West Australian Construction Industry Redundancy Fund Ltd v Ortin
[2002] WASC 185 (S)
WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD -v- ORTIN & ORS [2002] WASC 185 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 185 (S) | |
| Case No: | CIV:1722/1999 | 8-10, 13-16 MAY 2002 & 22 JULY 2003 | |
| Coram: | McKECHNIE J | 19/07/02 | |
| 22/07/03 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Order that deponents attend for crossexamination | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD (ACN 009 404 273) MARIA MICHELLE ORTIN RONALD GRAHAM O'CONNOR COUNTRYWIDE HOME LOANS LTD GEORGE JASPER JACKSON McDONALD (A FIRM) |
Catchwords: | Costs Application for special order Supported by affidavit of solicitors Request to crossexamine deponents Order for crossexamination will be made when the interests of justice require it |
Legislation: | Nil |
Case References: | Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 In the matter of Whitemark Pty Ltd (1992) 7 WAR 54 New South Wales Crime Commission v Nguyen (2002) NSWSC 266 Schmidt v Gilmour (1988) WAR 219 Stanley-Hill v Kool (1982) 1 NSWLR 460 Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S) Collins v Westralian Sands Ltd (1993) 9 WAR 56 Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 Geneva Finance Ltd (Receiver & Manager Appointed) v Resource & Industry Ltd [2002] WASC 121 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 22 JULY 2003 FILE NO/S : CIV 1722 of 1999 BETWEEN : WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD (ACN 009 404 273)
- Plaintiff
AND
MARIA MICHELLE ORTIN
First Defendant
RONALD GRAHAM O'CONNOR
Second Defendant
COUNTRYWIDE HOME LOANS LTD
Third Defendant
GEORGE JASPER
Fourth Defendant
JACKSON McDONALD (A FIRM)
Fifth Defendant
(Page 2)
Catchwords:
Costs - Application for special order - Supported by affidavit of solicitors - Request to crossexamine deponents - Order for crossexamination will be made when the interests of justice require it
Legislation:
Nil
Result:
Order that deponents attend for crossexamination
Category: A
Representation:
Counsel:
Plaintiff : Mr A Metaxas
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Mr C G Colvin SC
Fourth Defendant : Mr C G Colvin SC
Fifth Defendant : Mr C G Colvin SC
Solicitors:
Plaintiff : Metaxas & Vernon
First Defendant : Solomon Brothers
Second Defendant : In person
Third Defendant : Freehills
Fourth Defendant : Freehills
Fifth Defendant : Blake Dawson Waldron
(Page 3)
Case(s) referred to in judgment(s):
Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
In the matter of Whitemark Pty Ltd (1992) 7 WAR 54
New South Wales Crime Commission v Nguyen (2002) NSWSC 266
Schmidt v Gilmour (1988) WAR 219
Stanley-Hill v Kool (1982) 1 NSWLR 460
Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S)
Case(s) also cited:
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
Geneva Finance Ltd (Receiver & Manager Appointed) v Resource & Industry Ltd [2002] WASC 121
(Page 4)
1 McKECHNIE J: Last year I heard and determined the action in the course of which, as against the third, fourth and fifth defendants the action was dismissed. Judgment was duly given and entered. In respect of other defendants the plaintiff's claim succeeded but those matters are not relevant to this application. On 26 August 2003 I am to hear and determine applications by the successful defendants, whom I have just mentioned, for leave to enlarge time and to seek special costs orders in respect of the trial.
2 At the trial, and now, the third and fourth defendants were represented by the same firm of solicitors and the fifth defendant was represented by a different firm of solicitors. In support of those applications, the solicitors employed by the firms of solicitors engaged by the respective defendants have sworn affidavits. The plaintiff has, by summons which I have heard today, sought orders requiring the attendance of those deponents for cross-examination on their affidavits. That application is resisted by the third, fourth and fifth defendants.
3 Mr Colvin, of senior counsel, who appeared for the fifth defendant at the trial, and who now also appears for the third and fourth defendants in this application and costs application points to the preliminary and provisional nature of the decision to make a special order for costs.
4 In deciding to make a special costs order, the Judge principally relies upon his or her knowledge of the case. In this regard I have derived much assistance from the judgment of Wheeler J in Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S), wherein she exhaustively sets out the principles and evidence relating to special costs orders. With gratitude, I adopt her analysis. At [15], she points to the need for affidavit material when work is done of which the judge is not aware. The cases which she cites and the cases cited by the defendants today confirm the need for such material.
5 For example, in Schmidt v Gilmour (1988) WAR 219, the Full Court, by majority, held that the amount of work may itself constitute good and sufficient reason to make a special costs order. The amount of work in that case was gauged by material disclosed in an affidavit. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, the Chief Justice, in respect of an explanation why a special costs order was not challenged at the time of judgment noted:
"That evidence is in no way challenged and I have no hesitation in accepting it."
(Page 5)
6 I acknowledge, unreservedly, the general principles to be applied by a Judge in considering special costs orders. I acknowledge also the fact that a special costs order if made does not itself determine the actual amount of costs which may be allowed. A detailed taxation of costs must follow. In this regard, if I apprehend his argument correctly, Mr Colvin submits that many of the matters raised by Mr Metaxas for the plaintiffs might more properly be raised at the taxation stage. Nevertheless I see no reason in principle why an order under O 36(2) r 3 may not be made requiring cross-examination in circumstances where the deponent is seeking to advance an explanation as to why an indulgence of time should be granted or where the deponent is seeking a special order on the basis of extra work about which a Judge may not know.
7 Such orders are likely to be unusual. I am not sure that I agree with Cross LJ in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 at 77 where he states:
"… It is, I think, only in a very exceptional case that a judge ought to refuse an application to cross-examine a deponent on his affidavit."
8 Nor would I necessarily agree that a court should be slow to allow cross-examination on an affidavit in interlocutory proceedings as to do so can not only prolong but cloud the issues to be resolved in such proceedings: see Master Adams: In the matter of Whitemark Pty Ltd (1992) 7 WAR 54.
9 Rather, I think the proper view is that cross-examination on an affidavit should be permitted whenever the interests of justice require. Delay and clouding the issues are aspects of the interests of justice, not determinative of them.
10 As to the present case, the plaintiff has satisfied me that it is appropriate to make an order. In saying this I stress I have not formed any view about the credibility of the contents of the affidavits. Simply put, the plaintiff has raised sufficient by way of argument today which, together with aspects of the affidavit of Mr Metaxas, make it appropriate in the interests of justice to give the plaintiff the opportunity to test, by way of cross-examination, certain statements of fact relevant to the application to extend time, the amount of work which was necessary to be done and the complexity of the case.
11 The defendants submit that the plaintiff should pay the expenses of the witnesses in attending. With respect, the unusual circumstances of
(Page 6)
- New South Wales Crime Commission v Nguyen (2002) NSWSC 266, upon which the defendants rely, deprive it of much value in the present case. More relevant is Stanley-Hill v Kool (1982) 1 NSWLR 460 per Reynolds JA at 464 to 5.
12 In the present case the issue is really academic, as indeed Reynolds JA recognised in Stanley Hill v Kool because each solicitor has given an address in St Georges Terrace: see O 37 r 2(1), so there should be no expense necessary in walking down the Terrace a few hundred metres.
13 I order that if the respective defendants seek to rely upon any affidavit of either Mr Lu or Mr Chai then the deponent must attend for the purposes of cross-examination upon the affidavit. I order that there be liberty to apply to me should there be any difficulty.
14 Costs of this application are reserved.
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