Wildsands Investments Pty Ltd v Nicoli
[2017] WADC 78
•15 JUNE 2017
WILDSANDS INVESTMENTS PTY LTD -v- NICOLI [2017] WADC 78
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 78 | |
| Case No: | CIV:3890/2016 | 19 MAY 2017 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 15/06/17 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The defendants pay the plaintiff's costs thrown away to be taxed | ||
| PDF Version |
| Parties: | WILDSANDS INVESTMENTS PTY LTD SILVIO NICOLI MICHELLE NICOLI |
Catchwords: | Electronic lodgement Electronic service Email address for service Court service of notices Circumstances in which solicitor liable for costs |
Legislation: | Rules of the Supreme Court 1971 (WA) O 72 r 5, 6 and O 77A |
Case References: | Ridehalgh v Horsefield and another [1994] 3 All ER 848 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SILVIO NICOLI
MICHELLE NICOLI
Defendants
Catchwords:
Electronic lodgement - Electronic service - Email address for service - Court service of notices - Circumstances in which solicitor liable for costs
Legislation:
Rules of the Supreme Court 1971 (WA) O 72 r 5, 6 and O 77A
Result:
The defendants pay the plaintiff's costs thrown away to be taxed
Representation:
Counsel:
Plaintiff : Ms E Oprandi
Defendants : Mr D F Gordon
Solicitors:
Plaintiff : James Chong Lawyers
Defendants : DFG Legal WA
Case(s) referred to in judgment(s):
Ridehalgh v Horsefield and another [1994] 3 All ER 848
1 PRINCIPAL REGISTRAR MELVILLE: A mediation was listed in this matter for 17 March 2017. The plaintiff's solicitor appeared but there was no appearance by the defendants and their solicitor. Accordingly the mediation was adjourned to the 7 April 2017 and the question of whether the defendants should pay the costs of the mediation was reserved in order to give them an opportunity to be heard.
2 The defendant's solicitor has since filed an affidavit dated 27 April 2017 providing his account of the circumstances surrounding the non-appearance. In short, the explanation was that no notification of the date of the mediation conference was received by him prior to the mediation.
3 The issue raised by this dispute causes the spotlight to fall on some of the procedures required to be observed by the legal profession as the court moves increasingly to the electronic lodgement of documents and the maintenance of electronic files, a process facilitated by the legal profession's use of the electronic lodgement facilities of the District Court website.
4 In order to be able to electronically lodge a document via the District Court website, the person lodging the document must first be a registered user, more particularly the person authorised to file documents electronically by means of the court's website under the District Court Rules2005, r 20. The authorisation process requires the person to be registered as such. This registration process is managed by the Courts Technology Group, being a body found within the Department of the Attorney General.
5 Once registered as a user of the courts website, the user not only lodges documents electronically, but also receives documents electronically from the court, which by necessity must be sent to an address given by the user.
The legislative requirements
6 Service of documents on parties and their solicitors is governed by O 71A and O 72 of the Rules of the Supreme Court 1971 (WA) (RSC). In this regard RSC O 71A r 3(2)(d) provides:
If these Rules require a document to state a person's service details and the person is represented by a practitioner, the document –
(d) with the practitioner's consent, may state any or all of the following –
…
(ii) one email address.
If a practitioner is registered by the Court's website as a person authorised to file documents electronically, any email address stated under subrule (2) must be the email address of the practitioner recorded on the website.
8 Order 72 r 5(3) provides:
If under these rules a person has filed a document that, in accordance with Order 71A, states the person’s service details, a document may be served on the person by addressing it in accordance with subrule (4) and—
(a) delivering it, or posting it by pre-paid post, to the postal address stated in the service details; or
(b) if some other method of serving the person is stated in the service details, using that method to serve it on the person.
9 Order 72 r 6 provides:
(1) If service of a document on a person by the Court is required, the proper officer must —
(a) serve it on the person under rule 5; or
(b) if the person is registered by the Court's website as a person authorised to file documents electronically —
(i) put it in an electronic mailbox maintained by the Court; and
(ii) send to the person’s email address recorded on the website an email that says the document is in the mailbox,
The evidence
11 On 2 November 2016 the defendant's solicitor filed a memorandum of appearance on behalf of the defendants. This is a document that requires a person to state their service details. The defendant's solicitor provided an email address, being '[email protected]' (hereinafter called 'admin'). By reason of RSC O 71A r 3(6) 'admin' should been (and was) the same email address as the email address of the practitioner recorded on the website.
12 On 23 February 2017 the court sent a notice to the defendants at 'admin' that a document was in the mailbox. (The document in the mailbox was advice that the mediation conference had been listed for 17 March 2017). This notice was sent pursuant to the provisions of RSCO 76 r 6.
13 At this point, on any view of the facts, the defendant's solicitor was put on notice that there was a document in his mailbox by service of a notice to that effect by way of email addressed to the email address provided in the memorandum of appearance.
14 The court's computerised case management system shows that the email was sent to 'admin' on 23 February 2017 and that the document, being the notice of the hearing date of the mediation was retrieved from the mailbox on 20 March 2017, three days after the mediation.
15 The affidavit filed by the solicitor for the defendants shows that between the memorandum of appearance being filed in November 2016 and the notice of listing of the mediation conference being sent by the court either via the provisions of O 72 r 6(1)(a) or (b), the defendant's solicitor had a series of engagements with the Courts Technology Group about difficulties accessing his account via 'admin'. This evidence shows that on 13 and 14 February 2017 there was a series of communications in which it is said the 'admin' address was inactive, that the defendant's solicitor was required to re-register for e-lodgement and that there was an active e-lodgement account registered to the defendant's solicitor being [email protected], herein after called 'Damian'. The defendant's solicitor obtained a new password for 'Damian'. At par 19 and 20 of his affidavit, the defendant's solicitor says:
Unfortunately, despite the portal account registered to the 'admin' account remaining inactive, it appears the court attached its notice of 23 February 2017 regarding the initial date of the mediation conference to that account.
The notice therefore appears to have been sent to an e-lodgement account that is not in operation and which my firm has no access to.
16 Perhaps in other circumstances, this series of events would have been sufficient to persuade me that this was one of the unfortunate vicissitudes of litigation for which no party could be held responsible and in respect to which the responsibility, if any, might possibly be sheeted home to the court or the Department of the Attorney General. It is easy to mistakenly conflate services and advice provided by the Department of the Attorney General with that of the court. It could easily have been supposed, albeit incorrectly, that the 'Courts Technology Group' having been appraised of the difficulty with the email address and being aware of the change, that therefore the court was. However, the difficulty the defendants face is that the 'admin' address was the address given on the memorandum of appearance. No change of service details, more particularly the email address, was ever filed by the defendants as required by the court pursuant to O 71A r 5 which provides as follows:
5. Changes of information to be notified
(1) If a document states information required or permitted by rule 2 or 3, the person who filed the document —
(a) must promptly give notice of any change to the information; and
(b) may, in respect of any of the information that does not have to be stated under those rules, give notice that the information can no longer be used to serve documents; and
(c) may, in respect of any of the information that does not have to be, and has not been, stated under those rules, give notice of the information.
(aa) must be in Form 5AA; and
(a) must be given by filing a notice in the Central Office and serving it on any person who has been given the information; and
(b) may be given as part of a notice given under Order 8.
(a) that was the email address that had been given to it by the defendants in their memorandum of appearance; and
(b) the defendants failed to notify the court of the change of address details 'promptly' or at all.
18 Similarly the document advising of the date of mediation was served properly under RSC O 72 r 6(1)(b).
19 In these circumstances it is my view that irrespective of the difficulties the defendant's solicitor had with access to the 'admin' email account, a notice that there was a document in his electronic mailbox was sent by the court to the address for service the defendants provided to the court and which was not corrected by the defendants as they were required to do by the court under the RSC.
20 The loss occasioned by the costs wasted as a result of the adjourned mediation on 17 March 2017 must lie somewhere. In these circumstances it is my view that loss must fall on the defendants.
21 The plaintiff's solicitors seek an order that the defendant's solicitor pay the costs of the adjournment fixed in the sum of $1,914.00. The application may be made pursuant to RSC O 66 r 5 and must be on the basis that the conduct of the defendant's solicitor was 'improper, unreasonable or negligent'. The fixed amount is said to be as a result of three hours preparation and an hour's attendance at the mediation.
22 On the evidence before me and having regard to the information the defendant's solicitor was given by the Courts Technology Group, I am not prepared to find the acts of the defendants solicitor were 'improper, unreasonable or negligent; as those terms have been explained in Ridehalgh v Horsefield and another [1994] 3 All ER 848, 861 - 862. Further, in my view the real measure of the costs thrown away by the adjournment is any time spent in refreshing for the subsequent mediation. On the evidence before me I am not prepared to find three hours were spent to prepare for the reconvened mediation on 7 April 2017. Three hours may have been spent, but whether they were in fact spent is far from clear to me. In those circumstances it is my view the costs should be taxed. Accordingly the order will be that the defendants pay the plaintiff's costs thrown away by the adjournment on 17 March 2017 to be taxed.
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