Desanges v Johnson

[2004] NSWSC 785

CITATION:	Desanges v Johnson [2004] NSWSC 785
HEARING DATE(S):	27 August 2004
JUDGMENT DATE:	3 September 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons; the application for costs to be paid on an indemnity basis is referred to a registrar for determination.
CATCHWORDS:	Appeal - denial of procedural fairness - no question of principle.
LEGISLATION CITED:	Legal Profession Act 1987
PARTIES :	Lionel Desanges (Plaintiff) Leigh Johnson (Defendant)
FILE NUMBER(S):	SC 11803/03
COUNSEL:	Mr C R de Robillard (Plaintiff) Mr D W Elliott (Defendant)
SOLICITORS:	In person (Plaintiff) Gregory Falk & Associates (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	3029/01
LOWER COURT JUDICIAL OFFICER :	Madgwick LCM

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 3 September 2004

11803 of 2003 Lionel Desanges v Leigh Johnson

JUDGMENT

1 Master: The defendant is a solicitor. She provided legal services for the plaintiff. She delivered a bill of costs in respect of those services. The total amount of the bill was not paid (there was part payment of $7,500).

2 She commenced proceedings in the Local Court to recover the costs. The claim was defended. It came on for hearing before Madgwick LCM. Judgment was delivered on 3 April 2003. The defendant recovered judgment in the sum of $37,132.50, together with costs.

3 On 31 July 2003, the plaintiff filed a summons in this court. It failed to provide an address for service as required by the rules. It purports to bring an appeal from the decision of the Local Court. It also failed to provide grounds of appeal as required by the rules. This breach has not been rectified.

4 Initially, the proceedings were given a special fixture before Master Harrison on 17 June 2004. She adjourned the proceedings on the application of the plaintiff because his counsel was unavailable to appear on that day.

5 I should digress to add that because of the pressure of work in the duty list adjournments are not usually granted. The parties are so advised when the special fixture is allocated.

6 The summons was further fixed for hearing for Friday 27 August 2004. After certain diversions, the appeal finally came to hearing and it was concluded on that day.

7 The summons has been brought out of time. Presently, the appeal stands as being incompetent and liable to be dismissed. There is no application for extension of time.

8 The plaintiff is now represented by counsel (Mr de Robillard). Before the Local Court, at times, he was represented (including by Mr de Robillard).

9 The transcript of the judgment of the learned magistrate is before the court. Both the defendant and the plaintiff gave evidence. Many documents were tendered. The defendant made written submissions. The plaintiff did not make any submissions. Her judgment deals at some length with the questions of submissions.

10 In her judgment she said:-

As I said, no submissions have been received from or on behalf of the defendant and it appears his line of cross examination was that there had never been a costs agreement and that was the basis of his defence. [p6]

The judgment also records:-

The defendant says there was never a costs agreement, that the plaintiff was doing it for free as a favour to Dominic Choy and that there had never been any intention that she be paid. That appears to be in direct contradiction to the letters tendered in evidence. [pp5-6]

11 After considering the evidence, the learned magistrate made a finding that there was a costs agreement.

12 I shall proceed on the assumption that the appeal has not been brought out of time. As the plaintiff has made no application for leave, he must demonstrate error in point of law.

13 Because no grounds of appeal had ever been prepared, the defendant and the court were left to discern what was to be argued from the affidavit material filed by the plaintiff (an affidavit sworn on 13 October 2003 was relied on by his counsel for this purpose). This proved to be most unsatisfactory.

14 Paragraphs 3-10 thereof appear to identify matters which the plaintiff purports to present to the court as grounds of appeal. Significantly, there are matters which are not capable of being grounds of appeal where the appeal is restricted to error in point of law. Much of what appears therein was not pressed at the hearing.

15 It does contain material which raises a contention of denial of procedural fairness. Counsel for the plaintiff presented this matter as well as other matters (not identified in the affidavit) as denial of procedural fairness.

16 The first of the matters concerned a matter of the written submissions provided by the defendant to the Local Court.

17 Before proceeding further, I should first set out some of the history of the proceedings before the Local Court.

18 The hearing commenced on 28 June 2002. On that day, the plaintiff was unrepresented. However, Mr de Robillard was in court for some time during that day. Whilst he had no brief to appear on behalf of the plaintiff, he may have played the role of a Mackenzie friend.

19 Further hearing took place on 30 September 2002. Mr de Robillard appeared for the plaintiff on that day. No further evidence was adduced thereafter.

20 The proceedings were adjourned part heard to 23 October 2002.

21 There is no transcript for 23 October 2002. The proceedings next came before the court on 12 December 2002. Counsel appeared for both parties on that day. As earlier transcript was unavailable, the proceedings were adjourned to 9 January 2004 for mention. The transcript for that day reveals that all that remained in the proceedings was the making of submissions and the delivery of judgment.

22 On 9 January 2004, Mr de Robillard was the only person who appeared. Directions were given as to the filing of submissions. The learned magistrate informed Mr de Robillard (in response to his enquiry) that she did not think that she would want any oral submissions. The proceedings were then further adjourned.

23 Proceedings next came before the court on 7 March 2003. The defendant appeared unrepresented. There was no appearance for the plaintiff. It appears that he may have been in China for the last few months. Further, it appears that counsel for the defendant may have sought to make contact with Mr de Robillard and could not do so (because he didn’t have chambers). The proceedings were stood in the list whilst attempts were made to see if his counsel was at court. Whilst the defendant had now filed written submissions, she had done so in breach of the directions. She was about a month out of time (due to delay on her part by her counsel). The submissions had been earlier filed in court on 5 March 2003. They were to be served on the plaintiff by the court. The learned magistrate ordered the clerk of the court to notify the plaintiff that his submissions had not been received and that on 3 April 2003 the matter would proceed to judgment. The proceedings were then stood over to 3 April 2003.

24 The transcript for 3 April 2003 shows that counsel appeared for the defendant and that Mr Smith appeared for the plaintiff. Judgment was then delivered.

25 The plaintiff contends that he did not get a copy of the defendant’s submissions before the hearing and that he was thereby denied procedural fairness.

26 Neither he nor Mr de Robillard appeared in court on 7 March 2003. Save for the fact that it is said he was in China, why this was the case is left unexplained. It is not suggested that arrangements were made for someone else to appear on his behalf. In any event, somehow he came to know that the case was to be before the court again on 3 April 2003.

27 He did attend the court on 24 March 2003 and filed a document. It was headed “Notice to Magistrate Madgewick (sic)”. The contents thereof are as follows:-

I would like to bring to your attention that my barrister Rodger De Robillard informed me that orders were made by you to file submissions by the end of February 2003. To date there has been no submissions from the plaintiff nor any response whatsoever and I therefore would like the matter re listed for further directions from you as contact with Mr Healey has proved to be not possible and there has been no reply from Ms Johnson. As the case is listed for next session on the 3rd of April 2003 I would like this situation resolved as soon as possible.

28 On 3 April 2003, no matter concerning the question of submissions was raised on his behalf. No objection was made to the learned magistrate then proceeding to deliver judgment. He did not attend court himself on that day.

29 During submissions on 27 April 2004, for the first time it was suggested from the bar table that Mr Smith was unknown to the plaintiff. This was a matter that had not been raised in any of the documents filed by the plaintiff in these proceedings. If it be the case that Mr Smith was not instructed to appear on behalf of the plaintiff, there is nothing in the plaintiff’s material that explains why he did not appear or was not represented by someone instructed by him on that day.

30 There was an application to lead oral evidence as to the position of Mr Smith. It was objected to and rejected. Any such evidence should have been deposed in an affidavit filed before any special fixture was given. The effect of any such evidence was likely to prejudice the defendant and see further adjournment of the proceedings.

31 In determining whether or not there has been a denial of natural justice, the task for the court is to look at the particular circumstances of the case before it. Natural justice is a flexible concept involving fairness.

32 I am not satisfied that there was any denial of procedural fairness arising out of the matter of the written submissions. It seems to me that the plaintiff had a reasonable opportunity to appear and to make whatever submissions he wanted to put before the court (in person or by legal representative) and chose not to take advantage of that opportunity.

33 Certain other matters (which were not identified in the affidavit) were also put as evidencing denial of procedural fairness. One was that he was required to proceed to appear unrepresented on 28 June 2003 when he was unprepared for a hearing.

34 The plaintiff has given evidence that he is a bachelor of commerce and a law student. The transcript discloses that he was not lacking in skills in conducting his case in person. The learned magistrate observed as following:-

Whilst I understand your client is not legally qualified he is an intelligent man who was aware of the issues in the matter and was quite effective in some of his cross-examination.

35 When he was informed by the learned magistrate that the matter would have to go ahead on that day because of the long history of the matter, he responded “Yeah it’s fine”. She then informed him that:-

The plaintiff has to prove their case. They call their evidence and you can cross-examine. You must ask questions.

36 Complaint was then made that the learned magistrate allowed counsel for the defendant to unfairly or improperly lead evidence from his client. The court was taken to certain passages of the transcript to illustrate this point.

37 It is unclear whether or not Mr de Robillard was in court when these questions were asked. If he was, he did not seek to assist the plaintiff concerning such matters.

38 I have closely read the transcript. I am not satisfied that there was any unfair or improper questioning. Even if it be assumed that there was some unfairness or impropriety in the questions, I am not satisfied that these questions produced any denial of procedural fairness.

39 The plaintiff bears the onus of satisfying the court that the decision of the Local Court should be disturbed. In my view, that onus has not been discharged. I am not satisfied that there was any error in point of law (including any denial of procedural fairness). The learned magistrate determined the matter in issue between the parties. There was evidence to support the finding. I am not satisfied that any basis for the disturbing of the decision has been demonstrated.

40 During the course of submissions, counsel for the plaintiff sought to ventilate yet another ground of appeal, which had not been identified in the affidavit. As I understand what was being put, it was contended that there was error in point of law because the costs agreement was unenforceable by reason of various provisions of the Legal Profession Act 1987.

41 The attempt to ventilate this matter was the subject of forceful objection by counsel for the defendant. He objected on the ground of prejudice he was not in a position to meet any such argument. It was also objected to on the ground that it was not a matter that had been raised in the Local Court.

42 Counsel for the plaintiff was invited to demonstrate from the material before the Local Court and the material before this court when and where the matter had been agitated. He was unable to do so. It was said that it was raised in the defence filed by his client in the Local Court. He was unable to produce any support for that contention. The court was told that his client did not have a copy of the defence and that his client was unable to get a copy from the Local Court.

43 Counsel for the plaintiff failed to satisfy me that it was a matter litigated in the Local Court. It was a matter upon which the parties may have been expected to adduce evidence. In the circumstances, I took the view that it could not now be agitated in this appeal.

44 If the plaintiff had been allowed to ventilate that ground in this appeal, it would have necessitated, yet further adjournment of these proceedings. The court does not have the luxury of devoting three hearing days to an appeal which could be expected to be dealt with in one or two hours. To do so, would deprive other litigants of an early hearing and generate costs disproportionate to the amount in dispute (if this has not already occurred). I should add that the appeal has been on foot for over a year and has been before the court on about eight occasions. I gained the impression that the appeal was being used as a vehicle to frustrate the defendant from enforcing her judgment.

45 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned.

46 The defendant has made application for the costs to be paid on an indemnity basis. I refer that question to a registrar for determination.

Last Modified: 09/03/2004