Brownrigg v Hume Taylor & Co - [2005] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BROWNRIGG v HUME TAYLOR & CO
Judgment of His Honour Judge Boylan
13 October 2005
ADMINISTRATIVE LAW
Minor Civil Review. Claim that Magistrate erred in ordering applicant to pay solicitor's fee for professional work done. No dispute that work done. Solicitor not incompetent. Appeal dismissed.
Magistrates Court Act 1991 Section 38, referred to.

BROWNRIGG v HUME TAYLOR & CO
[2005] SADC 141

This is an application to review a Minor Civil decision. The respondent, Hume Taylor & Co., is a firm of solicitors. It was the plaintiff in the action in the Minor Civil Division of the Magistrates Court. Hume Taylor & Co issued proceedings in the Magistrates Court against the respondent Ms Brownrigg to recover professional fees in the sum of $2,834.56 plus costs.
The Magistrate who heard the matter was satisfied that the amount claimed by Messrs Hume Taylor & Co was owing. Accordingly, his Honour entered judgment for the amount claimed plus the filing fee of $77. Ms Brownrigg has applied to this court for a review of his Honour’s judgment.
In my view, his Honour was plainly correct and his decision should be affirmed.
To understand the original claim of Messrs Hume Taylor and to understand or, to try to understand the defence filed by Ms Brownrigg, it is necessary to set out a brief history of the matter.
For some time Ms Brownrigg lived in a relationship of de facto marriage with a Mr Kelton. Together, they bought a house property. Very soon after they had made the purchase, their relationship broke down. Eventually, Mr Kelton issued proceedings in the Supreme Court for the sale of the property and division of the proceeds. Ms Brownrigg was, of course, the defendant in those proceedings. She instructed Messrs Hume Taylor to act for her. The practitioner whom she instructed was Mr Fragos. Those proceedings resulted in a trial before Justice Perry at which Ms Brownrigg was unrepresented. She was unrepresented because Mr Fragos had declined to act for her soon after the matter first came before a Master in the Supreme Court. There is no dispute that Mr Fragos did act for Ms Brownrigg for some time and expended time and effort in doing so. Without going into the details, Mr Fragos told me that his firm ceased acting in the matter because Ms Brownrigg was quite unreasonable in her instructions. Ms Brownrigg says that Mr Fragos did not follow her instructions and was incompetent. She declined to pay an account rendered by Messrs Hume Taylor. As a result, they issued the proceedings against her which proceedings are the subject of this application.
Ms Brownrigg’s particulars of defence are as follows:
“1.    Mr Fragos’ services were retained to defend myself in Supreme Court action 741 of 2004.
2.    Mr Fragos refused to follow my instructions and sought only to bully me into paying more money to the plaintiff. ie he provided no defence.
3.    There were clear avenues of resolution but Mr Fragos refused to discuss them.
4.    Mr Fragos’ actions were detrimental to myself and he failed to stop the case proceeding to trial. He failed to give due weight to the facts of the matter and acted in direct contravention to them.”
The Magistrate’s judgment was brief. I set it out in full:
“1.     This is a claim for legal professional fees.
2.    Ms Brownrigg does not assert that the work said to have been done was not done, nor does she assert that the time said to have been spent was spent, nor does she assert that the amounts claimed for that work and that time were not appropriate amounts.
3.    What she does say is this: that Mr Fragos’ efforts were worthless because of his unprofessional and incompetent failure to understand the issues and his failure to act upon and to advise her on the basis of a competent and professional understanding.
4.    Based upon what I have heard and read this morning, in my judgment this is not a case in which Mr Fragos’ understanding of the issues brought to him by Ms Brownrigg was polluted by incompetence.
5.    It is sadly a case in which Ms Brownrigg’s understanding of the issues has been polluted by emotion.
6.    I’m satisfied that the amount claimed is owing. There will be a judgment for the amount claimed plus the filing fee of $77.”
I pause here to point out that there is clearly an error in the judgment as it was delivered by the learned Magistrate. That error appears in the third line of the judgment: “… nor does she assert that the time said to have been spent was spent …”. That passage should read “… nor does she assert that the time said to have been spent was not spent …”. Although there was no transcript filed before me the proceedings before the Magistrate were tape recorded. I have listened to that tape recording. It is true that his Honour did not include the word “not” in the passage referred to above. It is plain from the grammar and the sense of the whole sentence that his Honour intended to do so. That there was an error is even plainer when one listens to the whole recording. Fairly early in the proceedings in the Magistrates Court, Ms Brownrigg expressly disavowed any claim that Mr Fragos had neither done the work nor spent the time upon it. She made it quite plain that her complaint was that Mr Fragos was fundamentally incompetent and that, therefore, the work done and the time spent were wasted.
The conduct of Minor Civil actions in the Magistrates Court is set out in Section 38 of the Magistrates Court Act 1991. Subsection 1 of that section requires that the trial of a Minor Civil action take the form of an inquiry by the court into the matters in dispute rather than an adversarial contest between the parties and that the court itself is to elicit by inquiring of the parties and the witnesses, and by examination of evidentiary material produced to the court, the matters in dispute and the facts necessary to decide those issues. The court is not bound by the rules of evidence and must act according to equity, good conscience and the substantial merits to technicalities and legal forms.
In her submissions before me, Ms Brownrigg asserted that Mr Fragos was not entitled to his costs because he did not do the work he claimed to have done. She also submitted that that had always been her position. I reject that submission. It is inconsistent with Ms Brownrigg’s submissions to the learned Magistrate.
The issue at trial was whether or not Mr Fragos was entitled to his fees for work done and time spent in face of Ms Brownrigg’s submission that the work was not competently done.
The learned Special Magistrate heard from both parties on that issue. In particular, he heard that Ms Brownrigg had complained about Mr Fragos’ conduct to the Legal Practitioners’ Conduct Board. His Honour heard that that complaint had been dismissed. His Honour received a letter from the Conduct Board to Mr Fragos dismissing the complaint.
The learned Special Magistrate was entitled to inform himself about that matter in the way that he did. (See Section 38 of the Magistrates Court Act). It was not for the Magistrate to adjudicate upon that issue. Once he was satisfied that Mr Fragos had done the work for which he claimed his fees, that was the end of the matter.
Insofar as Ms Brownrigg complained before me that she was denied natural justice in the Magistrates Court, I reject that submission. What Ms Brownrigg wanted to do before the Magistrate and before me was present oral and written material to describe the Supreme Court proceedings and Mr Fragos’ part in them. She wished to do that to support her submission about his incompetence. The Magistrate was not obliged to receive all of that material; nor was I. Given Ms Brownrigg’s concession that the work was done and time was spent, and given the decision of the Legal Practitioners’ Conduct Board, that material was irrelevant. Pursuant to Section 38(7)(d) of the Magistrates Court Act, I affirm the judgment of the learned Special Magistrate.