Brogue Tableau Pty Ltd v Tottle Partners (a firm)
[2006] WASC 273
BROGUE TABLEAU PTY LTD -v- TOTTLE PARTNERS (a firm) [2006] WASC 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 273 | |
| Case No: | CIV:2231/2006 | 29 NOVEMBER 2006 | |
| Coram: | MASTER SANDERSON | 5/12/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Injunction granted | ||
| B | |||
| PDF Version |
| Parties: | BROGUE TABLEAU PTY LTD (ACN 009 271 970) TOTTLE PARTNERS (a firm) |
Catchwords: | Practice and procedure Application to restrain solicitor acting Turns on own facts |
Legislation: | Nil |
Case References: | Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372 Tottle Christensen v Westgold Resources NL [2003] WASCA 224 Binningup Nominees Pty Ltd as trustee for the Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14 Bowen v Stott [2004] WASC 94 Carroll v Azolia Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998 Clay v Karlson (1997) 17 WAR 493 Frankland River Olive Co Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed) [2004] WASC 88 Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446 Holborow v Macdonald Rudder [2002] WASC 265 Kallinicos v Hunt (2005) 64 NSWLR 561 McKellar v Singh [1999] WASC 145 Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FCt SCt of WA; Library No 970604A; 13 November 1997 Myers v Elman [1940] AC 282 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (A Firm), unreported; SCt of WA; Library No 970491; 19 September 1997 West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72 Williamson v Nilant [2002] WASC 225 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TOTTLE PARTNERS (a firm)
Defendant
Catchwords:
Practice and procedure - Application to restrain solicitor acting - Turns on own facts
Legislation:
Nil
Result:
Injunction granted
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr A Metaxas
Defendant : Mr J A Thomson
Solicitors:
Plaintiff : Arthur Metaxas & Co
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372
Tottle Christensen v Westgold Resources NL [2003] WASCA 224
Case(s) also cited:
Binningup Nominees Pty Ltd as trustee for the Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14
Bowen v Stott [2004] WASC 94
Carroll v Azolia Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998
Clay v Karlson (1997) 17 WAR 493
Frankland River Olive Co Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed) [2004] WASC 88
Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446
Holborow v Macdonald Rudder [2002] WASC 265
Kallinicos v Hunt (2005) 64 NSWLR 561
McKellar v Singh [1999] WASC 145
Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FCt SCt of WA; Library No 970604A; 13 November 1997
Myers v Elman [1940] AC 282
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
(Page 3)
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (A Firm), unreported; SCt of WA; Library No 970491; 19 September 1997
West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72
Williamson v Nilant [2002] WASC 225
(Page 4)
1 MASTER SANDERSON: This is an application by the plaintiff for an order restraining the defendant, a firm of solicitors, for continuing to act for Binningup Nominees Pty Ltd in proceedings which are on foot in this Court. It represents another step in what has been a long running and acrimonious dispute between the plaintiff and Binningup Nominees.
2 As at 6 September 2002 Binningup Nominees was the owner of certain land. It held that land in its capacity as trustee of the Binningup Estate Unit Trust. The beneficial interest in the land was held by the Trust. The plaintiff owned units in the Trust.
3 On 6 September 2002 the plaintiff lodged an absolute caveat over the land. On 3 October 2003 Binningup commenced an action for the removal of the caveat. The defendant acted as Binningup's solicitors in the caveat action. On 12 February 2004 Pullin J ordered that the plaintiff remove the caveat, granted leave to lodge a notice caveat and further ordered that the plaintiff pay Binningup's costs of the action to be taxed. The costs were agreed at $17,000 and were paid on 14 April 2004.
4 On 3 January 2006 Binningup commenced an action in this Court claiming compensation pursuant to s 140 of the Transfer of Land Act 1893 (WA) in respect of the lodgement of the absolute caveat. The defendant acts as solicitor for Binningup in the compensation action. As part of that action Binningup claims costs paid to the defendant of $34,582.15 and counsel fees of $8700. These costs were incurred in the action to remove the caveat. The costs claimed are over and above the $17,000 paid under the compromise of the order for payment of costs in the caveat action.
5 On 4 August 2006 I granted summary judgment in the compensation action with damages to be assessed. In fact, what is to be assessed is compensation because that is what is payable pursuant to s 140. The fact that compensation is claimed in that action rather than damages is a point of some importance in disposing of this present application.
6 Binningup's application for compensation is supported by two affidavits of Mr Barry Waller sworn 1 February 2006 and 8 September 2006. Annexed to these affidavits are various invoices and schedules of fees provided by the defendant to Binningup. These fee notes are for services performed in respect of the caveat action and are copies of invoices from counsel in that action. The schedules of fees recorded time which the defendant says were devoted to various work on dates listed and the costs charged for separate items of work listed.
(Page 5)
7 Before dealing with the plaintiff's argument in detail I should set out the principles of law applicable to an application such as this. The test as to whether the Court will restrain a legal practitioner from acting for a client in its inherent jurisdiction is often expressed in terms of whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting in the interests of the protection of the judicial process and the due administration of justice including the appearance of justice. That statement of principle is confirmed by many cases of which the decision in Tottle Christensen v Westgold Resources NL [2003] WASCA 224 is but one example.
8 Counsel for the defendant went on to make a number of points about this test. In my view, counsel's points were well made and bear repeating. First, it is plain that the test stated is to be applied objectively. It requires the identification of an objective basis for the conclusion that the performance of the duty is imperilled.
9 Secondly, whether the "proper administration of justice" requires a practitioner to cease acting can only be assessed in the context of the various standards of conduct to which courts expect a practitioner will adhere. These standards are practitioners' duties to the Court, because the practitioner is accountable to the Court for breaching those standards. The use of a general expression such as "proper administration of justice" should not obscure the precise duties to which attention must be given.
10 Thirdly, there is no standard which requires a practitioner to act in an entirely impartial manner as between litigants. They are expected to be aligned to the interests of their clients.
11 Fourthly, the apprehension of a bystander is only relevant to objectively assessing whether a particular defined duty to the Court has been breached. The apprehension of a bystander does not define the content of a general duty owed to the Court akin to the duties applicable to judicial officers and persons holding similar positions. For example, the duties of independence and impartiality which attend such positions and which are the source of the apprehended bias principle do not apply to lawyers who represent clients. The proper principle is one framed by reference to the lawyer's duties to the Court and requires objective grounds for concluding that a lawyer may not fulfil the lawyer's duties to the Court.
(Page 6)
12 On behalf of the plaintiff it was submitted that there were three grounds upon which the defendant ought be restrained from acting for Binningup. First it was said that it was likely that partners, solicitors and other employees of the defendant would be called to give evidence. That submission was further expanded in this way. At present, in the compensation action, Binningup was attempting to prove the costs it had incurred by referring to accounts appearing as annexures to Mr Waller's affidavits. Counsel for the plaintiff maintained that it was not possible to understand these accounts and that for them to be proved it would be necessary for Binningup to produce as witnesses before the Court persons from the defendant who could prove those accounts. Although such witnesses had not yet been identified and no affidavits from the defendant had yet been produced counsel suggested this was inevitable or Binningup's action was doomed to failure.
13 The obvious flaw in that argument is that the plaintiff is making what is effectively a pre-emptive strike. Unless and until an affidavit was produced from someone associated with the defendant there was no risk of a member of the defendant being a witness in the proceedings. Counsel for the defendant took the matter somewhat further. It was his submission that what his client was seeking was compensation. It was therefore necessary for Binningup to establish what it had paid; not that what it had paid was reasonable. In other words, counsel submitted there was a difference in assessing compensation as against assessing damages. As it was the former to which Binningup claimed entitlement under s 140 there was no need to produce anyone from the defendant to justify the accounts. Counsel indicated that if solicitors for the plaintiff in the compensation proceedings attempted to cross-examine Mr Weller about the contents of the solicitor's accounts objection would be taken to that line of questioning.
14 It is clearly not appropriate in these proceedings to say anything about what is the proper basis for assessing any entitlement of Binningup in the compensation proceedings. But it seems to me that there is no basis in this case for restraining the defendant on the basis of what might happen in the future. This is an altogether different case from Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372. Counsel for the defendant made it plain that at present there was no intention of Binningup filing any evidence from persons associated with the defendant. Given counsel's stated intention to run the case in a particular way it would be jumping at shadows to restrain the defendant on the basis of the plaintiff's assessment of the proper way to run the action.
(Page 7)
15 Secondly, it was submitted on behalf of the plaintiff that the defendant had an interest in the proceedings. It was said that if the Court were to find that the amount of fees charged was inappropriate that would impact upon the defendant's entitlement to those fees – perhaps requiring a refund of moneys already paid. It was submitted that as the defendant then had an interest in the compensation action, that interest would transcend its interest as the solicitors for Binningup.
16 In my view, there is no substance in that submission. It is not infrequently the case that solicitors have an interest in an aspect of a case which affects their fees. On one view, every solicitor who applies for costs after successfully prosecuting an action has an interest in the costs being awarded. A solicitor who attends a taxation of costs, ostensibly on behalf of his client, has an interest – and a direct interest – in obtaining the maximum amount on taxation. In my view, in proceedings such as this it could not be said that the defendant has such a direct interest in the proceedings as to make it inappropriate for it to continue to act for Binningup.
17 Finally, it was said that in charging Binningup as it has, the ethics of the defendant are called into question. The total fees charged by the defendant in the caveat action were $51,582.15 or three times the amount Binningup accepted for its costs. The plaintiff says that to charge the extra $34,582.15 as it did there must have been a costs agreement. If there was not, then there would be a question as to the defendant's entitlement to have charged those fees. To date no costs agreement has been produced by Binningup in the compensation action so it is arguable that the defendant has overcharged its client whether or not Binningup makes that complaint.
18 For the purposes of this action it can be assumed, without deciding, that it would be open for this plaintiff in the compensation action to argue that, even if what Binningup is entitled to is compensation not damages, the amount of costs claimed was unethical. Even if that argument was mounted and lost it must be open to the plaintiff to mount the argument. That being so, it does seem to me that the ethics of the defendant might be in issue giving it an interest in the proceedings different to its client. In my view, this argument of the plaintiff carries the day.
19 On that basis then I would be prepared to restrain the defendant from continuing to act for Binningup in these proceedings. I will hear the parties as to the precise form of the restrain. As to costs, again I will hear the parties but, in my view, the costs ought be reserved until the
(Page 8)
- compensation proceedings are concluded. At that time, the reasonableness or otherwise of this action can be determined.
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