Chidgey v Wellner & Anor (No 2) [2007] QDC 343

DISTRICT COURT OF QUEENSLAND CITATION: Chidgey v Wellner & Anor (No 2) [2007] QDC 343 PARTIES: DAVID STANLEY CHIDGEY Appellant V UTZ WELLNER Respondent FILE NO/S: D2481 of 2006; M578 of 2005 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Wynnum DELIVERED ON: 21 December 2007 DELIVERED AT: Brisbane HEARING DATE: 16 August 2007 JUDGE: McGill DCJ ORDER: Appeal allowed; set aside the judgment given on 28 July 2006; order in lieu on the application of the respondent plaintiff that the defence and counterclaim filed 16 March 2006 be struck out but with liberty to replead; direct that any amended defence and counterclaim filed on behalf of the appellant defendant be filed by 18 January 2008; application of the respondent plaintiff filed 10 July 2006 otherwise dismissed, with no order for costs on that application. The magistrate’s order striking out the application of the appellant defendant filed 28 July 2006 stands. CATCHWORDS: LEGAL PRACTITIONERS – Solicitor and Client – costs – dispute as to fees – bill not assessed – client alleges negligence – issues to be litigated in action on bill. APPEAL AND NEW TRIAL – Appeal – Powers of Court – grounds of appeal – court not confined by. Queensland Law Society Act 1952 ss 48J, 48Q. UCPR r 766(6)(b) Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied. Livesey v NSW Bar Association (1983) 151 CLR 288 – cited. -- 1 of 9 -- 2 MAM Mortgages Ltd v Cameron Bros. [2002] QCA 330 – cited. COUNSEL: The appellant appeared in person The respondent appeared in person SOLICITORS: The appellant was not represented Wellners Lawyers for the respondent [1] This is an appeal from an order made in the magistrates court on 28 July 2006. The respondent had brought an action against the appellant claiming legal fees and outlays by a claim and statement of claim filed in the magistrates court on 22 December 2005. The defendant filed a notice of intention to defend, defence and counterclaim in that court on 16 March 2006. On 10 July 2006 the respondent filed an application seeking the following orders: “1. That the court strike out the defendant’s defence for failing to comply with rr 149, 155, 157, and 171 of the UCPR; 2. Alternatively, that the court strike out the defendant’s defence for failing to disclose a reasonable defence; 3. That the court strike out the defendant’s counterclaim for failing to comply with rr 149, 155, 157, and 171 of the UCPR; 4. That judgment be entered in favour of the plaintiff pursuant to r 292 of the Uniform Civil Procedure Rules; 5. That the defendant pay interest pursuant to the provisions of the Supreme Court Act; and 6. That the defendant pay the plaintiff’s costs of and incidental to this application to be assessed.” [2] That application stated on its face that it would be heard by the court at Wynnum on 28 July 2006 at 8.45 am. It was supported by an affidavit by Mr Wellner. Both documents were served on the appellant. He attended the court by 8.45 am on that day, but the application was not heard at that time. It was not heard until some time later, after Mr Wellner had arrived at the court (he was not there at 8.45 am). On that day the appellant filed an application in the court, although the document does not appear to have provision for a return date, seeking the following orders: “1. The defendant be given the plaintiff’s professional insurance details so that the defendant may file a claim against the plaintiff. 2. Alternatively, that the court dismiss the plaintiff’s action in this court and order that the plaintiff pay the defendant’s costs associated with defending this action against Utz and Robyn Wellner, Solicitors trading as Wellner’s Lawyers.” [3] When the matter finally came on on 28 July 2006 the magistrate gave judgment on the plaintiff’s claim for $16,302.87, which included the amount of the claim plus $2,410.32 for costs (apparently no amount was obtained for interest), the defence and counterclaim were both struck out, and the appellant’s application filed that day -- 2 of 9 -- 3 was also struck out. The reasons of the magistrate were recorded on the court endorsement sheet in the following terms: “The province of a dispute as to costs in Family Court matters lies with that court. I accept that a bill in taxable form was delivered. The matter was referred to the Solicitors’ Complaints Tribunal where an assessor was appointed. Because of the non-payment of the assessor’s fees the matter did not proceed. I note the contents of ‘UW 7’.1 The matter was also referred to the Legal Services Commission and that body took no further action concerning the complaint. I refer to ‘UW 10’.2 I am of the view that the defendant has been afforded every chance to have his complaint aired. It is my view that he has no credible defence or counterclaim. Consequently, I strike out the defence and counterclaim. I also strike out the claim of the defendant lodged today. I give judgment for the plaintiff against the defendant.” [4] A notice of appeal against that decision and those orders was filed in this court on 24 August 2006. On 28 September 2006 the respondent filed an application seeking an order that the appeal be struck out as frivolous, vexatious or an abuse of process, or for non-compliance with r 747(1) of the UCPR, or in the alternative, that the appellant give security for costs of the appeal. That application came before me, and on 13 November 2006 I ordered that Robyn Wellner, who was named in the notice of appeal as one of the parties, be struck out as a respondent, and that an annexure to the notice of appeal filed 24 August 2006 be struck out, but the application was otherwise dismissed.3 I declared that the notice of appeal was effectual and gave leave for the appellant to file and serve an amended notice of appeal within 14 days. I directed that the respondent be identified as “Utz Wellner”. I made no order as to costs. [5] An amended notice of appeal was filed on 13 December 2006. The amended notice of appeal removed the reference to Robyn Wellner, and omitted the annexure to the original notice of appeal, but was otherwise in the same terms as the original notice of appeal. Attached to it was an amended summary of argument, with some documents attached. [6] The respondent submitted on the hearing of the appeal that the appellant should be confined to the grounds identified in the notice of appeal. Reference was made to the fact that the appellant had been given the opportunity to amend the notice of appeal after I had published my earlier reasons for judgment, in which various things were said about various matters which could have been advanced on behalf of the appellant, and it was submitted that the respondent was entitled to have the appeal dealt with only on the basis relied on in the current notice of appeal. The appellant did not during the hearing of the appeal seek further to amend the grounds of appeal, or the orders sought. [7] By r 786 a notice of appeal must be in the approved form and must comply with the requirement of r 747(1). That sub-rule requires a notice of appeal to state 1 A letter from the Solicitors Complaints Tribunal dated 19 January 2006. 2 A letter from the Legal Services Commission dated 29 March 2006. 3 [2006] QDC 400. -- 3 of 9 -- 4 “(a) whether the whole or part of the decision is appealed from; and (b) briefly and specifically the grounds of appeal; and (c) the decision the appellant seeks.” At one time there was in the English rules a provision that an appellant was not entitled on the hearing of an appeal to rely on any grounds of appeal not specified in the notice: RSC O 59 r 3(3). However, UCPR r 766(1) dealing with general powers of the Court of Appeal provides that that court has all the powers and duties of the court that made the decision appealed from and may draw inferences of fact, not inconsistent with the findings of the jury (if any), and may make any order the nature of the case requires. Sub-rule (6) provides that the powers under this rule may be exercised even though (relevantly) “(b) a ground for allowing the appeal or for affirming or varying the decision is not stated in the notice of appeal.” 4 Those provisions of that rule apply to the present appeal: r 785(1). There appears to be no equivalent in the UCPR to the former RSC O 59 r 3(3). It appears to follows from that rule that I am not confined by the grounds set out in the notice of appeal. Grounds in notice of appeal [8] Essentially there were two grounds actually stated in the notice of appeal. The first was that the appellant was not aware that there was to be a hearing of the matter on 28 July 2006, and had been told by someone at the magistrates court that he could not issue subpoenas returnable on this occasion as it was not a hearing as such. Insofar as the appellant was told that he could not issue a subpoena returnable on the day of hearing of the application, that was correct. This was among other things an application under r 292, and r 295 provides that in such a proceeding evidence must be given by affidavit unless the court gives leave. But the appellant’s complaint, as amplified in his oral submission before me, was essentially that he was expecting that on that day all that would happen would be that there would be some discussion about what was happening in the matter and a trial date would be set. I understand it is common before a civil trial is listed in the magistrates court for there to be a directions conference at which the possibility of settlement is explored, and there is some investigation of the length of the trial and other matters relevant to listing: UCPR r 523. But there was no reason to think that there was to be a directions conference on this day. [9] Part of the difficulty here is one of terminology, and unfamiliarity on the part of the appellant with court process. The appellant assumed that what happened on 28 July 2006 amounted to a trial, but plainly it did not. It was the hearing of the respondent’s application, and possibly also the appellant’s application. Although it led to a judgment against him, that did not mean it was a trial; there was an application for summary judgment under r 292, and that rule permits judgment to be given without a trial in certain limited circumstances. I shall return to the test of whether a judgment should be given under r 292 later, but it seems clear from the respondent’s application that what was sought on this occasion was summary judgment under r 292, not a judgment after a trial. [10] Furthermore, on the face of the application which had been served on him, the defendant had been advised that “This application will be heard by the court at Wynnum on 28 July 2006 at 8.45 am.” He ought therefore to have been prepared to respond to the application at that time and that place. That it was not ultimately 4 UCPR r 766(6) was applied by the Court of Appeal in MAM Mortgages Ltd v Cameron Bros. [2002] QCA 330 at [71]. -- 4 of 9 -- 5 heard until half an hour or so later is not in itself a matter of any consequence; if he were ready for a hearing at 8.45 am, he would still have been ready later that morning. [11] The appellant also submitted that the matter was a chamber matter because the magistrate could not be sitting “in court” before ordinary court hours. However, the reference to a matter being dealt with “in chambers” is itself now an anachronism. For a very long time there was a distinction drawn in certain circumstances between things that were done by a judge or magistrate “in court” and things that were done “in chambers”. However, that distinction was abolished by legislation in 1999. Section 128 which was then inserted into the Supreme Court of Queensland Act 1991, but which applied expressly to the District Court and the Magistrates Courts as well as the Supreme Court, provides: “(2) The distinction between court and chambers is abolished. (3) The business of the court, wherever it is conducted, is taken to be conducted in court.” [12] It follows that anything the magistrate did, whether he was sitting in the courtroom or in his chambers in the sense of the room that he occupies as his office, involved him sitting “in court”. Indeed, even a magistrate conducting a directions conference under r 523 is sitting “in court” not “in chambers”, even though the conference is held in private: r 524(1). There has been a tendency for the old terminology to be carried on past 1999, and sometimes that can produce results which are confusing for those who are not familiar with court practices. Nevertheless, there can be no doubt that in law the magistrate on 28 July 2006 was sitting in court. [13] In any case, even if the appellant had not realised before the application came on for hearing that that application was to be heard that day, that must have become readily apparent once the hearing commenced. If the appellant was not in a position to deal with that application that day, the appropriate course for him was to apply for an adjournment. He said he objected to the mater being dealt with. The appellant may not have been ready for a trial, but he did not have to be ready for a trial on that occasion; what he had to be ready for was to argue the respondent’s application. There were plenty of things which could have been said about that, even just on the respondent’s material, but whether the appellant would have said them is another matter. He did not say many of them to me, so it is unlikely he would have said them to the magistrate. [14] What he did say to me, which could have been said to the magistrate, was directed to his complaints that there were aspects of the work done for him by the respondent in the Federal Magistrates Court proceeding which were inadequate, and by inference done negligently or in breach of the contract of retainer. There is no reason to think that those matters could not have been said to the magistrate on 28 July. Reference had been made to them in a document Annexure A which was attached to the defence and counterclaim of the appellant when it was filed in the magistrates court. The appellant could certainly have drawn attention to these matters, and the magistrate should have been aware of them because this was the defence and counterclaim which he was being asked to strike out. [15] In all the circumstances, therefore, I do not think that there is any substance in the defendant’s complaint that he was unaware that what was going to happen on -- 5 of 9 -- 6 28 July was a trial of the action before the magistrate. That is not what happened on 28 July, what happened was the hearing of an application for summary judgment (among other things) which the magistrate granted. The respondent had given proper notice of that application in accordance with the rules, and that application was properly before the magistrate. Whether he made the right decision on it is another matter, but I will come to that shortly. I am not persuaded that the first ground of the appeal, that the matter was not properly before the court on 28 July, or that the appellant had not had proper notice of that, has been made out. [16] The next matter raised in the grounds of appeal is the suggestion that the magistrate was biased. This was really based only on the outcome of the application, and was not advanced further in oral submissions, or in the further written submissions filed with the amended notice of appeal. There was I think nothing shown by the appellant which would suggest to an impartial observer that there was any bias against him on the part of the magistrate,5 and in my opinion this ground has not been made out. Other matters argued [17] The appellant’s amended summary of argument attached to the amended notice of appeal filed 13 December 2006 also made a number of complaints about the way in which the respondent conducted the case for the appellant in the Federal Magistrates Court. The appellant said there was a failure on the part of the respondent in his duty as a solicitor in the conduct of that case, and in failing to notify the client of an appeal to the Full Court of the Family Court by the other party in that case. The respondent had failed to use valuations obtained by the appellant prior to the retainer, when they ought to have been used. [18] There was a complaint about a person, presumably the respondent’s wife, having sought to interfere in the conduct of the appeal in the Family Court, an allegation that the matter in the Federal Magistrates Court had not been properly prepared, an allegation that there had been a failure properly to argue the question of costs in the Federal Magistrates Court, an allegation that the respondent failed to use relevant recognised case law in the trial, and an allegation that there had been a failure to comply with the appellant’s instructions to agree to a valuation of a property at a particular figure, in circumstances where the other party subsequently increased the valuation of the property. [19] It was also alleged that consultations had not been charged at a particular amount, presumably alleged to be the applicable charge at the time, and that the respondent had charged for photocopying even though that had been done by the appellant. There was also a complaint that there had been a failure to investigate the matter on the part of the Queensland Law Society and the Legal Services Commission, that the respondent’s services were not of any assistance to the appellant, and that at one point before the trial the respondent was actively working against the appellant. [20] It is not necessary for me to resolve any of these issues; indeed, there is no material before me apart from the allegations made by the appellant upon which I could possibly consider such matters. The significance of them is that they show that the appellant is seeking to dispute the respondent’s claim for costs on the basis that 5 Applying Livesey v NSW Bar Association (1983) 151 CLR 288. -- 6 of 9 -- 7 there had been a failure on the part of the respondent to comply with instructions, that the respondent had been negligent in the conduct of the proceeding in the Federal Magistrates Court, and that the amount claimed by the respondent was not in all respects properly payable. A failure to comply with instructions may give rise to a matter of defence, or may give rise to a counterclaim; the same applies to negligence in the conduct of the proceedings for which the respondent was retained. Disputes as to whether the actual amounts claimed are recoverable are properly matters of defence. None of those matters has been resolved in any conclusive way in any earlier proceeding between the parties. In principle, therefore, they all remain matters which it is open to the appellant to raise by way of defence or counterclaim in the present proceeding. Errors by the magistrate [21] The reasons given by the magistrate were either incorrect or missed the point. It is not correct to say that the question of quantification of costs was a matter for the Family Court. If the retainer had related to a proceeding in the Family Court, that would have been correct, as I explained in my earlier reasons, but this was a matter in the Federal Magistrates Court where under that Court’s rules (r 21.09) any dispute between the lawyer and the client was to be dealt with under state legislation. The first point made by the magistrate was therefore wrong. [22] The magistrate appears to have missed the significance of the fact that the referral to the Solicitors’ Complaints Tribunal did not produce a completed assessment of costs. Plainly the assessment had not concluded,6 since the assessor had refused to proceed with the assessment. In those circumstances, it seems to me that the effect of s 48J of the Queensland Law Society Act 1952 was that the respondent required leave to commence the proceeding in the magistrates court, which as far as I can see was not given. [23] Apart from that, there was nothing in the Queensland Law Society Act 1952 by which the amount of a bill which was not assessed became binding on the client, and the provisions of ss 48K and 48L seem to me to be to the contrary. It is not to the point that the Legal Services Commission decided that there was no basis for any disciplinary proceedings against the respondent; that does not amount to any official endorsement of the amount charged in this particular bill, and does not mean that that amount in some way becomes binding between the parties. Far from his having been afforded every chance to have his complaint aired, the appellant had never received a proper hearing of his complaint from anyone, and ought not to have been denied it in the magistrates court. [24] There was simply no basis upon which the magistrate could properly conclude that the allegations made by the appellant were not credible. He was not in a position to arrive at any conclusions about whether or not the respondent’s work had been properly done. On an application for summary judgment, the question is whether the court is satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim and that there is no need for a trial of the claim or part of the claim: UCPR r 292(2). That test is to be approached in the way laid down by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. It seems to me clear that the reasoning of the 6 As that term is defined in s 48Q of the Act. -- 7 of 9 -- 8 magistrate which led to the decision to give summary judgment, and to strike out the defence and counterclaim, were based on errors of law. Accordingly, it is necessary for me to decide the matter afresh. Substitute decision [25] It is true that there was no affidavit material from the appellant in support of the proposition that there was negligence, or a failure to comply with instructions, or that there had been a failure properly to charge in respect of the services rendered. On the other hand, it is clear from the material before me, and ought to have been clear from the material before the magistrate, that the appellant was seeking to make extensive and wide-ranging allegations against the respondent which were relevant to the determination of what amount (if any) was properly payable to the respondent by way of legal costs, and whether there was any proper counterclaim. As McMurdo P pointed out in Salcedo at p 233, issues raised in proceedings will be determined summarily only in the clearest of cases. Her Honour went on to cite as applicable the proposition in a High Court judgment that “ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.”7 Even on the limited material in the present case, it seems to me quite impossible to conclude, with the degree of confidence required by the rule, that if there were a trial the outcome would be that the respondent would recover a judgment for $16,302.87 on the claim. In these circumstances, summary judgment cannot be given. [26] In my reasons in the earlier application I went through in some detail the defence and counterclaim as filed in the magistrates court, and made some comments on them. Notwithstanding such further argument on the matter as I heard in connection with the appeal, I adhere to what I said in those reasons. It seems to me that the defence was significantly defective in a number of respects, and the counterclaim was misconceived, but for the reasons I have given earlier, and on the earlier occasion, it seems to me that a proper defence and counterclaim could have been pleaded in this matter. In those circumstances, the appropriate course is to strike out the defence and counterclaim but with liberty to replead. [27] The matters sought by the appellant’s application before the magistrate were first that the appellant be given the plaintiff’s professional insurance details so that the defendant may file a claim against the plaintiff. This claim makes no sense, in an application or in a counterclaim; I can see no basis on which the magistrates court had jurisdiction to make such an order, and in any case such an order appears to me to be manifestly unnecessary. [28] In the alternative, an order was sought that the plaintiff’s claim be dismissed. No grounds were set out for seeking dismissal; the only ground that occurs to me was the failure to comply with the requirement of s 48J of the Queensland Law Society Act 1952. However, I see no reason why such leave could not be obtained nunc pro tunc,8 and in such circumstances it would be inappropriate to strike out the respondent’s claim, at least in circumstances where the respondent had not indicated that he will necessarily not apply for such leave. The appellant’s application to the 7 Agar v Hyde (2000) 201 CLR 552 at [57], as cited in Rich v CGU Insurance Ltd (2005) 79 ALJR 856 at 859. 8 In view of the letter from the Tribunal, such leave should be given readily. -- 8 of 9 -- 9 magistrate was in my opinion essentially misconceived, and it was appropriate for the magistrate to dismiss it. Conclusion [29] In the circumstances, therefore, the appropriate course is to allow the appeal, and set aside the judgment given on 28 July 2006 in so far as it related to the application of the respondent plaintiff. I order in lieu on that application that the defence and counterclaim filed 16 March 2006 be struck out but with liberty to replead. I direct that any amended defence and counterclaim filed on behalf of the appellant defendant be filed by 18 January 2008. The application of the respondent plaintiff filed 10 July 2006 is otherwise dismissed. Given the limited success obtained on that application, on the whole I think there ought to be no order for costs on that application. The magistrate’s order striking out the application of the appellant defendant filed 28 July 2006 stands. I will hear submissions in relation to the costs of the appeal. -- 9 of 9 --