Emery Atkinson v Canberra Cannons Basketball Pty Ltd [1992] ACTSC 13 (13 February 1992)

SUPREME COURT OF THE ACT

EMERY ATKINSON v. CANBERRA CANNONS BASKETBALL PTY LTD
S.C. No. 875 of 1991
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Practice and Procedure - Costs - Summary Judgment - Application before Appearance - Power to Award Costs - Discretion.

R.W. Miller and Co. v Wilson (1932) 32 SR 466

Rodden v Chapman (1950) WN (NSW) 25

Common Law Procedure Act 1899 (NSW) Part XXV

Australian Capital Territory Supreme Court Act 1933 s.15

Rules of the Supreme Court of the Australian Capital Territory O.15 r1(1)

HEARING

CANBERRA
13:2:1992

ORDER

The plaintiff pay the defendant's costs of and incidental to the summons dated 10 December 1991.

DECISION

This is the resolution of an argument about the costs of an unsuccessful summons for summary judgment.

2. The action was commenced by Writ accompanied by a Statement of Claim which issued on 10 December 1991. The Statement of Claim recited a written contract whereby the defendant promised to employ the plaintiff as a basketball player.

3. The breaches alleged were a failure to pay part of the amount due for salary and accommodation and to provide an air ticket to Miami, and wrongful repudiation of the contract.

4. The claim was for a liquidated amount for the unpaid salary and accommodation, damages for the failure to provide the air ticket and for the wrongful dismissal, interest and costs.

5. The Writ and Statement of Claim were served on 10 December 1991.

6. On 10 December 1991 the plaintiff issued a summons seeking orders that the time limited for appearance be abridged to 12 December 1991 and that leave be granted to enter summary judgment in respect of the claims for unpaid salary and accommodation and the failure to provide the air ticket.

7. That summons was returnable on 13 December 1991.

8. When the summons was called on, on the application of Counsel for the plaintiff, consented to by Counsel for the defendant, the summons was stood over to 7 February 1992, and costs were reserved. It was noted that the defendant was not seeking an order for costs of the day.

9. The defendant entered an appearance on 24 December 1991.

10. On 21 January 1992 the plaintiff issued another summons seeking leave to enter summary judgment in respect of the liquidated sum for unpaid salary and accommodation, and directions for the further hearing of the action so far as the claims for damages were concerned.

11. That summons was also made returnable on 7 February 1992.

12. When the two summonses were called on that day, Counsel announced that the liquidated amount in respect of which leave to enter summary judgment was sought had that day been paid. By consent that second summons was dismissed, and the defendant was ordered to pay the plaintiff's costs of and incidental to it.

13. By consent, the summons of 10 December 1991 was also dismissed, but the question of costs relating to it was contested.

14. Counsel for the plaintiff submitted that the issuing of that summons, and the resulting discussions that took part on the return day, had played a part in the satisfactory resolution of that part of the dispute which related to the liquidated claim.

15. Counsel for the defendant pointed out that the summons never had any prospect of success, since, at the time it was issued, and when it was returnable, the defendant had not appeared, so that one of the elements that must be proved in order to found an order granting leave to enter summary judgment was demonstrably missing. See O.15 r1(1).

16. Counsel for the plaintiff submitted that had the matter proceeded on the return date, Counsel for the defendant could not have been heard, his client not having filed an appearance. He also relied upon a statement in R.W. Miller and Co. v Wilson (1932) 32 SR 466, to the effect that an adverse order for costs can not be made against a party when the matter is not properly before the Court. In that action a limited order for costs was made, because the trial judge had taken from a jury a majority verdict without authority, so that part of the proceedings were effectively extra curial, and the Court had no power to award costs in respect of that part.

17. The power of the Supreme Court of New South Wales to award costs in a common law action in 1932 was however, very different from the power of this Court to do so in 1992.

18. That Court's power depended upon the Common Law, as defined or altered by Statute. Part XXV of the Common Law Procedure Act 1899 laid down the manner in which costs orders were to be made. See, for example, s.265, which provided that the costs of any issue either of fact or law shall follow the finding or judgment upon such issue. There was little room there for the exercise of discretion. In Equity, however, the Judge's discretion was not so confined. See eg. Rodden v Chapman (1950) WN (NSW) 25.

19. That is to be contrasted with the provisions of s.15 of the Australian Capital Territory Supreme Court Act 1933.

20. By subs. 15(1) the Court has jurisdiction to award costs in all matters brought before it, including matters dismissed for want of jurisdiction.

21. I do not think that the defect in the first summons amounted to a want of jurisdiction, though some might loosely refer to it as such. But it is clear that the Court has power to award costs in respect of the proceedings.

22. By subs 15(2) the costs are in the discretion of the Court, subject to the Rules or any relevant legislation. I was not referred to any rule or enactment that was said to have any bearing on this case.

23. The summons was doomed to failure. The defendant acted reasonably in coming to Court with Counsel, prepared to point out the fatal flaw in case the Court might miss it.

24. Insofar as concerns the discussions and negotiations that took place on the return date and later, I think it proper for me to leave to the taxing officer the dissection of the costs of them as between the various components of the action, and also the effect of the statement made that the defendant was not seeking the costs of the day.

25. I simply order that the plaintiff pay the defendant's costs of and incidental to the summons dated 10 December 1991.