Wilson v Interhealth Energies Pty Limited ACN 003 104 505 and Anor (as to costs)

[2008] NSWSC 1275

CITATION:	WILSON v INTERHEALTH ENERGIES PTY LIMITED ACN 003 104 505 & ANOR (as to costs) [2008] NSWSC 1275
JUDGMENT DATE :	28 November 2008
JUDGMENT OF:	Adams J at 1
DECISION:	Defendants to pay the costs of the applicatioon for transfer except as to the costs of 29 September 2008, a`s to which each party will pay its own costs.
CATCHWORDS:	Application for transfer from District Court - equitable defence - promissory estoppel - no jurisdiction in District Court - s 6 Law Reform (Law and Equity) Act 1972 - s 134 District Court Act 1973 - costs uneccessarily incurred because of professional discourtesy - should be paid by legal practitioner
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Consequential orders
PARTIES:	Dr Michael Wilson (Plaintiff) Interhealth Energies Pty Limited ACN 003 104 505 (First Defendant) Interhealth Investments Pty Limited ACN 078 088 178 (Second Defendant)
FILE NUMBER(S):	SC 2008/14698
COUNSEL:	Mr M S White (Plaintiff) No appearance (Defendant)
SOLICITORS:	DLA Phillips Fox (Plaintiff) No appearance (Defendant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	127/12007; 128/2007

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Friday 28 November 2008

2008/14698 – WILSON v INTERHEALTH ENERGIES PTY LIMITED ACN 003 104 505 AND INTERHEALTH INVESTMENTS PTY LIMITED ACN 078 088 178

JUDGMENT (as to costs)

HIS HONOUR:

1 On 30 October 2008 I ordered that the proceedings be transferred to this Court and directed the parties to provide written submissions on the question of costs. The plaintiff seeks the conventional order, it having succeeded on its summons. The defendant opposes such an order and submits that its costs should be paid by the plaintiff.

2 The defendants rely principally on two matters. Firstly, the defendants point out that, in June 2007, they were required by the Registrar to show cause why the matter, commenced by them in the Supreme Court should not be transferred to the District Court and that the plaintiff indicated, through his solicitor, merely that the transfer was neither consented to nor opposed. The Registrar then transferred the proceedings to the District Court under s 146 of the Civil Procedure Act 2005. The defendants submit that the plaintiff should have considered whether the District Court had jurisdiction to determine the issues raised by his defence at the time. The short answer to that submission is that so also should the defendants.

3 The second matter concerns a day’s loss of hearing. The summons which I determined was filed on 8 September 2008 returnable on 29 September 2008. There was correspondence between the solicitors as to the basis for the application and the applicability of the judgments which were brought to my attention during the hearing. The plaintiff was not ready to proceed on 29 September 2008 because counsel was unavailable. The costs of that day were reserved by the Registrar and the matter stood over to 7 October 2008 when it was heard by me. It is submitted by the defendants that the costs thrown away by the inability of the plaintiff to proceed on 29 September should be paid by the plaintiff.

4 It is evident that the defendants could have consented to the plaintiff’s summons before it came on for hearing on 29 September 2008. It seems to me, therefore, that the costs incurred by its attendance on 29 September 2008 to oppose the summons were of their making. Mr White of counsel for the plaintiff brings to my attention that the applicable Practice Note does not require that applications returnable before the Registrar be heard that day and, accordingly, the defendants could not assume that it would be heard on that day. He points out there was no inquiry by the defendants before that day as to whether the plaintiff was able to proceed on the day. This is to miss the essential point. The plaintiff, as the moving party, was required to be present and, if there was a problem with obtaining counsel, the solicitors, as a professional courtesy if for no other reason, should have informed the other side of the problem. In the absence of any evidence on the point, I will assume that the failure to inform was no more than an unfortunate oversight.

5 It is regrettable that one now frequently sees, in the conduct of litigation, a level of discourteous indifference to sensible conduct which was unknown a generation ago. This is to take the notion of adversarial litigation beyond appropriate limits. Professional courtesy and sensible conduct should not depend upon any perceived advantage or disadvantage as to costs, although discourtesy and bickering frequently makes for unnecessary costs. We have reached the stage where the incurring of unnecessary costs by reason of discourtesy and the failure to conduct a matter in a reasonable and sensible way should result in the delinquent practitioners being ordered themselves to pay the costs thus incurred or thrown away.

6 It is evident here that the defendants’ solicitor was entitled to understand, unless informed to the contrary by the plaintiff’s solicitor, that the plaintiff would be ready to proceed on that date, whatever the Practice Note. Whether it did proceed was a matter for the Registrar.

7 A third but somewhat baffling reason relied on by the defendants to justify their application for costs is that the summons “was purely for the benefit of Dr Wilson”. Given the nature of adversarial litigation, it can I think be safely assumed that all applications made by a protagonist will be for the benefit of that party and not for the benefit of the other parties. This consideration cannot justify departure from the ordinary rule.

8 Accordingly, I order the defendants to pay the costs of the application for transfer except as to the costs of 29 September 2008, as to which each party will pay its own costs.

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