Faris v Savage
[2019] ACTSC 339
•6 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Faris v Savage |
Citation: | [2019] ACTSC 339 |
Hearing Date: | 28 October 2019 |
DecisionDates: | 28 October 2019; 6 December 2019 |
ReasonsDate: | 6 December 2019 |
Before: | Burns J |
Decision: | See [4] and [25] |
Catchwords: | APPEAL – Application to join appellant’s former solicitor as a party to the appeal – Application for leave to adduce fresh evidence on the hearing of the appeal – question of costs – reference to some matters of principle regarding the ground of appeal – consideration of the nature of the evidence which the appellant sought to adduce on the hearing of the appeal |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5102 Magistrates Court Act 1930 (ACT) s 276 Supreme Court Act 1970 (NSW) s 75A |
Cases Cited: | Bajramovic v Calubaquib [2015] NSWCA 139; 71 MVR 15 Chouman v Margules (1993) 17 MVR 144 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 |
Parties: | Rabea Haten Faris (Appellant) Gail Savage (Respondent) |
Representation: | Counsel J Moffett (Appellant) P Bindon (Respondent) M Hamden (for IG) |
| Solicitors Snedden Hall & Gallop (Appellant) Aulich Law (Respondent) Sparke Helmore (for IG) | |
File Number: | SC 47 of 2018 |
BURNS J
The appellant was the defendant in proceedings in the ACT Magistrates Court in which the respondent was the plaintiff. On 24 August 2018, after a contested hearing, a Magistrate entered judgment for the plaintiff in the sum of $107,819.24. The defendant has appealed from that judgment. The Third Further Amended Notice of Appeal contains a single ground of appeal, alleging that counsel who appeared for the appellant in the Magistrates Court proceeding, who I will refer to by the initials “IG”, “wholly and incompetently legally represented [the] appellant during the case management process and at the hearing of the case and generally”. The appellant seeks orders that the orders made in the ACT Magistrates Court be set aside, the matter be remitted to the ACT Magistrates Court for rehearing by a different Magistrate (the Magistrate who previously heard the proceeding having subsequently retired) and that IG pay the costs of the parties.
By an application in proceeding dated 13 August 2019, the appellant seeks orders that he be permitted to adduce further evidence on the hearing of the appeal and that IG pay the parties costs of the application in proceeding. The single ground expressed in that application is that “[t]he appellant as a consequence of being wholly and incompetently represented by [IG] was denied the opportunity of adducing expert evidence and calling a positive defence case in the [Magistrates Court proceedings].”
By a further application in proceeding dated 1 October 2019, the respondent sought a further order pursuant to r 5102 of the Court Procedures Rules 2006 (ACT) (CPR), that the appellant’s former lawyer, IG, be joined as a party to the appeal.
Both applications came before me on 28 October 2019, at which time both the appellant and the respondent were represented by counsel. IG had been served with copies of the applications, and he was also represented by counsel. Having heard the parties, I dismissed the application to join IG as a party to the appeal and reserved the question of costs. I also reserved my decision on the appellant’s application to adduce further evidence at the appeal.
Application to join IG as a party to the appeal
It is convenient to commence by giving my reasons for refusing the respondent’s application to join IG as a party to the appeal. That application was expressed to be pursuant to r 5102 of the CPR. Rule 5102 is found in Division 5.3.4, headed “Appeals to Supreme Court – Procedure Generally”. Rule 5102 relevantly provides:
(1) A person must be included as a respondent to the appeal if the person –
(a) appeared or was given leave to appear before the court or tribunal in the proceeding in which the order appealed from was made (the original proceeding); and
(b) would be directly affected by the order sought by the notice of appeal, or is interested in maintaining the order appealed from.
…
(4) The Supreme Court may order that –
(a)a person (whether or not a party to the original proceeding) be included or removed as a party to the appeal; or
(b) a person directly affected by the appeal be included or substituted as a party.
The appellant read an affidavit sworn by him on 13 August 2019, in which he stated that he instructed IG to act for him in the Magistrates Court proceeding on or about 11 May 2016. IG continued to act for the appellant in the proceeding until September 2018. The appellant deposed that during that time he paid monies into IG’s trust account on a regular basis. He estimated the total amount paid to IG to be approximately $10,000. The appellant stated that IG told him he had a strong case and would win against the respondent’s claims. The appellant said that IG never provided him with any advice about procedural aspects of the claim or what he was required to do to meet the respondent’s claims. In particular, the appellant said that he was never advised about the possibility of adducing expert evidence. The appellant further stated that IG did not inform him of the date for hearing in the ACT Magistrates Court until the day before the scheduled hearing date, and did not discuss with him what was to occur in Court before the hearing began. A number of expert reports were tendered by the respondent which the appellant said IG had not previously shown him. The appellant said that he was unaware that judgment had been entered against him until about one month after it had been delivered, and he only became aware when informed by another lawyer retained by his wife in a motor vehicle accident claim.
The appellant contended that as a consequence of not being properly advised by IG he lost the opportunity to adduce expert evidence on two “critical” issues:
(a)evidence of the nature of that contained in a report he subsequently obtained from Capital Building Consultants addressing the cost of completing works he was directed to perform by the respondent; and
(b)evidence from Q D Forensics to support his assertion that the respondent “must have forged” his signature on receipts tendered in her case. This related to a factual dispute in the case: the respondent said that she paid the appellant $8000.00 before he commenced work, and further sums of $8000.00 and $4000.00 during the project. She stated that she paid him in cash, wrote out a receipt in front of the appellant and required him to sign it. These receipts were tendered in the ACT Magistrates Court proceeding. The appellant denied receiving any monies from the respondent, and denied signing the receipts.
I assumed for the purposes of the application to join IG as a party to the appeal that the facts asserted by the appellant in his affidavit were correct, and that based on those facts it could be found that IG had been negligent to a high degree in his representation of the appellant. I was nevertheless satisfied that the application should be refused for two reasons.
First, I was not satisfied that r 5102 applied to the circumstances of this appeal. Rule 5102(1) plainly does not apply because IG was not a person who appeared or was given leave to appear in the Magistrates Court proceeding. Rule 5102(4) is couched in broader language, but I was not satisfied that IG was a person “directly affected” by the appeal so as to enliven the power in r 5102(4)(b). IG has no relevant interest in the outcome of the appeal; he was not a party to the events the subject of the proceeding and he has no relationship in law to either the appellant or respondent arising out of those events. The sole legal relationship which existed is peripheral to the subject matter of the proceeding: he was the lawyer for the appellant in the ACT Magistrates Court proceeding.
It is possible that r 5102(4)(a) gives this Court a more extensive power to join a person as a party to an appeal than r 5102(4)(b), but even if that be the case I was satisfied that this was not an appropriate case to exercise that power. There was some logic in the application to join IG, as if the appellant is to succeed on the appeal he will need to establish that IG was negligent to a high degree in representing the appellant in the ACT Magistrates Court proceeding. But the issues likely to arise in a determination of IG’s negligence for the purpose of determining the substantive appeal may be quite different to those relevant to determining whether IG should be required to pay the costs of the appeal. Questions of the application of the principles regarding immunity from suit such as those expressed in Giannarelli v Wraith (1988) 165 CLR 543 may arise by analogy in such a proceeding. Difficult questions may arise which are at best peripheral to the substance of the appeal. A refusal of the application would not deprive the appellant of any right he may have to pursue damages for negligence against IG.
The final issue which arises is what costs order should be made on the dismissal of the application to join IG as a party to the appeal. The application was brought by the respondent, but in circumstances where the appellant was seeking orders against IG. IG was obliged to appear by counsel to defend the application. Were it not for the appellant seeking orders against IG, the respondent would plainly not have made the application to join IG as a party. In light of the orders being sought by the appellant, he should have made the application. In my opinion, the appropriate order is that the appellant should pay the costs of the respondent and IG on the application, as agreed or assessed.
Application to lead further evidence on the appeal
I will now turn to the application to lead further evidence on the appeal. Before considering the nature of that evidence, I will refer to some matters of principle regarding the ground of appeal set out in the Third Further Notice of Appeal. Counsel for the respondent contended that the appeal was doomed to fail because there was no ground of appeal alleging error by the Magistrate. An appeal to this Court from a decision of the ACT Magistrates Court in civil proceedings is a rehearing having regard to the evidence given in the proceeding in the ACT Magistrates Court and any further evidence which this Court in its discretion determines to receive: s 276 Magistrates Court Act 1930 (ACT). In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Refshauge J described the nature of such an appeal, at [78]:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions...
The above extract would suggest that on an appeal such as the present appeal, error on the part of the body appealed from must be demonstrated. There is authority, however, for the proposition that a miscarriage of justice caused by the incompetence of counsel may permit a court of appeal to set aside a decision and order a new trial, even in civil proceedings. In Chouman v Margules (1993) 17 MVR 144 (Chouman), the Court of Appeal of the Supreme Court of New South Wales set aside a judgment for a defendant entered in the District Court and ordered a new trial, where the solicitor for the appellant (plaintiff in the District Court proceeding) had not obtained a police report regarding the motor vehicle accident in which the appellant was injured. The contents of the report included elements strongly supporting the appellant’s case. The report was produced in the District Court hearing by the respondent, but counsel and the presiding judge appear to have overlooked the significance of the report.
After reciting the facts, Kirby P said, at 149:
Normally, a party is bound by the way in which his or her counsel conducts a trial on his or her behalf. This is our system of justice. It is necessary to the efficient administration of justice. Our form of adversary trial could not really work effectively under a different rule. So long as the legal representative’s mandate is unrecalled and is performed bona fide according to the judgment of the advocate, the conduct of the trial by the advocate will bind the client. See Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914. Specifically, a barrister ordinarily enjoys “complete control over the way in which the case is conducted”. See Halsbury’s Laws of England, 4th ed, vol 3(1) paras 420, 518.
In the Court of Criminal Appeal, it has been recognised that inadvertence on the part of an advocate, or plain incompetence in the presentation of a criminal trial, can in certain circumstances require the intervention of the court in order to avoid the risk of a miscarriage of justice. See eg R v McCall (1920) 20 SR (NSW) 467 at 472; 37 WN (NSW) 189 at 192 (FC); R v Birks (1990) 19 NSWLR 677 at 684 (CCA); Re Knowles [1984] VR 751 (FC) and R v Ensor [1989] 1 WLR 497 (CA). This jurisdiction is, however, exercised most cautiously. As Gleeson CJ pointed out in Birks (above) at 68 it is exercised with a full appreciation of the way in which “the system of criminal justice operates”. The mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a conviction to avoid a miscarriage of justice. If this is so in a criminal trial where liberty and reputation are at stake, it is clearly so in civil trials. See eg Burchett v Kane [1980] 2 NSWLR 266 at 268 (CA); Seaton v Burnand [1900] AC 135 at 141 (HL); Skrzypkowski v Silvan Investments Ltd [1963] 1 All ER 886; [1963] 1 WLR 525 (CA). Although an appellate court stands as a guardian against serious injustices occasioned by oversight or incompetent representation, its stewardship is exercised within a legal system which depends upon trained advocates who are not admitted to practise law unless and until their basic qualifications and training are verified.
These statements by Kirby P are strictly dicta, because his Honour found it unnecessary to consider whether the appellant was entitled to succeed on the basis that her trial counsel was “flagrantly incompetent” (adopting the language in R v Birks (1990) 19 NSWLR 677 at 685 (Birks)), preferring to base the decision to uphold the appeal on the failure of the trial judge to address the evidence. Priestly JA had no doubt that pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW), the Court of Appeal had the power to order a new trial, and expressed the opinion that the interests of the administration of justice in the particular case warranted setting aside the judgment and ordering a new trial. Cripps JA dissented, strongly arguing that the evidence did not permit a finding of incompetence on the part of the appellant’s former lawyer, and that the relevant material in the police report did not conclusively establish that there had been a miscarriage of justice.
In Jowett v Kelly [2008] NSWSC 1009, Brereton J said, that the “incompetence of legal representation has been recognised as an arguable ground of appeal”, citing Birks and Chouman. His Honour went on to say, at [11]:
While it is true that, as Birks indicates, the principles evolved in the context of criminal practice, the observations of Kirby P in Chouman v Margules suggest that the principles are also capable of application in the context of civil litigation although a still more robust approach may be expected in that field.
In the subsequent case of Bajramovic v Calubaquib [2015] NSWCA 139; 71 MVR 15, Emmett JA, with whom Leeming JA and Adamson J agreed, said, at [38]:
It is axiomatic that a party is normally bound by the way in which his or her counsel conducts a trial on behalf of the party. This is necessary for the efficient administration of justice, and an adversary system of trial could not work effectively with a different rule. In a criminal trial, inadvertence on the part of an advocate, or clear incompetence, can, in some circumstances, require the intervention of the court in order to avoid the risk of a miscarriage of justice. However, even in the conduct of a criminal trial, where liberty and reputation are at stake, such jurisdiction must be exercised cautiously, and the mere fact of a mistake or unwise decision made by an advocate will not, without considerably more, justify the setting aside of a conviction to avoid a miscarriage of justice. A fortiori, the jurisdiction must be exercised very sparingly in civil proceedings.
(References omitted).
Based upon these decisions, I am satisfied that the ground of appeal pleaded is arguable.
The evidence which the appellant seeks to lead
The evidence which the appellant seeks to lead on the appeal is annexed to the affidavit of Gene Joseph Schirripa, solicitor, sworn 3 September 2019, and consists of:
(a)an expert report dated 18 July 2019 from Capital Building Consultants;
(b)a letter from Mr Damien Moloney to Mr Bassem Aslan;
(c)the curriculum vitae of Mr John Ganas, forensic document examiner; and
(d)a forensic signature examination report from Q D Forensics dated 29 July 2019.
Before considering these documents, it is appropriate to briefly refer to the decision in the ACT Magistrates Court. The Magistrate found that the respondent retained the appellant to undertake building/landscaping work at her home. Based upon the evidence of Mr Paul Fathers, a building consultant retained by the respondent, who had inspected the work undertaken by the appellant at the respondent’s home, the Magistrate found:
(a)rendering of the garage was not done in a skilful and proper manner as the render was put onto a base that was not proper;
(b)a retaining wall constructed by the appellant was not constructed in a skilful and proper way as the wall was not waterproofed and “[t]here was no drainage behind the wall. The material that the wall was built of was the wrong type of timber as far as durability was concerned. Further, the wall was more than a meter high and accordingly it needed to be designed by a structural engineer if it is to act as a retaining wall”;
(c)cement sheeting installed by the appellant to enclose a garage area did not extend to the bottom of the wall, leaving a gap;
(d)painting which the appellant was engaged to undertake was not done;
(e)the existing front steps of the premises had been removed but not replaced as required by the contract;
(f)brick and rendering of retaining walls around garden beds on either side of the tiered entrance, and the installation of sensor lights as per the scope of the works was not done;
(g)planting of the rear plants and shrubs was not done;
(h)other works were not done properly; and
(i)a stencilled concrete driveway had not been installed. Concrete had been poured unevenly and was not stencilled. Where the concrete met the house it extended above the dampcourse.
For the purposes of this application, I have not been provided with a copy of Mr Fathers’ reports. The form of the report prepared by Mr Moloney of Capital Building Consultants lists defects by item number and addresses each defect individually, presumably by reference to the item number in Mr Fathers’ reports. The report prepared by Mr Moloney does not address liability, only quantum. In his “Observation Letter” to the appellant’s lawyer, Mr Moloney states that he considers the costs quoted for rectification of defective work in Mr Fathers’ report, to be “extremely high”. The schedule prepared by Mr Moloney puts the cost of rectification at $16,148.48 rather than the $107,819.24 awarded by the Magistrate based on the evidence of Mr Fathers.
If accepted, the evidence of Mr Moloney is capable of resulting in a significant variation to the damages awarded by the Magistrate. The proposed evidence of Mr Moloney could not, however, justify the setting aside of the finding on liability made by the Magistrate. At best, the evidence of Mr Moloney could justify a remittal of the matter to the ACT Magistrates Court for a rehearing restricted to quantum, based on the liability findings made by the original Magistrate.
The other proposed evidence is of a different nature. The report of Mr John Ganas of Q D Forensics sets out the result of a handwriting comparison of the three receipts said to have been written by the respondent and signed by the appellant. Mr Ganas compared the impugned signatures with other handwriting said to have been written by the appellant. The result was inconclusive. The evidence of Mr Ganas could not, if accepted, make any difference to the result of the proceeding in the Magistrates Court, and accordingly there can be no useful purpose in receiving that evidence in this appeal.
The appellant will be permitted to adduce evidence from Mr Moloney on the appeal, for the limited purpose of establishing that there was evidence available on the issue of quantum of damages that was not adduced in the ACT Magistrates Court proceeding. If the ground of appeal pleaded by the appellant is made out, the existence of such evidence may justify the upholding of the appeal to the extent of permitting a rehearing on quantum. The existence of evidence such as that proposed from Mr Moloney may also assist the Court on appeal in determining whether, and to what degree, the appellant’s legal representation before the Magistrate was deficient.
Orders
I make the following formal orders:
(a)the appellant is to pay the costs of the respondent and of IG of the application to join IG as a party to the appeal;
(b)the appellant will be permitted to lead further evidence on the appeal limited to the evidence of Mr Damien Moloney on quantum; and
(c)the appellant is to pay the respondent’s costs of the application to adduce further evidence.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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