[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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JUDGMENT: EX TEMPORE
By amended notice of motion filed in court on 24 April 2023, Burke & Mead Lawyers Pty Ltd (Burke & Mead) seek orders as follows:
1. Pursuant to r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW), dispense with the requirement that this notice of motion be served on the respondent to the appeal, Mr Matinca.
2. Pursuant to r 51.4 of the Uniform Civil Procedure Rules 2005 (NSW), Burke & Mead be joined as a respondent to the proceeding.
Mr Stanton, who appeared on behalf of Coalroc Contractors Pty Ltd (Coalroc), the appellant, consented to the order sought in paragraph 1 of the amended notice of motion. He initially opposed the order sought in paragraph 2 of the amended notice of motion. However, after further discussion, I understood him to accept that the Court had power to make the order in paragraph 2 if it was minded to do so in the interests of justice.
The background to the present application is as follows. Troy Matinca, the respondent, was injured in a single vehicle motor vehicle accident while driving home from work. At that time, he was employed by Coalroc. On 20 September 2016, Mr Matinca entered into a conditional costs agreement with Burke & Mead for the purposes of obtaining advice and legal services with a view to bringing a claim against Coalroc. Subsequently, on 9 April 2019, a statement of claim was filed on behalf of Mr Matinca seeking damages for personal injury against Coalroc.
The proceedings were heard by Campbell J. On 30 June 2022, his Honour entered judgment for Mr Matinca and awarded agreed damages less 30% contributory negligence plus costs. There was correspondence between Burke & Mead and Mr Matinca concerning the judgment and costs. On 8 July 2022, the solicitors for Coalroc filed and served a notice of intention to appeal. Burke & Mead forwarded this document to Mr Matinca, who rang the firm and told them that they were never to contact him again. It would appear that Mr Matinca's attitude was the result of a dispute between him and Burke & Mead as to the amount of fees payable to Burke & Mead from the amount awarded by Campbell J.
Ultimately, on 26 July 2022, Burke & Mead filed a notice of ceasing to act. Mr Matinca instructed another firm of solicitors. However, those solicitors filed a notice of ceasing to act on 29 August 2022. Mr Matinca has made it clear, not only to Burke & Mead but also to HWL Ebsworth, the solicitors for Coalroc, that he does not propose to participate in the appeal, either through a legal representative or on his own behalf. As a consequence (unless the order sought in paragraph 2 of the amended notice of motion is granted) there will be no contradictor to Coalroc on the appeal.
It is in these circumstances that Burke & Mead, for whom Mr Stone SC and Ms Magee appeared, seek the Court's leave to be joined as a party to the appeal proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.4. Whilst UCPR, r 51.4(1) is relatively narrow in prescribing the persons who must be joined as respondents to appeal proceedings (those who are directly affected by the relief sought or who are interested in maintaining the decision of the court below), the Court's power under UCPR, r 51.4(3) to order the addition or removal of any party, is not so constrained.
Mr Stanton, who appeared on behalf of Coalroc, directed me to several authorities in which words such as those contained in UCPR, r 51.4(1)(a) and (b) have been judicially construed. However, he accepted that the Court's power under UCPR, r 51.4(3) is broader than that contained in UCPR, r 51.4(1).
In all the circumstances, I consider it to be in the interests of justice that there be a contradictor to Coalroc's appeal in this court. It is not only of assistance to the Court, but it is also potentially of assistance to Coalroc in that it is undesirable that the Court be required to play the role of contradictor itself, although it on occasions is required to do so, for example in ex parte proceedings or proceedings where a party chooses not to attend.
In these circumstances, it seems to me to be appropriate that Burke & Mead be joined as a party to act as a contradictor. Burke & Mead's familiarity with the matter and preparedness to bear its own costs (see further below) make it a suitable candidate for that role. Whilst there is a potential conflict between Burke & Mead and Mr Matinca in terms of the quantum of costs to which Burke & Mead might be entitled as a result of acting on behalf of Mr Matinca in the proceedings before Campbell J, I do not consider that conflict to be operative or relevant to the conduct of the appeal as Mr Matinca and Burke & Mead have a common interest in defeating the appeal by Coalroc. Nor did Coalroc suggest that this would be an impediment to Burke & Mead being joined.
For these reasons, I propose to make the orders sought by Burke & Mead in its amended notice of motion filed in court today. Before I pronounce those orders, I ought address the question of costs. Burke & Mead proposed in its submissions in support of the notice of motion that it would be content to be joined on the basis that it would not seek costs of the appeal if the appeal were unsuccessful and not be liable for the costs of the appeal if the appeal were successful in whole or in part. In other words, Burke & Mead are prepared to meet its own costs of their participation, as long as it has no exposure to pay Coalroc's costs.
Mr Stanton indicated that his instructions were to accept this condition offered by Burke & Mead as long as Burke & Mead did not seek the costs of the amended notice of motion. Mr Stone confirmed that his client would not seek costs of the amended notice of motion.
Mr Stone has informed me that Burke & Mead will endeavour to comply with the directions made by the Registrar concerning filing and service of submissions, in order not to disrupt the orderly preparation of the matter for the hearing of the appeal. For this reason, I will make a direction that Burke & Mead (which will be the second respondent) file and serve submissions on the same date as the (now first) respondent was required to do so.
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Orders
For the reasons I have given, I make the following orders and directions:
1. Grant leave to Burke & Mead Lawyers Pty Ltd (ABN 59 095 923 050) (Burke & Mead), the applicant, to file the amended notice of motion dated 24 April 2023.
2. Pursuant to Rule 18(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW), dispense with the requirement that the amended notice of notion be served on Troy Matinca (the second respondent to the notice of motion and the first respondent to the appeal).
3. Pursuant to Rule 51.4(3) of the Uniform Civil Procedure Rules 2005, join Burke & Mead as the second respondent to the appeal proceedings on the following conditions:
1. Burke & Mead is not entitled to costs of the appeal if the appeal is unsuccessful; and
2. Burke & Mead is not liable for costs of the appeal if the appeal is successful.
1. Make no order as to the costs of the amended notice of motion with the intention that Burke & Mead and the appellant are to bear their own costs of the motion.
2. Direct the second respondent to the appeal (Burke & Mead) to file and serve submissions on the appeal by 9 May 2023.
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Amendments
01 May 2023 - "r 51.4(3)" replaced with "r 51.4(1)" - [7], second sentence
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Decision last updated: 01 May 2023