and Jo-Anne Finch v Arnold Thomas and Becker Pty Ltd
[2015] VSCA 86
•6 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2015 0034 | |
| JO-ANNE FINCH | Applicant |
| v | |
| ARNOLD THOMAS & BECKER PTY LTD | Respondent |
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JUDGES: | BEACH JA and DIXON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 May 2015 | |
DATE OF JUDGMENT: | 6 May 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 86 | |
JUDGMENT APPEALED FROM: | Arnold Thomas & Becker Pty Ltd v Finch (Unreported, County Court of Victoria, Judge Macnamara, 18, 19 March 2015) | |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Application for leave to appeal in respect of orders made in interlocutory applications concerning matters of practice and procedure – Whether appeal has real prospect of success – No real prospect of success – Application for leave to appeal refused – Supreme Court Act 1986, ss 14A and 14C.
LEGAL PRACTITIONERS - Whether conflict of interest - Costs - Application to discipline legal practitioners - Application to cap costs - Application to enjoin legal practitioners from acting in the proceeding - Applications refused at first instance - No error in refusing applications - Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr D C Harrison | Wisewould Mahony |
BEACH JA
DIXON AJA:
Introduction and background
The respondent, Arnold Thomas & Becker Pty Ltd is an incorporated legal practice. The applicant, Jo-Anne Finch, is a former client of the respondent. Up until 4 November 2009, the respondent acted for the applicant in a proceeding at VCAT. The applicant and the respondent parted ways on 4 November 2009 in circumstances which are currently a matter of dispute between the parties.
On 29 June 2010, the applicant’s VCAT proceeding was dismissed.[1] On 5 October 2010, this Court dismissed the applicant’s application for leave to appeal against VCAT’s orders dismissing her proceeding.[2] Subsequently, the High Court dismissed the applicant’s application for special leave to appeal against the orders of the Court of Appeal.[3]
[1]Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802.
[2]Finch v The Heat Group Pty Ltd [2010] VSCA 256.
[3]Finch v The Heat Group Pty Ltd [2011] HCASL 117.
In March 2011, more than four years ago, the respondent commenced the present proceeding against the applicant, seeking to recover the sum of $72,049.97 in respect of legal fees and disbursements in relation to the VCAT proceeding. The applicant responded by, in addition to filing a defence, filing a counterclaim claiming damages from the respondent in an amount ‘in excess of $403,480’. Some of the history of the present proceeding as it unfolded between March 2011 and March 2014 is set out in this Court’s decision of Finch v Arnold Thomas & Becker Pty Ltd.[4]
[4][2014] VSCA 45.
On 18 March 2015, the present proceeding came on for trial in the County Court before Judge Macnamara. As the judge noted, this was not the first trial date that had been fixed. From an examination of the file, the judge thought that it might have been the fifth date upon which the proceeding had been fixed for trial.[5]
[5]An affidavit sworn in this court asserts that there have in fact been six dates upon which the proceeding has been fixed for hearing (16 April 2012, 16 July 2012, 3 December 2012, 19 February 2014, 15 October 2014 and 18 March 2015).
On the morning the matter was fixed for trial (18 March 2015), the applicant, pursuant to a summons filed 17 March 2015, made a series of applications in relation to the proceeding. These included applications against lawyers who had previously acted for her in the present proceeding (MLC Lawyers and Mr Dean of that firm), the law firm presently acting for the respondent in defence of the counterclaim (Wisewould Mahony) and a member of counsel briefed by Wisewould Mahony in the present proceeding (Mr Daniel Harrison).
First, so far as MLC Lawyers and Mr Dean are concerned, the applicant sought an order restoring MLC Lawyers to the record as her solicitors, an order that Mr Dean be disciplined, an order that MLC Lawyers pay an order for costs thrown away made on an earlier occasion by Judge Kennedy, and an order requiring MLC Lawyers to indemnify her in respect of future costs. As part of her applications against Mr Dean, the applicant sought an order that Mr Dean ‘assist the Court with the upcoming trial pursuant to ss 47, 48 and/or 49 of the Civil Procedure Act 2010’.
Secondly, so far as the respondent and its solicitors, Wisewould Mahony, are concerned, the applicant sought an order restraining Wisewould Mahony from continuing to act for the respondent, an order capping the respondent’s costs and an order that Wisewould Mahony be disciplined.
Thirdly, so far as counsel briefed by Wisewould Mahony (Mr Harrison) was concerned, the applicant sought an order that he, too, be disciplined and that he, too, be restrained from acting as counsel for the respondent.
The judge disposed of the various applications made by the applicant in four separate rulings given on 18 March 2015. His Honour subsequently made 17 orders, including an order vacating the trial date, yet again, and an order refixing the trial to commence before him on 18 May 2015 on an estimate of 10 days.
The applicant seeks leave to appeal against nine of the 17 orders made by the judge. The orders in respect of which the applicant seeks leave to appeal are as follows:
1.Application to restore MLC Lawyers to the record as the solicitors for the defendant is dismissed.
3.Application to subject MLC Lawyers to liability for costs thrown away orders made by Judge Kennedy is dismissed.
4.Application to require MLC Lawyers to indemnify defendant for future costs is dismissed.
5.Application to have Wisewould Mahony restrained from acting for the plaintiff dismissed.
6.Application for costs capping order is dismissed.
7.Application to have Wisewould Mahony be disciplined is dismissed.
8.Application to have Mr Daniel Harrison, counsel for the plaintiff, be disciplined is dismissed.
9.Application to have Mr Daniel Harrison restrained from acting as counsel for the plaintiff is dismissed.
17.The plaintiff’s costs thrown away by reason of the adjournment are reserved.
The applicant requires an extension of time in relation to her application for leave to appeal because the applicant was one day out of time. It is not necessary for us to go into the detail of the applicant’s explanation for this very short period of delay. It is sufficient for us to say that, in all the circumstances, the applicant should have the extension of time she seeks.
This is the hearing of the applicant’s application for leave to appeal and, if leave is granted, the hearing of the appeal.[6] In addition to her application for leave to appeal, the applicant has filed an application seeking a stay of Judge Macnamara’s
orders. As the Court proposes to deal with the application for leave to appeal and any appeal today, it will not be necessary to give any further consideration to the stay application. While the applicant has made clear her preference for her application for leave to appeal to be heard at some later date with a stay being granted today, adopting such a course would inevitably imperil the current (seventh) trial date. Having regard to the history of this matter, we are of the view that the interests of justice require this Court to hear and determine the applicant’s application for leave to appeal today. Accordingly, we rejected an application made this morning by the applicant to adjourn her application for leave to appeal.[7]
[6]The President of the Court of Appeal has determined that this Court, constituted by two judges, may exercise all the jurisdiction and powers of the Court of Appeal: see s 11(1A) of the Supreme Court Act 1986.
[7]That said, we should say for the sake of completeness that whether the trial proceeds on 18 May 2015 will be a matter for the County Court judge to whom the proceeding is allocated, not this Court.
The applicant’s proposed grounds of appeal are as follows:
1. The trial judge erred in law by not providing:
(a) full and proper reasons for the orders given and therefore they are inadequate; and
(b) the reasons in a timely manner.
2. The trial judge erred by failing to give weight to:
(a) the issues established by the applicant’s evidence via affidavit sworn on 17 March 2015 and outline of submissions dated 18 March 2015;
(b) the verification the interested parties had colluded with each other at the commencement of the hearing;
(c) no defence had been tendered by all three (3) interested parties, either via affidavit or sworn evidence on the stand, in breach of Court rules; and
(d) the applicant’s objection to the consideration of hearsay; and therefore
(e) in breach of rules 40.02(b) and 40.03 of the County Court Civil Procedure Rules 2008.
3. The trial judge erred by permitting:
(a) a third party to give oral submissions from the bench on behalf of the first interested party in the summons, whilst the first interested party was in attendance; and
(b) no authority for the third party to put forward the submissions on behalf of the first interested party had been provided or consented to; and
(c) the third interested party in the summons to give only oral submissions from the bench on behalf of the second interested party; and further
(d) the third interested party in the summons to give only oral submissions on his own behalf; and
(e) whilst the trial judge said he would not consider the mentions from the bench, then did so by dismissing the applicant’s orders sought, and in doing so relying upon the mentions from the bench; and therefore
(f) in breach of rules 40.02(b) and 40.03 of the County Court Civil Procedure Rules 2008.
4. The trial judge erred in law by the denial of procedural fairness by disallowing the applicant’s request to have the interested parties cross examined, and failing to give any, or proper, reasons as an explanation why that was.
5. The trial judge fell into jurisdictional error and therefore erred in law by making findings that:
(a) even though a loss will be suffered by the applicant in relation to bringing a new legal advisor up to speed, made findings however then failed to make a conclusive order;
(b) the first interested party cannot be held responsible for a wasted costs order and in circumstances whereby the order was specific to only the conduct of the first interested party and such hearing has been stayed sine die; and
(c) the second and third interested parties cannot be restrained from acting in circumstances whereby it was proven they will be witnesses in a related proceeding currently adjourned by the Court, against the first interested party where their conduct is questionable.
6. The trial judge erred in law by failing to apply and give effect to the Civil Procedure Act 2010 (Vic) pursuant to section 8, against all the interested parties and referring to the breaches as merely ‘sledging’ and should be taken by the applicant as a ‘bump like in a football match’ and a lack of ability to quantify costs (See yara).
7. The trial judge erred in law by reserving costs for an injunction application that was discrete and not related to the substantive claim, or ordinary step in a proceeding and therefore falling into jurisdictional error.
Applications concerning MLC Lawyers and Mr Dean: Orders 1, 3 and 4
The applicant makes a number of complaints in respect of the way the judge dealt with her applications. Some of her complaints appear to relate to all of the orders made by the judge about which complaint is now made, and some of her complaints appear to only relate to a particular order or orders.
One of the complaints made by the applicant that relates to her applications made against MLC Lawyers, Wisewould Mahony and Mr Harrison is that the judge did not permit her to cross-examine these ‘interested parties’. Having examined the whole of the transcript, the material put before the judge and the judge’s reasons, we see no error in the way the judge dealt with this matter. Specifically, there was no basis for the judge to permit some freestanding cross-examination of individuals who had not sworn any affidavits that were relied upon in, or relevant to, the resolution of the various applications made by the applicant.
Another of the applicant’s complaints before this Court is encapsulated in her proposed ground 1 — a complaint that the judge did not provide full and proper reasons in a timely manner. We reject this complaint. It is without substance. Far from providing reasons which were in any way deficient, the judge, in the course of the hearing provided appropriately detailed reasons for each of the orders he made. The judge’s path of reasoning is well-disclosed in each of the rulings he made. This Court is in no doubt about the basis upon which the judge made his orders. There can be no doubt that the applicant knows the reasons for the making of each of the orders the judge in fact made.
Another complaint made by the applicant concerns an alleged failure by the judge to give effect to the provisions of the Civil Procedure Act 2010, and in particular ss 8, 29 and 47 of that Act.[8] This complaint is made in respect of the judge’s treatment of each of the applications made in respect of ‘the interested parties’ (MLC Lawyers, Wisewould Mahony and Mr Harrison). However, it might immediately be noted that, merely because the judge disposed of the applicant’s applications without making some order against any of the interested parties or the respondent, does not mean that the matter cannot be revisited once the proceeding has been heard and determined. It is at that time that the total conduct of all the parties can, and probably should, be evaluated (if necessary) by reference to the obligations referred to in the Civil Procedure Act.
[8]Other sections of the Civil Procedure Act 2010 were also relied upon by the applicant, including ss 13, 14, 19, 24, 48, 49, 52 and 65C of that Act. We cannot but reflect that there is a certain irony in the applicant’s reliance upon the provisions of the Civil Procedure Act, having regard to the way in which the applicant has conducted this protracted piece of litigation, bearing in mind that her counterclaim is the substantive claim in the proceeding in terms of time, cost and value. That said, any failure by the applicant to conduct the proceeding in a timely and cost-efficient manner, cannot relieve the respondent or any other relevant party from compliance with the provisions of the Act and the overarching obligations referred to in the Act.
Additionally, in a case with such an unfortunately prolonged history as this one, there is, in our view, much to be said for not further delaying and protracting matters by the conducting of an inquiry, prior to trial, as to whether some individual party, or parties, may or may not have breached a provision of the Civil Procedure Act.
Another complaint made by the applicant is that the judge erred by permitting breaches of rr 40.02(b) and 40.03 of the County Court Civil Procedure Rules 2008. In support of this contention, the applicant asserts that the judge, in giving his rulings, relied upon hearsay evidence. The short answer to this complaint is that the judge did not rely on any hearsay evidence in the disposition of the applicant’s applications. Indeed, as the applicant notes (and also makes complaint about), neither the respondent nor any of the ‘interested parties’ filed any affidavit in defence of the applicant’s applications.[9]
[9]In the circumstances it is not necessary for us to say anything about the fact that at least some of the applicant’s applications were, in any event, interlocutory.
The judge rejected the application to compel MLC Lawyers to come back onto the record and act for the applicant. The judge did so because, on the material, it was plain that the relationship between the applicant and her former solicitors had broken down. Indeed, so much is clear from the fact that at the same time the applicant was seeking an order requiring MLC Lawyers to act for her, she was also seeking orders adverse to their interests. For the reasons given by the judge, the judge was plainly correct to reject this application.
In rejecting the applicant’s application that MLC Lawyers pay the costs thrown away previously ordered by Judge Kennedy, the judge said it would be competent for the applicant to bring separate proceedings against MLC Lawyers in respect of such costs. Further, the judge said that he thought it would be better if those matters were dealt with in separate proceedings rather than on some summary basis in the course of the present proceeding. With respect, we agree. Although it is common when an application under r 63.23 is made against a solicitor on the record that it is made at the conclusion of an application or a proceeding, here MLC Lawyers and Mr Dean have ceased to be participants in the proceeding. The evidence on which such an application would now proceed would need to be established.[10]
[10]See Flinn v Flinn [1999] 3 VR 712, 755 [139].
Further, and in any event, the judge concluded that he was unpersuaded that it was appropriate in the circumstances for him to revisit the determination that Judge Kennedy had already made that the earlier costs orders should be against the applicant alone and not against her former legal practitioners. Again, with respect, we agree. More specifically, the applicant has not persuaded us that there was any error in the judge’s approach or the resolution of these particular applications.
As to the applicant’s application that MLC Lawyers be ordered to indemnify her for the future costs of the proceeding, the judge said:
The application for the entire costs of the trial seems to be an overreach. As a matter of logic it would seem that if I accept that MLC have pulled out wrongly, the only loss which has been suffered is the cost of bringing a new legal adviser up to speed. The costs of running a trial are in no way the consequence of any breach of retainer, if such a breach of retainer is found to have occurred. Putting that to one side, however, again it seems to me that those costs between her and MLC and Mr Dean are better dealt with in separate proceedings rather than being dealt with on some summary basis in the course of this proceeding.
Again, with respect, we agree. The applicant has not persuaded us of any arguable error in the judge’s approach or conclusion.
The applications against Wisewould Mahony: Orders 5, 6 and 7
To the extent that the applicant makes complaint about the judge’s reasons and not being permitted to cross-examine ‘interested parties’ in relation to orders 5, 6 and 7, for the reasons already given, such complaints are without merit. Similarly, with respect to these orders, we repeat what we have already said about rules 40.02(b) and 40.03, and the provisions of the Civil Procedure Act.
In its claim to recover legal fees and disbursements from the applicant, the respondent acts for itself. Wisewould Mahony acts for the respondent in defence of the counterclaim. As the judge noted, one might infer that Wisewould Mahony acts for the respondent on the instructions of an insurer.
In seeking to cap the respondent’s costs of the proceeding, the applicant submitted that it was unfair that she be exposed to the potential for orders for costs to be made in favour of two law firms. While the judge was not persuaded that he should make any order capping costs, he said:
As to the issue of the multiplicity of law firms involved I would assume that the Costs Court if required to assess a claim for costs in favour of the plaintiff would not sanction a doubling up of costs based on having more than one law firm acting. For the avoidance of any doubt, I believe any trial judge in this proceeding, if he or she did make an order against Ms Finch to pay the plaintiff’s costs, would direct that those costs should not exceed the amount of costs that the plaintiff would have incurred in being represented by a single law firm.
Again, with respect, we agree. In circumstances where one cannot envisage the applicant being ordered to pay more in costs than she might otherwise be ordered to pay if there were only one firm acting for the respondent, it cannot be said that there is any arguable error in the judge’s analysis or conclusions.
As part of her complaints about the potential for excessive costs orders, and as part of her argument in support of her application to have Wisewould Mahony enjoined from continuing to act in the proceeding, the applicant asserted that excessive costs were being incurred by the way in which Wisewould Mahony was defending the applicant’s counterclaim. The judge did not see any or any sufficient substance in the matters complained about by the applicant to either cap costs or restrain Wisewould Mahony from acting. While it may be repetitive to say so, again, we see no error in the judge’s approach or conclusions.
Similarly, we are unable to see any basis for impeaching the judge’s refusal to ‘discipline’ Wisewould Mahony. In any event, we are unable to see any injustice in leaving the judge’s order unreversed, in circumstances where the judge said:
It remains open to Ms Finch of course to take the matters [about which she makes complaint] directly to the Commissioner[11] and nothing that I have said in this ruling, which is necessarily given on the run and without the advantage of the more leisurely investigation that the Commissioner could give her concerns, would prejudice consideration of the matters that she may put before the Commissioner.
[11]Legal Services Commissioner.
Finally, in respect of orders 5, 6 and 7, the applicant submitted that Wisewould Mahony should be restrained from continuing to act in the present proceeding because they had previously acted in a bankruptcy proceeding for a creditor of her former solicitor, Mr Dean. However, as the judge pointed out, whatever might have been the strengths of this application when Mr Dean was acting for the applicant, Mr Dean is no longer the applicant’s solicitor.
That said, the applicant asserted to the judge that she was currently determined to bring proceedings against Mr Dean. One of the allegations which she says she will make in that proceeding is that Mr Dean ‘engaged in an impropriety in continuing to act in circumstances where a firm on the other side of the record (Wisewould Mahony) was acting for one of his creditors in bankruptcy proceedings’.
The applicant submitted that Wisewould Mahony might be required to be ‘witnesses in this proceeding on other than formal or non-contentious matters’. However, as the judge noted, any such proceeding against Mr Dean is separate from the present proceeding. Such principles as might compel a lawyer to cease acting in a proceeding, where he or she might be a witness in that proceeding, have no application to the present matter.
We see no error in the judge’s analysis or conclusions with respect to orders 5, 6 and 7. The applicant’s proposed grounds of appeal in relation to those orders are without merit and must be rejected.
Applications against Mr Harrison: Orders 8 and 9
The applications to discipline Mr Harrison and restrain him from acting as counsel for the respondent were made on the basis of allegations that he had misled the Court and engaged in conduct of a demeaning nature so far as the applicant was concerned. The judge agreed that some of Mr Harrison’s conduct ‘has left something to be desired’. However, the judge concluded that disciplining Mr Harrison or restraining him from acting was not justified by these matters.
As to the allegation of misleading the Court, the judge said:
To say that ‘counsel misleads the court’, is a very serious allegation, indeed. Certainly I think that Mr Harrison did somewhat less than justice to the width of the subpoenas that we are talking about earlier. But plainly one of the roles of an advocate is, if you will, to put the best face on his client’s case and perhaps the worst face on his opponent’s case. There may be debate as to just how far, is too far. How far is it just a matter of putting the best or the worst face on things and when does it become outright distortion?
In the course of a lengthy and vigorous debate there may be occasions when, perhaps, the line is overstepped, and it is necessary, perhaps, for the other side to pull matters up even for there to be some warning from the bench. I am not persuaded that any of the things that I have heard of go beyond that and, serious as anything that represents less than total candour with the bench is, again, I do not believe anything that has been alleged is so serious as to justify the extreme steps advocated. Therefore, I do not make orders either to inflict some penalty upon Mr Harrison or to remove him from the record.
Plainly, if Mr Harrison’s conduct justified censure, then this is a matter that can be taken up in separate disciplinary proceedings against him. The questions facing the judge concerning the applications about Mr Harrison were discretionary matters of practice and procedure. We are unable to see any basis for contending that his Honour erred in the making of the discretionary judgments he in fact made.[12] For the reasons just given (and also for the reasons we have given in relation to the orders made in the applications concerning the other interested parties), there is no substance in the applicant’s complaints concerning the judge’s disposition of the applications made in respect of Mr Harrison.
[12]Cf Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
We appreciate that Mr Harrison strongly denies any inappropriate conduct, either in court or in his dealings with the applicant. In the light of our conclusions just expressed, it is not necessary to say anything further about that issue. However, and for the avoidance of doubt, we should say that any counsel briefed to appear against an unrepresented litigant in person should take particular care in seeking to ensure that:
(a)all of his or her dealings with the litigant in person are courteous and conducted in the best traditions of the legal profession; and
(b)everything said to the court during the course of the proceeding is as accurate as it can be. There is no place in a proceeding such as the present for counsel to ‘overstep [any] line’.
Costs: Order 17
The judge reserved the respondent’s costs thrown away by reason of the adjournment of the trial from 18 March 2015 to 18 May 2015. The applicant contends that the judge ‘erred in law by reserving costs for an injunction application that was discrete and not related to the substantive claim … and therefore [fell] into jurisdictional error’.[13]
[13]Cf proposed ground 7.
There is no substance in the applicant’s complaint about the judge reserving costs. In fact, when the issue of costs was being debated with the judge, the applicant submitted that the costs ‘need[ed] to be reserved’. Having heard argument, the judge then delivered a ruling in support of an order that the applicant pay the respondent’s costs thrown away by reason of the adjournment. However, in delivering this ruling, the judge rejected the respondent’s application to fix the costs in an amount that had been particularised, totalling $16,984. The judge said that he would leave the costs thrown away to be assessed by the Costs Court.
After his ruling, counsel for the respondent said that his client ultimately wanted to seek costs on an indemnity basis rather than a standard basis. Having admitted that he had not made submissions about this issue to the judge, counsel for the respondent then asked for the judge to ‘simply reserve the plaintiff’s costs thrown away by reason of the adjournment’. The judge acceded to this application.
The judge having made the very order the applicant sought with respect to costs, there can be no basis upon which it might now be contended that, in reserving the respondent’s costs, the judge made any relevant error. The applicant’s complaints about the judge reserving the respondent’s costs thrown away by reason of the adjournment are without merit.
Conclusion
We do not doubt for a moment that the applicant genuinely believes in the merits of her many arguments. However, for the reasons just given, we are of the view that the applicant’s appeal has no real prospect of success.[14] The application for leave to appeal must be refused.
[14]See s 14C of the Supreme Court Act 1986. See further, Kennedy v Shire of Campaspe [2015] VSCA 47.
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