Day & Anor v Bell [2001] QDC 329

DISTRICT COURT OF QUEENSLAND CITATION: Day & Anor v. Bell [2001] QDC 329 PARTIES: GEOFFREY NEWTON DAY First Appellant And NORMAN SMITH Second Appellant And PHILIP BELL Respondent FILE NO/S: Southport Appeal 2295 of 2001 PROCEEDING: Appeal – application for costs ORIGINATING COURT: Southport Magistrates Court DELIVERED ON: 14 December 2001 DELIVERED AT: Brisbane HEARING DATES: 19 October, 16 November and 4 December 2001 JUDGE: Judge Brabazon Q.C. ORDER: Application dismissed CATCHWORDS: COSTS – personal liability of solicitor – conduct of solicitor – solicitor filed and prosecuted various applications and appeals – solicitor filed proceedings on behalf of parties without instructions to do so – whether conduct was for an “ulterior” or “improper purpose”. Carr v. Finance Corporation of Australia Ltd (1980) 147 CLR 246; Brian Hall & Associates Pty Ltd v. Pykos (District Court of Queensland, judgment 15 November 1990, unreported); York v. Lucas (1985) 158 CLR 661 at 670; Manwelland Pty Ltd v. Dames & Moore Pty Ltd (QCA 336, judgment 20 September 2001, unreported; Cornelius v. Barewa Oil & Mining N.L. (1982) 64 FLR 287; CCA Systems Pty Ltd v. Communications & Peripherals (Australia) Pty Ltd 15 ACLR 720; Spain v. Ian Steam Chip Co. of N.Z. Ltd (1923) 32 CLR 138; Dalgety Futures v. Poretsky ( 1982) NSWLR 646; Croney v.Nand (1989) 2 Qd.R 242; Alexander v. Cambridge Credit/Corporation Limited (1985) -- 1 of 21 -- 2 2 NSWLR 685; Levick v. Commissioner of Taxation (2000) 102 FCR 155; Crook v. Pasminco (No.2) (2000) 107 FCR 44; Rebendeich (No.2) 1994) 53 FCR 422; White Industries v. Flower & Hart (1998) 150 ALR 167 at 236 and on appeal in 1999 (87 FCR 134). COUNSEL: Mr Morris Q.C. and Mr Murphy for the Applicant/Respondent Mr O’Donnell Q.C. and Mr Howe for the Respondent/Appellants SOLICITORS: Dibbs Barker Gosling for the Applicant/Respondent Gadens Lawyers for the Respondent/Appellant [1] This is a dispute about the impact of legal costs. A group of plaintiffs with similar claims against various defendants, obtained costs orders in their favour. They were successful on several occasions, and defeated their opponents. However, the costs orders have not been paid. The plaintiffs now say that their opponents’ solicitor, Mr Michael Sing, should personally pay the costs. He has refused. Should he be made to pay their costs? [2] There have been several proceedings, with the parties changing roles as appellants, respondents, etc. It will be convenient to refer to the applicants in these proceedings as “the plaintiffs” and to Mr Sing’s clients as “the defendants”. While this appeal involves only one set of proceedings, it was taken as representing all proceedings - variously said to be sixteen or eighteen in number. A solicitor’s liability for costs [3] The plaintiffs say that a costs order should be made against Mr Sing personally, as:- -- 2 of 21 -- 3 a. He filed proceedings on behalf of parties for whom he had no instructions to act. b. He filed applications which were entirely misconceived, including those to set aside default judgments, when no default judgments had been entered, and applications to stay execution of judgments pending appeal, when no appeal had been lodged. c. He filed and prosecuted applications and appeals which had no prospects of success whatsoever. d. He conducted such applications and appeals in a generally dilatory manner including deliberate non-compliance with the rules of court. e. Overall, he conducted such applications and appeals for an ulterior and improper purpose, that is, to cause delay when there was no prospect of success. [4] The power to order costs against a solicitor, in appropriate circumstances, is now well established by the authorities. Mr O’Donnell Q.C., who appeared on behalf of Mr Sing, summarised it this way – “The power to order costs against a solicitor in respect of an unsuccessful proceeding ought to be exercised ‘sparingly and with great caution’. It is not enough that he solicitor acted for a party who was unsuccessful. Nor is it enough that the proceeding had no or substantially no prospect of success. Something more is required. It must involve some deliberate decision taken by reference to circumstances unrelated to the prospects of success, either a recognition that there is no chance of success but an intention to use the proceeding or an ulterior purpose, or with the disregard of any proper consideration of the prospects of success.” -- 3 of 21 -- 4 [5] That may be taken as a sufficient summary, for the purposes of this application. Reference was also made to the decisions in Levick v. Commissioner of Taxation (2000) 102 FCR 155 at 165-167; Crook v. Pasminco (No.2) (2000) 107 FCR 44 at 56-57; Rebendeich (No.2) 1994) 53 FCR 422 at 427 and White Industries v. Flower & Hart (1998) 150 ALR 167 at 236 and on appeal in 1999 (87 FCR 134). With those authorities in mind, it is necessary to examine the evidence. Before Mr Sing’s involvement [6] A company called Wizard Systems Australia Pty Ltd., sold a computer program called “Market Wizard”. It was designed to manage trading on the stock market in such a way that, over time profits could be expected. Directors of the company were Mr Day and Mr Smith. [7] The sale price of the program was $6,950.00. Some of the purchasers became dissatisfied with what they had bought. A group of them took action against Wizard Systems, and its representatives, in the Magistrates Court at Southport. There were sixteen separate actions, each on behalf of a separate plaintiff. [8] A Melbourne solicitor, called Michael Gray, was retained to act on behalf of Wizard Systems and the various other defendants. However, Mr Gray was grossly negligent. He neglected to enter appearances and defend the claims, as he had been instructed to do by Mr Smith. [9] On 19 January 1998 the Registrar at Southport considered applications for default judgment. They were in similar terms. The particulars of claim asserted that the -- 4 of 21 -- 5 purchase price of the program was $6,950.00, and that it was refundable, as promised. The particulars asserted that each plaintiff had suffered loss and damage by (among other things) “being deprived of the purchase price of the program of $6,950.00”. There were then claims for damages for breach of contract, or damages according to s.82 of the Trade Practices Act or s.99 of the Fair Trading Act. [10] The particulars mention a “30 day money back guarantee”. There is no attempt to rely on that promise – more than 30 days had passed, and there was no attempt alleged to return the software (see paras. 11(b) and 14(e) of the particulars). However, in addition to the 30 day arrangement set out in a brochure, the licence application form also referred to “your six months’ money back performance guarantee”. [11] The particulars assert dissatisfaction with the program, so that the plaintiff:- “determined that the program was not what (Wizard) had represented and decided that the program was not what the plaintiff wanted (see para.23).” [12] It is apparent that the plaintiffs relied on the “guarantee of satisfaction” mentioned in para.14(a). Paras. 25 and 26 make it plain that the failure to refund the plaintiffs’ money is a different claim from the alternative assertion that Wizard was in breach of contract in the failing to honour that promise. The particulars then go on to assert that the same representation was misleading and deceptive, in that there was a failure to honour the six months’ money back guarantee. [13] Each application for judgment was supported by an affidavit by Mr J.P. Murphy, a law clerk employed by the plaintiffs’solicitors. He set out details of the total claim, which included $3,000.00 “not claimed as liquidated damages”. It is apparent that -- 5 of 21 -- 6 the $6,950.00 was claimed as liquidated damages. No doubt he had in mind rule 157(5) of the Magistrates Court Rules:- “In any case where the claim is not for a debt or liquidated demand but which is for damages, when judgment is given under this rule by a court constituted by a Stipendiary Magistrate or a Registrar, the damages are to be assessed by that court upon affidavit or evidence on oath or affirmation according to these Rules within the court’s discretion”. [14] No application was made for any damages to be assessed. Judgment in each case for the $6,950 was requested, and given. [15] Time passed. Mr Smith became aware of the default judgments against the Wizard interest. He instructed Mr Gray to have the judgments set aside. Mr Gray said that he would do that. Mr Smith assumed that it was done. More time passed. He discovered that the judgments had not been set aside – he thought Mr Gray had made applications to do so. Mr Smith realised what had happened. He arranged to meet Mr Sing, for the first time, at Southport. [16] In the meantime, he had lost contact with some of the Wizard employees who had been sued – Messrs Skyner, Tunbridge, and Mifsud. However, he was in touch with his daughter, Donna Smith. He told her not to worry, and that he was going to get Michael Sing to act for them. She thanked him. He was also in touch with Mr Day. They met at Southport. Smith said that he would pay Michael Sing, and Day agreed to that. They also spoke when Day was in Vanuatu. They agreed that Mr Gray should be dismissed, and that they should go to Mr Sing, as their solicitor. Another defendant was Mr Booth. Mr Day told him that he would get, or had got, Michael Sing to act for them. Mr Booth thanked him. -- 6 of 21 -- 7 [17] Mr Smith’s evidence should be accepted – when he went to see Mr Sing, he had actual authority to represent Donna Smith, Day and Booth. He had no authority to represent Skyner, Tunbridge, or Mifsud. [18] On 23 January 1998 the defendants had filed applications, for orders that the default judgments against them be set aside, and that they have liberty to defend. They were the applications arranged by Mr Gray. An affidavit of merits, in each case, was sworn by Mr Day. The affidavit was a short one, asserting that there had been no misleading or deceptive conduct, because there was a proper basis for the representations. No particulars were given. The application was heard by Miss Cornack S.M. on 24 March 1998. She dismissed the application. She ordered that the defendants should pay the costs of the applications. [19] Mr Smith became aware that judgment by default had been entered against the defendants, in September 1998. He was then told by Mr Gray that steps had been taken to have the judgment set aside. It was not until February or March 1999 that he became aware that those steps had not been carried out. It seems that Mr Gray deceived Mr Smith, about the true position. It was then that Mr Smith decided to retain a new solicitor. Mr Sing’s retainer. [20] Mr Smith and Mr Booth visited Mr Sing’s office on 21 April 1999. Mr Smith brought with him some, but not all, of the court documents. They showed the names of various defendants – probably including Skyner, Tunbridge and Mifsud. Mr Smith asked him to act for himself, Booth, Day, Donna Smith and Skyner, in having the judgments set aside. His evidence, to the effect that he did not mention -- 7 of 21 -- 8 Tunbridge or Mifsud, should be accepted. It is likely that Mr Sing mistakenly thought he was being asked to act for all the defendants appearing in the Magistrates Court documents. In the cases of Skyner, Tunbridge and Mifsud, Mr Smith had no authority to retain him. [21] Mr Smith explained how his earlier solicitor had messed things up. He asked that all accounts be addressed to him, Smith. Mr Sing regarded him as his principal client, and, in due course, sent accounts to him. However, it should be accepted that Mr Sing received instructions to act for Donna Smith, Booth and Day, and that they were his clients – notwithstanding the fact that he did not find it necessary to obtain any confirmation of his appointment from them, or render them any separate accounts. Indeed, some months later he actually met Day, who arrived at his office. Day knew that Smith had engaged Mr Sing to act for both of them. Mr Sing briefed him about the current state of the actions. Mr Sing informed him that he had good prospects of success if the matters were to go to trial. In effect, Day said to him that he was happy for him to continue to act on his behalf in accordance with Smith’s directions. That was on the basis that Smith would pay the fees. That meeting was on 11 October 1999. [22] At the first meeting, Smith and Booth made it plain that they wished to contest the plaintiffs’ claims. They explained to Mr Sing why they had a good defence to the claims – in short, that the software program was a successful one, and that the claims against them were unfounded. It should be accepted that at no stage did Smith, or any of the defendants, ask Mr Sing simply to delay the proceedings against them. Their intention was to escape the burden of the judgments, and the intention of Mr Sing was to try to do that. It was never his intention merely to delay -- 8 of 21 -- 9 the matter, knowing that there was no proper basis to resist the plaintiff’s claims. It was always Mr Sing’s belief that there were prospects of success – the strength of those prospects varied from time to time, as matters progressed. The second application to set aside the judgments [23] It was accepted here that a defendant might apply more than once to set aside a judgment given by default – at least where there is something more to say in support of the application. See Carr v. Finance Corporation of Australia Ltd (1980) 147 CLR 246 at 248. See also the unreported decision of Judge Robin Q.C. in Brian Hall & Associates Pty Ltd v. Pykos (District Court of Queensland, plaint 89/90, judgment 15 November 1990, unreported). There, many of the authorities about dealing with default judgments are collected. As he put it:- “No court will tolerate repeated applications which can be seen as an abuse of process. It seems to me that justice requires that a defendant be given a fair opportunity to present his case to have a default judgment set aside, which may require in some cases that a second attempt be allowed.” [24] The second application was made before Miss Cornack S.M. on 7 June 1999. Mr Sing followed his instructions and retained counsel, Mr Perkins. Mr Perkins, a barrister then of six years standing, had some previous connection with the matter, being briefed by Gray. He had drafted defences, but they had not been filed. (Mr Perkins did not appear on the first application.) Mr Sing discussed with him the prospects of success of the application to set aside the default judgments. Mr Perkins expressed the view that the defendants held good prospects of success. Mr Sing held the same view. -- 9 of 21 -- 10 [25] Three new affidavits were prepared by them – affidavits by Messrs Sing, Smith and Booth. [26] Mr Sing’s affidavit set out his understanding about the unfortunate role played by the previous solicitors – namely, their failure to carry out their instructions. Smith’s affidavit also recounted his efforts to have Gray represent the defendants, so that judgments by default should never have been entered. He believed that Gray had accepted their instructions to have the judgment set aside. Smith assumed that he had taken steps to do that. When he discovered that the judgments had not been set aside, in about February or March 1999, he retained Mr Sing. He asserted that he had read the affidavit of Booth, and confirmed that the contents were true and correct. [27] Booth’s affidavit dealt with the merits of the dispute. He had been the general manager of Wizard Systems. His affidavit took about seven pages, and a large number of annexures, to explain that the system had been carefully developed and that no misrepresentations had been made about it. That is, he provided details of the bare assertions which had been made in a few lines in Day’s previous affidavit. [28] The application came on for hearing on 7 June 1999. Mr Perkins appeared for the defendants. There is some dispute as to what was said about the regularity or otherwise of the default judgments. The legal representatives for the plaintiffs recalled that Mr Perkins had expressly disclaimed any reliance on an allegation that the default judgments had been irregularly entered. Mr Sing recalled some discussion about the regularity of the default judgments. He recalls that Mr Perkins did not concede the issue, but informed the court that he did not take that point on -- 10 of 21 -- 11 that application. He does not recall a total concession, that the judgment was regularly entered. (See Mr Sweeney’s advice, set out below). [29] Ms Cornack gave judgment on 30 June 1999. She gave dismissed the applications, and gave reasons for her decision. It should be noted that – a. She found that no new affidavit material whatsoever had been filed on behalf of Day, to “set out the facts found in his defence and to explain his delay in seeking to set aside the judgment”. However, the affidavits of Messrs Sing, Smith and Booth were all said to be filed on his behalf, and they addressed those issues. b. She made reference to Smith’s affidavit. She is unduly critical of his affidavit, which does set out to explain why his former solicitors apparent attention to the matter had misled him. c. The learned Magistrate is critical of the assertion in Booth’s affidavit. She wondered why its references to Day (as the technical analyst who had developed the system) had not caused him to prepare an affidavit on oath giving factual evidence about all of those matters. d. The judgment was regularly obtained, she found. e. The reason for the default in entering an appearance was initially because of inaction by a legal representative. f. Since the date of the first unsuccessful application to set aside the judgment was brought, the failure to take any action to bring a further application to set it aside appears to be not only through the fault of the legal representative, but also because of the personal -- 11 of 21 -- 12 default of each of the defendants. That comment does not appear to be justified by the evidence – the personal default of each defendant was not established. g. There had been undue delay in applying to have the judgment set aside. h. The plaintiff may well suffer prejudice “through the detrimental impact that delay will have on the memory and availability of witnesses” There was no justification for that remark – there was no evidence supporting it. h. She found that she was not satisfied, that “the defendants have displayed a bona fides intention of defending the action”. [30] Overall, it can be seen that the learned Magistrate’s decision was a bold one. Once the surprising role played by the former solicitor had been explained, it should only have been sufficient to raise a prima facie case that the claim should go to trial. There was no mention of the difficulties involved (because of the requirements of s.75B of the Trade Practices Act as explained by the High Court in Yorke v. Lucas (1985) 158 CLR 661 at 670) in showing that Messrs Smith and Day were “knowingly concerned” in any contravention of the Trade Practices Act. There was no mention of the cases which established that care should be taken in excluding an examination of the merits. [31] It is not at all surprising that Mr Perkins had given optimistic advice about the applications’prospects of success. -- 12 of 21 -- 13 The appeal to the District Court. [32] Mr Perkins told Mr Sing that an appeal to the District Court had prospects of success. A Notice of Appeal was filed on 22 July 1999. Among other points, paragraph 2(b) attacked the finding that the judgments had been regularly obtained against each defendant. [33] It should be understood that the judgments against Smith had become the foundation for bankruptcy proceedings against him. After the appeal to the District Court was launched, Smith applied to the Brisbane Registrar of the Federal Court of Australia, to extend the time within which he might comply with a bankruptcy notice. The Registrar dismissed his application, because the Notice of Appeal to the District Court had not been filed before 16 July 1999. The effect of the decision was that the bankruptcy process could proceed. The only certain way Smith had around it, was to succeed in his appeal to the District Court, by having the judgments against him set aside. [34] The prosecution of the appeal to the District Court required the filing of an outline of argument. It was two months overdue, when it was finally provided at the District Court callover on 12 November 1999. It was suggested that the outline had been settled in August 1999, and withheld by Mr Sing, as part of a deliberate attempt to delay proceedings as much as possible. That suggestion should not be accepted. The most likely explanation is that provided by Mr Sing – Smith was short of cash, and there was delay in paying for the costs of the appeal. While such delay was unfortunate, it was not for an improper purpose. -- 13 of 21 -- 14 [35] Mr Sing and counsel had some discussions about the prospects of the success of the appeal. Mr Sweeney was a barrister of considerable experience in commercial litigation. Mr Sing saw him in his chambers. Mr Sing saw him again in chambers, when accompanied by Smith and one or more of the other defendants. Mr Sing recalls that Mr Sweeney thought that there were good prospects of success (see affidavit para 15). However, at least by February 2000, Mr Sweeney thought that the prospects were minimal, except for an argument about the irregularity of the judgment. See also Exhibit 1 – a memo from Mr Sweeney to Mr Sing on 14 February, when he expressed reasonable confidence that Judge Newton (who was to hear the appeal) would decide that the judgment was irregular. (Interestingly, that memo also reveals Mr Sweeney’s understanding, that there had been an admission that the judgment was regular, on the earlier occasion). [36] It seems that the argument about irregularity occurred to Mr Sweeney not long before the appeal was heard. There is no mention of it in his outline of argument. It is mentioned in the Notice of Appeal, but not because Mr Sing and Mr Perkins had discussed it, or had any belief in its strength. (Neither Mr Perkins nor Mr Sweeney gave evidence in these proceedings). Mr Sing says, and his evidence should be accepted, that Mr Smith at all times asserted that he wished to have a trial of the action – that is, at no time did Mr Smith instruct him to delay proceedings. [37] Mr Sweeney then made a tactical decision that had considerable consequences. He decided to argue only the irregularity point, when the appeal came on before Judge Newton. It was submitted that his decision could only have been motivated by a wish to keep the litigation going, and cause delay, as it was explicable on no other basis. That submission should not be accepted. It is very likely that he believed -- 14 of 21 -- 15 that the irregularity point had merit, and that he (surprisingly) believed that the appeal was otherwise unlikely to succeed. [38] Judge Newton heard the appeal on 14 February and gave judgment on 28 February 2000. He dealt with the irregularity argument. He noted that the claim had been for damages under s.82 of the Trade Practices Act. He noted the decision of the High Court in Marks v. GIO Australia Holdings Ltd (1998) 158 ALR 333 at 344 – that is, the assessment of damages requires a comparison to be made between the position in which a plaintiff finds itself, compared to the position in which that party would have been but for the contravening conduct. The central inquiry is what consequence has the contravention of the Act had in the party in question. That requires a comparison between the position in fact of the party who alleges loss and the position that would have obtained had there been no contravention. [39] He then said:- “In my opinion, nothing said by their Honours in the joint judgment is authoritative for the proposition that any claim for damages under s.82 must be a claim only for unliquidated damages. I cannot see why such a claim cannot include a component in respect of liquidated damages recoverable as a specific specified sum.” It should be remembered that para.32 of the plaint alleges that by relying on the representations, the respondent suffered loss and damage because: (a) he has been deprived of the purchase price of the program of the program of $6,950.000 … . It is only in respect of (a) the default judgment was entered. It was, in my view, open to the Deputy Registrar to enter judgment for the amount of the purchase price under the provisions of r.157 of the Magistrates Court Rules 1960. He would not have been entitled to do so had the plaint not included a liquidated demand as part of the relief claimed against the appellant… .” [40] Therefore, the appeal was dismissed. -- 15 of 21 -- 16 [41] Here, there were careful submissions about the nature of the claims made in this plaint – was the claim for $6,950.00 liquidated or unliquidated? As to the nature of such claims for damages, the recent discussion of them in the Queensland Court of Appeal was referred to – Manwelland Pty Ltd v. Dames & Moore Pty Ltd (QCA 336, 20 September 2001). That is, certain comparisons and assessments have to be made to decide the appropriate amount of damages, and that can be a difficult exercise (as that litigation revealed). [42] Secondly, the cases show that such claims are usually in the nature of unliquidated damages, even though specific amounts may be claimed. See in particular, Cornelius v. Barewa Oil & Mining N.L. (1982) 64 FLR 287 and CCA Systems Pty Ltd v. Communications & Peripherals (Australia) Pty Ltd 15 ACLR 720. That is, a claim for damages under the Fair Trading Act is a demand in the nature of unliquidated damages – even though a specified sum may be claimed. That is because it is only after the court’s consideration of the claim is complete, that the actual amount of damages will be fixed. Judge Newton referred to some older authorities to the same effect – Spain v. Ian Steam Chip Co. of N.Z. Ltd (1923) 32 CLR 138 – 142 and Dalgety Futures v. Poretsky (1982) NSWLR 646 at 649, accepting the statement of principle in Odgers 5th Ed. at page 41 – “whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or otherwise positive data, it is liquidated.” As the above authorities emphasise, it is not the expression of the demand which is critical, but the nature of the demand. [43] In my opinion, Judge Newton’s decision was correct, but for another reason. The claim for the refund was really a restitutionary claim, though finally expressed in -- 16 of 21 -- 17 the pleading as a claim for damages for breach of contract. Alternatively, the promise of a refund in the event of dissatisfaction can be seen as an agreement to repay the purchase price as agreed (liquidated) damages, to avoid the inconvenience of a dispute about the consumer’s loss. [44] However, other minds might see the matter differently. Certainly, the pleader expressed it as a claim for damages, which would ordinarily be an unliquidated claim. It is not surprising that Mr Sweeney was persuaded that it was a meritorious argument. [45] Mr Sweeney advised Mr Sing that the decision was wrong and that an appeal should be made to the Court of Appeal. He orally advised that the prospects of success were good. Mr Sing discussed that advice with Smith, and he gave instructions to proceed to appeal. [46] The appeal came on for hearing on 29 May 2000. Mr Sweeney’s argument received a rough reception. It was observed that, in any event, the judgments would have been for damages to be assessed. Mr Justice Pincus thought that the new rules for procedure meant that some of the strict rules about the entry of judgment might no longer apply. That is, one should not be worried too much about technicalities, in trying to get to the justice of a case. There was a suggestion by Justice White that there might be an abuse of process involved in the second application to overturn the default judgment. Finally, in the concluding remarks, and in his judgment, (with which the others agreed) Mr Justice Pincus expressed impatience with the fact that the merits had not been dealt with in the District Court:- “Mr Sweeney has argued this application ably but faces a serious difficulty. That is that the order which he seeks to set aside is not an -- 17 of 21 -- 18 order disposing of the matter in the District Court but merely a preliminary point. His only reason for attacking that, he says, is that if the preliminary decision is not appealed against then he may be unable to raise the matter late. That is plainly not so. Another consideration which goes against him of course, is the fact that this proceeding relates to a second application to set aside a default judgment and the whole case is getting pretty old. But my principal reason for thinking, as I do, that we should not entertain the matter at this stage is that the District Court has not finished dealing with it. I therefore refuse the application with costs.” [47] With hindsight, it is difficult to understand the tactics employed in the District Court and the Court of Appeal. However, there is no good reason to conclude that the two appeals were for an improper purpose. In particular, it might reasonably have been predicted that at least some judges would have agreed with Mr Sweeney’s submissions. Going to the Court of Appeal was a risky exercise, but not an improper one. Applications for a stay [48] In mid-December 1999, while the appeal was awaiting a hearing by the District Court, the defendants filed applications in the Magistrates Court, asking for a stay of execution of the judgments against them. [49] The applications were dismissed on 20 January 2000. Once again, Ms Cornack S.M. dealt with them. She knew that the appeals were due to be heard on 14 February 2000. Otherwise, the reasons are largely a shorter version of those which she gave in dismissing the applications to set aside the judgments. She concluded by saying:- “I find that the material relied upon fails to satisfy me that there is any good and sufficient reason to order any stay of execution of the judgment given the history of he litigation. The application is refused.” -- 18 of 21 -- 19 [50] There seems to have been no mention of a recent decision of the Court of Appeal, dealing with applications to stays of execution. See Croney v.Nand (1999) 2 Qd.R 342. As the Court observed, on its face the discretion to grant a stay is unfettered – see Alexander v. Cambridge Credit/Corporation Limited (1985) 2 NSWLR 685. There should be a weighing of the competing interests of each side. Ordinarily, the prospects of success of the appeal is not a matter which the court considering a stay application should generally speculate about. [51] Mr Sing had discussed the prospects of the stay application with another barrister, Mr Hackett. He also had experience in commercial matters. He told Mr Sing that the application had some prospects of success. That advice also would have been unsurprising – they were default judgments, an appeal to the District Court was to be heard in less than a month, and the balance of convenience should have been taken into account. The underlying question of importance was the pending bankruptcy proceedings against Smith. [52] The applications for a stay had to be seen in the context of the pending appeal. Their purpose was to preserve the position of the defendants, especially Smith’s position in the meantime. That was not an improper purpose, as the appeal itself was not for an improper purpose. Acting without instructions [53] It is true that Mr Sing launched proceedings on behalf of Tunbridge and Mifsud, when he had no authority to do so. That is, he included them as parties to the application of Mrs Dianne Smith to set aside judgments obtained in Magistrates Courts plaints 8311/1997 and 799/1997. Then, he included them as applicants in -- 19 of 21 -- 20 the stay applications in the same files. It seems likely that his error was caused by the carelessness of his clerk, who had searched the files. In any case, there is no evidence to suggest that their presence in the applications made any difference to the costs. The same material was filed on each side in any case. Mr Sing’s mistake has been of no practical consequence to the plaintiffs in any case. Their costs have not been increased. Conclusions [54] On all the evidence here, including some correspondence from the plaintiffs’ solicitors, it is possible to see why they came to believe that Mr Sing had acted improperly. He had been too casual in accepting the verbal instructions from Smith and then not establishing formal lines of communication with his individual clients. That led to the suspicion that he was acting without authority. That was reinforced by the inclusion of Tunbridge and Mifsud, each on two occasions. [55] It also emerged during the oral evidence here that Smith’s conduct during his bankruptcy proceedings had given the plaintiffs’ solicitors a poor opinion of his credibility. No doubt they believed that he wished to take all possible steps to delay the inevitable. However, even if Smith behaved badly on other occasions, that is no good reason to disbelieve his evidence here – that he is an angry, bitter and disappointed man, who still believes that he was entitled to his day in court, and that the outcome would have been different if he had achieved it. [56] The fortunes of litigation have to be taken into account. Some litigants, and some litigation, is weighed down by one misfortune after another. That was this case. The defendants solicitor apparently let them down badly. The same Magistrate -- 20 of 21 -- 21 made two surprising decisions, in not setting aside the default judgments. Counsel then made an unusual tactical decision during the District Court appeal. In any case, the decision in that appeal could have gone either way. By the time the matter reached the Court of Appeal, for the reasons seen in the transcript there, the defendants position was dealt with unsympathetically – partly because of the impact of the recently introduced Uniform Civil Procedure Rules. . [57] On examination, it can be seen that the things which may have seemed so suspicious to the mind of the plaintiffs or their solicitors, have been shown to be more a series of misfortunes than any mischievous and concerted attempt to abuse the legal process. Mr Sing was doing his duty, even if the outcome was not a happy one, either for the plaintiffs or the defendants, his own clients [58] The applications must be dismissed. -- 21 of 21 --