Frigger v Madgwicks
[2017] WADC 69
•26 MAY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FRIGGER -v- MADGWICKS [2017] WADC 69
CORAM: DAVIS DCJ
HEARD: 22 FEBRUARY & 9 MARCH 2017
DELIVERED : 26 MAY 2017
FILE NO/S: APP 81 of 2016
BETWEEN: ANGELA FRIGGER
First appellant
HARTMUT FRIGGER
Second appellantAND
MADGWICKS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE BOON
Citation :PE CIC 3252 OF 2016
Catchwords:
Appeal - Magistrates Court - Stay of proceedings - Service and Execution of Process Act 1992 (Cth) s 20 - Whether error by magistrate in granting a stay - Summary judgment - Magistrate's refusal to grant summary judgment - Whether appeal from a refusal of summary judgment is available - Whether error by magistrate in any event
Legislation:
Legal Professional Act 2008 (WA) s 68
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 18(7)
Service and Execution of Process Act 1992 (Cth) s 20
Result:
Appeal dismissed
Representation:
Counsel:
First appellant : In person
Second appellant : In person
Respondent: No appearance
Solicitors:
First appellant : Not applicable
Second appellant : Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
Avsar v Binning [2009] WASCA 219
Bulcraig v Hunt [2010] WADC 99
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Chin v Thies [2008] WADC 71
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cutler v Wandsworth Stadium Ltd [1949] AC 398
De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Fertico v Murray River Corn [2002] SADC 89
Frigger v Banning [2016] FCA 359
Hamilton's Ewell Vineyards Pty Ltd v River Horizons Pty Ltd [2012] SADC 173
House v The King (1936) 55 CLR 499
Johannsen Drilling Pty Ltd v Legend International Holdings Inc [2008] NTMC 068
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Norbis v Norbis (1986) 161 CLR 513
Northern Territory v Mengel (1995) 185 CLR 307
O’Connor v SP Bray Ltd (1937) 56 CLR 464
Ravi v Amerind Pty Ltd [2006] WADC 84
Sevior v Morgan [2012] VSC 480
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Swanson v Harley (1995) 103 NTR 25; (1995) 125 FLR 182
University of Western Australia v Gray (No 25) (2009) 180 FCR 483; [2009] FCA 1227
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
DAVIS DCJ: In January 2016 Mr and Mrs Frigger engaged the Victorian legal firm, Madgwicks, to act for them in relation to two Federal Court actions. Mr and Mrs Frigger were not happy with Madgwicks' performance, and on 24 February 2016 they commenced action against Madgwicks in the Magistrates Court of Western Australia.
The General Procedure Claim form filed by Mr and Mrs Frigger in the Magistrates Court (Form 7) reads as follows:
On 18 January 2016 the Claimants retained the Defendant which is a law firm to prepare a statement of claim in a Federal Court matter. The Defendant promised to prepare the statement of claim within one week and instruct a barrister to argue certain interlocutory matters listed for 5 April 2016. The Defendant demanded $30,000.00 on trust, which the Claimants paid by cheque. On 19 February 2016 the Defendant advised the Claimants it would not complete the work for which it was retained unless the Claimants paid a further $70,000.00 on trust. The Claimants rescinded the cost agreement on 21 February 2016 and demanded refund of $30,000.00 on the grounds the Defendant had contravened Section 60, 61 and 62 Australian Consumer Law. The Defendant refused to refund the money in circumstances where the Defendant is unable to provide the services which it promised to provide. The Claimants claim interest on $30,000.00 from 18 January 2016 at 6% p.a.
In April 2016 Madgwicks brought an application pursuant to the Service and Execution of Process Act 1992 (Cth) (SEPA) to stay Mr and Mrs Frigger's Magistrates Court action. Mr and Mrs Frigger then brought an application for summary judgment pursuant to s 18 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA).
Both applications were heard by Magistrate Boon, who on 14 October 2016:
1.granted the application by Madgwicks to stay the action; and
2.dismissed Mr and Mrs Frigger's application for summary judgment.
Mr and Mrs Frigger, who are self‑represented, commenced an appeal in this Court from the magistrate's decision in each case.
Madgwicks filed a Notice of Respondent's Intention indicating that it did not intend to take part in the appeal and will accept any order made by the court in the appeal, other than as to costs. In the Notice it was also submitted that the primary court's decision should be upheld on the grounds relied on by the primary court in its decision.
I have heard the appeal brought by Mr and Mrs Frigger and for the following reasons, I dismiss this appeal.
The background facts relevant to this appeal
The following evidence was before Magistrate Boon relevant to the two applications before her.
Mr James Lewis Graham, a legal practitioner employed by Madgwicks, swore two affidavits in support of the application for a stay, the first on 14 April 2016 and a second more detailed affidavit on 27 June 2016. The following factual matters (as opposed to matters of submission) were set out in these affidavits.
Madgwicks is a law practice within the meaning of the Legal Profession Uniform Law 2014 (Vic) (Uniform Law) situated and carrying on business in Melbourne. (I note that the Uniform Law is contained in Sch 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) and applies pursuant to s 4 of that Act).
There is no dispute that Madgwicks was formally retained by Mr and Mrs Frigger pursuant to a written client services agreement dated 21 January 2016, which I will refer to as the costs agreement. The costs agreement comprised a letter from Madgwicks to Mr and Mrs Frigger dated 21 January 2016 which set out a 'Part A ‑ Costs Agreement' and attached a 'Part B ‑ Disclosure Statement'. These two documents were to be read together and formed the agreement between the parties.
The costs agreement was sent to Mr and Mrs Frigger in Perth, Western Australia, for their signature. They signed the costs agreement in Western Australia on 21 January 2016 and subsequently returned it to Madgwicks in Victoria. Mrs Frigger notified Madgwicks of her and her husband's acceptance of the costs agreement when she sent an email to Cassandra Sartor of Madgwicks on 21 January 2016 saying:
I will post the original signed agreement with a cheque for $30,000 on Friday. Should arrive Monday or Tuesday.
Thanks.
The $30,000 was trust money which, pursuant to the terms of the costs agreement, Mr and Mrs Frigger were required to pay in advance of anticipated fees, charges and expenses, including those of any barrister.
Details of the legal services to be performed were set out in the costs agreement. The subject of the costs agreement was described in Part A as being 'Federal Court proceedings'. The Part B disclosure statement set out further details as follows:
Scope of the matter:
Advice and representation in relation to the conduct of the Federal Court proceedings WAD 674/2015 and WAD 607/2015, up to any single consolidated trial of up to one week's duration.
Carrying out the work referred to above represents the proposed course of conduct in this matter.
The Federal Court proceedings brought by Mr and Mrs Frigger were:
(a)WAD607/2015 brought against four respondents, Sandra Banning, Donald Campbell-Smith, Professional Services of Australia Pty Ltd and Banning Holdings Pty Ltd and involved allegations of misrepresentations and fraudulent conduct; and
(b)WAD674/2015 against Computer Accounting & Tax Pty Ltd (in liquidation, following its winding up by the Supreme Court on 6 May 2010) and subsequently its liquidator Mr Mervyn Kitay. In these proceedings Mr and Mrs Frigger sought orders that the liquidation of Computer Accounting be stayed or terminated (Mr Graham's second affidavit par 11).
The costs agreement included a standard form clause relating to jurisdiction (Part B cl 21 on page 9) which provided:
The Uniform Law as applied in Victoria is applicable to legal costs in this matter.
The costs agreement also contained a term (Part A, cl 7) setting out obligations on Mr and Mrs Frigger:
7.Your Obligations
We require you to, and you agree to:
• provide full and honest instructions relevant to your matter and you agree to notify us of any material change in your circumstances that might impact on your matter while we continue to act for you;
• cooperate in the matter and do all that we reasonably request of you in a timely manner;
• accept and follow our reasonable legal advice; and
• provide funds in advance in accordance with this Agreement or some later arrangement.
If you fail to comply with any of these conditions, we have the option to terminate this Agreement by advising you of termination in writing.
As to how Madgwicks came to be retained, Mr Graham in his second affidavit gave evidence that Mrs Frigger phoned him on 18 January 2016 to ask Madgwicks to advise and represent her and her husband in two Federal Court proceedings she had commenced, concerning fraud and insolvency issues arising from long running Supreme Court litigation.
Mr Graham deposed to how, during her initial instructions, Mrs Frigger told him she had issued proceedings in the Federal Court so that she and her husband could enliven issues dealt with in extensive Supreme Court litigation run since about 2004 resulting in a Court of Appeal judgment in about 2010. She had been keen to commence the new proceedings in the new jurisdiction because she considered the Supreme Court jurisdiction to be 'dysfunctional'. She would only brief a firm outside Western Australia because, as Mr Graham described what he was told by Mrs Frigger, a small clique of lawyers and accountants around the South African expat community had undermined her reputation amongst barristers and solicitors in Western Australia. She had contacted Madgwicks specifically because it was an east coast firm with no connection to Western Australia and Madgwicks had obtained a good outcome in an analogous Supreme Court of Victoria decision Sevior v Morgan [2012] VSC 480. She had been considering instructing a Sydney law firm, but preferred one from Melbourne because she used to live there and preferred to travel there to confer and provide instructions (Mr Graham's second affidavit sworn 27 June 2016, pars 10 (a) ‑ 10(e)).
During the initial telephone call with Mrs Frigger, Mr Graham said that he discussed with her the 'logistics and practicalities of Madgwicks working from Melbourne', the need for a Perth agent and local counsel for any short‑notice appearances which may be required, and that Madgwicks could also file documents in the Federal Court's registry in Melbourne. Mrs Frigger subsequently insisted that a non-Western Australian barrister should be briefed and that she intended to travel to Victoria to confer and instruct the respondent 'as and when required' (Mr Graham's second affidavit, pars 10(g) and 10(h)).
During this same telephone call, Mrs Frigger advised Mr Graham that she would send a copy of the originating process by way of background on the claims in the Federal Court proceedings (Mr Graham's second affidavit sworn 27 June 2016, par 10(f)). She subsequently did this by an email sent at 2.36 pm on Monday, 18 January 2016, which stated:
Dear James
I have attached the two matters for which I require assistance.
I have noted the success of your firm in Servior v Morgan, many of which elements are analogous to the matters in issues.
I think the statement of claim will give you a good understanding of the matter which, although complicated, does not comprise a lot of evidence.
I look forward to hearing from you.
Thanks and regards
Angela Frigger
Even on Mrs Frigger's own description in this email, the matter was complicated. Mr Graham also deposed to how there were complex legal and factual issues, referring to and annexing a decision of Barker J on 13 April 2016 in WAD607/2015 (Frigger v Banning [2016] FCA 359), which summarised the history and issues in the litigation. Mr Graham also stated there were 69 published judgments in relation to the matters involving Mr and Mrs Frigger, and how six judgments were considered to be critical, requiring careful analysis of the judgments themselves, the transcript and materials to determine issues of res judicata and issue estoppel (pars 12 ‑ 15 of Mr Graham's second affidavit).
In Frigger v Banning Barker J ordered that Mr and Mrs Frigger pay into Court the sum of $75,000 by way of security for costs to the end of completion of what was described as the 'first stage' of the proceeding, with liberty to the respondents in WAD607/2015 to apply for further security. Barker J gave the following reasons for making the order [78]:
•Given the background to the current proceeding in the Supreme Court of Western Australia and the rulings made by the Court of Appeal referred to above, notwithstanding that counsel submits that Mrs and Mr Frigger have standing to maintain this proceeding under the Corporations Act and that there appears, literally, some inconsistency between the terms of cl 6.13 of the DoCA and the manner in which the Court of Appeal proceeding was finalised, it is apparent to the Court that there are significant hurdles faced by Mrs and Mr Frigger in the maintenance of this proceeding. To state that is not, in any way, to prejudge or to intend to prejudge any subsequent application for summary judgment in the proceeding.
•The fact of the matter remains that the history of the related proceedings in the Supreme Court and the orders made in the Court of Appeal and subsequently, including the termination of the DoCA in 2012 by Simmonds J, are issues of significance confronting Mrs and Mr Frigger. For example, if they are not capable of being classified as a “creditor” their claim is seriously undermined.
•Given that there are considerable costs orders in these related proceedings against Mrs and Mr Frigger in favour of one or other of the respondents, the fact that those costs orders have not been paid and, instead, the Friggers have sought to reverse the Court of Appeal decisions, recover all expenses they say they or Computer Accounting & Tax have incurred, and reverse all costs orders, indicates an unwillingness, at least presently, to meet costs orders if and when made.
•The fact that there would appear to be questions concerning the circumstances in which real property owned by Mrs and/or Mr Frigger has been mortgaged to a company apparently associated with them or their friends or relatives, additionally raises concern about the willingness or ability of the Friggers to meet any costs order made against them.
•Mrs Frigger, in her recent affidavit of 30 March 2016, does not say that she and her husband cannot pay security for costs, only that any order to pay security for costs now will result in 'real and unnecessary hardship'. That might be said of any order for costs made against any party in any proceedings. She does not say she and her husband are impecunious.
•I infer that Mrs and Mr Frigger are not impecunious. The Court is informed that security for costs orders have been made in proceedings in the Supreme Court and met. It is the case that Mrs Frigger conveyed to this Court in January 2016 that she and her husband were people of means. There is no basis for considering that the Friggers will be unable to maintain this proceeding should the security for costs order be made.
Madgwicks on 4 February 2016 (before the decision of Frigger v Banning) had been instructed to brief a barrister to draw an amended statement of claim and appear in the Federal Court proceedings. A local Western Australian barrister was initially briefed, but Mrs Frigger was not happy with him. Mr Graham deposed that Mrs Frigger then instructed Madgwicks to forward a new brief to a Victorian barrister, but retracted those instructions about 10 days later when she instructed Madgwicks to brief another Victorian barrister, Mr Phillip Bornstein, as counsel. Mr Graham's second affidavit sets out in detail what those instructions to Madgwicks were, and the email correspondence and telephone discussion he had with Mrs Frigger (Mr Graham's second affidavit, pars 17 ‑ 24 and Annexures JG10 and JG11).
From this correspondence it appears that Mrs Frigger did not agree that it was necessary for Madgwicks or counsel to review all of the critical judgments, although Mr Graham advised that this was essential to the issues Mr and Mrs Frigger were raising in the Federal Court proceedings to make out their case and resist the defence which had been raised, and also given the allegations of fraud made by Mr and Mrs Frigger.
In an email sent by Mrs Frigger to Mr Graham at 12:43 pm on 17 February 2016 (Mr Graham's second affidavit, Annexure JG10) she advised Madgwicks that she and her husband had decided they wished to retain Mr Bornstein, and stated:
Please do as I ask and send my substituted statement of claim to him, so that he can start already working on it.
I won't be paying any more money into trust because we provide $30,000 in trust already.
I intend to fly to Melbourne for the hearing on 5 April 2016, and arrange for videolink to the Perth Federal Court, which will be an easier solution than him flying to Perth.
In a later email sent on the same day to Mr Graham at 5.44 pm (also part of Annexure JG10), Mrs Frigger stated:
I will telephone Phillip Bornstein tomorrow and ask him if he would like to meet me in person, and I will then fly to Melbourne for such a conference.
Mr Graham responded by email on 18 February (also part of Annexure JG10) at 12:27 pm, stating:
Given what we know of the underlying judgments, our strong view is that the current applications cannot be properly be re‑drafted or run until there has been a proper review of the cases to determine exactly how the DOCA and appeal judgment have been treated in the ratio and obiter in the judgments. We attach our initial listing of relevant judgments for your reference. After completing a review of those documents in order of priority, we will be able to guide you on the required strategy in these proceedings. …
You have engaged us to give you legal advice but, with the claims currently formulated (including the Substituted Statement of Claim) in the way they are, we think it is unlikely that you and Hartmut could obtain the interlocutory or final relief you seek. The hearing of the applications on 5 April will be difficult or impossible to navigate without a proper review …
We need to properly analyse the judgments and transcripts from all of applications that have addressed the issue of the DOCA, the appeal orders and your charge, if we want to interrogate and nullify the arguments raised by the other parties in these proceedings. It would simply be too speculative, and probably unsuccessful, to proceed without you comprehensively addressing those issues in your pleadings and evidence.
After that analysis, we will need detailed instructions on the recent status of the assets and trustee of your superfund, if you are to have any chance of staying enforcement of any the orders listed at par 55 of your Prayer for relief.
To proceed properly with this, we will also need the funds we requested on 9 February, on account of work required for preparing and appearing at the hearing on 5 April, including briefing counsel. As discussed the firm needs funds on trust ready for all anticipated work and disbursements – this is particularly important given that we need to promptly dive into assessing the underlying cases and transcripts and relevant documents, if we are to re‑plead and put on any affidavit material by early March…
On 18 February 2016 at 2:31 pm Mrs Frigger sent an email direct to counsel Mr Bornstein (part of Annexure JG11 to Mr Graham's second affidavit). In this email to Mr Bornstein she provided him with a draft statement of claim, apparently not prepared by Madgwicks, which she asked Mr Bornstein to review and let her know 'to what it extent it needs to be amended' and his costs of doing so. Mrs Frigger stated:
Also, if it helps I am happy to fly to Melbourne to meet you and discuss the critical issue at any time, if necessary early next week.
Mr Bornstein responded by email to Mrs Frigger on the same day (also part of Annexure JG11), copying Mr Graham into the email, stating (among other things):
… ethically, I cannot act on your behalf in litigation unless and until I receive a brief to do so from an Australian Legal Practitioner …
Also, because Rule 16.01 of the Federal Court Rules requires a person who prepares a pleading (eg a statement of claim) to sign a certificate that on the factual and legal material available there is a proper basis for every allegation in the statement of claim, any brief delivered will need to be sufficiently detailed to enable me to form such a view.
If you wish to progress the matter further with my assistance, you will need to instruct solicitors to act on your behalf and deliver a proper brief.
After this email, on 18 February 2016 at 5:07 pm Mrs Frigger responded (also part of Annexure JG11), copying Mr Graham into the email and saying 'By this email … I instruct James [Graham] to brief you to settle the substituted statement of claim forwarded earlier today'.
Mr Graham wrote in response to Mrs Frigger on 19 February 2016 (the last email in the string of emails in Annexure JG11), advising that Madgwicks was happy to brief Mr Bornstein on conditions, which included sufficient funds in trust to cover the costs of doing so, as the work already carried out including up to two days' work by the second barrister briefed by Madgwicks, now exceeded the funds held in trust. He also noted:
•We confirm that, whilst Madgwicks is obliged to satisfy itself on all claims and representations we file in the proceedings (including all relevant and critical decisions, and even some transcripts, in the underlying proceedings), it would be professionally irresponsible, and a gross to service to Angela and Hartmut, if we do not make sure to identify the suitable claims available, and satisfy ourselves that the claims may be made out.
•We require these issues to be rectified before we can proceed with briefing Phillip [Bornstein]. In addition we require your instructions on the position with respect to our proposed letter and timetable to Eastwood, before we can properly coordinate and finalise any appearances and communications with the court and other parties.
In that same email Mr Graham addressed Mr and Mrs Frigger about their passion for the matter and stress they had experienced and how Madgwicks wished to assist them with this and in succeeding in the proceedings, but then went on to say:
…We trust you will understand that we can only fulfil our obligations and be of service to you if you accept the advice from us, and from counsel, that your claims need to be carefully re‑formulated, and our position needs to be properly set up and managed before the Court. If you do not allow us to get on with the work and take control of the proceedings now, whilst we have time to do so, we do not think your claims can succeed, notwithstanding any underlying merits the claims may have.
Mr Graham deposed at par 25 of his second affidavit as follows (referring to Mr and Mrs Frigger as 'the Claimants' and the costs agreement as 'the Retainer'):
Ultimately the Claimants did not like or agree with the legal advice provided by Madgwicks (and also by [the second counsel] and Mr Bornstein). As such, Mrs Frigger refused to follow Madgwicks' reasonable legal advice, failed to provide full instructions relevant to their matter and failed to provide funds in advance in accordance with the Retainer. Each failure constituted a fundamental breach by the Claimants under section 60 – 62 of the Australian Consumer [and] cl 7 of the Retainer.
Mr Graham deposed also to the fact that Madgwicks did not at any time practise out of Victoria or perform any act or omission out of Victoria.
Two bills were rendered by Madgwicks to Mr and Mrs Frigger dated 12 February 2016 and 1 March 2016. These bills included counsel fees for the second counsel briefed by Madgwicks. After deduction of moneys from trust, there was an amount of $6,050.15 payable on the second bill (Mr Graham's first affidavit, Annexure JLG3).
Mrs Frigger also swore two affidavits which were before Magistrate Boon, the first sworn on 20 May 2016 in opposition to the stay application and the second sworn 7 June 2016 in support of the application for summary judgment.
In Mrs Frigger's first affidavit sworn 20 May 2016 she did not dispute that she and her husband had signed the costs agreement, nor was it in issue that she and husband had retained Madgwicks to provide legal services in the two Federal Court proceedings. Her affidavit annexed copies of the originating applications in each of those Federal Court matters.
Mrs Frigger also agreed that she telephoned Mr Graham on 18 January 2016. Her evidence was that she asked him to amend a statement of claim and represent her and her husband at hearings on 5 April 2015 in the Federal Court matters.
She disputed ever agreeing to the second barrister (the first of those briefed in Victoria) to be retained as counsel. She also deposed that she had contacted the third barrister, Mr Bornstein, directly to enquire whether he would represent her and her husband in the Federal Court proceedings.
She deposed to the fact that no amended statement of claim, advice or other legal service was provided by Madgwicks from 18 January 2016 until 9 February 2016. When she received a demand for additional money to cover the costs of doing so by an email dated 9 February 2016 (Annexure AF5) she stated 'it became clear to me that Madgwicks did not have the experience or knowledge to represent us and my husband and I decided to terminate the retainer' (par 7).
Mr and Mrs Frigger wrote to Madgwicks by letter dated 21 February 2016, treating the email from Mr Graham dated 19 February 2016 as an express repudiation of the costs agreement. In that letter (Annexure AF6‑1 to Mrs Frigger's first affidavit) they stated:
1.I refer to an email from your employee James Graham dated 19 February 2016 wherein you advised that you will not complete the work in which you have accepted instructions. Furthermore you have refused and or failed to comply with previous written and oral instructions.
2.Accordingly the email from Mr Graham is an express repudiation of the contract. In circumstances where no work in the Federal Court proceedings WAD607/2015 and WAD674/2015 has been done by Madgwicks, the writers treat the contract as never having existed and hereby rescind it. In addition the authority contained in the costs agreement authorising Madgwicks to withdraw trust funds to pay its bills is also rescinded and cancelled.
3.Mr Graham's conduct in the contract constitutes breaches of the Australian Consumer Law sections 60, 61 and 62.
4.Unless by 12 noon 29 February 2016 the writers receive a refund of $30,000 by bank cheque made payable to Angela and Hartmut Frigger, a claim will be commenced in the Magistrates Court Perth for an injunction under section 232(6)(a) and section 236 for damages, statutory interest and costs without further reference to you.
Yours faithfully,
Angela and Hartmut Frigger
Mrs Frigger's first affidavit went on to state that:
8.On 19 February 2016 I telephoned a solicitor in West Perth who had previously acted for my husband and me. He indicated he would accept instructions in the Federal Court Matters and obtain the services of a barrister to appeal in the Federal Court Matters. We were charged $6,266.90 for advice in relation to the correct application of Corporations Act 2001 to our causes of action and for representation by a barrister on 5 April 2016 in the Federal Court. The statement of claim has been amended accordingly and filed. My West Perth lawyer and barrister appeared on 5 April 2016 in the Federal Court Matters. I claim client/legal privilege over my solicitor's invoice. My husband and I continue to instruct the solicitor in West Perth.
9.On 13 May 2016 I requested the defendant to provide evidence that it has professional indemnity insurance for legal services in Western Australia pursuant to section 68 Legal Profession Act 2008. The defendant did not respond to my request. Attached and marked AF7 is a copy of my email.
Mrs Frigger's second affidavit of 7 June 2016, relevant to the application for summary judgment, stated:
6.On 13 May 2016 it came to my attention that Madgwicks may not have professional indemnity insurance as required by s 68 Legal Profession Act 2008. I sent an email to Madgwicks on that date requesting evidence of such insurance. To date I have not received a response to that request. Accordingly, I assum [sic] that no such insurance cover exists. Attached and marked AF1 is a copy of my email.
7.On 17 May 2016 I telephoned the Victorian Legal Services Board and spoke to a woman in the Legal Practitioner's Liability Committee which committee carries on a business of providing professional indemnity insurance to legal practitioners registered in Victoria. That woman advised me, and I verily believe, that the professional indemnity insurance provided to legal practitioners by the Committee does not cover legal services provided in Western Australia.
8.In the above circumstances, I do no [sic] believe that Madgwicks was permitted to engage in legal practice in Western Australia. In those circumstances I believe that the retainer agreement was void ab initio and $30,000 paid by the Friggers pursuant to that agreement are required to be refunded.
9.In those circumstances I believe that Madgwicks has no defence to this claim and the Friggers are entitled to summary judgment.
This raised a ground for summary judgment which was not part of the General Procedure Claim (as I have set out in [2] above).
Principles relevant to the two applications
Before I set out the parties' submissions and her Honour Magistrate Boon's reasons for decision, it is necessary to set out the legal principles applicable to each of the applications.
Section 20 of SEPA provides that a person served with a proceeding (other than a Supreme Court proceeding) may apply to the court of issue for an order staying the proceeding. The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
The 'appropriate court' referred to in s 20 is the court which has 'the most real and substantial connection and could therefore be regarded as the natural forum': St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568 [20] and [21].
The matters that the court is to take into account in determining whether to grant a stay are set out in SEPA s 20(4) to include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceedings; and
(b)the place where the subject matter of the proceedings is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceedings should be instituted; and
(e)the law that will be most appropriate to apply in the proceedings; and
(f)whether a related or similar proceeding has been commenced against the person served or another person.
The s 20(4) factors are not exclusive. One of the additional considerations to be considered on a stay application include, in the case of a contract, where the contract was made and where the breach took place: Fertico v Murray River Corn [2002] SADC 89 [28].
Whether or not to grant a stay after considering all of these matters is, of course, a matter of the court's discretion. Different people will have different views as to which is the appropriate court and the section requires an objective assessment by the decision maker: Hamilton's Ewell Vineyards Pty Ltd v River Horizons Pty Ltd [2012] SADC 173 [7].
As to the summary judgment application, the Court of Appeal recently summarised the principles which apply in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]:
The principles to be applied on an application for summary judgment are well-established. Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
The principles which apply to a summary judgment in the Supreme Court also apply to an application pursuant to MCCPA s 18(1): Ravi v Amerind Pty Ltd [2006] WADC 84 [11] (Sleight DCJ, as he then was).
The submissions before the magistrate
Magistrate Boon had written submissions from Madgwicks, and also heard oral submissions from the parties at the hearing of the two applications. The hearing took place over two days, 8 August 2016 and 14 October 2016.
Briefly, it was submitted by Madgwicks that for the purpose of SEPA s 20(4) the logical and most real and substantial connection of the legal services was Victoria and the Victorian Magistrates Court was the appropriate forum. The main points raised by Madgwicks were, relevantly for this appeal:
(a)The subject matter of the proceedings was situated in Victoria, where Madgwicks provided the retainer (costs agreement) and all services. The agreement was that Madgwicks would perform work in Melbourne, and Mrs Frigger was prepared to travel to Melbourne.
(b)The key issues in dispute between the parties are Mr and Mrs Frigger's obligations under cl 7 of the costs agreement and Madgwicks' obligations under the Uniform Law, which included the duties of a solicitor under that Law, as well as:
(i)Professional and ethical duties owed by Madgwicks under r 3 and r 4 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules. These included in particular a solicitor's duty to the court;
(ii)Statutory duties owed by Madgwicks under s 18 of the Civil Procedure Act 2010 (Vic) that Madgwicks must not make any claim in a civil proceeding that does not, on the factual and legal material available at the time of making the claim, have a proper basis;
(iii)Statutory duties owed by Madgwicks and Mr and Mrs Frigger under the Federal Court Rules 2011 (Cth) r 16.01, that the factual and legal material available provides a proper basis for each allegation in the pleading.
(c)Madgwicks is owed $6,050.15 by Mr and Mrs Frigger under the costs agreement, for which a claim would be made or, if the application for a stay was not successful, a counterclaim would be brought.
The submissions made by Mrs Frigger on behalf of her and her husband relevant to the application for a stay, was that Madgwicks had not made a clear and compelling case why the Magistrates Court in Perth cannot decide the issues or why the Magistrates Court in Victoria was a more appropriate forum. The main points raised by Mrs Frigger were, relevantly (and briefly):
(a)Madgwicks was instructed only to prepare an amended statement of claim and to brief a barrister to argue two interlocutory hearings listed for 5 April. Madgwicks promised to prepare an amended statement of claim within one week (ts 4). Madgwicks did not have to look at all of the previous cases in which she and her husband had been involved in order to do this (ts 9).
(b) There had been no work done by Madgwicks. Mr and Mrs Frigger had received no advice and Mr Graham, representing Madgwicks, was not skilled enough to do the work which he took on (ts 6 and 24).
(c)If Madgwicks had done work, it was not possible for Madgwicks to do legal work in Melbourne for people who are resident in Perth and, more importantly, the proceedings for which Madgwicks had been retained was in the Federal Court in the WA Division. Madgwicks had to appear in the Federal Court in WA, their clients reside in WA and other than the fact that Madgwicks has an office in Melbourne, there was no connection to Victoria (ts 19, 20 and 28).
(d)Mr and Mrs Frigger's claim was under the Australian Consumer Law over which the Magistrates Court in Perth had jurisdiction (ts 6 and 25). The Uniform Law, which dealt only with complaints about costs and assessment of costs, had no application to this claim (ts 24 ‑ 25 and ts 37 ‑ 38). Later, however, Mrs Frigger submitted that the Uniform Law can equally apply to services that have been provided in Perth and it does not have to be heard by the Magistrates Court in Melbourne (ts 29).
(e)As to their financial position, Mr and Mrs Frigger were both retirees and drawing allocated pensions from their superannuation funds. If forced to start new proceedings in Melbourne they would have to get legal representation and it would be 'a huge financial expense for us to go to Melbourne'. On the other hand, Madgwicks as lawyers did not need legal representation either in Melbourne or Perth and had better financial resources (ts 36 and 37).
On the summary judgment application Mrs Frigger submitted, in essence, that Madgwicks was an interstate legal practitioner engaging in legal practice in this jurisdiction (Western Australia). Madgwicks was required to obtain professional indemnity insurance pursuant to s 68 of the Legal Profession Act 2008 (LPA), however, from her telephone enquiry with the Victorian Legal Services Board set out in her second affidavit, it did not have that insurance.
Madgwicks' submissions on the summary judgment application were that Madgwicks did not at any time practise out of Victoria, it was entitled to practise in the High Court and Federal Court of Australia and even if Madgwicks was found to have engaged in legal practice in Western Australia (which was denied), it was entitled to do so under LPA s 34 and s 35. Finally, Madgwicks' professional liability insurance was pursuant to a scheme approved for Australian Legal Practitioners under Victoria's professional standards legislation, pursuant to the Uniform Law s 211. Section 4(a) of the Uniform Law provides that:
The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to … things situated within or outside the territorial limits of this jurisdiction.
The magistrate's reasons
Magistrate Boon gave extempore reasons which were recorded and transcribed.
Magistrate Boon first determined what the scope of the work to be done by Madgwicks, and where they were to carry out the work. She referred to the fact that the costs agreement related to Madgwicks acting for Mr and Mrs Frigger in the Federal Court proceedings. She noted that those proceedings, although commenced in the Western Australia District Registry of the Federal Court, were still proceedings in a Federal Court. She observed from the affidavit evidence of Mr Graham, which had not been contradicted in Mrs Frigger's affidavits, that she was seeking a Melbourne firm or a Sydney firm to act for her because she was having problems with Perth firms.
Magistrate Boon referred to the fact that although Mrs Frigger submitted that there was no evidence of Madgwicks having provided legal services, there was in fact a lot of evidence which included the emails from Mr Graham containing advice to Mrs Frigger about how to approach the case. There were also the accounts which were itemised and showed work which was done.
Magistrate Boon then referred to the information in Mr Graham's second affidavit about the Federal Court proceedings and how they came to be considered in the context of the other prior court cases in which Mr and Mrs Frigger had been involved. Magistrate Boon also considered that the litigation was potentially very complex, stating (ts 51):
… the Federal Court proceedings, as set out in Mr Graham's affidavit and in the decision of Barker J, which was provided, sets out a history of litigation. And it is really, in my view, potentially very complex and my reaction to seeing what's set out in this is that a lawyer would have to be very cautious about giving advice and drafting pleadings in that context when there has been a considerable amount of prior litigation.
Magistrate Boon then went on to observe (ts 51) that solicitors and barristers have fairly onerous obligations and responsibilities in providing advice to clients and in drafting documents which are to be provided to the court. The professional rules, both in the Federal Court and in Victoria, as in every other State, requires that before lawyers sign or prepare or lodge statements of claim they have a professional obligation to be satisfied that there is a legal and factual basis for making the statements in the statement of claim.
In light of the material that had been put forward on behalf of Madgwicks in relation to the elements of the case and about the scope of work, Magistrate Boon noted that what Madgwicks had to do was a 'huge job and it's a considerable amount of work and they have provided some evidence that they started, they embarked on that work' (ts 52).
Magistrate Boon accepted the evidence from the affidavit of Mr Graham that Madgwicks was doing that work and doing that in Melbourne. She stated (ts 52):
… Madgwicks were doing that work, they were doing it in Melbourne and the services were being – the work was being carried out in Melbourne in Victoria and it was carried out for the purpose of providing advice in representation of Mr and Mrs Frigger who were in Perth but the work was being carried out in Melbourne and it was for legal proceedings which are in the Federal Court, not in a WA State court.
Magistrate Boon then stated that she did not accept the submissions made by Mrs Frigger that all of the work related to Perth and the costs agreement was in Perth because Mr and Mrs Frigger were based in Perth and the Federal Court proceedings had been commenced in a WA District Registry. Magistrate Boon stated that her view was that the work done by Madgwicks was not WA legal work, but rather Victorian legal work. She stated (ts 52).
So I don't accept the submissions made by Ms Frigger that it was all Perth and that the retainer was in Perth just because they're based in Perth and just because it was in a WA District Registry … my view is that it's not WA legal work, it was Victorian legal work. And so I don't accept the submission in relation to unprofessional [sic] indemnity insurance of WA and – because that is the basis of the –the primary basis of the application for summary judgment, I'm not satisfied that it's appropriate to enter judgment without a trial in this case in favour of the claimants …
Magistrate Boon was not satisfied that it was appropriate for her to give judgment in favour of the claim without a trial because Madgwicks had satisfied her that the defence has a reasonable prospect of succeeding, given the scope of work and the kind of case it was, which was in her view 'really most unusual' (ts 52).
Magistrate Boon then addressed the stay application and went through the SEPA s 20 provisions.
Her Honour first observed what she knew from the materials before her, that Mr and Mrs Frigger were arguing that Madgwicks had breached the consumer guarantees in the Australian Consumer Law in relation to this legal work. She re-stated that she was not satisfied that Mr and Mrs Frigger had made out that there was no work done and she was not satisfied that 'they promised work that was not done in relation to the one week for the statement of claim; that is not consistent with the annexures to the affidavit in relation to what was agreed between the parties.' She was also not satisfied that there was no advice given or that Madgwicks were not skilled enough, given her view of the 'very complex' nature of the work that was required to be done.
Magistrate Boon then stated as follows (ts 53 ‑ 54):
… there's also a proposed counter-claim, which is for the balance of the fees that - for the accounts that have been rendered to the claimants. The ‑ my view is that the retainer that was signed by the parties in this case is in relation to legal work that was specifically being carried out in Victoria and the issues are whether the defendants have breached sections 60, 61 and 62 of the Australian Consumer Law.
That has to be seen in the context of this retainer and this contract. And, in my view and based on what is set out in the affidavits, the defences that will be raised will necessarily require any court that deals with the matter to have regard to what was required by way of professional obligations, not just in relation to the Australian Consumer Law, which is very broad, but the particular professional obligations that are contained in the Victorian provisions that have been referred to.
Magistrate Boon then turned to the matters to be taken into account pursuant to SEPA s 20(4) when determining whether the court of another State is the appropriate court for the proceeding.
As to s 20(4)(a) and the places of residence of the parties and of the witnesses likely to be called, Magistrate Boon found that each side had put forward three or four prospective witnesses and noted that there was one more witness in Victoria than in Western Australia but this was a reasonably finely balanced matter. (No complaint is made by Mr and Mrs Frigger about this aspect of Magistrate Boon's reasons).
As to s 20(4)(b), the place where the subject matter of the proceedings is situated, Magistrate Boon noted there had been a lot of argument about that. She found that the subject matter was work that was carried out by Madgwicks and that was in Victoria (ts 54).
As to s 20(4)(c), the financial circumstances of the parties so far as the court is aware of them, Magistrate Boon noted that the financial circumstances of Mr and Mrs Frigger had not been provided in Mrs Frigger's affidavits, however, she was prepared to take into account what Mrs Frigger had indicated in her submissions, that she and her husband were now on their self‑managed superannuation fund. Magistrate Boon also observed that Mr and Mrs Frigger were engaging in a great deal of litigation and noticed there was a security for costs order made recently (which is the order made by Barker J in Frigger v Banning). Magistrate Boon then went on to state (ts 54):
And although it is – it's expensive, I am not satisfied that this is something that is a great factor that would mean that the claimants in this case are heavily prejudiced if they were required to carry this out in Melbourne, in particular, in the context of this – the email correspondence. Even though that correspondence about going to Melbourne was a month after this retainer, it shows the way the claimants are conducting these matters.
I understand Magistrate Boon's reference to the email correspondence here to be the emails sent by Mrs Frigger on 17 and 18 February 2016 as I have set out in [26], [27] and [29] where Mrs Frigger stated that she was willing to fly to Melbourne.
As to s 20(4)(d), any agreement between the parties about the court or place in which the proceedings should be instituted, Magistrate Boon noted cl 21 of the costs agreement which provided that the Uniform Law as applied in Victoria was applicable. She observed that while this did not say that proceedings had to be in a particular court, it showed an intention that it was Victorian law which applied and (ts 55)
if you're looking at what is the more natural place or the most appropriate place, my view is that Victoria is more suitable than Western Australia in relation to the defence being that the contract was a Victorian contract, which I accept.
As to s 20(4)(e), the law that will be most appropriate to apply in the proceedings, Magistrate Boon observed that the Australian Consumer Law applies throughout Australia 'but that it is not just that, it is contract and it's the Victorian legislation and Code of Conduct referred to' (ts 55).
As to s 20(4)(f), whether a related or similar proceeding had been commenced against the person served or another person Magistrate Boon noted that this did not apply.
Finally, going through all of the factors and in the exercise of her discretion Magistrate Boon determined to stay the proceedings on the basis that the court in Victoria is more appropriate.
The appeal grounds
Ground 1 of the appeal notice filed in this court deals with the stay application. The appeal grounds read as follows:
1.The learned Magistrate erred in mixed fact and law in exercising her discretion to stay the proceedings permanently on the ground the Magistrates Court in Victoria is the appropriate court pursuant to s 20 Service and Execution Act:
(a)the Appellants reside in Perth, Western Australia;
(b)the Appellants retained the Respondent in two proceedings in the West Australian division of the Federal Court for causes of action arising in Western Australia;
(c)the Respondent agreed to provide legal services to the Appellants by email, telephone, post, and to appear in the Federal Court at 1 Victoria Avenue, Perth;
(d)the Appellants claim damages of $30,000 for breaches of service guarantees pursuant to s 60 – 62 Australian Consumer Law;
(e)the Respondent operates from an office in Melbourne.
2.In the circumstances the learned Magistrate erred in finding on the balance of probabilities that the appropriate court is the Magistrates Court in Victoria.
Ground 2 of the appeal notice relates to the application for summary judgment made by Mr and Mrs Frigger, which the magistrate dismissed, and is as follows:
3.The learned Magistrate's [sic] erred in law by dismissing the Appellants' application for summary judgment under s 18 Magistrates Court (Civil Proceedings) Act 2003 [sic];
(a)the Respondent is defined as an interstate legal practitioner pursuant to Legal Profession Act 2008;
(b)the Respondent was required to have professional indemnity insurance to cover legal practice in Western Australia s 68 the Act;
(c)the Respondent does not have the required insurance;
(d)the Respondent was not permitted to engage in legal practice or advertise or represent that it is entitled to so engage in this jurisdiction;
(e)in the above circumstances, and in circumstances where the Respondent through its employee James Graham was unable and unwilling to provide the legal services for which it was retained, the Appellants were entitled to summary judgment.
The nature of this appeal
In this appeal I must reconsider the evidence which was before the magistrate. The appeal is in the nature of a re-hearing: District Court Rules 2005 (WA) r 50(1): MCCPA s 40(4).
As this appeal is in the nature of a re-hearing, Mr and Mrs Frigger must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203. If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The fact that a litigant is disappointed with the result does not mean that the appeal court is able to intervene: Avsar v Binning [2009] WASCA 219 [37].
So far as a discretionary error is concerned the principles are set out in House v The King (1936) 55 CLR 499 in which the High Court said (504 ‑ 505):
It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In Norbis v Norbis (1986) 161 CLR 513, 518 – 519, Mason and Deane JJ made the following comments elaborating on the principles set out in House:
Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
Ground 1 – submissions
As in the hearings before the magistrate, Mrs Frigger was the spokesperson for both her and her husband in this appeal.
Mrs Frigger was conscious that she had to establish that some error had been made by the magistrate. During the appeal hearing Mrs Frigger submitted that the learned magistrate had made errors related to three aspects of SEPA s 20 and generally had erred in the exercise of her discretion.
The first group of errors which it was alleged the magistrate made related to her consideration of SEPA s 20(4)(b). It was alleged that Magistrate Boon made the following errors of fact:
(a)finding that Madgwicks was doing the work in Victoria;
(b)finding that the work being carried out was for 'legal proceedings which are in the Federal Court, not a WA State Court;
(c)finding that it was not WA work, it was Victorian work.
These alleged errors overlap. Since they all deal with the issue under s 20(4)(b), I will refer to and deal with all of these together as 'the alleged s 20(4)(b) errors'.
In relation to SEPA s 20(4)(c) Mrs Frigger submitted that the magistrate made an error of fact in finding that Mr and Mrs Frigger would not sustain prejudice if they were required to start a new claim in Melbourne (the alleged s 20(4)(c) error).
In relation to SEPA s 20(4)(e) Mrs Frigger submitted that the magistrate had made a mixed error of fact and law in finding that Victorian Law applies to the claim. This arises from that part of the decision which I have set out in [70] where Magistrate Boon stated that 'the court that deals with this matter have regard to what was required by way of professional obligations, not just in relation to the Australian Consumer Law, but also Victorian provisions'. Also relevant is the subsequent finding as I have set out in [77] above, that it is not just the Australian Consumer Law which had to be considered, but also 'it is contract and it's the Victorian legislation and Code and Conduct referred to' (the alleged s 20(4)(e) error).
Finally it was submitted that in weighing the balance of probabilities or convenience the magistrate erred when she found the Magistrates Court of Melbourne was the appropriate court (the alleged discretionary error).
Ground 1 – consideration
Other than the error in the exercise of the discretion pursuant to SEPA s 20, none of the specified alleged errors was identified in the Notice of Appeal Ground 1. Some were contained in the written submissions filed by Mr and Mrs Frigger on 17 February 2017. Some of Mrs Frigger's oral submissions differed from the written submissions. I will, however, deal with what I understand to be Mrs Frigger's arguments in relation to Ground 1 and in doing so I will summarise the main points of the arguments in respect of each of the alleged errors.
The alleged s 20(4)(b) errors
Mrs Frigger argued that it was irrelevant where the work was done. What was relevant was where the work was being provided.
Mrs Frigger submitted that the legal services were to be provided to her and her husband in Western Australia for legal proceedings in the jurisdiction of Western Australia, being the Perth Registry of the Federal Court. The costs agreement had been signed by Mr and Mrs Frigger at their home in Western Australia. Madgwicks was required to, and did, correspond with Mr and Mrs Frigger at their residence by email, fax or post. Madgwicks was required to appear in the Perth Registry of the Federal Court on Mr and Mrs Friggers' behalf and was required to file documents in that Perth Registry and serve documents on the opposing parties, all of whom are resident in Perth.
Mrs Frigger submitted that the costs agreement was entered into in Perth and Madgwicks understood and accepted that they were providing legal services to Mr and Mrs Frigger interstate.
Mrs Frigger submitted that work that was prepared in Melbourne but received in Western Australia was legal service provided here in Western Australia and not in Melbourne. She submitted it was 'impossible' for Madgwicks to provide legal services to Mr and Mrs Frigger in Melbourne, emphasising that she and her husband are resident in Perth and the legal services were to be provided to them in Perth. Further the legal services to be provided related to claims of damages suffered in Perth.
Mrs Frigger argued that the magistrate made an error when she found that the legal proceedings are in the Federal Court and not a WA State Court and that 'somehow because it was in the Federal Court the jurisdiction only refers to a WA State Court and not the Federal Court' (appeal ts 5). Mrs Frigger submitted that the jurisdiction did not relate to the law, it was necessary to look at the geographic jurisdiction, referring to the LPA 'where it says if a matter has substantial connection to this jurisdiction, it means geographic jurisdiction' (appeal ts 5). Mrs Frigger argued that the Federal Court in Perth has jurisdiction on matters which had their genesis in Perth and related to parties in Perth and claims which have arisen in Perth. The Federal Court proceedings related to things which had occurred in the Western Australian jurisdiction.
Mrs Frigger argued that the claim against Madgwicks concerned legal services being supplied 'within Western Australia' for two matters in the Western Australian division of the Federal Court. Those matters 'have an absolute connection to Western Australia' and no connection to Victoria. The legal services therefore had no connection to Victoria and could not be considered Victorian legal work.
Finally, Mrs Frigger relied on Swanson v Harley (1995) 103 NTR 25; (1995) 125 FLR 182.
I am unable to accept Mrs Frigger's submissions, for the following reasons.
The issue in s 20(4)(b) is 'the place where the subject matter of the proceedings is situated'. The subject matter of the Magistrates Court proceeding is the legal services which Madgwicks was retained to carry out and whether Mr and Mrs Frigger are entitled to a refund of the $30,000 'in circumstances where the defendant is unable to provide the services which it promised to provide' (see [2] above).
The legal services which Madgwicks was retained to carry out related to Federal Court proceedings. Madgwicks assumed responsibility to Mr and Mrs Frigger for the prosecution of the Federal Court proceedings and did so as a firm of solicitors practicing in Victoria.
Madgwicks was entitled to do so. By virtue of s 55B of the Judiciary Act 1903 Cth) a legal practitioner from any State is entitled to practice in any Federal Court. These rights flow from the entitlement to practice in a State or Territory court, subject only to the requirement that the practitioner have his or her name entered in the High Court Register of Practitioners; De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 [14] ‑ [17] and [50] ‑ [54] (French J) and University of Western Australia v Gray (No 25) (2009) 180 FCR 483; [2009] FCA 1227 [23] ‑ [30] (Barker J).
So far as Mrs Frigger submitted in this appeal that the costs agreement was made in Perth, I am not satisfied that is the case. The law relating to the place where a contract is made confirms that the costs agreement was made in the State of Victoria. This is because Mr and Mrs Frigger's acceptance of the costs agreement was first communicated by email on 21 January 2016 (see [12] above) and subsequently by post. The email was first received in Victoria, and that is the place of the costs agreement: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 [78] and [79]; (Edelman J).
Wherever the costs agreement was made, the fact remains that the legal services which Madgwicks was retained to carry out related to Federal Court proceedings and Madgwicks was to do that work in Victoria. It is true that those Federal Court proceedings arise from matters in Western Australia, however, that does not change the fact that this was the court where Mr and Mrs Frigger had chosen to bring their proceedings and, as Magistrate Boon correctly observed, it is not a State court.
The fact that Madgwicks was required to, and did, correspond with Mr and Mrs Frigger at their residence in this State, does not change the fact that the work was to be carried out in Victoria. Madgwicks was the party who was to effect performance of the legal services, and Madgwicks' place of business was in Melbourne. The work which was carried out (as found by Magistrate Boon, a finding which was open to her on the evidence), was done in Melbourne.
I am not satisfied that there was any error of fact or law relevant to SEPA s 20(4)(b) as alleged by Mrs Frigger in any of the findings by the magistrate. It was open on the evidence before the magistrate to find, as she did, that:
(a)Madgwicks was doing the work in Victoria;
(b)The work being carried out was for legal proceedings which are in the Federal Court, not a WA State Court;
(c)The work was not WA work, it was Victorian work.
The decision of Swanson v Harley relied on by Mrs Frigger was a case which did not consider SEPA provisions, but rather cross‑vesting pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NT). The issue in that case was whether it was 'otherwise in the interests of justice' that proceedings be transferred to another jurisdiction. The defendant, a South Australian solicitor, was instructed in South Australia by the plaintiff in relation to the proposed purchase of freehold property in Darwin and shares in a company incorporated in Victoria. The plaintiff instituted proceedings in the Northern Territory against the solicitor claiming damages for breach of retainer. The solicitor applied to have service of the writ set aside and to have the proceedings stayed. These applications were dismissed by the Master and the solicitor appealed and applied for the transfer of the proceedings to the Supreme Court of South Australia. On appeal, while the decisions of the Master were not overturned, the application for the transfer of the proceedings to the Supreme Court of South Australia was allowed. Martin CJ concluded (103 NTR 25 at 37 ‑ 38):
The subject matter of the proceedings is the professional relationship between the plaintiff and the defendant and his alleged breach of his duties to her. All that took place in South Australia. The parties live and carry on business there. The property, which was the subject of the dealings between the parties, is in the Northern Territory. The matter with which the action has most real and substantial connections arose in South Australia. The defendant's conduct may fall to be considered by standards applicable to legal practitioners in that State, and by the practice of those practitioners in relation to the transactions giving rise to the relationship. That is best determined on evidence from South Australia. The bulk of the evidence going to liability is to be found in South Australia.
In my view this case does not assist Mr and Mrs Frigger. Apart from the fact it did not deal with a stay application pursuant to SEPA, the considerations as applied by Martin CJ are not all in favour of Mr and Mrs Frigger, nor do they demonstrate that Magistrate Boon made any error in the balancing exercise required under s 20 of SEPA. This is because:
(a)The subject matter of the Magistrates Court proceedings is the professional relationship between Mr and Mrs Frigger and Madgwicks and its alleged breach of its duties to them.
(b)While Mr and Mrs Frigger live in Perth, Madgwicks is in Victoria. It could not be said that all relevant matters to do with the relationship between the parties took place in Western Australia (as Mrs Frigger has suggested).
(c)The subject of the dealings between the parties is the proceedings in the Federal Court.
(d)If there has been a breach by Madgwicks of the Australian Consumer Law then, on the information before Magistrate Boon, that breach must have occurred in Victoria. Madgwick's conduct may fall to be considered by standards applicable to legal practitioners in Victoria, and by the practice of those practitioners in relation to Federal Court proceedings of the same nature as those brought by Mr and Mrs Frigger. It should not be overlooked that the reason why Mr and Mrs Frigger chose Madgwicks to represent them was because of similar work they had done in that State.
(e)The bulk of the evidence going to liability may be found in Victoria where, if indeed there was a failure to provide legal services, the breach of the Australian Consumer Law occurred.
The matters I have set out in [111] above confirm, in my view, that there was no error in either fact or law in any of the findings made by Magistrate Boon relevant to her consideration of s 20(4)(b).
The alleged s 20(4)(c) error
In relation to SEPA s 20(4)(c), in the written submissions (par 9) Mr and Mrs Frigger stated that the magistrate erred in finding that they would not sustain prejudice if they were required to start a new claim in Melbourne. It was submitted they were both reliant on pensions from their self‑managed superannuation fund. They would be required to instruct a legal firm in Melbourne and incur legal and travel costs if required to commence a new claim in Victoria. Madgwicks was described as a large legal firm operating in the Melbourne CBD and able to represent itself by its own employee lawyer Mr Graham.
It is apparent that the magistrate did take into account that Mr and Mrs Frigger were reliant on pensions from their self‑managed superannuation fund: see [74] above. When I raised this with Mrs Frigger during the appeal hearing (appeal ts 19) she submitted that the error made was a failure 'to consider the financial circumstances of Madgwicks as compared to the applicants … the financial circumstances of both parties need to be considered'.
This is, of course, an entirely different proposition from the original alleged error of the magistrate, which was an error in finding that Mr and Mrs Frigger would not sustain prejudice if they were required to start a new claim in Melbourne. It is a proposition which cannot be sustained, particularly in light of the provisions of SEPA s 20(4)(e) which requires a consideration of 'the financial circumstances of the parties, so far as the court is aware of them' (italics my emphasis).
While there was information about the size of the firm and the number of partners and employees (an internet printout annexure AF8 to Mrs Frigger's first affidavit), Magistrate Boon had no information before her about the financial circumstances of Madgwicks other than Mrs Frigger's oral submissions, unsupported by evidence, as to her estimate of its turnover (ts 37). It is apparent that when considering the financial circumstances her Honour was, quite properly, concentrating on the prejudice to the Friggers which was, of course the focus of the submissions made by Mrs Frigger.
As well as what Mrs Frigger stated about her and her husband's reliance on their superannuation, Magistrate Boon also took into account Mrs Frigger's own emails written to Madgwicks in which she indicated she was willing and able to fly to Victoria, as well as the order for security for costs and the reasons for that set out in Barker J's decision in Frigger v Banning.
In these circumstances I am not satisfied that Magistrate Boon did make an error in either fact or law when she found that Mr and Mrs Frigger would not sustain prejudice if they were required to start a new claim in Melbourne. Mr and Mrs Frigger may not agree with that finding, however, that was a finding which was open to Magistrate Boon on the materials before her.
I would also add that this is not a matter which should be given decisive weight: St George Bank Ltd v McTaggart [21]. Mr and Mrs Frigger are not precluded from instructing solicitors in this State or a firm which practices in both States, to deal with their claim against Madgwicks in Victoria.
The alleged s 20(4)(e) error
In respect of SEPA s 20(4)(e) Mrs Frigger submitted that the magistrate erred in finding Victorian law applied to Mr and Mrs Frigger's claim. She pointed out that the claim was brought under Australian Consumer Law and that is the law which applies. Only div 3 and div 4 of pt 4.3 of the Uniform Law were implied in the costs agreement and they related to legal costs and disclosure obligations respectively. Mrs Frigger also pointed out that their claim was brought pursuant to breaches of the service guarantee provisions of the Australian Consumer Law and the relevant parts of the Uniform Law had no application to the matters the subject of that claim.
Mrs Frigger also argued that cl 21 of the costs agreement was not an exclusive jurisdiction clause and even it was, it would not divest the Western Australian Magistrates Court from the ability to hear the matter: Johannsen Drilling Pty Ltd v Legend International Holdings Inc[2008] NTMC 068 [23].
In my view, the submissions made by Mrs Frigger are based on a particularly strained construction of Magistrate's Boon's finding about the law which applied, which I am unable to accept for the following reasons.
As I have set out in [70], in her reasons Magistrate Boon took into account the proposed counterclaim, and that the issues are whether or not Madgwicks had breached s 60, s 61 and s 62 of the Australian Consumer Law. She observed that this had to be seen in the context of 'the retainer and this contract' (namely, the costs agreement). She also expressed the view, based on what was set out in the affidavits, that this would require 'any court that deals with the matter to have regard to what was required by way of professional obligations, not just in relation to the Australian Consumer Law, which is very broad, but the particular professional obligations that are contained in the Victorian provisions that have been referred to'.
In my view, there is no error in these observations. Whether there has been a breach by Madgwicks of the Australian Consumer Law will involve, as the magistrate found, 'the Victorian provisions that have been referred to'. These are the provisions referred to by Madgwicks in its submissions before the magistrate, as I have set out in [55(b)].
It was in this context that when her Honour came to consider s 20(4)(e) she stated 'but that it is not just that, it is contract and it's the Victorian legislation and Code of Conduct referred to'. In other words, what Magistrate Boon was saying, in a summary and short hand way, was that any court considering Mr and Mrs Frigger's claim against Madgwicks and its counterclaim would need to consider both the Uniform Law and the Victorian legislation and professional obligations of solicitors identified in Madgwicks' submissions.
As I have already observed, Madgwick's conduct may fall to be considered by standards applicable to legal practitioners in Victoria, and by the practice of those practitioners in relation to Federal Court proceedings of the same nature as those brought by Mr and Mrs Frigger.
I am not satisfied that there was any error in either fact or law in these findings.
The alleged discretionary error
Finally applying the principles in House v The King and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 554 [30] Mrs Frigger submitted that in weighing the balance of probabilities or convenience the magistrate erred in her decision that Melbourne was the appropriate place for the matter.
The case of Voth v Manildra Flour Mills Pty Ltd related to an action in New South Wales brought by two New South Wales companies for damages for negligent accounting advice which had been given in a foreign country, namely the United States of America, by an accountant practising in the State of Missouri. This case dealt with the doctrine of forum non conveniens and the relevant test to be applied in determining whether a plaintiff should be deprived of the advantage of prosecuting his action in a forum, if the action is otherwise properly brought. The passage of the judgment of the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) at [30] referred to by Mrs Frigger relates to a summary of the common ground in two lines of cases applying different tests. The test which the High Court applied in Voth v Manildra Flour Mills was whether New South Wales was clearly an inappropriate forum in which to permit the action to proceed (referred to now as the 'clearly inappropriate forum' test). The High Court held that the act on which the New South Wales companies relied for their cause of action was committed in Missouri and thus the tort, if there was one, was committed there. Accordingly the New South Wales action was considered to be a clearly inappropriate forum and the action was stayed. This case does not, in my view, assist Mr and Mrs Frigger.
Having regard to the considerations in SEPA s 20(4) I am not satisfied that there was any error made by Magistrate Boon in exercising her discretion. The magistrate considered each of the factors in SEPA s 20(4). It was open on the information before her and based on her findings (none of which I am satisfied were in error as alleged by Mr and Mrs Frigger) to determine that the appropriate court is the Magistrates Court in Victoria.
It follows that the appeal based on Ground 1 must be dismissed.
Ground 2 – A fundamental problem with this appeal
There is a fundamental problem with Ground 2 of the appeal brought by Mr and Mrs Frigger in relation to their summary judgment application.
Section 18(7) of the MCCPA specifically provides that no appeal lies from the decision of a magistrate to refuse to give summary judgment.
It follows that the appeal based on Ground 2 must be dismissed.
However, as the merits of the appeal were argued, I will deal with them. Indeed, in the circumstances I consider it is important that I do so.
Ground 2 – the basis of the summary judgment application
Mr and Mrs Frigger claimed that Madgwicks, being defined as an interstate legal practitioner pursuant to the LPA, was required to have professional indemnity insurance to cover legal practice in Western Australia pursuant to s 68 of the LPA.
Section 68 provides:
68.Requirement for professional indemnity insurance
(1)An interstate legal practitioner must not engage in legal practice in this jurisdiction, or represent or advertise that the practitioner is entitled to engage in legal practice in this jurisdiction, unless the practitioner —
(a)is covered by professional indemnity insurance that -
(i)covers legal practice in this jurisdiction; and
(ii)has been approved under or complies with the requirements of the corresponding law of the practitioner's home jurisdiction; and
(iii)is for at least $1.5 million (inclusive of defence costs), unless (without affecting subparagraph (i) or (ii)) the practitioner engages in legal practice solely as or in the manner of a barrister;
or
(b)is employed by a corporation, other than an incorporated legal practice, and the only legal services provided by the practitioner in this jurisdiction are in‑house legal services.
Penalty: a fine of $10 000.
(2)Subsection (1) does not apply to an interstate legal practitioner who -
(a)is an interstate government lawyer; and
(b)is engaged in legal practice in this jurisdiction only to the extent that the practitioner is engaged in government work.
Section 68 of the LPA thus imposes an obligation on an interstate legal practitioner who 'engages in legal practice' in Western Australia to obtain professional indemnity insurance covering that legal practice.
Ground 2 – the appellants' submissions
As Mrs Frigger described it to me at the hearing of this appeal, the summary judgment application was not based on the original claim as set out in the General Procedure claim, but was a 'completely discrete issue' (appeal ts 17), 'based on something that came to my attention later on, that they had no professional indemnity insurance' (appeal ts 34).
Mrs Frigger confirmed that the claim for a breach of s 68 of the LPA is another cause of action which was not in the original claim (appeal ts 47 and ts 48).
Mrs Frigger submitted that the magistrate had erred in finding that the work carried out by Madgwicks was not WA legal work, but Victorian legal work.
Mrs Frigger argued that Madgwicks was 'preparing the work' in Victoria but the services were being provided in this jurisdiction and 'being provided means they would have to come here to represent us in the Federal Court in Perth, either a barrister or the solicitor or both.' Because Madgwicks was providing these legal services, it was practising in this jurisdiction. Accordingly, Mrs Frigger argued, Madgwicks was required to have professional indemnity insurance that covers legal practice in the jurisdiction of Western Australia. On her evidence (which I have set out in [44] above) Madgwicks was not covered by insurance for any work being provided in this jurisdiction.
Mrs Frigger also submitted that the magistrate erred because (ts 49) it was 'clear that Madgwicks were not permitted to provide legal services in WA', and 'it is clear that the act or transaction was invalid under section 68 of the Legal Profession Act'.
Ground 2 – Consideration
As to the alleged error relied upon by Mr and Mrs Frigger that Magistrate Boon erred in finding that the work carried out by Madgwicks was not WA legal work, but Victorian legal work, for the reasons I have already discussed in [95] ‑ [112] above, I am not satisfied that any such error was made.
For the same reasons I do not consider that Madgwicks was 'not permitted' to provide the legal services (as Mrs Frigger submitted). To put this in another way using the words of the LPA s 68, I am not satisfied that, by representing Mr and Mrs Frigger in the Federal Court proceedings and advising about those proceedings, Madgwicks was engaged in legal practice in this State and thus required to obtain professional indemnity insurance cover for this State. As I have set out in [105], Victorian legal practitioners who are admitted in the High Court are entitled to practice in the Federal Court. It does not matter that the Federal Court proceedings had their genesis in the State of Western Australia.
Finally, although Mrs Frigger claimed from her telephone inquiries that Madgwicks was not covered by insurance for any work being provided in this jurisdiction, that was a matter which was disputed by Madgwicks in its submissions before the magistrate (as I have set out in [58] above). While Mrs Frigger was critical of Madgwicks in not responding to her allegations by way of affidavit, a defendant on a summary judgment application is not necessarily limited to affidavit to demonstrate that there is some triable issue either of fact or law, and that it has an arguable defence or a defence on the merits: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 ‑ 111.
For these reasons, applying the relevant principles on a summary judgment application, I am not satisfied that there was any error by Magistrate Boon in dismissing the application brought by Mr and Mrs Frigger. To use Mrs Frigger's words it is not 'clear' that Madgwicks was not permitted to provide the legal services, or that there was any invalid act or transaction under s 68 LPA.
There are, in my view, some further problems with the claim for summary judgment made by Mr and Mrs Frigger against Madgwicks on the basis of the breach of s 68 LPA.
During the appeal hearing (appeal ts 46), I questioned with Mrs Frigger how a breach of LPA s 68 by Madgwicks gave Mr and Mrs Frigger a right of action. I am not satisfied that it does. As explained by Dixon J in O’Connor v SP Bray Ltd (1937) 56 CLR 464, 477 ‑ 478:
… But it is a different question itself whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy.
Generally there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed: Northern Territory v Mengel (1995) 185 CLR 307, 343 ‑ 345; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 [157] (Gummow J).
On my examination of the LPA there is no express intention that a breach of s 68 gives rise to a private right of action and I do not consider that there is a necessary implication that it gives a private right of action. The long title of the LPA sets out that it is an Act 'to provide for the regulation of legal practice in Western Australia; and to facilitate the regulation of legal practice on a national basis.' Thus the LPA is for the benefit of the public generally. There is no 'injured party' in s 68 or a right given to anyone (either expressly, or by implication) to have the duty to obtain professional indemnity insurance performed. There is also a prescribed penalty for a breach of s68, namely a fine of $10,000, which weighs against a construction that the section creates a private right of action: Cutler v Wandsworth Stadium Ltd [1949] AC 398, 408; Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209, [100] ‑ [101] (Le Miere J).
Accordingly, I am not satisfied that Mr and Mrs Frigger can use a breach of the LPA s 68 as the foundation for a claim or civil action against Madgwicks.
Even if a breach of the LPA s 68 does give Mr and Mrs Frigger a right of civil action, the appropriate remedy, if the cause of action exists, is damages: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 [84]; Alcoa of Australia Ltd v Apache Energy Ltd [80] (where Le Miere J set out the elements of the civil action for a breach of statutory duty).
There is no evidence that Mr and Mrs Frigger have, in fact, suffered any damage as a result of any breach by Madgwicks of s 68 of the LPA. What is stated in Mr and Mrs Frigger's submissions in this appeal is (par 29):
The appellants were put at risk because the respondent was not covered for professional indemnity insurance for legal services to be provided in Western Australia…
That is the most that can be said – that if indeed there was a breach of LPA s 68, Mr and Mrs Frigger were put at risk.
Finally ‑ and this is a matter I raised with Mrs Frigger and about which I invited submissions from both her and Madgwicks ‑ Mr and Mrs Frigger have claimed, as set out in par 8 of Mrs Frigger's second affidavit, that the retainer agreement was void ab initio. In the Orders Wanted filed by Mr and Mrs Frigger in this appeal, the orders set out are, firstly, that the judgment of 14 October 2016 be set aside and, secondly, 'An order declaring that the cost agreement dated 21 January 2016 is void ab initio'. This is equitable relief – namely declaratory relief. There is, in my view, a real issue as to whether the Magistrates Court has jurisdiction for that claim.
Mrs Frigger argued that her and her husband's General Procedure Claim is a consumer claim and the request for a refund is a monetary claim which falls within the jurisdiction of the Magistrates Court, and the claim as to the legal validity of the costs agreement made pursuant to LPA s 68 is an incidental order to the principal relief. However, as Mrs Frigger acknowledged, the claim based on the alleged breach of LPA s 68 is a 'completely discrete issue' from the claim pursuant to the Australian Consumer Law. Thus the equitable relief claimed – a declaration that the costs agreement is void ab initio (assuming that such relief can be claimed for a breach of LPA s 68) – is arguably not ancillary or incidental and thus may be beyond the jurisdiction of the Magistrates Court: Bulcraig v Hunt [2010] WADC 99; Chin v Thies [2008] WADC 71.
This is not a matter which I need to determine in this appeal. In fact, it is not appropriate to make a determination of a matter of law relating to the jurisdiction of the Magistrates Court on such an application: SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20]. It is, however, another reason why Mr and Mrs Frigger could not succeed on their application for summary judgment based on a breach of s 68 of the LPA, applying the principles on a summary judgment application.
Conclusion
As Mr and Mrs Frigger have not made out any of their grounds of appeal, the appeal must be dismissed.
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