WREFORD -v- CASTLEYHEARD PTY LTD [2022] WASCA 91 (29 July 2022)

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. 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].

1. 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.
2. 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.

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.

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.

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

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