Bingham v Bevan

[2023] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation:

Bingham v Bevan [2023] NSWSC 998

Hearing dates:

21 August 2023

Date of orders:

21 August 2023

Decision date:

21 August 2023

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) The hearing date of 31 August 2023 is vacated.

(2) The matter is adjourned to 3 October 2023 before the Registrar.

(3) The defendant's motion is otherwise dismissed.

(4) Costs of the motion are costs in the cause.

(5) The parties have liberty to apply on two days notice.

Catchwords:

CIVIL PROCEDURE – notice of motion - application by defendant to stay proceedings pending outcome of High Court Special Leave Application – hearing vacated and proceedings adjourned – motion otherwise dismissed

Legislation Cited:

Civil Procedure Act 2005

Legal Profession Uniform Law 2014

Cases Cited:

123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89

Bevan v Bingham [2022] NSWSC 863

Bingham v Bevan [2023] NSWCA 186

Bingham v Bevan [2023] NSWCA 86

Bingham v Bevan [2023] NSWSC 123

City of Sydney Council v Satara [2007] NSWCA

Category:

Procedural rulings

Parties:

John Bingham (plaintiff)
Christopher John Bevan (defendant)

Representation:

Counsel:
D Robinson SC and M Hazan (plaintiff)
I Sethi (defendant)

Solicitors:
Bicknell & Monteith (plaintiff)
Breene and Breene Solicitors (defendant)

File Number(s):

2023/47815

Publication restriction:

Nil

JUDGMENT EX TEMPORE (REVISED)

1. Before me is a notice of motion filed by the defendant seeking orders that the proceedings be stayed pursuant to s 67 of the Civil Procedure Act 2005 (CPA) until the final determination of other proceedings in the High Court of Australia, that the date for the final hearing of the Statement of Claim in these proceedings listed on 31 August 2023 be vacated, and that the parties have liberty to apply to the Registrar to relist the proceedings for directions after the final determination of the High Court proceedings.

2. On 13 February 2023, Garling J granted an interim injunction to the plaintiff (the solicitor), restraining the defendant (the barrister) from registering two costs certificates as judgments of any court and restraining him from taking any step to enforce any claim for payment pursuant to those certificates: see Bingham v Bevan [2023] NSWSC 123. Those injunctions remain in place. Justice Garling ordered the matter to continue on pleadings. On 17 February 2023, the plaintiff filed a Statement of Claim. A defence was filed on 16 March 2023. The salient facts are set out in the judgment of his Honour of 14 February 2023, and concern the construction of a costs agreement pursuant to the Legal Profession Uniform Law (LPUL).

3. On 5 May 2023, the Court of Appeal handed down its decision in Bingham v Bevan [2023] NSWCA 86. In a unanimous judgment on appeal from Walton J (Bevan v Bingham [2022] NSWSC 863), the court reversed his Honour and found for the solicitor. That case concerned the construction of a costs agreement materially identical to that in this case.

4. The barrister filed an Application for Special Leave in the High Court (the Application) on 30 May 2023. A Response was filed on 22 June 2023 and the applicant's Reply was filed on 28 June 2023. It is likely that the Application will soon be determined. The Application raises a question of general importance in Australia, taking into account that the LPUL applies to the majority of legal practitioners in this country. I say no more than that about the prospects of the Application, although I note the comments of Griffiths AJA in Bingham v Bevan [2023] NSWCA 186, which concerned a stay application in proceedings from the Court of Appeal's decision of 5 May 2023. At para [36] of that judgment, his Honour was not persuaded that the barrister had substantial prospects of persuading the High Court that he should be granted Special Leave to Appeal on either of the two primary grounds advanced. His Honour dismissed the notice of motion seeking the stay, applying the principles concerning a grant of a stay as summarised by Kirk JA in 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89.

5. The barrister says that the determination in these proceedings will largely depend upon the findings of the Court of Appeal, and he points to the solicitor's reliance on that case in their submissions in this Court in the current proceedings. The solicitor says that different questions will arise. As best as I can determine from the limited material before me, it seems to me that the Court of Appeal judgment will assume some prominence in the instant case. Ms Sethi, who appeared on behalf of the barrister, urged me to stay these proceedings for that very reason pending the determination of the High Court Special Leave proceedings and perhaps an appeal proper.

6. I observe that the plaintiff in this case has the continuing protection of the injunction granted by Garling J. Mr Robinson SC, who appeared for the plaintiff, pointed to no particular prejudice other than the loss of the hearing date. He also referred me to Court of Appeal authority, City of Sydney Council v Satara [2007] NSWCA, which overturned a decision of a judge to vacate a three-week hearing pending the outcome of an Application for Special Leave. Mason P, with whom Beazley and Tobias JJA agreed, said that any such application will turn on its own facts. Here, the situation is materially different, as the solicitor has the benefit of the relief he seeks in his Statement of Claim, albeit on an interim basis. I observe that Mr Robinson did not disagree that if the defendant is unsuccessful in his Application for Special Leave, the present proceedings may be considerably shortened. In my view, an adjournment, on balance, will likely further the overriding purpose in s 56 of the CPA. In my opinion, the dictates of justice militate in favour of vacating the hearing date.

7. I am not prepared to grant a stay on any terms when it appears that the application will shortly be heard. I propose to exercise the power in s 66 of the CPA to adjourn the proceedings, because I feel confident that the Court can accommodate a one-day hearing this year in the event the Application for Special Leave is refused. In my opinion it is appropriate to vacate the hearing date of 31 August 2023 and list the matter for directions in six weeks time, when information is likely to be known about the outcome of the Application for Special Leave.

8. I make the following orders:

1. The hearing date of 31 August 2023 is vacated.

2. The matter is adjourned to 3 October 2023 before the Registrar.

3. The defendant's motion is otherwise dismissed.

4. Costs of the motion are costs in the cause.

5. The parties have liberty to apply on two days notice.

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