Wild v Hellier - [2000] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WILD -v- HELLIER [2000] WADC 90

CORAM: KENNEDY DCJ

HEARD: 20 MARCH 2000

DELIVERED : 12 APRIL 2000

FILE NO/S: CIV 243 of 1999

MATTER :In the matter of an application pursuant to Order 8 Rule 5 of the District Court Rules to extend time within which to appeal against a decision of the Real Estate and Business Agents Supervisory Board.

BETWEEN: DAVID ANNESLEY MAUI WILD
Applicant
AND
ROGER VINCENT HELLIER
Respondent

Catchwords:

Practice & Procedure - Application for extension of time within which to appeal - Merits of appeal and delay - Turns on its own facts.

Legislation:

Real Estate and Business Agents Act 1978

Result:

Appeal dismissed.

Representation:

Counsel:

Applicant: Mr A C Thorpe
Respondent: Mr D J Matthews

Solicitors:

Applicant: A C Thorpe
Respondent: Crown Solicitor for the State of Western Australia

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

Boomalli Ltd v Hake & Anor (1985) WAR 7
Esther Investments v Markalinga Pty Ltd (1989) 2 WAR 196
Fountain Selected Meats (Sales) Pty Ltd v International Product Merchants Pty Ltd and Ors (1998) 81 ALR 397

Case(s) also cited:

Nil

KENNEDY DCJ: This is an application by the applicant, who was the respondent before the Real Estate & Business Agents Supervisory Board, for an extension of time within which to appeal the decision of the Real Estate & Business Agents Supervisory Board ("the Board") as to costs made on 30 March 1999.
Draft grounds of appeal were filed. The order for costs made in the applicant's favour was $3,000. The applicant wishes to appeal and submits that the respondent should have been ordered to pay the applicant's costs "on an indemnity basis".
The grounds of the proposed appeal are that the Board erred in its discretion:
1.      in applying the scale of costs applicable in the Local Court;
2.      in applying the scale of costs applicable to routine matters in Division 2 in the Local Court;
3.      in the manner in which it applied the scale of costs;
4.      in failing to take into account the appellant's (respondent's) submission that costs should be awarded on an indemnity basis on the following grounds:
(a)     the Board found that the respondent could not have been liable for any alleged misconduct after 30 July;
(b)     early in the hearing the Board expressly requested the complainant's counsel to take instructions as to whether the complainant wished the matter to proceed further. Notwithstanding the Board's query the respondent (applicant) elected to continue;
5.      in awarding costs of only $3,000 to the appellant (respondent) in respect of the hearing which:
(a)     ran over five days;
(b)     was in respect of matters which had the capacity to deprive the appellant (respondent) of the right to continue working in his chosen career; and
(c)     employed experienced counsel and incurred substantial costs.
The respondent to this application opposed the granting of the order and referred to Esther Investments v Markalinga Pty Ltd (1989) 2 WAR 196 in which the Full Court of the Supreme Court of Western Australia set out the factors relevant to the exercise of the discretion to extend time. Those factors are usually:
(a)     the length of the delay;
(b)     the reasons for the delay;
(c)     whether there is an arguable case; and
(d)     the extent of any prejudice suffered by the respondent.
So far as the reasons for delay I refer to the affidavits of Mr Thorpe of 13 October 1999, 10 March 2000 and his submissions on the same day. On 10 February 1999 the Board handed down its decision and it dismissed the complaint against the applicant. The reasons were received on 12 February 1999 by Mr Thorpe and at that time the Board called for written submissions as to costs and gave their decision on costs on 30 March 1999. It will be noted that the first application was filed in the District Court on 13 October 1999, that is to say, six and a half months later.
No reasons were provided by the Board and Mr Thorpe wrote on 15 April 1999 seeking reasons and after some exchanges Mr Thorpe was informed that there were no reasons and it appeared that none were intended to be issued. He wrote further letters requesting reasons and then on 16 July 1999 advised that unless he received the reasons within seven days he would seek instructions to apply for a writ of mandamus to compel provision thereof. Finally, reasons for decision were received by Mr Thorpe on 23 July 1999 but still it was two and a half months later before an application was filed here.
On 28 July 1999 Mr Thorpe wrote to the respondent's solicitors advising that he had instructions to appeal and seeking confirmation that no point would be taken as to the lateness of the appeal. On 28 July Mr Thorpe went on leave and gave instructions for the matter to be followed up in his absence but it was not until 23 August 1999 that they received a letter from the Crown Solicitor advising that there would be no consent to an extension of time. It appears that by this time Mr Thorpe was back from his overseas journey, however, during the time he had been away his employed solicitor had been intermittently off work due to illness and in September went off sick for a period of three weeks. During that time Mr Thorpe had to deal with his files to catch up with matters that had been held in abeyance while he was overseas and to run the normal affairs of the practice. For that reason, while he had drafted out his first document to be filed in this Court he did not have time to settle it until October.
The respondent argues that the delay is very substantial indeed and particularly when one considers that it is as to a matter of costs arising out of a disciplinary hearing. Furthermore, the respondent says that it was not necessary to wait until reasons for decision were given but even so, once they were given the matter was so far out of time that it should have been given priority. The respondent refers to Boomalli Ltd v Hake & Anor (1985) WAR 7 where at p9 the Full Court said:
"An order extending time requires that some cogent reason be advanced for its exercise and the cogency of the reasons must surely be required to increase as the extension of time which is sought increases."
It is my view that the delay is very substantial indeed and I do agree with the respondent's solicitor that even if it could be said that it was appropriate to wait for reasons for decision, by that time the delay was so great that the matter should have been given priority. Furthermore, it is clear that originally there were no written reasons for decision and those reasons were not provided until the applicant's solicitor threatened the Board with an order for mandamus.
So far as the merits of the matter are concerned I refer to Fountain Selected Meats (Sales) Pty Ltd v International Product Merchants Pty Ltd and Ors (1998) 81 ALR 397 at 400 where it is said in relation to a court's discretion in the award of indemnity costs:
"That discretion is 'absolute and unfettered', but must be exercised judicially (Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201 at 207). Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way' (Preston v Preston (1982) 1 All ER 41 at 58). It is sometimes said that such costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court's discretion - for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D133; Forrester and Read (1870) 6 LR Ch App 40; Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (In Liq) v Wright (No 2) (1983) 2 NSWLR 354.
Another case cited in argument was Australian Guarantee Corporation Ltd v De Jager (1984) VR 483 where (at 502) Tadgell J allowed solicitor and client costs because he found the pursuit of the action to have been "a high handed presumption".
No doubt the expression "high handed presumption" was appropriate in the case Tadgell J had to decide, and he needed to go no further; but in order to establish a convenient principle in such cases it is necessary to be a little more prosaic. I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion."
When the Board eventually gave reasons for decision as to costs they recorded the fact that submissions had been received from both parties that the respondent had submitted that the costs should not exceed $1,500, whereas the applicant had sought costs on a full indemnity basis of $14,962.30. The Board went on to say:
"The Board noted that despite that the issues before it were not complex, confined almost exclusively to fact, the hearing extended for almost 20 hours.
The Board noted that the hearing was unnecessarily extended by numerous interruptions by both parties on points of evidence and peripheral matters that did not assist the Board and which disregarded the power given to the Board by s20(5) of the Act."
The Board had regard to the Legal Practitioners (Local Court) (Contentious Business) Determination 1997 and decided that the matter was analogous to a "routine Division 2" matter and awarded the respondent costs in the sum of $3,000.
The applicant says that indemnity costs should be awarded because there was never any merit in the allegation made against the applicant and in any event, given the amount of work done the sum of $3,000 was grossly inadequate.
The allegation against the applicant was that some time after 30 July 1997 he failed to act in the best interests of a Ms Dallymore, his principal, in relation to the sale of a property because he did not tell her that a deposit had not been paid even though an offer and acceptance had been put in for her property.
At the time that Ms Dallymore first put her property on the market the applicant was a real estate agent with a firm "Clive Elliott Jennings".
Some work was done by the applicant prior to 30 July and some after 30 July but on 30 July 1997 the applicant resigned from the employ of Clive Elliott Jennings and commenced employment with another real estate agent. However, he continued to be involved with Ms Dallymore through his efforts to have the conditions precedent to the contract for the sale of her property satisfied. The contract did not eventually proceed to settlement.
In the end the Board preferred the evidence of the applicant in relation to the matter of what Ms Dallymore had been told about the deposit and furthermore, the Board said that by 30 July since the applicant was no longer employed by Clive Elliott Jennings, Ms Dallymore ceased to be the principal of the applicant. If indeed that is the effect of the act then it seems extraordinary that in those circumstances there would be insufficient control over someone such as the applicant had he done what Ms Dallymore alleges, however, there is no appeal and I certainly make no finding in relation to that.
The applicant says that this point was obvious from the very beginning and this is a basis on which he should get indemnity costs. On day 3, counsel for the applicant made a submission of no case to answer. It was refused but the Board did say something to the effect that the respondent's position, while not completely hopeless, was troubling and they believed that respondent's counsel should seek further instructions. Mindful of the fact that the submission of no case to answer was refused and that other than the matter of law it was a credibility issue, the respondent decided to proceed with the matter. The respondent submits that there is no reason for an order for indemnity costs and says that at no stage did the Board suggest that the application was vexatious or frivolous and makes the point that this is social legislation and it has a public purpose.
In the circumstances it does not seem to me that there is any merit in the suggestion that the applicant should get indemnity costs.
At the hearing of this matter Mr Thorpe did suggest that the grounds of appeal could be amended and he would seek a lesser order for costs but certainly greater than the $3,000 given that the hearing extended over six days, that there was a legal question involved and that the power of the Board went to the level of being able to suspend or strike off the applicant so that the ramifications were very serious indeed.
I have before me the submissions made by both parties to the Board in relation to the costs and each tends to blame the other for delays. At the hearing of this matter I asked applicant's counsel what his reaction was to the respondent's submission to the Board in relation to the amount of work that had been done. He said that basically he did not take issue with what the respondent was saying in their costs submissions as to time before the Board, however, the respondent had tended to play down the amount of work involved. What it really amounts to is that there were only two full days of hearing and several part days and the particulars set out by the respondent are very relevant.
It can be seen from the Board's decision that the Board tends to blame each side for the delays and the matters to which the applicant has referred are matters that were squarely before the Board. The Board heard this matter: it was in the best position to determine the seriousness of it; the amount of time involved; and all of the issues that have been referred to by the parties. I note the Board's view was that the issues were not complex.
I may have allowed the applicant a little more in costs but it does not follow from that, that an appeal would be successful.
The delay in this matter was too great and I am unable to see that in all the circumstances there is sufficient merit to warrant an extension of time.
For these reasons the application is dismissed.