Wreford v Castleyheard Pty Ltd

[2022] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WREFORD -v- CASTLEYHEARD PTY LTD [2022] WASCA 91

CORAM:   BUSS P

MITCHELL JA

HEARD:   21 JULY 2022

DELIVERED          :   29 JULY 2022

FILE NO/S:   CACV 56 of 2022

BETWEEN:   JOVANNA WREFORD

Appellant

AND

CASTLEYHEARD PTY LTD

First Respondent

MR JACK RENTON CRIDDLE

Second Respondent

MORAY & AGNEW

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MASTER SANDERSON

Citation: WREFORD -v- CASTLEYHEARD PTY LTD [2022] WASC 164

File Number            :   CIV 2114 of 2021

Catchwords:

Appeal - Practice and procedure - Where parties agree that stay appropriate in relation to costs of primary proceedings pending the determination of the appeal - Appropriate form of stay order - Appropriate order as to the costs of the stay application where the appellant failed to properly confer with the respondents prior to making the application

Legislation:

Nil

Result:

Stay granted
Costs of the stay application to be the respondents' costs in the cause of the appeal

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	P D Lovatt
Second Respondent	:	D M McKenna
Third Respondent	:	S F Popperwell

Solicitors:

Appellant	:	In person
First Respondent	:	Jackson McDonald
Second Respondent	:	Mills Oakley
Third Respondent	:	Popperwell & Co

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

Nil

JUDGMENT OF THE COURT:

1. We are dealing with the appellant's application in an appeal filed on 27 May 2022.  In that application, the appellant seeks an order staying the enforcement of the primary orders which are the subject of the appeal, and an order that the respondents pay 'all costs up to the determination of this application'.

Background

1. The primary proceedings against the respondents arose out of the appellant's earlier proceedings claiming compensation for injuries she sustained in a motor vehicle accident on 12 June 2013.  The primary proceedings were brought against:

   1.the first respondent (who acted as the appellant's solicitor in the earlier proceedings);

   2.the second respondent (who was briefed as the appellant's counsel in the earlier proceedings); and

   3.the third respondent (who acted as solicitor for the defendant in the earlier proceedings).

2. On 19 May 2022, the master made orders dismissing the primary proceedings against all the respondents.  He also in effect ordered the appellant to pay the respondents' costs of the primary proceedings to be taxed if not agreed.  The appellant now appeals against these orders.

3. The respondents have agreed to the grant of a stay of the enforcement of the master's costs order pending the determination of this appeal.  The first and second respondents also agree that an order should be made having the substantive effect of preventing a taxation of their costs in the primary proceedings pending the determination of the appeal.  The third respondent did not seek to advance any submissions against the court making an order having that effect, thus acquiescing to the court making an order having that effect.  

4. The only issues between the parties concern the terms of the order granting the stay and the appropriate costs order to be made on the stay application.

Appropriate form of stay

1. The respondents propose a stay order in the following terms:[1]

   Enforcement against the appellant of order 2 made by Master Sanderson in Supreme Court action CIV 2114 of 2021 on 19 May 2022 is suspended pending the determination of [this appeal].

   [1] Affidavit of P D Lovatt, attachments PDL-2, PDL-10, PDL-5.

2. The appellant seeks an order that:[2]

   Costing work, Taxation of Costs and Enforcement of order 2 made by Master Sanderson in Supreme Court action CIV 2114 of 2021 on 19 May 2022 against the Appellant is suspended pending the determination of [this appeal].

   [2] Affidavit of P D Lovatt, attachment PDL-9.

3. The appellant's concern is that the stay order should prevent the parties from proceeding to a taxation of the costs of the primary proceedings as well as taking steps to enforce payment of the costs once taxed or agreed. Given the attitude of the respondents to the making of such an order, it is appropriate for this court to make an order that would have that effect. The respondents contend that the order they propose, at [6] above, would have that effect. As that proposition is at least debateable, we consider it appropriate to modify the respondents' proposed order to make it clear that the order prevents a taxation of costs prior to the determination of the appeal.

4. However, it is not appropriate for the order to have the effect of preventing the respondents' solicitors from performing any work for the respondents in relation to costs, as sought by the appellant.  The respondents have not agreed to an order having the effect of an injunction restraining the solicitors from performing work for their clients.  The appellant will not be prejudiced if the respondents' solicitors undertake work for their clients which then proves to be wasted in the event that the appeal is allowed and the master's costs order is set aside.  The precise scope of the 'costing work' which the appellant seeks to prevent the respondents' solicitors from undertaking is unclear.  We would not therefore make an order restraining the respondents from undertaking 'costing work' pending the determination of the appeal, as proposed by the appellant.

Costs of the stay application

1. In our view it is appropriate to order that the costs of the stay application be the respondents' costs in the cause of the appeal.  The effect of this order is that the appellant will be liable to pay the respondents' costs of the stay application if the appeal is dismissed.  However, the appellant will not be entitled to any recoverable costs she may have incurred in the stay application as a self-represented litigant if the appeal is allowed. 

2. A significant factor in the exercise of our discretion is the appellant's failure to confer with the respondents about the proposed stay order before making the application in an appeal.  The evidence does not disclose any good reason for the appellant not to have done so.  Had she reasonably conferred with the respondents in relation to the issue, then there is a real prospect that the application would not have been necessary, and the respondents would not have had to incur costs in responding to the application.  As a result of the appellant's failure to meaningfully confer with other parties, the respondents have incurred the expense of filing affidavits and/or submissions in compliance with the court's programming directions and the expense of attending the hearing on 21 July 2022.  In all of these circumstances, the appellant should be responsible for the respondents' costs of the stay application in the event that her appeal is ultimately unsuccessful but should not recover any costs she may have incurred if the appeal is ultimately allowed.

Orders

1. We will therefore order that:

   1.Enforcement against the appellant of order 2 made by Master Sanderson in Supreme Court action CIV 2114 of 2021 on 19 May 2022 (including by proceeding to the taxation of costs provided for in that order) is suspended pending the determination of this appeal.

   2.The appellant's application in an appeal filed on 27 May 2022 (Application) is otherwise dismissed.

   3.The costs of the Application be the first respondent's, second respondent's and third respondent's costs in the cause of the appeal, to be assessed if not agreed after the determination of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Mitchell

29 JULY 2022