| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FRIGGER -v- NIGAM [2005] WADC 127 CORAM : COMMISSIONER SCHOOMBEE HEARD : 17 JUNE 2005 DELIVERED : 1 JULY 2005 FILE NO/S : CIV 1305 of 2005 BETWEEN : ANGELA FRIGGER Plaintiff
AND
SHARAD CHANDRA NIGAM
Defendant
Catchwords: Practice and procedure - Jurisdiction of District Court - Claim in detinue - Solicitor's lien over documents - Documents owned by company - Application made by director personally - Payment into court of solicitor's outstanding fees - Production of documents to the court
Legislation: District Court of Western Australia Act 1969, s 50(1)(a)
Result: Application to deliver up documents adjourned for further affidavits to be filed
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Representation:
Counsel:
Plaintiff : In person
Defendant : Mr S V Forbes
Solicitors:
Plaintiff : Not applicable
Defendant : Stewart Forbes
Case(s) referred to in judgment(s):
Barratt v Gough-Thomas [1951] Ch 242
Bolger v Bolger (1985) 82 FLR 46
Bolster v McCallum (1966) 85 WN (Pt 1) (NSW) 281
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Chester v Cassidy Gibson Howlin (1994) 18 Fam LR 463
Cowell v Simpson (1809) 16 Ves 275
Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 All ER 1049
Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267
Hondros & Tholet v Chesson [1981] WAR 146
Hughes v Hughes [1958] 3 All ER 179
Kanbur Pty Ltd v Adams (1984) 3 FCR 192
Murcia & Associates (A Firm) v Grey & Ors [2001] WASCA 240
Pelly v Wathen (1849) 7 Hare 351
Re Broomhead (1847) 5 Dow & L 52
Re Long Ex parte Fuller (1881) 16 Ch D 617
Richards v Platel (1841) CR & Ph 79
State of Western Australia v Crimmins & Anor [2004] WADC 162
Case(s) also cited:
Grey & Ors v Zaratell Pty Ltd As Trustee for C and a Family Trust & Ors [2004] WASC 37
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1 COMMISSIONER SCHOOMBEE: Ms Angela Frigger, the plaintiff, has brought an action by way of writ of summons against Sharad Chandra Nigam, the defendant, in respect of the defendant's wrongful detention of and failure to return, after demand, the plaintiff's goods. No statement of claim has as yet been filed. It appears from the orders claimed by the plaintiff that she requires the defendant to deliver up to her all property detained by the defendant relating to Magistrates Court Case No 17065 of 2003 (presumably Local Court Case No 17065 of 2003) and District Court Action No 332 of 2004. The plaintiff also claims damages as a result of the professional negligence of the defendant acting as a legal practitioner and damages resulting from the detention of the plaintiff's property. On the same date that the writ of summons was issued, the plaintiff also filed a chamber summons for an interlocutory injunction asking for an order that the defendant immediately deliver up to the plaintiff all property in his possession with regard to Magistrates Court Case No 17065 of 2003 and District Court Matter No 332 of 2004.
2 The plaintiff represented herself at the hearing of this matter. In support of her application for an interlocutory injunction she filed an affidavit, dated 16 June 2005. This affidavit explains that the plaintiff first instructed the defendant (who appears to be a legal practitioner) on 18 October 2004 to transfer a matter already instituted in the Local Court to the Federal Court, because her claim exceeded the jurisdictional limit of the Local Court. She told the defendant that she wished the action to be transferred to the Federal Court because her claim was made pursuant to s 52 of the Trade Practices Act 1974. The plaintiff states in her affidavit that the defendant told her that the matter could not be transferred to the Federal Court, but had to be transferred to the District Court instead. The affidavit then sets out the history of the application made by the defendant on the plaintiff's behalf to have the matter transferred from the Local Court to the District Court. It appears from the affidavit that this application was never determined by the District Court, as the last step taken by the defendant in respect of the Local Court action was to have the application for its transfer listed at a special appointment. 3 The plaintiff says in her affidavit that on 1 June 2005 she verbally dismissed the defendant and told him that she would continue the case with the assistance of the barrister appointed by the defendant on her behalf. The plaintiff sets out in her affidavit her dissatisfaction with the services received from the defendant, essentially that he did not follow her instructions and charged excessive fees without making any progress with the transfer of the action. The plaintiff also says that she has been advised by an officer of the Federal Court that it is possible for a matter to be
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transferred from a State Court to the Federal Court, and that she has arranged a hearing in the Federal Court to apply for this transfer. The plaintiff further states in her affidavit that she requires all papers, documents and files held by the defendant in respect of the action in the "Magistrates Court" and the application in the District Court in order to prepare for the hearing in the Federal Court and to instruct a new solicitor who will work with the barrister. The plaintiff explains that she has lost eight months because of the defendant's inability to comply with her original instructions, and that there is a danger that the opposing party to her case will dispose of all his assets. 4 The plaintiff says in her affidavit that she had instructed the defendant to prepare a new statement of claim. She states that the defendant prepared a draft statement of claim which is attached to her affidavit. This statement of claim is issued in the District Court of Western Australia and shows that it is between Computer and Tax Accounting Pty Ltd, as the plaintiff, and Professional Services of Australia Pty Ltd and Martin Paul Banning, as the first and second defendants. On the copy of the draft statement of claim attached to the plaintiff's affidavit, the name of the plaintiff has been changed in hand-writing to Computer Accounting and Tax Pty Ltd. It appears from this draft statement of claim that the plaintiff in the action in the Local Court which is to be transferred to the Federal Court is Computer Accounting and Tax Pty Ltd ("the Company") and not the plaintiff, Ms Angela Frigger. 5 The plaintiff has also attached some items of correspondence to her affidavit which are between the defendant and "The Directors, Computer Accounting and Tax Pty Ltd" and deal with the conduct of the case to have the action transferred from the Local Court to the District Court. 6 The plaintiff received an itemised account from the defendant, dated 14 June 2005, in the amount of $24,181.41. An amount of $6,279.64 has already been paid in respect of this invoice and a discount of $500 has been given. The balance due under the account is $17,401.77, or if it has been paid within seven days from 14 June 2005, $12,000, as a discount of $5,401.77 is then given. The itemised account is directed to "The Directors, Computer Accounting and Tax Pty Ltd". The account has apparently not been taxed and the plaintiff has advised me from the Bar table that she disputes the whole of the account. 7 The plaintiff says in her affidavit that the defendant has refused to deliver up to her the papers, documents and files relating to the matter
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instituted in the Local Court and the application in the District Court on the basis that she has not paid the total amount of the defendant's bill issued in respect of the services delivered by the defendant. 8 No affidavit in opposition has been filed by the defendant. Mr Forbes, who appeared as counsel on behalf of the defendant at the hearing of the application to deliver up the documents, advised me from the Bar table that the defendant claimed a lien over the documents held by him in relation to the action in the Local Court and the application instituted in the District Court. 9 Mr Forbes further submitted that this Court had in any event no jurisdiction to order the defendant to deliver up the documents as this Court has no jurisdiction to supervise the conduct of legal practitioners. He relied for this submission on Murcia & Associates (A Firm) v Grey & Ors [2001] WASCA 240, 15 August 2001. This matter concerned an appeal against an order made by a District Court Judge that a solicitor representing one of the parties cease doing so by reason of a conflict of interest. Steytler J, with whom Wallwork J agreed, held that the District Court does not have a supervisory or disciplinary jurisdiction in respect of the conduct of solicitors (at par 16). His Honour held that the Supreme Court has inherent jurisdiction to discipline lawyers as an adjunct to its powers in respect of their admission, but that the District Court does not have such inherent jurisdiction. 10 The application for an interlocutory injunction that the defendant deliver up certain documents is not a matter concerning any supervisory or disciplinary jurisdiction in respect of solicitors. The application against the defendant to deliver up the documents is based on the tort of detinue pursuant to which the plaintiff has a right to have returned to her, any documents which are her property and which the defendant unlawfully refuses to deliver up: Kanbur Pty Ltd v Adams (1984) 3 FCR 192 at 201 – 202. It is only coincidental that the plaintiff wishes to exert her right to the delivery of the documents against a solicitor. Similarly, the defendant's reliance on a lien is a common law right which attaches to any property in respect of which a person has performed services and in respect of which monies are owing to the service provider. The right to a lien is not the exclusive domain of solicitors. 11 The solicitor's lien is founded on the general law of lien, which derives from the law of possession, and is governed by the same rules as other cases of possessory lien: Cowell v Simpson (1809) 16 Ves 275 at 280 and Pelly vWathen (1849) 7 Hare 351 at 364. The solicitor's lien
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was explained in Barratt v Gough-Thomas [1951] Ch 242 at 250, per Evershed MR, as follows: "It is a right at common law depending … upon implied agreement. It has not the character of an incumbrance or equitable charge. It is merely passive and possessory – that is to say, the solicitor has no right of actively enforcing his demand. It confers upon him merely the right to withhold possession of the documents or other personal property of his client or former client. … It is wholly derived from and therefore co-extensive with the rights of the client to the documents or other property." 12 The action that is before this Court is a claim by the plaintiff against the defendant for wrongful detention of, and failure to return the plaintiff's property. There is possibly also a claim against the defendant for damages arising from alleged professional negligence in providing services as a legal practitioner, although this only appears from the orders sought in the writ of summons. These are both matters which are within the jurisdiction of this Court to decide at the trial of this action: 13 Pursuant to s 50(1)(a) of the District Court of Western Australia Act 1969 this Court has jurisdiction to hear and determine all personal actions where the amount, value or damages sought to be recovered is not more than the jurisdictional limit. "Personal actions" are not defined. Seaman, "Civil Procedure Western Australia", Vol 2 states in his commentary on this section at [13,525] the following: "Personal actions are such whereby a person claims a debt, or personal duty, or damages in lieu thereof; and likewise where a person claims a satisfaction in damages for some injury to his or her person or property. The former are said to be founded on contracts, the latter upon torts or wrongs: R v Cheshire County Court Judge and United Society of Boilermakers; Ex parte Malone [1921] 2 KB 694 at 709." 14 In the State of Western Australia v Crimmins & Anor [2004] WADC 162, Wisbey DCJ dealt with interpleader proceedings in respect of bangles which one claimant asserted had been given to her as a present and the other claimant asserted she had purchased. Wisbey DCJ concluded that this Court had jurisdiction as the dispute between the claimants could be categorised as actions in detinue and that these were "personal actions" falling under s 51(1)(a) of the District Court of Western Australia Act 1969. Wisbey DCJ referred to Halsbury'sLaws of England,
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3rd ed, Vol 1, at par 41 where it is said that "personal actions may for present purposes be divided into actions arising out of contract (ex contractu) and actions arising out of torts (ex delicto)". 15 In par 31 in Halsbury'sLaws of England, op cit, personal actions are further described as follows: "In personal actions the plaintiff claimed a debt, or sought to recover a chattel or damages in lieu thereof, or claim satisfaction in damages for some injury done to his person or property." 16 The statements made in par 31 and par 41 do not appear to have been repeated in the 4th ed of Halsbury'sLaws of England or in Halsbury'sLaws of Australia. However, these paragraphs appear in Halsbury's, op cit, under the heading "Old forms of action" and with the following footnote: "The description of old forms of action contained in this section may possibly be regarded as superfluous in a work intended to state the law of England as it now stands. It was, however, thought better to depart in this instance from the principle of excluding purely historical matter, since some acquaintance with the outlines of ancient procedure is necessary for an intelligent perusal of old reports." 17 In my view the historical background provided in Halsbury'sLaws of England, 3rd. ed, indicates that a "personal action" includes an action to recover a chattel and an action arising out of tort. In Kambur Pty Ltd v Adams (supra) McGregor J held that "in the terminology of real and personal actions, the actions of detinue and conversion or trover would be described as personal actions." Accordingly, the plaintiff's claim in detinue is within the jurisdiction of this Court. 18 In light of the above I do not accept the submission by the defendant's counsel that this Court does not have jurisdiction to deal with the plaintiff's application to have the documents delivered up, or with the defendant's claim to a lien in respect of these documents. 19 The plaintiff has sought to bring her claim for the return of the documents to the early attention of this Court by way of an interlocutory injunction. This Court does have jurisdiction to grant an interlocutory injunction where it is ancillary relief to the main claim in the action which is within the jurisdiction of this Court: Hondros & Tholet v Chesson
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[1981] WAR 146 at 147; Murcia & Associates (A Firm) v Grey & Ors (supra) at [23]. However, if an interlocutory injunction was granted in this case, this would pre-empt the outcome of the plaintiff's action as instituted by the writ and deprive the defendant of the opportunity to defend the action at trial. Unless the plaintiff's case is so strong that it would be a waste of time and expense to let the action go to trial, an injunction should be refused, because it would be an injustice to deprive the defendant of a trial: Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 238. 20 Counsel for the defendant also submitted that the action and application for an interlocutory injunction have been brought by the wrong party, as the plaintiff personally was not entitled to the return of the documents which appear to have been provided to the defendant by the Company. No affidavit has been filed by the defendant to say that any agreement to provide legal services was with the Company, and that it was the Company who handed over its documents to the defendant in relation to the Local Court action and the application in the District Court. However, it does appear from the annexures to the plaintiff's affidavit, namely the items of correspondence, the draft statement of claim and the bill of costs, that the Company contracted with, and dealt with the defendant. 21 The plaintiff advised me from the Bar table that she was a director of the Company and that she personally had paid to the defendant the sum in reduction of the bill of costs issued by the defendant. However, without an affidavit providing proof that the plaintiff is entitled in her own right to make an application for the return of the documents to her, rather than to the Company, I cannot make the order requested. 22 Even if the action and the application to have the documents delivered up had been instituted by the Company, there is a further issue in granting the application. It is a well established principle that a solicitor has a lien over the client's deeds, papers or other items of personal property that come into the solicitor's possession in the course of his or her employment by the client in his or her capacity as a solicitor: Halsbury's, Laws of Australia, Vol 16, [250 - 1030] and the authorities cited in footnotes 1 and 2. The lien entitles the solicitor to retain physical possession of the client's documents and property that the client would otherwise be entitled to claim until the full amount of costs to which the lien relates has been paid: Halsbury's, op cit [250 – 1040] and the cases there cited.
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23 Where the solicitor has himself or herself discharged the retainer, the court will normally make a mandatory order obliging the solicitor to hand over the client's papers to a new solicitor against an undertaking by the new solicitor to preserve the lien of the original solicitor: Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 All ER 1049 at 1058. However, where the client has discharged the solicitor otherwise than for misconduct, the solicitor can retain any papers in the action held in his possession until his costs have been paid. The English Court of Appeal in Hughes v Hughes [1958] 3 All ER 179, per Hodson LJ, held as follows (at 180):
"There is no doubt that a solicitor who is discharged by his client during an action, otherwise than for misconduct, can retain any papers in the cause in his possession until his costs have been paid: see in Re Rapid Road Transit Co [1909] 1 Ch 96. This rule applies, as the authorities show, whether the client's papers are of any intrinsic value or not, although it would seem that so far as the solicitor's working papers are concerned, where the work has not been paid for by the client, the solicitor would not be compelled to hand over his work unless it had been paid for, apart altogether from the lien." 24 The plaintiff has stated in her affidavit filed in support of this application that she verbally dismissed the defendant on 1 June 2005. The affidavit does not specifically allege any misconduct by the defendant, although the affidavit indicates that in the plaintiff's view the defendant has not discharged his obligations arising from his retainer in a timely and efficient manner. The main allegations made in this regard are that the defendant gave the incorrect advice regarding the possibility of transferring the matter from the Local Court to the Federal Court, did not advise the plaintiff of the level of costs to be incurred, did not follow the plaintiff's instructions and issued a bill in the amount of $28,644.16 without completing the statement of claim or having the case transferred to the correct court. 25 The authorities which make the statement that a solicitor who is discharged by his client "otherwise than for misconduct" has a right to exercise a lien, do not elaborate on what qualifies as "misconduct" and whether a solicitor loses his right to retain the documents where he or she is guilty of "misconduct". It is not necessary for me at this stage to decide this issue. In any event, even though the defendant should have filed an affidavit in opposition to the plaintiff's application in case his argument regarding the lack of jurisdiction of this Court would fail, it would not be
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in the interest of justice to decide whether there was misconduct by the defendant without giving the defendant the opportunity to reply to the allegations made by the plaintiff in her affidavit in this regard. 26 A solicitor is entitled to a lien on all documents that were received by him in his capacity as solicitor for the person against whom the lien is claimed: Re Long Ex parte Fuller (1881) 16 Ch D 617; Pelly v Wathen (1849) 7 Hare 351. Where the exercise of the lien is likely to cause damage to the client, the court may order that the documents be handed over to the client upon payment into court by the client of the amount outstanding to the solicitor Re Broomhead (1847) 5 Dow & L 52; Richards v Platel (1841) CR & Ph 79 at 83. In Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267 a client of a solicitor had instituted an action for professional negligence against the solicitor and had brought an application for the files held by the solicitor in respect of the client's case to be produced for inspection to allow the client to prepare his case against the solicitor. Shepherdson J held that in a case where the client had made a claim against the solicitor for professional negligence justice required that the documents be produced to the court so that the client, or its newly appointed solicitors, could inspect the documents and prepare for the case against the solicitor (at 270 – 271). His Honour relied on the decision of the New South Wales Court of Appeal in Bolster v McCallum (1966) 85 WN (Pt 1) (NSW) 281 in which Asprey JA formulated the principle as follows (at 287): "However, my reading of a number of decisions which bear upon this type of problem leads me to believe that two principles can be extracted from them; firstly, that, despite the existence of a lien, documents subject thereto, generally speaking, will be ordered to be produced to a court in the course of litigation whenever their production is necessary to do justice in the particular case; secondly, that the solicitor's claim of a lien will be protected by the court until it is shown that the claim is unfounded." 27 Shepherdson J further held that to order inspection of the documents held by the solicitor without any payment of fees charged by the solicitor or the giving of security therefore, would disadvantage the solicitor in the event that the client's claim against him failed by which time the solicitor's lien would be in effect worthless. On the other hand, Shepherdson J considered that if the full amount of the solicitor's outstanding bill was ordered to be paid into court, the client would be disadvantaged in that the amount so ordered might turn out to be excessive. Shepherdson J
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therefore ordered that the solicitor produce the documents in issue for inspection by the client's newly appointed solicitors on condition that the client first pay into court a sum, which was reduced from the total sum claimed by the solicitors in their bill (at 271). 28 In Chester v Cassidy Gibson Howlin (1994) 18 Fam LR 463 the amount payable into court was also reduced from the amount of the bill. Moss J held as follows: "Where the costs claimed by a solicitor have not yet been taxed and there is a serious dispute by the former client as to the amount of costs actually due, an order will not be made securing the whole of the amount claimed, but rather for such proportion of the amount claimed as the court thinks reasonable on the evidence before it: Johns v Cassel [1993] FLC 92 - 364." 29 In Bolster v McCallum (supra) the solicitor had sued the client to recover his fees. The client defended the action on the basis that the work had not been done for him, but for a company. The client served the solicitor with a subpoenaduces tecum for the production of certain documents referred to in the solicitor's bill of costs, but the solicitor objected to producing them on the basis that he had a lien over the documents. The court at first instance upheld the solicitor's claim in respect of the lien. This decision was reversed on appeal. I have already referred to the principles considered applicable by Asprey JA on hearing the appeal including that the production of documents to a court will be ordered where this is necessary to do justice in a particular case. Asprey JA held that the court at first instance should have ordered that the documents be produced to the court and that, upon request by the client to inspect them, the presiding judge should have examined each of the documents to determine whether they were relevant to the issues in the case between the client and the solicitor. Asprey JA considered that the judge had a discretion regarding what documents be inspected by the client and upon what conditions, as the documents would be retained in the custody of the court (at 287). His Honour ordered a new trial of the action. 30 The circumstances in the present case are different from Bolsterv McCallum and Hammerstone Pty Ltd v Lewis as in this matter the plaintiff has brought the application on the basis that the documents are required to pursue the case in the Federal Court against third parties. The plaintiff has not said in her affidavit that the documents are also required to allow the Company to pursue a case against the defendant for
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professional negligence. However, I do not see any material distinction as regards the requirements of justice whether documents held by a solicitor are needed in the conduct of a case by the client against the solicitor, or in the conduct of a case by the client against a third party. 31 In Bolger v Bolger (1985) 82 FLR 46 Buckley J considered as follows (at 50): "The practice appears to have developed whereby the discharged solicitor will usually pass the client's documents to the firm of solicitors replacing him to hold them to his order or for his account. In these circumstances, the retaining lien is not discharged. However, a solicitor cannot be compelled to abide by this practice in the circumstances which are relevant to this dispute." 32 In Bolger v Bolger Buckley J held that the solicitor was not compelled to hand over the client's documents to the client's new solicitors unless the outstanding account was paid in full. 33 The onus of proving that a solicitor's claim to a lien is unfounded is upon the client who alleges that it is unfounded: Bolster v McCallum. 34 The principles of the common law regarding a lien have been embodied in O 52 r 6 of the Rules of the Supreme Court which provide as follows: "Recovery of personal property subject to lien 6 Where – (a) the plaintiff, or the defendant by way of counterclaim, seeks to recover specific property other than land; and (b) the party from whom the recovery is sought does not dispute the title of the party making the claim, but claims to be entitled to retain the property by virtue of a lien, or otherwise as security for a sum of money, the Court at any time after the claim to be so entitled appears from the pleadings (if any), all by affidavit or otherwise to its satisfaction, order that the party seeking to recover the property be at liberty to pay into court to abide the event of the action,
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the amount of money in respect of which the security is claimed, and such further sum (if any), for interest and costs as the Court directs, and that upon such payment being made, the property claimed be given up to the party claiming it." 35 This rule may entitle the plaintiff to ask for an order, prior to the trial of the action, that the defendant deliver up the documents on condition that the plaintiff make a payment into court. Order 52 r 7 provides that the court, upon application for such an order, may give directions as to the further proceedings. 36 It is not possible for me at this stage to make any order regarding the payment into court of any amount in respect of the defendant's outstanding bill of costs or an order for the production of the documents sought by the plaintiff to the court to be dealt with in the court's discretion. This is because the affidavit material before me is insufficient for me to come to a conclusion as to whether the plaintiff is entitled to an order that the documents be delivered up to her in light of the fact that on the documents attached to the plaintiff's affidavit it appears that the documents were handed by the Company to the defendant and that the Company is liable for the outstanding amounts under the bill of costs. I am also not able on the affidavit material before me to determine whether there was any "misconduct" by the defendant and to what extent this should effect the court's discretion in considering the requirements of justice. 37 In the circumstances, I am prepared to adjourn this application to a date to be fixed and to give the plaintiff the opportunity to file a further affidavit to explain, if possible, that she personally was entitled to bring the action against the defendant as well as the application for the production of the documents. I am also prepared to give the defendant an opportunity to file an affidavit in opposition to this application dealing with the allegations of misconduct. If the plaintiff is able to prove to this Court by way of affidavit that she is personally entitled to bring the action and the application for the recovery of the documents, this Court may give directions as to the further proceedings in this matter pursuant to O 52 r 7 of the Rules of the Supreme Court. 38 I make the following orders at this stage: (1) The application for an interlocutory injunction be adjourned to a date to be fixed.
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(2) The plaintiff to file an affidavit, if any, at the latest 14 days prior to the date to be fixed. (3) The defendant to file an affidavit, if any, at the latest 7 days prior to the date to be fixed. (4) The cost of this application to be reserved.
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