Alex Mackay & Co (a firm) v Murdoch & Anor [2020] QMC 5

MAGISTRATES COURT OF QUEENSLAND CITATION: Alex Mackay & Co (a firm) v. Murdoch & Anor [2020] QMC 5 PARTIES: JOSEPH ALEXANDER MACKAY and PETER PREVITERA t/as ALEX MACKAY & CO (A Firm) (Plaintiff/Enforcement Creditor) v PETER MURDOCH (First Defendant/Enforcement Debtor) and NOELA MURDOCH (Second Defendant/Enforcement Debtor) FILE NO/S: 673 of 2019 DIVISION: Civil PROCEEDING: Interlocutory applications filed 6 January 2020 and 17 March 2020 ORIGINATING COURT: Brisbane DELIVERED ON: 16 June 2020 DELIVERED AT: Brisbane HEARING DATE: 05 June 2020 - on the papers MAGISTRATE: Magistrate Hay ORDER: 1. I reserve the costs of and incidental to the application filed 6 January 2020. 2. I grant the creditor’s request for a subpoena to be issued by the court under r. 812 of the Uniform Civil Procedure Rules 1999 directed to Anne Murdoch for production and to give evidence. 3. I grant the creditor’s request for a subpoena to be issued by the court under r. 812 of the Uniform Civil Procedure Rules 1999 directed to Malcolm Robinson for production and to give evidence. 4. I direct that the creditor: a. provide the subpoenas in the approved -- 1 of 4 -- 2 form directed to Anne Murdoch and Malcolm Robinson to the court for issuance by the Registrar; and b. serve the subpoenas: in accordance with the requirements of the Uniform Civil Procedure Rules 1999. 5. I reserve the costs of and incidental to the application filed 17 March 2020. LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld) rr. 414, 415, 416 and 812. CASES: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 SOLICITORS: Alex Mackay & Co for the Plaintiff/Enforcement Creditor Robinson Locke Litigation Lawyers for the Defendants/Enforcement Debtors [1] On 2 March 2020 the court directed that: 1. the parties file and exchange one page of written submissions on the issue of costs arising from the creditor’s application filed 6 January 2020 together with draft orders within 7 days of publication of the reasons for a related decision given previously in this matter (the ‘Costs Issue’); 2. any application to subpoena persons under r. 812 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) be filed within 14 days of publication of the reasons for the related decision. [2] On 17 March 2020 the creditor filed an interlocutory application seeking orders that subpoenas be issued by the court (the ‘Subpoena Request’). On 7 May 2020 the creditor filed it material in support of that application. 1 [3] I now determine, on the papers, both the Costs Issue and the Subpoena Request. Costs Issue [4] On 7 May 2020 the creditor filed written submissions on the Costs Issue, arising from its application filed 6 January 2020.2 Its primary contention is that those costs should be reserved. On that same day the debtors’ sent their responsive submissions on the Costs Issue.3 The debtors rely upon the High Court’s decision Bell Lawyers Pty Ltd v 1 As set out under heading A of the creditor’s written submission filed 7 May 2020. 2 See also the creditor’s submission in reply sent by Alex Mackay & Co at 10.25am on 8 May 2020 to the Brisbane Magistrates Court & Ors. 3 Email Malcolm Robinson, Robinson Locke Litigation Lawyers to Brisbane Magistrates Court & Ors sent at 3.57pm on 7 May 2020. -- 2 of 4 -- 3 Pentelow4 to support their contention that “there are no costs incurred to recover”. The submissions do not direct the court to any particular aspect of the 43 page decision, instead submitting “This fits squarely within the concept of the High Court decision…”. [5] The question before the High Court in Bell Lawyers Pty Ltd v Pentelow was whether, as matter of Australian common law, the Chorley exception5 should apply to a barrister, or another sole practitioner for that matter. The High Court found that it should not. Relevantly the majority concluded: “[50] A decision by this Court that the Chorley exception is not part of the common law in Australia would not disturb the well-established understanding in relation to in- house lawyers employed by governments and others, that where such a solicitor appears in proceedings to represent his or her employer the employer is entitled to recover costs in circumstances where an ordinary party would be entitled to do so. … [53]…whether or not an incorporated legal practice that is a vehicle for a sole practitioner should be able to obtain an order for costs for work performed by its sole practitioner and shareholder is ultimately a matter for the legislature.”6 [6] As relevantly noted in Bell Lawyers Pty Ltd v Pentelow: “The resolution of this question may require close consideration of the legislation that provides for incorporation of solicitors’ practices and the intersection of that legislation with the provisions of the Civil Procedure Act in light of the general rule; and so the resolution of this question may be left for another day, when all the legislation that bears on the question has been the subject of argument.”7 [7] I am not satisfied that I have sufficient information to properly determine the question of whether the creditor, an unincorporated partnership, is capable of being caught by the decision in Bell Lawyers Pty Ltd v Pentelow. [8] For these reasons I reserve the question of costs of an incidental to the application filed 6 January 2020. Subpoena Request [9] On 17 March 2020 the creditor filed an application seeking an order that two persons, namely the debtors’ daughter, Anne Murdoch, and the debtors’ solicitor, Malcolm Robinson, be subpoenaed. It is unusual for a subpoena request to be made by interlocutory application rather than by request to a Registrar.8 Further, the application is not supported by a subpoena in the approved form9 setting out the description of the 4 No citation given. I have assumed it to be (unreported) Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. 5 i.e. a ‘rule of practice’ that a self-represented litigant who is a solicitor may recover his or her professional costs of acting in the litigation: London Scottish Benefit Society v Chorley (1884) 13 QBD 872 at 877. See also Bell Lawyers Pty Ltd v Pentelow at [1]. 6 supra at [50] to [53] per Kiefel CJ, Bell Keane and Gordon JJ. 7 supra at [52] per Kiefel CJ, Bell Keane and Gordon JJ. 8 Rule 414(6) of the UCPR. 9 Approved form 72, UCPR forms. -- 3 of 4 -- 4 documents or things sought to be produced.10 However these matters are not fatal to the application. They can be readily overcome by the creditor when it prepares the subpoenas to be issued by the Registrar, if its application, which I shall treat as a request, is granted. [10] At this stage the debtors do not seek to be heard on the question of the issuance of the subpoena. This is unremarkable as it is a matter for those persons served with the subpoena to determine whether they wish to apply to the court for it to be set aside.11 [11] Accordingly I grant the creditor’s request for subpoenas in the approved form12 for production and to give evidence in the names of Anne Murdoch and Malcolm Robinson, to be issued by the Registrar.13 [12] The creditor also seek the costs of its subpoena application. For the same reasons given on the Costs Issue, I reserve the costs of an incidental to the Subpoena Request. 10 Rule 415 of the UCPR. 11 Rule 812 (See Note re application of Ch. 11 Pt 4 of the UCPR) and rr. 415 and 416 of the UCPR. 12 Form 72, UCPR 13 Rule 812 (See Note re application of Ch. 11 Pt 4 of the UCPR) and rr. 414(4) and 414(6) of the UCPR. -- 4 of 4 --