| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WILLIAM BROGAN AND WARRAGO PTY LTD -v- MALIEVAZ & ORS [2003] WADC 97 CORAM : REGISTRAR KINGSLEY HEARD : 14 APRIL 2003 DELIVERED : 30 APRIL 2003 FILE NO/S : CIV 918 of 2001 BETWEEN : WILLIAM BROGAN AND WARRAGO PTY LTD Plaintiffs
AND
CARLO ANTHONY MALIEVAZ
First Defendant
GILLIAN ENA BAILYE
Second Defendant
KENNETH BAILYE
Third Defendant
FIOCCO HOPKINS NASH (A FIRM)
Third Party
Catchwords: Practice - Application pursuant to O 66 r 5 - Turns on own facts
(Page 2)
Legislation:
Nil
Result: Application successful - Second and third defendants' solicitor to pay plaintiff's costs Representation:
Counsel:
Plaintiffs : Mr M P Caulfield
First Defendant : No appearance
Second Defendant : Mr W Vogt
Third Defendant : Mr W Vogt
Third Party : No appearence
Solicitors:
Plaintiffs : Gadens Lawyers
First Defendant : Not applicable
Second Defendant : Eley Palmer
Third Defendant : Eley Palmer
Third Party : Pynt & Partners
Case(s) referred to in judgment(s):
Re Bendich (No 2) (1994) 126 ALR 643
Solomon Brothers (A Firm) v Ginbey & Ors, unreported; SCt of WA; Library No 980526; 11 September 1998
Case(s) also cited:
Kilroy v Kilroy [1996] EWCA 1320
Re J (A Minor) [1997] EWCA 1215
Ridehalgh v Horsefield [1994] Ch 205
Royel Fitness Equipment Pty Ltd & Ors v Sheppard West Pty Ltd [2002] WASC 212
(Page 3)
1 REGISTRAR KINGSLEY: The plaintiffs seek a costs order against the firm of solicitors representing the second and third defendants.
2 The evidence is, as contained in the affidavit of Malcolm Patrick Caulfield sworn 20 March 2003, that the second and third defendants' solicitor failed to file a statement of claim in the third party proceedings by 29 January 2002 as directed by the court, failed to file an amended statement of claim by 13 September 2002 as directed by the court, and failed to appear at a directions hearing on 16 September 2002. 3 As the solicitor for the second and third defendants failed to file an amended statement of claim as directed in the third party proceedings, the third party proceedings were struck out. Subsequently the solicitor for the second and third defendants obtained orders for leave to issue a second third party notice against the former third party. 4 On 4 February 2003 Deputy Registrar Hewitt ordered that the second and third defendants have leave to issue a third party notice within 10 days of the date of the order. 5 The solicitors for the second and third defendants failed to issue the notice within time. On 19 March 2003 the second and third defendants sought leave to extend time and leave was granted. 6 The plaintiffs' solicitor submits that the action of the solicitors for the second and third defendants has significantly delayed the action, has resulted in a number of hearings which were unnecessary and has increased costs. 7 The solicitor for the second and third defendants oppose the order for the costs on the basis that the plaintiffs have not shown that costs were incurred by any result of the improper, unreasonable or negligent act or omission of the second and third defendants' solicitors. 8 The jurisdiction to order costs against a solicitor is one that is usually exercised with great caution. In Solomon Brothers (A Firm) v Ginbey & Ors, unreported; SCt of WA; Library No 980526; 11 September 1998, Sanderson M commented that procedural matters involving the working of the case management system are in a different class to procedural matters involving tactical decision-making. 9 In the general conduct of actions the principle, with which I agree, is that as stated by Drummond J in Re Bendich (No 2) (1994) 126 ALR 643 at 648:
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"Lawyers should know that, as long as they are not guilty of either professional misconduct or gross, as opposed to mere, negligence in the way they conduct their clients' case, they will not be exposed to any personal liability to pay either costs of their client or those of the opposing litigant." 10 The procedural functioning of case management is in a different class to the conduct of a case. The integrity of case management requires that in appropriate cases Registrars exercise the power contained in O 66 r 5. Hence, practitioners may become personally liable for costs where, by their action, there is default in the efficient working of the case management system. 11 Having regard to the procedural breaches by the solicitors for the second and third defendants it is appropriate that the costs of the directions hearing held on 19 March 2003 and the costs of the hearing on 14 April 2003 be paid by the solicitors for the second and third defendants, and forthwith.
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