Webster & Anor v Lampard

[1999] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 1992

B e t w e e n -

ANTHONY REGINALD WEBSTER and ROSELYN WEBSTER

Applicant

and

DAVID LAMPARD

Respondent

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH WEDNESDAY, 20 OCTOBER 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. DUCKHAM:   Your Honour, I appear for the applicants.  (instructed by BW Duckham & Co)

MR G.J. O’HARA:   Your Honour, I appear for the respondent.  (instructed by Kott Gunning)

MR DUCKHAM:   Your Honour, as deposed to in my client’s affidavit, sworn 1 October, a stay was granted at the conclusion of these proceedings.

HIS HONOUR:   Yes.  I have the chambers summons.  I have your affidavit of service in support dated 18 October.

MR DUCKHAM:   Yes.  That affidavit also contains matter in support as well as service.

HIS HONOUR:   Yes, an affidavit of Mr Webster of 1 October, also.  Do you have any evidence, Mr O’Hara?

MR O’HARA:   No, your Honour.

HIS HONOUR:   What is your client’s attitude to it?

MR O’HARA:   We oppose the application.

HIS HONOUR:   Why is that?

MR O’HARA:   Really for the same grounds upon which the stay was granted in the first instance.

HIS HONOUR:   What were they?

MR O’HARA:   Principally they were the respondent’s inability to pay the amount claimed and the fact that the Supreme Court had granted a stay of its costs orders in relation to this matter.  Not only that, but that the Websters had gone back to the Supreme Court asking for that to be varied.  I might add, your Honour, it is not simply a case of the Supreme Court having granted a totally unconditional stay.  They granted a stay, subject to the Websters’ right to lodge a caveat over any interest which Lampard may have in real estate, and I understand that they have done that.  So their position is, in fact, secured.  Furthermore, your Honour, there is no evidence before you today in relation to any change in circumstances.  There is no evidence of hardship.  I might indicate to your Honour that the costs order which the Websters seek to enforce ‑ ‑ ‑

HIS HONOUR:   You are talking about an order made six years ago.

MR O’HARA:   Yes, indeed.  But there has been no change in circumstances.

HIS HONOUR:   That is probably a good reason for getting rid of the stay.

MR O’HARA:   In fact, I think the reasons are probably now more convincing than ever not to, your Honour.  The reason being: you will see from the affidavit of Mr Duckham that this matter has now been entered for trial.  It took a long time to get there and there were some substantial unexplained periods of delay on behalf of the Websters.  But, in any event, the matter has now been entered and it has been on the list for a long time.  I would have thought that the granting of trial dates is imminent.

HIS HONOUR:   Yes.  In practical terms, how far does that mean a trial is off?  How far away is the trial?  When will the trial be, given the state of the list in the Supreme Court of Western Australian for a chamber matter?

MR O’HARA:   I would thought it was a matter of months away, your Honour.  You will see that the entry was suspended for one month.

HIS HONOUR:   That is right.

MR O’HARA:   But that was in January of this year, so the matter has been in the list for a long time.  I might say, your Honour, the costs orders were obtained in respect of an appeal, for which the appellants were legally aided, and they have deposed to that.  They do not come before you today deposing to any hardship.  It seems all they are really doing is acting as a collector for the State Legal Aid Office.

HIS HONOUR:   They won their appeal in this Court and prima facie, they are entitled to their costs.

MR O’HARA:   Indeed they are.

HIS HONOUR:   They have been kept out of them for six years now.

MR O’HARA:   I do not think they, themselves, have actually incurred any.  They certainly do not depose to the fact that they have.  They have actually deposed to the fact that they were in receipt of legal aid.

HIS HONOUR:   Prima facie, the order that the Court made should be given effect to.

MR O’HARA:   Your Honour, they continue to depose to the fact that they are unemployed.  I think one of the principal grounds upon which the stay was also made was that it would be unfair if ‑ ‑ ‑

HIS HONOUR:   We have now reached a ninth amended statement of claim, have we not?

MR O’HARA:   I do not think we can be held responsible for that, your Honour.

HIS HONOUR:   That is right.  I agree with that.

MR O’HARA:   As I say, the matter has been entered for trial for a long time now, and I think one of the principal grounds upon which the stay was initially granted was that it would be inherently unfair for a significant amount of money to be paid across to the appellants, and of course it would not go to them directly.  It seems as though it is going to the State Legal Aid Office.

HIS HONOUR:   Exactly.

MR O’HARA:   And I might say, your Honour, in circumstances where the trial is now imminent, Lampard of course asserts that he will be successful.  It appears as though there will be no prospect of him getting his costs paid if he is successful at the trial of the action.  Of course, that will be an amount significantly in excess of what he is required to pay.

HIS HONOUR:   The costs that must have been run up here must greatly exceed $21,000 by now.

MR O’HARA:   The cost in the Supreme Court?

HIS HONOUR:   Yes.

MR O’HARA:   And that is really our point, your Honour.  The appellants are unemployed.  They give no undertakings.  They simply say, “Let’s pay us that money”.  And I would suggest to your Honour that there is little prospect of the respondent being in the position to have, probably, any part of its costs paid, in the event that it is successful at the trial.

We query the timing of this.  After all this time, it appears to be a grab for the money shortly before the matter proceeds to trial.  Now, we query the timing of that.  The timing has not been explained at all.  It is curious that so far down the track, the appellants would seek to lift a stay when they face every prospect of the matter going to trial within a very short period of time.

We would also say, your Honour, this is really a matter where, although of course the Supreme Court has no jurisdiction in relation to the High Court’s orders for costs, nevertheless, it is essentially a matter of really bread and butter, day-to-day practice and procedure.  The Supreme Court has already dealt on two occasions with an application for a stay.  On the first occasion it granted the stay.  As I say, it was not unconditional.  It was subject to the appellants being able to lodge a caveat, which they have done, so they are secured.  The Websters went back to try to get that varied, and they were unsuccessful, and we say it is a matter that really should ‑ ‑ ‑

HIS HONOUR:   I understand the situation which would arise if this Court in allowing the appeal had made an order for costs to abide the outcome of a trial on the proceedings which were then reinstated.  That is not what was done.

MR O’HARA:   No, I suppose – your Honour, there is no affidavit deposing to any change in the circumstances which led to the grant of the stay in the first place.  We would say, in fact, all the circumstances point to the fact that there is more reason for the stay.  As I say, the appellants are in a position of security.  They have lodged a caveat.  They do not come before you and suggest that that is inadequate or insufficient, or anything of that nature.  We would say they carry a substantial onus to show that the circumstances which led to the stay have changed.  Furthermore, we say, that, really, rather than having brought this application in this Court, they really should have gone back to the Supreme Court.

HIS HONOUR:   What could they do?  They cannot overturn our order.

MR O’HARA:   Having been there twice already, and I think it is fair to say, your Honour, that when Justice Toohey made the order some years ago he took some account of what the Supreme Court had already done.  As I say, we say that the appellants simply have not even attempted to show that the circumstances which led to this stay in the first place have changed.

HIS HONOUR:   Yes, all right, you have made that point, I think, Mr O’Hara.  Yes, Mr Duckham, what do you say about that?

MR DUCKHAM:   Your Honour, I do not for one minute suggest that my clients ‑ ‑ ‑

HIS HONOUR:   The first thing I want to know is: do you agree with the estimate of the proximity of the trial?

MR DUCKHAM:   No, Your Honour.  I would say 12 months if we are lucky.  Can I say the reason we are not entered now is because my friend obtained an application to file an amended reply on 15 January 1999 and despite letters, I have not seen anything.  I have not seen the pleading.

HIS HONOUR:   But that was a stay for a month, was it not?

MR DUCKHAM:   Yes.  That is my first thing.  The second thing I would like to refer you to, your Honour, is to Mr Lampard’s affidavit sworn on 18 August 1994 and my friend overlooks paragraph 15.  Paragraph 15 said, “We are going to get some money from the Appeal Costs Board, and we will give it to you”, I still do not have it.  This was 1994.  I still do not have it.  That is the first thing.

The second thing is, your Honour, my friend talks about we being legally aided – which is true.  My friend does not avert to the affidavit of Mr Webster sworn 30 August 1994 where we invite the respondent to, “Tell us how you are funded.  If you have no money, how did you fund yourself?”  We say, prima facie, you appear to be funded by the police union.  We provide evidence – no reply.

Your Honour, thirdly, my friend said there is no change in circumstances.  There is a change.  In their affidavit they say there is no plea of malice.  If my friend looks at paragraph 15(g) of the existing statement of claim, malice is pleaded ad nauseam.  Lastly, your Honour, the timing is purely this: we wanted to get our Supreme Court proceedings on.  We thought the one way to do it: if my friend will not move and file a pleading of the Supreme Court, why should we not come here and say, “Let’s get this stay set aside so that this is over and done with”.  And, your Honour, the cases I believe support the proposition that, if you have an obligation to do something, you have a stay and you do not undertake that obligation, the stay should be waived - Van Reesema and the other cases which I referred to, your Honour.  Now I do not believe it necessary to go through them but that is it in simple ‑ ‑ ‑

HIS HONOUR:   Yes, but why have there been nine further amended statements of claim?

MR DUCKHAM:   Because the matter of malice took some time.  My friend argued constantly, and quite properly, that malice was not pleaded correctly.  We finally got it right, we think.  But it is interesting, we filed our last statement of claim in 1997.  My friend has not pleaded since 1991, and I have the papers here to demonstrate that if necessary, your Honour.

HIS HONOUR:   Yes.

MR DUCKHAM:    So we believe we have done the right things.  They have not demonstrated where they are getting the money.  They have not

paid us this money from the Appeal Costs Board.  They have done nothing at all to assist themselves.  They are sitting on their hands, and in these circumstances the cases say the stay should go.  That is my submission, your Honour.

HIS HONOUR:   All right.  Yes, Mr O’Hara.

MR O’HARA:   Your Honour, all I would say in relation to the timing of the trial is this: my experience in the Supreme Court is, if you enter a matter and you find yourself in a call‑over about two to three months later.  You are then faced with a trial, perhaps, the following month.

HIS HONOUR:   That will depend, I suppose, how long the trial will take.  What is the estimate of that?

MR O’HARA:   No, your Honour.  What happens, your Honour, is you enter it and within a couple of months you are down there at the call‑over, and then dates are usually allocated for the month or two following.

Now, I do not know why it is that this has not appeared in the call‑over, but I suggest it is the Websters’ responsibility to make sure what is happening in that regard.  It is unheard of for a matter to have been entered in the Supreme Court since the start of the year and not to have appeared in a call‑over.  As I say, my experience is that it takes about two months to get into a court.

HIS HONOUR:   The real point, Mr O’Hara, is this Court’s orders have to be accepted in exceptional circumstances.  It is self-contained, as it were, within the Court and unless something is done, this matter will continue to be embroiled in the ongoing progress, stopping and starting in the Supreme Court.  That is not a very acceptable state of affairs.

MR O’HARA:   All I can say, your Honour, is  ‑ ‑ ‑

HIS HONOUR:   With continued applications under liberty to apply to keep up to the continuing state of affairs in the Supreme Court.

MR O’HARA:   Your Honour, a trial is only a matter of months away.  As I say, I do not know what the plaintiff has done.

HIS HONOUR:   Given the vigour of these parties, that will not be the end of the matter either.

MR O’HARA:   I am sorry, your Honour.

HIS HONOUR:   Given the vigour of you two parties, that will not be the end of the matter.  There will be an appeal.

MR O’HARA:   I do not know about that, your Honour.

HIS HONOUR:   All right.

MR O’HARA:    But, as I say, I firmly believe and I cannot see any reason why this matter cannot be listed for trial very shortly.  There is effectively no backlog in the Supreme Court at the moment.  There was some years ago.  That has all been well and truly been cleared.  As far as the length of trial is concerned, I do not think this is actually a particularly complex matter at all, either factually or legally.  It simply revolves around one incident.

HIS HONOUR:   Yes.

MR O’HARA:   Because of the allegations of malice that is perhaps a bit simplistic.

HIS HONOUR:   I think so.

MR O’HARA:   It is not a matter that is going to go for weeks.  I would have thought a matter of probably four or five days would be sufficient.

HIS HONOUR:   The Court has before it this morning a summons to remove a stay ordered by a Justice  of this Court on 1 September 1994.  The history of the litigation between these parties up to that time appears from the report of Webster v Lampard (1993) 177 CLR 598, in particular in the succinct statement at page 599. On 14 October 1993, that is to say just more than six years ago, this Court made the following orders:

Appeal allowed with costs.
Set aside the order of the Full Court of the Supreme Court of Western Australia and in lieu thereof:

(i)       allow the appeal to that Court with costs; and

(ii) set aside the order of Master Bredmeyer and in lieu thereof order that the application for summary judgment be dismissed with costs.

The effect of those orders was to reinstate the litigation in the Supreme Court of Western Australia.

On 1 September 1994 Justice Toohey dealt with the stay application in respect of the costs order.  That application followed the issue of a certificate of taxation on 10 August 1994.  This certified that the appellant’s bill of costs had been taxed and allowed at $21,423.49.  His Honour ordered a stay of execution in respect of the costs order made in this Court on 14 October 1993 until further order and he granted liberty to apply on seven days notice.  His Honour reserved the question of costs of the application before him on that day, 1 September 1994.

Since that time the litigation has reinstated and has been proceeding towards readiness for trial in the Supreme Court of Western Australia.  It appears that the matter has now been set down for trial, although there is no agreement between the parties this morning as to any date which is likely to see the commencement of the trial.  The outer limit suggested is some 12 months from now.  The respondent suggests the actual fixing of a trial date and the arrival at that date is somewhat closer. 

To some extent the delay in the readiness of the matter for trial has been occasioned by difficulties encountered in pleading malice.  There is now a ninth further amended statement of claim filed on 18 December 1998.

Is that right, Mr Duckham?

MR DUCKHAM:   Yes.

HIS HONOUR:   This morning, each side makes comments as to the substance of the position of the other and criticises the other for the delay that has now run on for some six years.  The orders made by Justice Toohey, it appears to me, were clearly premised on the footing that the litigation would be proceeding to fairly prompt resolution in the Supreme Court of Western Australia.  That has not happened.  I cannot, from the material before me, apportion or fix blame for that state of affairs, but it seems to me that the time that has run on is a material change in circumstances and does warrant the application that has been made this morning.  It seems to me matters in this Court should be brought to a head and resolved and I proceed to do so by removing the stay that was awarded by Justice Toohey on 1 September 1994.

Accordingly, I order that the stay of execution in respect of the order for costs made in this Court on 14 October 1993 be removed.  The question then arises as to the costs that were reserved by Justice Toohey and the costs of the summons this morning.  What should be done about these?

MR O’HARA:   I move for orders that the stay be removed and for costs reserved on the first occasion and this morning be the appellants, in any event.

HIS HONOUR:   Yes.  What do you say about that, Mr Duckham?

MR DUCKHAM:   In terms of success, your Honour, I think you could probably say one cancels out the other.  The application for the stay before Justice Toohey was necessitated by the fact that the Websters were threatening execution.  His Honour did grant the stay.  To that extent, of course, the Websters were unsuccessful.  Today they have been successful.  I think they cancel each other out and perhaps, instead of making an order that one gets one order and one gets – perhaps no order as to costs in relation to the matter.

HIS HONOUR:   Yes.  What do you say about that, Mr O’Hara?

MR O’HARA:   I say this.  If my friend had honoured his undertaking given on 18 August 1994 that payments received from the appeal costs board would be made to my clients, you would not be here today.  That has not been done.  I therefore submit that if he is going to rely on an undertaking and an affidavit in proceedings which are not complied with, he should not get costs for it.

HIS HONOUR:   Yes.  I think in all the circumstances there is merit in what Mr O’Hara says.  Accordingly, I make no order for costs as to the costs reserved or as to the chamber summons this morning.

AT 9.53 AM THE MATTER WAS CONCLUDED