Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers

Court of Appeal (NSW)|2014-10-29|Before: Christopher P, Emmett JA

Judgment 1EMMETT JA: By summons filed on 16 September 2014 (the s 69 Summons), Riva NSW Pty Ltd (Riva) claimed relief under s 69 of the Supreme Court Act 1970 (NSW) against orders made by the District Court in favour of Mr Mark Fraser and Mr Christopher Clancy, who carry on practice as solicitors under the name Fraser Clancy Lawyers (Fraser Clancy). By notice of motion filed on 14 October 2014 (the Dismissal Motion), Fraser Clancy sought summary dismissal of the s 69 Summons or, alternatively, an order that Riva provide security for its costs in the event that the s 69 Summons is heard and is unsuccessful. 2There are several bases upon which Fraser Clancy seeks the relief claimed in the Dismissal Motion. The first concerns the timing of the s 69 Summons, which seeks relief in respect of orders made by the District Court on 20 December 2013 and 11 April 2014. The first prayer for relief in the s 69 Summons is an order extending the time for filing the summons. 3Fraser Clancy contends that, in the light of the circumstances that they have brought to the attention of the Court by affidavit of Mr Clancy, sworn on 22 October 2014, there is no prospect at all of an order being made extending the time for commencing the proceedings. That requires some consideration of the context in which the s 69 Summons was filed.

Disposition of the Proceedings 17Fraser Clancy contends that, in the absence of some indication in the papers of the basis upon which an extension of time might be granted, the Court should proceed on the basis that the application for an extension of time is hopeless and therefore would not succeed. In that case, it would follow that the s 69 Summons would be incompetent and should be dismissed. I am not disposed to deal with the matter on that basis, although I should say that the evidence rather indicates that there has been contumelious failure to comply with the UCPR. The claim made in the abandoned notice of appeal is different from the claim made in the s 69 Summons, and even though the notice of appeal was filed closer to the time when the orders were made by Curtis DCJ, I would have considerable reservations as to whether that is sufficient to justify extending the time from March to September for the commencement of these proceedings. I would rather deal with the summons on a more substantial basis. 18Prayer 1 of the s 69 Summons is for an order extending time. Prayer 2 seeks an order for mandamus directing Curtis DCJ to provide adequate reasons for his decision. Counsel for Riva, Mr Ferella and Ms Ferella was somewhat vague as to the basis upon which it could be said that Curtis DCJ did not provide adequate reasons for making orders on 20 December 2013. It is of course significant that neither Riva nor Mr Ferella or Ms Ferella bothered to appear before Curtis DCJ in order to oppose the orders claimed by Fraser Clancy in its notice of motion of 13 November 2013. The third prayer for relief in the s 69 Summons is for an order in the nature of certiorari quashing the orders made on 20 December 2013. It is desirable to deal with prayers 2 and 3 together in that they are interconnected. 19Curtis DCJ made orders that the Ferellas be joined as parties, doing so under UCPR r 6.24(1). Rule 6.24(1) provides that, if the Court considers that a person ought to have been joined as a party, or is a person whose joinder is necessary to the determination of all matters in dispute in any proceedings, the Court may order that the person be joined as a party. His Honour in fact found that it was appropriate that the Ferellas be joined. His Honour also referred to r 6.26, which deals with joinder to recover costs. Rule 6.26(1) provides that, except to the extent to which the rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person. 20However, under r 6.26(2), that rule does not apply if the other person would otherwise be a proper party to the proceedings, or if the party joined the other person by means of a cross-claim in respect for a claim for costs against the party. As I have said, his Honour considered that it was appropriate to give Fraser Clancy leave to cross-claim against the Ferellas and, accordingly, there does not appear to be any basis for suggesting that the orders made by Curtis DCJ were beyond the jurisdiction conferred by r 6.24. 21In any event, under s 98 of the Civil Procedure Act, the Court had power to make orders against non-parties for the payment of costs (see Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190-191). On that basis, it seems to me that there can be no argument that the decision made by Curtis DCJ to join the Ferellas and to order them to pay the costs was not within jurisdiction either under the UCPR or s 98 of the Civil Procedure Act, or a combination of both. 22I do not consider that it is arguable that there is any deficiency in his Honour's reasons of 20 December 2013 in explaining the basis upon which his Honour made the orders in question. I therefore consider that there is no prospect of prayers 2 and 3 of the s 69 Summons being granted, assuming, as a matter of discretion, that the s 69 Summons would be entertained by the Court. Prayer 4 refers to the garnishee order made on 6 March 2014. That is not being enforced and is not referred to as a decision under review. That prayer by itself would lead nowhere and no order in terms of that prayer would be made by the Court. 23Prayer 5 of the s 69 Summons is for an order that the injunction ordered on 11 April 2014 be set aside. As I have said, the continuation of that order was consented to by counsel for Riva. It was not suggested that Curtis DCJ granted the injunction on the basis of some erroneous understanding of the facts. It is certainly an order that was within the jurisdiction of the District Court. Accordingly, prayer 5 could not possibly succeed. 24Prayer 6 of the s 69 Summons is for an order that Fraser Clancy pay Riva damages, including damages under s 82 of the Trade Practices Act 1974 (Cth). Counsel for Riva and the Ferellas accepted that such a claim could not succeed in these proceedings.

Conclusion and Costs 25In those circumstances, it seems to me that there is no possible basis upon which the relief sought in the s 69 Summons would be granted by this Court, quite apart from any extension of time. In any event, as I have said, the orders of 20 December 2013 were made in the absence of the parties who elected not to appear. It would therefore have been open to them and would now be open to them to apply, under r 36.16(2)(b) of the UCPR, to have the orders set aside, on the basis that they were made in their absence. They have chosen not to make any such application. In circumstances where adequate relief is available in respect of the decision under challenge, the Court would almost invariably decline as a matter of discretion to grant relief under s 69 of the Supreme Court Act. That is another reason why it seems to me that this application should not be allowed to proceed. 26Given all of those matters, it is also extremely unlikely that there would be an order granting an extension of time, since the extension of time would be of no possible utility, given that the proceedings are doomed to failure. In those circumstances, I consider that the s 69 Summons should be dismissed with costs. 27On 7 August 2014, Fraser Clancy wrote to Riva, Mr Ferella and Ms Ferella. After outlining a basis upon which a claim for a prerogative relief, if made, would not succeed, the letter said that, in the interests of finalising the prerogative relief proceedings, Fraser Clancy offered to settle any claim by agreeing to accept the amount ordered in the District Court proceedings on 20 December 2013, less $5,000, less interest, in full satisfaction of that judgment. That is to say, they agreed to accept payment of the sum of $73,256 plus interest in full satisfaction of the judgment within 14 days of the acceptance of the offer. The offer remained open for 14 days from the date of the letter. The offer was not accepted and the letter said that it would itself be relied upon on the question of costs and that Fraser Clancy would seek costs on an indemnity basis from the date of the letter. 28Following the commencement of these proceedings, Fraser Clancy wrote again on 10 October 2014, suggesting that the proceedings were doomed to failure. The letter said that, if by 14 October 2014 the s 69 Summons was withdrawn, Fraser Clancy would not seek the costs of defending the summons. In all of the circumstances, I consider it is appropriate to order that the costs of the s 69 Summons and the Dismissal Motion be paid on an indemnity basis. 29Riva and the Ferellas ask that any indemnity costs order be limited to costs incurred after 10 October 2014. In the circumstances, having regard to the earlier letter written in August, and having regard to the conduct of the plaintiffs in relation to the proceedings, I do not consider it appropriate to limit the order in that way. 30The following orders should therefore be made: (1)Summons filed on 16 September 2014 be dismissed with costs. (2)Notice of motion filed on 14 October 2014 be otherwise dismissed. (3)The respondents to the motion referred to in order (2) pay the applicant's costs of that motion. (4)The costs of the proceedings referred to in orders (1) and (3) be paid on an indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2014

Legal Profession Act 2004(NSW)

Trade Practices Act 1974(Cth)

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