Phan (by his next friend Giao Van Phan) v Minister for Health

[2005] WADC 123

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PHAN (by his next friend GIAO VAN PHAN) -v- MINISTER FOR HEALTH [2005] WADC 123

CORAM:   COMMISSIONER GREAVES

HEARD:   9 MAY & 15 JUNE 2005

DELIVERED          :   28 JUNE 2005

FILE NO/S:   CIVO 200 of 2004

BETWEEN:   DAN THANH PHAN (by his next friend GIAO VAN PHAN)

Plaintiffs

AND

MINISTER FOR HEALTH
Defendant

Catchwords:

Costs - Application for costs on an indemnity basis against solicitor personally - Unreasonable conduct of solicitor in continuing application for leave to bring action after right of action extinguished - Defendant incurred costs in opposing application - Defendant entitled to costs on an indemnity basis against solicitor personally

Legislation:

Limitation Act 1935, s 47A(3)

Rules of the Supreme Court, O 66 r 5(1)(a)

Result:

Order for costs in accordance with reasons

Representation:

Counsel:

Plaintiffs:     Mr M J Bateman

Defendant:     Ms B McGivern

Solicitors:

Plaintiffs:     Batemans

Defendant:     Downings Legal

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

Matheson v The Commissioner of Main Roads (2001) 25 WAR 269

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  This is the defendant's amended application dated 29 April 2005 whereby the defendant seeks the following orders:

   "1The proceedings commenced by originating summons filed herein on 21 July 2004 be dismissed, alternatively struck out, alternatively set aside; and

   2the Plaintiff's solicitor, Mr Malcolm James Bateman ("Mr Bateman") alternatively the Plaintiff, do pay the Defendant's costs on the following basis:

   2.1the Defendant's costs of the action and of the application incurred from and including 29 July 2004, alternatively from and including 19 August 2004, be paid on an indemnity basis, alternatively on special costs basis pursuant to Order 66 Rule 12(1) of the Supreme Court Rules:

   (a)by Mr Bateman pursuant to Order 66 Rule 5 of the Supreme Court Rules and/or pursuant to the Court's inherent jurisdiction; alternatively

   (b)by the Plaintiff (by his next friend); and

   2.2the Defendant's costs of the action incurred prior to 29 July 2004 be paid by the Plaintiff (by his next friend)."

2. The plaintiff's cause of action (if any) arose on 28 July 1998. The originating summons of 21 July 2004 was brought pursuant to s 47A(3) of the Limitation Act 1935 for an order that the plaintiff by his next friend be at liberty to commence an action against the defendant for personal injury suffered by the plaintiff as a result of the negligence of the defendant on 28 July 1998, notwithstanding that the time to do so under s 47A(1)(b) of the Act had expired.

3. The application for leave came on for hearing after the expiration of the limitation period under s 47A(3)(a) of the Limitation Act.  There is no power in the court to backdate an order granting leave or make the order nunc pro tunc (Matheson v The Commissioner of Main Roads (2001) 25 WAR 269).

4. The defendant now seeks an order for costs on an indemnity basis either against the plaintiff's solicitor personally or the plaintiff (by his next friend).

5. I find that the limitation period expired on 28 July 2004 and that the defendant is entitled to an order in terms of par 1 of the amended application of 29 April 2005.  I find that thereafter there was no power in the court to grant leave to bring the action.  In those circumstances, I find that to continue the application for leave after 29 July 2004 was unreasonable.  In such circumstances, I am of the opinion that the defendant is entitled to an order for costs after 29 July 2004 on an indemnity basis.  The primary issue argued before me was whether the order should be against the plaintiff's solicitor personally or the plaintiff by his next friend.

6. Counsel for the defendant submitted that from 29 July 2004 the failure to give reasonable and proper attention to the relevant law and facts, and to advise the plaintiff not to continue the proceedings, or alternatively, the continuation of the proceedings without any chance of success, was unreasonable or negligent within the meaning of O 66 r 5(1)(a). She further submitted that the conduct of the plaintiff's solicitor has caused a waste of costs to the defendant. Counsel for the defendant relied on the affidavit of Penelope Itzstein of 1 February 2005 whereby at par 6 she deposes to the fact that since 29 July 2004 the defendant has incurred, and continues to incur costs in defending and opposing the originating summons. The defendant notified the plaintiff's solicitor of its intention to seek costs pursuant to O 66 r 5 and the substantial grounds for that application by letter dated 17 November 2004.

7. Counsel for the defendant submitted there is no evidence before the court to establish that the defendant has incurred costs in defending the application. While the affidavit evidence before the court does not establish the quantum of the costs incurred, it plainly establishes that the defendant has incurred costs in opposing the originating summons since 29 July 2004. In these circumstances, once the court determines that the defendant is entitled to an order under O 66 r 5(1), the court may direct that the quantum of any such costs be determined by the taxing officer.

8. Counsel for the plaintiff made lengthy submissions opposing an order under O 66 r 5(1)(a). They are dated 2 May 2005. He also relied on his affidavits of 2 December 2004 and 29 April 2005. In my opinion, it is reasonable to infer and I find that properly advised the plaintiff would have discontinued the application for leave after 29 July 2004. I find that in continuing the application for leave after 29 July 2004 the conduct of the plaintiff's solicitors was unreasonable. I find that as a result of the unreasonable continuation of the application for leave after 29 July 2004 the defendant incurred costs in opposing the application. Pursuant to O66 r 5(1)(a), I will order that the plaintiff's solicitor pay those costs personally, such costs to be determined by the taxing officer.

9. The defendant is therefore entitled to an order in accordance with pars 1, 2.1(a) and 2.2 of the amended application of 29 April 2005.  I shall hear counsel on the orders to be made and such directions as may be necessary in relation to the taxation of costs.