Doust v Hammond Legal Pty Ltd - [2018] WADC 162

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DOUST -v- HAMMOND LEGAL PTY LTD [2018] WADC 162
CORAM:   O'NEAL DCJ
HEARD:   1 NOVEMBER 2018
DELIVERED          :   29 NOVEMBER 2018
FILE NO/S:   APP 35 of 2018
BETWEEN:   PHILIP GEORGE DOUST
Appellant
AND
HAMMOND LEGAL PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MILLINGTON
File Number            :   MC/CIVIL/PE/GCLM 1193 of 2016

Catchwords:

Appeal from magistrate - General procedure claim - Credibility finding - Turns on own facts

Legislation:

Defamation Act 2005 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K R Lendich

Solicitors:

Appellant	:	Not applicable
Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Nil

O'NEAL DCJ:

This is an appeal from a decision of Magistrate Millington, delivered on 28 March 2018. The issues in this matter arise from certain legal services provided to the appellant by the respondent.
In January 2016 the appellant, as claimant, brought a general procedure claim in the Perth Registry of the Magistrates Court. The description of the claim in the appellant's Form 3 is as follows:
The claimant and the defendant entered into a contract on 15 July 2013. The defendant was engaged as a deformation [sic] expert to resist an undertaking sought by the legal firm of Bennett & Co on behalf of a Mr M. The undertaking occurred as a result of the claimant seeking comment prior to publishing the manuscript 'Crimes against Justice'. The undertaking sought on the 2 July 2013 wording was such that it would have meant the claimant could not publish his manuscript in accordance with the 'deformation [sic] act'.
The defendant failed to advise the claimant that the undertaking sought was not in accordance with the 'deformation act' nor did the defendant advise the claimant to seek his costs in providing Mr M with a workable undertaking in accordance with the 'deformation act'. The defendant advised the claimant that he had no other choice other than to accept Mr M's legal costs and in doing so these costs would be less than $7,000. The defendant's advice in refusing all offers to settle in excess of $7,000 later advised the claimant to pay costs of $22,000. The defendant did not act in the claimant's best interest as contracted and insisted on the claimant giving an additional undertaking which does not allow truthful deformation of Mr M in accordance with the 'Deformation Act'.
I have anonymised the various references above and below to the person complaining of defamation, using the letter 'M' in the place of his surname. The misspelling of 'defamation' is as it appears in the original.
The legal services provided by the respondent to the appellant were carried out by Mr John Hammond.
The claim was defended on the basis that the respondent acted throughout in accordance with the claimant's instructions. The respondent denied any breach of an agreement to provide legal services, and asserted that it acted at all times with reasonable care and skill on behalf of the claimant.
The immediate background to the appellant's claim in the Magistrates Court is set out in the magistrate's reasons commencing at page 221 of the transcript:
In relation to the claim, Mr Doust claims that Mr Hammond was negligent in his representation of him. The representation was in relation to a manuscript that Mr Doust had taken three years to prepare. The manuscript was titled 'Crimes Against Justice'. I accept that the manuscript was very dear to the heart of Mr Doust and the past five years has been a strain on him. The lead‑up to the writing of the manuscript is detailed throughout the exhibits.
In essence, Mr Doust has had a number of concerns over the handling of the outcomes of a number of court cases that he was involved in. The appellant came into contact with Mr Hammond after receiving advice from another lawyer named Mr Thompson. The appellant had received advice from Mr Thompson in relation to possible defamation proceedings if the manuscript was published. The conflict arose in relation to that representation. Therefore, Mr Doust sought new representation.
Prior to Mr Hammond becoming involved, Mr Doust had sent a copy of the manuscript or parts of the manuscript to a number of people that were named in the manuscript, inviting their input or comment. This included Mr M. As a result, Mr M instructed Mr Martin Bennett to represent him in relation to the matter. By the time Mr Hammond became involved, Mr Doust had already had contact with Mr Bennett and there had been an appearance in the Supreme Court.
At that appearance, Mr Doust gave an undertaking on an interim basis not to publish the manuscript and a further appearance was scheduled for 7 August 2013 to allow Mr Doust to obtain some advice. At this time, Mr Bennett was pushing for an injunction to stop the publishing of the manuscript and his client's costs. I have heard evidence from both sides of what occurred once Mr Hammond commenced representing Mr Doust and what the specific retainer was. There are competing versions of events.
Some further explanation is required of the 'background to the background' that is apparent from the evidence at trial.
More than a decade ago, the appellant became convinced that his business was the victim of a scam or fraud involving printer cartridges. He believed or claimed that an employee of his was receiving financial kickbacks for causing the business to order unneeded printer cartridges at inflated prices. He made a complaint and the employee was charged.
When the matter went to trial in the Magistrates Court, the employee was defended by a local lawyer - the Mr M to whom the appellant sent part of his manuscript, who then retained Mr Bennett. Mr M, as defence counsel, cross‑examined the appellant. The former employee was ultimately acquitted. The appellant was unhappy about that and took the view that justice had not been done.
According to reasons published in a subsequent single judge appeal, the appellant confronted the former employee outside the courtroom and made disparaging remarks, implicitly calling the former employee's religious convictions into question. The conflict escalated when Mr M intervened. According to subsequent court records, the appellant assaulted Mr M, a man of over 60 years of age. The appellant was charged with aggravated assault.
At first instance, in the Magistrates Court, the appellant was acquitted of that charge. On a State appeal, before a single judge, the acquittal was overturned because of errors of fact by the magistrate at first instance. A judgement of conviction was entered. The appellant's appeal from conviction was dismissed by the Court of Appeal. The appellant's application for special leave was refused by the High Court. It is apparent that the appellant does not accept the justice of his conviction for assault.
Some years later, the appellant is said to have completed a book called 'Crimes Against Justice'. The promise of the title is more than fulfilled by the incredible allegations made in the text, at least, those portions of the text that have been revealed.
Within the appeal book is a document entitled 'Confidential Aide Memoire' prepared by the solicitors for the respondent. That document sets out about 30 references to Mr M in the portions of the manuscript that the appellant sent him. It is sufficient to say that these excerpts allege and insinuate, as both fact and the author's opinion, that Mr M fabricated evidence, misled the court, corrupted the police and judiciary, and perverted the course of justice.
Having worked on the book for some years, with no apparent need or requirement for immediate publication and in fact no publisher, the appellant sent part of the draft of the book to Mr M, containing passages of the kind I have described above, telling Mr M that he, the appellant, intended to publish the book, and invited Mr M's comments. He gave Mr M just 10 days to respond, telling him:
I will attempt to incorporate your comments in the form of a fair 'right to reply' or similar. Please note, however, that I do not undertake to publish your comments in full, or at all if irrelevant and while I will attempt to represent your position accurately I may edit or summarise your comments for the purpose of publication.
Having poked a bear in this way, the inevitable reaction was easy to predict.
A week later, the appellant received a letter from the lawyer's legal representative, Mr Martin Bennett. In the letter, Mr Bennett cogently set out what he regarded as the defamatory nature of the intended publication, demanded an undertaking not to publish such comments, and threatened proceedings for an injunction if the undertaking was not provided by close of business the next day.
The undertaking was not given, an action was commenced, and on 5 July 2013 the appellant was required to appear in the Supreme Court of Western Australia before his Honour Justice Kenneth Martin, on an application for an interlocutory injunction. Mr Bennett appeared for the plaintiff.
Although the appellant initially told Justice Martin that he opposed the application, as the magistrate describes in his reasons, the appellant ultimately gave the court an oral undertaking not to publish until the return of the application on 7 August 2013. This was done so that the appellant could obtain legal advice. It was in those circumstance that he then found his way to the respondent.
When the appellant presented in the respondent's offices, he was facing potentially ruinous litigation - certainly financially ruinous for anyone of ordinary or even comfortable means. I have referred to the kinds of allegations that the appellant was threatening to publish. It is inconceivable that a professional person could allow such allegations to go unchallenged, and plainly Mr M had signalled in a forceful way that he would not allow such things to be published without a fight.
It is not my function to determine whether there was any legal basis upon which the appellant could avoid a finding that what he threatened to publish was defamatory. Given however the kinds of remarks that I have described, given the background circumstances that raised obvious questions of animosity and malice by the appellant, given prior court and tribunal findings contrary to propositions relied on by the appellants it would have been foolhardy on the available evidence to think that the appellant's case was then even reasonably arguable.
In the proceedings below, the foundation of the appellant's claim was that the defendant was hired to ensure publication of the claimant's manuscript. The case for the respondent, and the evidence of Mr Hammond on behalf of the respondent, was quite different. Mr Hammond told the court that, when the appellant came to see him, the appellant wanted to extricate himself from the litigation that had been commenced. Mr Hammond said that the appellant's instructions were that he wanted to get out of the litigation in the quickest way and with the least possible cost. Mr Hammond gave evidence that he carried out his instructions by agreeing to make the undertaking permanent and by resisting Mr Bennett's application for indemnity costs. Mr Hammond said that he was specifically instructed to agree to the terms of the undertaking that was given.
The appellant signed the undertaking that was given to the court.
Later, Mr Hammond said, once that agreement had been put in place, the appellant changed his mind, questioned the respondent's conduct of the matter, and asked that the respondent pay a significant portion of the appellant's costs in the Supreme Court proceedings. Mr Hammond and the respondent then stopped acting for the appellant. The appellant subsequently settled the costs of the Supreme Court proceedings directly with the plaintiff's lawyers in that action.
The appellant is now insisting that he wants to publish his book. His position is that, while its contents may be defamatory in a colloquial sense, they are defensible at law. The appellant is aware that, before he could publish the things that are covered by his undertaking, he would need leave from the Supreme Court to withdraw or vary that undertaking. He insists that the respondent should have given him advice that would have somehow prevented him from being left in that position, and argues that the respondent's failure to do so was a breach of both the retainer and duties to take care to avoid foreseeable harm.
In his Magistrates Court claim, the appellant claimed damages, apparently equivalent to what he paid in costs to the respondent and to Mr M's legal representatives. In addition, he sought an order,' … to allow the claimant adequate legal representation in order to re‑establish his publishing rights in accordance with the "Deformation Act".'
The magistrate correctly identified the real matter in issue in the proceedings before him, which was 'What was the work that Mr Hammond was employed to do?' In determining that question, he was faced with two diametrically opposed versions of events. The case before the magistrate turned on that factual issue.
The difficulty confronting the appellant in challenging the magistrate's decision is that the appellant effectively fell at the first hurdle. The learned magistrate found that the appellant was not a credible witness. He did not believe the appellant. The learned magistrate accepted the evidence of Mr Hammond as to the substance of his retainer and the instructions that he was given and he rejected the evidence of the appellant.
The magistrate provided sensible and coherent reasons for reaching the findings on credibility that he did. Included among those is the fact that contemporaneous documents in evidence at the trial supported Mr Hammond's version of events. Inconsistencies in the appellant's evidence, both internally in what he told the magistrate, and between his testimony in the Magistrates Court and contemporaneous records, led the magistrate to the opposite conclusion about the appellant's evidence. Those inconsistencies include statements in writing by the appellant to the respondent that he would not publish his book, and that he had made a 'commercial decision' not to do so.
The contemporaneous records that went into evidence at trial show that the appellant gave unequivocal instructions that he did not want to, and would not publish his book, and would give the court an undertaking to that effect:
•On 16 July 2013 following a meeting between the appellant and John Hammond, the appellant sent an email to Mr Hammond that included the following,
Hi John, I confirm that I have made a commercial decision not to publish my book, can we complete the following.
1.A deed of separation in other words Bennett cannot come after me at any time in the future.
2.If Bennett requests costs you tax them as the final payment, must be reasonable at the ruling rate of $425 an hour …
•That same day the respondent sent the plaintiff a draft letter that it was proposed be sent to Bennett & Co. The draft included statements to the effect that it was unnecessary for Bennett & Co to seek an interlocutory injunction against the appellant to restrain the publication of 'Crimes Against Justice' and that the appellant would agree to refrain from publishing the manuscript 'during the life of your client' and execute an undertaking to that effect.
•On the same day the appellant responded to the draft, saying to the respondent, 'thanks, please send it'.
•After that letter was sent to Bennett & Co, there were discussions between the parties, and between the appellant and the respondent, about the exact form of the undertaking, in particular whether it was going to be limited to either party's lifetime, and the reasonableness of indemnity costs claimed by Bennett & Co. Mr Hammond made a note of a meeting with the appellant on 23 July 2013 which records among other things this, '- not interested in publishing the book - don't fight it - give undertaking … costs be taxed'.
•Following the meeting on 23 July, the appellant sent an email to the respondent in these terms, 'thanks John, confirming that I agree not to publish the book and I agree to pay his taxed costs'.
•The documents show that there were some quibbles by the appellant where he seems to be trying to hedge his position. One such email was sent by the appellant on 2 August 2013. In that email the appellant said:
thanks John, if you could bear in mind that I want to leave the door open, in other words to have the option to have the book legally edited, or change names etc. in the event I should decide to publish. I am of the view that Bennett has sued the wrong identity and in essence I cannot defend an united [sic] manuscript as all I can claim is that it is based on truth.
•Mr Hammond responded the same day in terms that could leave no doubt:
Hi Philip
The settlement we are working to does not leave the door open.
You would have to rewrite the manuscript and present it again to Mr M if you propose to name him.
I do not agree (with respect) that the wrong entity has been sued!
•On 7 August 2013 the parties again appeared before Justice Kenneth Martin. The appellant was present in court. Prior to the hearing, both sides had filed competing proposed orders, with proposed undertakings. As it might be expected, the plaintiff's language was in somewhat broader terms than the defendant's. After a brief discussion, Mr Hammond conceded that the words sought by the plaintiff ('or words similar thereto') should be added to the permanent undertaking. The issue of costs was then argued and on that point Mr Hammond prevailed. Indemnity costs were not ordered.
•The orders made by Justice Martin on 7 August 2013 included,
the court will receive the present undertaking of the defendant, whether by himself, his officers, servants, agents or otherwise refrain from publishing to any person the document or book entitled 'Crimes Against Justice', a draft copy of which was provided to the plaintiff under cover of the defendant's letter of 25 June 2013, or words similar thereto, which publication is of and concerning the plaintiff. (A signed copy of this undertaking by the defendant to be provided and placed on the court file.)
•On 9 August 2013 there was a curious letter from the appellant to Mr Hammond. The subject matter of it was 'terms of settlement'. The appellant wrote:
Hi John, I confirm the following that the statement I sign and enter into the court must contain the following.
1.That I will not extinguish any of my rights under the DefamationAct 2005 and especially s 10 sub (a) and sub (b) and this will confirm my understanding of my personal undertaking to the court.
2.I will pay Bennett's taxed legal costs and I will not fund any further negotiations in any manner whatsoever and especially in any further efforts in order to save money.
3.It was my view that the judge was cautioning you in relinquishing my legal rights under the 'Act' and therefore appropriately requested my written consent.
4.A method of settling this matter was agreed in your office and it was in accordance with Bennett's written request of the 2 July 2013.
5.Is my position stronger or weaker now, whatever it is I will not consent to matters outside of the 'Act'.
•To this Mr Hammond responded on the same day:
The matter settled on the basis of the orders of the Court. There is no more or no less to the settlement. In relation to costs the Court has ordered that you pay the taxed costs. …
His Honour Justice Martin was cautioning you as to the seriousness of the matter and the consequences that would flow if the undertaking to the Court was not observed. The Court is unable to abrogate any rights you may have under the Defamation Act.
You are not being required to consent to any matters that contravene or weaken your position under the Defamation Act.
I am of the view that your position is stronger now. There was no agreement to the settlement proposed in Mr Bennett's letter due to the quantum of costs he was seeking.
•Following this exchange of correspondence, on 12 August 2013 the defendant signed the undertaking that was required, and it was provided to the court.

The undertaking signed by the appellant on 12 August 2013 was in these terms:
I Phillip George Doust … undertake to this honourable court that I, whether by myself, my officers, servants, agents or otherwise, will refrain from publishing to any person the document or book entitled 'Crimes Against Justice', a draft copy of which was provided to the Plaintiff under cover of the Defendant's letter of 25 June 2013, or words similar thereto, which publication is of and concerning the plaintiff.
In addition to the contemporaneous records that were available, the magistrate had regard to the manner of the appellant's presentation, to his demeanour, and his apparent knowledge and intelligence, when assessing the inherent improbability of claims made by the appellant about his beliefs and understanding at the time of the events in issue.
There are seven grounds of appeal:
1.The Magistrate erred in accepting the Respondents evidence claiming that the Appellants (BOOK) 'Crimes against Justice' could not be published as the 'defamation' in it was 'indefensible' because the legal defamation defences of being substantially true, qualified privilege and political communication were never available to the Appellant.
2.It, therefore, follows that the Respondents evidence in chief never provided the Appellant with a choice with his Retainer as if the defamation defences of being substantially true, qualified privilege and political communication are applied to the Appellants Book with the Respondent Retainer then the Respondents advice to the Appellant should have been different and not negligent ensuring the Appellants Freedom of Expression Publishing Rights.
3.The Appellant decision not to publish was a result of the Respondents advice of no defamation defences with his Retainer or choice, however, despite this advice the Appellant when faced with an impossible situation still instructed the Respondent to ensure not to publish 'defamatory material' as required by the Defamation Act.
4.The Respondent in his evidence confirmed that Mr Bennett and his clients should not dictate legalities contrary to the legal requirements of the Defamation Act yet this is what the Respondent allowed to occur with the Appellants 'undertaking'.
5.The Magistrate erred in the finding that the Appellant as an extremely intelligent and articulate person could in months of reading the Defamation Act (WA) be expected to have the capacity to instruct a defamation practitioner to formulate a safeguard in ensuring all his freedom of expression rights.
6.The Magistrate erred that on the Respondents evidence that the Respondent was not a 'Defamation Expert' and was not sure of what 'or words similar' meant with the 'undertaking' he authored on the Appellants behalf prohibiting the publication of the Appellants Book.
7.The Magistrate erred in not addressing Justice Martins no costs order against the Appellant.
None of the grounds of appeal address the fundamental obstacle in challenging the magistrate's decision, the credibility findings. I endeavoured to persuade the appellant to address this issue. I was not entirely successful.
The magistrate found as a fact that the respondent was retained to 'sort out' the appellant's dispute with Mr M, represented by Mr Bennett, and that he was instructed to do so as quickly and as cheaply as possible. This the respondent did by negotiating a resolution that included the giving of a permanent undertaking not to publish. In circumstances where the respondent had written instructions from the appellant that the appellant had taken a commercial decision not to publish that seems, with respect, like an obvious way of resolving the matter 'in the quickest time with the least amount of cost'.
The appellant's quibbles about his rights under the Defamation Act in the email letter of 9 August 2013 prompted me to consider whether there was arguably something in the record of the trial that suggested that the magistrate could have been in error with respect to the conclusions he reached about the nature of the respondent's retainer and the instructions provide by the appellant. In my view, there was not.
Section 10 of the Defamation Act provides, in effect, that a person cannot assert, continue or enforce a cause of action for defamation of a deceased person or against someone who has died since publishing defamatory matter.
The matter of the appellant's 'rights' under the Defamation Act appears to have become somewhat of an obsession. It is, with respect, a confusing obsession. That confusion is reflected in several of the grounds of appeal.
Like the magistrate below, I cannot and do not believe that the appellant truly thought that the 'non‑extinguishment of rights' under the Defamation Act somehow meant that the appellant could give an undertaking not to publish, yet still be free to publish. It is nonsensical, and contrary to the plain advice the appellant was given.
In a subsequent letter from the respondent to the appellant on 9 August 2013, Mr Hammond drew the attention of the appellant to the significance of the undertaking to the court:
Hi Philip
I would not publish the book in the event that you survive Mr M due to the Court order.
Whilst the statute states that you cannot defame a deceased person, I would strongly recommend that no publication occur until the order was varied or discharged to allow publication.
Anyway - there is no need to worry about this contingency for the time being!
In all the circumstances it is difficult to understand the plaintiff's fixation on the provisions of the Defamation Act. It is not apparent that there is anything wrong, or contrary to prior advice or instructions, in the letter of Mr Hammond of 9 August 2013.
While the appellant did not give evidence before me, I received lengthy submissions from him. There were several instances where the appellant sought to advance, as matters of fact, things that were plainly disproved by or contrary to objective evidence.
One instance of that was a claim to the same effect as par 3 in the appellant's first letter of 9 August 2013 referred to above, with the appellant insisting that Justice Martin had been trying to send a warning about 'relinquishing my rights under the 'Act'…'. The transcript of the hearing on 7 August 2013 shows the correctness of Mr Hammond's response to this assertion. Justice Martin reminded those present that 'an undertaking to the court is as good as an injunction, so that if it's breached in the future then he should proceed on the basis that there will be an application to enforce it by a contempt sanction'.
Another instance is found in the seventh ground of appeal. There the appellant refers to Justice Martin's 'no costs order against the appellant'. As the transcript of Justice Martin's remarks plainly shows, his Honour was having a discussion with counsel about the circumstances where costs will and will not be ordered. He made no such order as the appellant claims. That did not stop the appellant from trying to argue that black was white. There were other similar instances, as the transcript of the argument before me will bear out.
The trial before the magistrate was resolved on its facts in the way that I have described. In particular it was resolved because the magistrate did not believe the appellant, and the claims that he was making about the content of his instructions and his understanding of the advice that was provided.
It cannot be shown here that the magistrate failed to use or palpably misused his advantage, or acted on evidence which was insistent with incontrovertible facts, glaringly improbable or contrary to compelling inferences: Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, 125 - 126.
The grounds of appeal advanced by the appellant do not address this threshold issue. I am not persuaded that anything in the record of trial shows that the magistrate made an error of fact or of law that would warrant interference with his decision.
It follows that the appeal is dismissed. I will hear from the parties with respect to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
ASSOCIATE TO JUDGE O'NEAL
29 NOVEMBER 2018