold his house in mid July 2007 (par 7.2.1 of his affidavit) and made some efforts to have his mail redirected (par 7.2.2).  He provides no explanation as to why documents addressed to him but served on the first defendant were not forwarded to him.  There is no evidence from him of any instructions given to the first defendant in relation to such documents and after he sold his house in July 2007 he made no effort to notify the court of any new address or place for service as required by the rules, (although I do accept that he had given his email address on one of the documents previously with the court).  These actions creating a situation whereby the only geographic address on the court record was no longer occupied by him.  In those circumstances it is not surprising that controversy arose over issues of service and I consider that justice in this case is best served by an order that costs of the application to set aside default judgment be, as between the plaintiff and second defendant, costs in the cause and I so order.

  13. As far as the costs of the appeal is concerned I will give liberty to the parties to apply within seven days, however my provisional view is that the costs of this appeal be, as between the plaintiff and the second defendant, costs in the cause and unless an application to relist this matter is made on or before Friday, 6 February 2009 the order I will make is that the costs of the appeal as between the plaintiff and the second defendant be costs in the cause. 

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

2

Diaz v Schlumberger Australia Pty Ltd [No 2] [2011] WADC 135
Unmack and Unmack v White [2008] WADC 151