Clarke, B.F v Sheehy, P.

[1986] FCA 327

IN THE FEDERAL COURT OF AUSTRALIA	)
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PUEENSLAbJJ3 DISTRICT REGISTRY	1 No. G 61 of 1986

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GENERAL DIVISION 1

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BARRYMORE FRANCIS CLARKE

and MARJORIE CLARKE Appellants

and

PETER SHEEHY Respondent

MINUTES OF ORDER

JUDGES MIlKING ORDER: NORTHROP, NEAVES AND BEAUMONT, JJ.

DATE ORDER MADE:	29 JULY 1986
FRIERE MADE:	BRISBANE

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THE COURT ORDERS THAT:

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1. Appeal allowed in part.

I 2. Vary orders made by Spender J. on 22 May 1986

by setting aside the order granting an

extension of time €or compliance with the

bankruptcy notice.

3 . Appeal otherwise dismissed.

4. Appellants to pay the respondent's costs of

the appeal.

Note:	Settlement and entry of orders is dealt with
in Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	1
) .
QUEENSLAND DISTRICT REGISTRY	) No. G 61 of 1986
)
GENERAL DIVISION	)

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BEXWEEN:

BARRYMORE FRANCIS CLARKE

and MARJORIE CLARKE Appellants

and

PETEX SHEEHY Respondent

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:	COURT: NORTHROP, NEXVES -AND BEAUMONT JJ.
m: 29 JULY 1986
PLACE: BR1SB.W

REASONS €OR JUDGMENT

THE COURT:-

On 5 February 1985, the respondent, a solicitor of

the Supreme Court of Queensland, obtained an order against

the appellants in the Supreme Court of Queensland for costs

which were subsequently taxed at $1,651.50. On 7 June 1985,

the Deputy Registrar issued a bankruptcy notice based on that

judgment directed to the appellants. On 17 July 1985, before

the expiration of the time fixed f o r compliance with the

requlrements of the bankruptcy notice, the appellants filed

with the Registrar an affidavit of the kind referred to in

s.41( 7) of the Bankruptcy Act 1966 ( "the Act"), with the

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objec t of saLisiying the Court of the existence of a

counter-claim, set-off or cross demand as described in

s.4O(l)(g) of the Act.

The claim of the appellants against the respondent

was said to be for damages for professional negligence or

breach of contract alleged to arise out of the negligent

manner in which the respondent performed his duties as

solicitor for the appellants in action No. 2205 of 1982 in

the Supreme Court of Queensland between the appellants, as

first plaintiffs, and B. & M. Clarke Enterprises Pty. Ltd.,

second plaintiff, and Japan Machines (Australia) Pty. Ltd.,

as first defendant, and Citicorp Australia Limited, as second

defendant.

Pursuant to r.10 of the Bankruptcy Rules, there was

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referred to the Court for determination the question whether

it was satisfied that the appellants had a claim which

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equalled or exceeded the amount of the order for costs. On

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22 May 1986, for the reasons he then gave, Spender J. held

that he was not so satlsfied and made certain other orders.

The appellants now appeal against that decision.

The issues before Spender J. were, firstly, whether

the appellants could establish any breach of duty or breach

of contract on the part of the respondent and, secondly, if

any such breach were established, whether the damages

flowing from any such breach equalled or exceeded the sum	of
$1,651.50.

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After reviewing the evidence, Spender J. concluded

that no breach of duty or breach of contract on the part of

the respondent had been made out. His Honour said:-

“I am left with the clear impression that Mr.

Sheehy addressed most a difficult piece of

litigation properly; that the assistance of counsel

was souqht and relied on more extensively than

usual; and that the preparation for and conduct of

the trial, Including the central question of

damage, at all relevant times occurred with the

direct involvement of competent and senior

counsel. ”

The appellants, who appeared before us in person,

attempted to argue that Spender J. should have found that the

respondent had been guilty of professional negligence in a

number of respects. ble do not propose to canvass these

submissions in any detail. The issues before Spender J. were

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essentially factual in their character. In our opinion, the

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appellants have failed to demonstrate that any error was made

by Spender J. in concluding that no breach of duty or

contract appeared on the material before hlm.

For these reasons, we propose to dismiss the appeal

to this extent.

However, we note that the formal order dated 22 May

1986 makes no reference to His	Honour’s failure to be
satlsfied of the matters specified	in s.41(7). That order
should be amended accordingly.-

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Further, at the time of publication of his reasons,

Spender J. purported to extend time for,compliance with the

bankruptcy notice for a period of fourteen days from 22 May

1986. Since the appellants were not seeking to set aside the

bankruptcy notice or the order of the Supreme Court of

Queensland in respect of which the bankruptcy notice was

issued, the Court had no power to grant any such extension

1 (see James v. Abrahams (1981) 34 ALR 657 at page 665). The

appeal should be allowed to this extent.

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I We also note that the formal order for costs dated

22 May 1986 should be amended by deleting the words "and of".

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I	The orders of the Court are:-
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1. Appeal allowed in part.
2. Vary orders made by Spender J. on 22 May 1986
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by setting aside the order granting an

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extension of time for compllance	with the
bankrupty notice.

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I	I	3.	Appeal otherwise dismissed.
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4.	Appellants to pay the respondent's costs of
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I	the appeal.

I I certify that this and the three (3) preceding pages are a true _,

i	copy of the Reasons	for Judgment herein of the Hon. Mr. Justice Northrop,
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: the Hon. Mr. Justice Neaves and the Hon. Mr. Justice Beaumont.

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