Hopkins and Hopkins t/a Bullet Engineering v Abela, Baglin and Baglin

[1996] QCA 197

IN THE COURT OF APPEAL	[1996] QCA 197
SUPREME COURT OF QUEENSLAND

Appeal No. 231 of 1995

Brisbane

Before McPherson J.A.

Davies J.A. Pincus J.A.

[Hopkins v. Abela]

BETWEEN

WILLIAM JOHN HOPKINS and PAULINE ELVINA HOPKINS
trading as BULLET ENGINEERING

(Plaintiff) Appellant

AND

WILLIAM ABELA

(First Defendant) First Respondent

AND

S.W. BAGLIN and E.M. BAGLIN

(Second Defendants) Second Respondents

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 21st day of June 1996

Mr and Mrs Hopkins, who trade as Bullet Engineering, were the plaintiffs in this action

commenced in the District Court by a plaint which was remitted and heard in the magistrates court at

Southport. They are now the appellants before this Court. The first defendant in the action is William

Abela, who is the respondent to the appeal. There were two further defendants, Mr and Mrs Baglin,

who were together designated the second defendants. They have not been made parties to this appeal.
In the action the plaintiffs claimed an amount of $39,654.48, after allowing for a payment

received of $14,000, as a debt due by the defendants, or else as damages, or alternatively as a quantum

meruit. The claim was for repair work carried out in and before June 1992 on a marine motor vessel

Keno Runner pursuant to an agreement alleged to have been made in April 1992. Going by the

pleadings, almost everything seems to have been put in issue at the trial; but at least it was clear that

there was an agreement for the repair of the vessel, and that the plaintiffs carried out work on it. The

magistrate thought the plaintiffs' evidence of the value of the work was not very satisfactory; but he

found that the cost or value of the work done was $19,034.40, and he gave judgment for the plaintiffs

for that sum against both defendants. Generally, he accepted the evidence for the plaintiffs and rejected

the evidence for the defendants where it conflicted.

On this appeal, there has been no challenge to the amount of that judgment, although a question

has been raised whether judgment could properly be given against both the first defendant and the

second defendants. An appeal was first taken to the District Court at Southport, where the judgments

against both sets of defendants were set aside, and a new trial was ordered of the whole action against

all defendants. On that appeal, the plaintiffs were ordered to pay the costs of all defendants of both the

appeal and the trial. The plaintiffs now appeal to this Court against those orders of the District Court,

and ask that the judgment against the first defendant Abela be reinstated in their favour. The plaintiffs

do not now seek to make the second defendants liable in any way.

So far as can be gathered, a principal issue of fact at the trial was whether the first defendant

Abela was personally liable for the work, or whether in engaging the plaintiffs he was acting simply as

the agent of the second defendants Mr and Mrs Baglin. In his reasons for judgment, the magistrate

observed that Abela had said that Baglin was the owner of the vessel; that Abela was Mr Baglin's contractor; and that the plaintiff Hopkins was his subcontractor. The magistrate's finding on this point

could perhaps have been more fully expressed; but what he was intending to convey was, plainly

enough, that Abela had acted as principal in engaging the plaintiffs to carry out the work on the boat.

Finding that the plaintiffs were the subcontractor to Abela means that, in entering into the agreement,

the first defendant Abela was not acting as agent for the second defendants Mr and Mrs Baglin. The

plaintiffs were entitled and bound to look to him for payment rather than to the second defendants.

The magistrate's conclusion that Abela was the person liable is supported by the terms of an

early quotation dated 6 March 1992 given by the plaintiffs to Abela, which included the words "This

quote only applies to Mr W. Abela". Such a stipulation is inconsistent with the notion that he was acting

as agent for the Baglins. At one point in the proceedings the question of who was liable seems to have

become confused with the matter of who was the owner of the vessel when, in the course of its being

repaired, Mr Baglin, or perhaps it was Mr and Mrs Baglin, purchased or attempted to purchase the

vessel. Unless, however, something more was done, a change of ownership would not have altered the

legal liability of Abela to pay for work which he had asked the plaintiffs to carry out. They were entitled

to continue treating him as the principal and the person liable to pay for the work unless and until he

made it clear that he was no longer to be considered as incurring liability on his own account. There is

nothing before us to suggest that anything to that effect was ever agreed or even suggested.

When the trial began, the plaintiffs were represented by Mr Howard of counsel and the

defendants by Mr Morrow of counsel. There were potential problems in having all three defendants

represented by one counsel instructed by the same firm of solicitors when the first defendant and the

second defendants were apparently doing their best to shift legal liability to the other; but that is the way

in which the defendants conducted their case throughout the first three days of the trial. By then the trial had exceeded its original estimated duration, and a further four days beginning on 23 January 1995 were

set aside by the magistrate in order to complete the hearing. When the trial resumed on 23 January 1995

the case for the plaintiffs had not yet been completed and there were further witnesses ready to give

evidence on their behalf. However to accommodate Mr Baglin, who lived in Sydney and who needed

to return there, his evidence had by then already been taken at the hearing before the plaintiffs' remaining

witnesses gave their evidence. As a result, the second defendants had no reason to suppose that they

needed to be back at court at Southport when the hearing resumed on 23 January 1995.

On that date, Mr Howard appeared as before on behalf of the plaintiffs. Mr Morrow's

instructions had, however, been terminated, and he did not appear again for the defendants. Ms.

Grozinger, who was a clerk from the office of the solicitors for the defendants, was allowed to appear

for the purpose of obtaining leave of the court to withdraw the name of that firm as solicitors on the

record. She read an affidavit, from which it plainly appeared that those solicitors had declined to

continue acting for the defendants because they had not provided funds to enable the solicitors to

proceed with the litigation on their behalf. Leave to withdraw was given to those solicitors.

A Mr Ohlsen then sought leave to appear for the first defendant Abela. He was a member of

the firm of Ohlsen & Associates. As emerged, however, his instructions were limited to seeking an

adjournment of the trial to some other date in the future. Having heard his submissions in support of that

application, the magistrate declined the adjournment sought, whereupon Mr Ohlsen withdrew. The

hearing was stood down for an hour or so, before proceeding at 11.30 a.m. When it resumed, the first

defendant Abela appeared in person, informally assisted by Ms. Sharon Mason, who, he confirmed,

was both his de facto wife and the daughter of Mr Baglin. The second defendants were not present in

person or represented on that occasion, or at any time during the remainder of the hearing. The trial concluded two days later on 25 January 1995, when the magistrate gave judgment against the first

defendant on the merits. As against the second defendants, he gave judgment in default of their

appearance at the hearing.

When the appeal came before the District Court on 15 September 1995, the learned judge who

heard it was prevailed upon to set aside the judgments given against both sets of defendants in the

action. In the case of the second defendants, that outcome seems to have been accepted on appeal as

more or less unavoidable because of the fact that the second defendants may not have been aware that,

at the resumed hearing on 23 January 1995, they were no longer represented by the solicitors who had

previously been acting for them. It may be that in the circumstances as they prevailed at the end of the

hearing, the magistrate was justified in giving judgment against the second defendants pursuant to r.192

of the Magistrates Courts rules; but it is not necessary to pursue the question because the plaintiffs do

not now claim to retain the default judgment which they originally obtained against those defendants at

the trial.

The only question now before us is whether the District Court judge was correct in allowing the

appeal by the first defendant Abela and setting aside the judgment given against him on 25 January

1995. He did so because he considered that the magistrate ought to have granted the adjournment

sought by Abela, or by Mr Ohlsen on his behalf, on 23 January 1995. Speaking of the resumed

hearing on that day, the learned judge said:

"Counsel for the appellants, who had appeared on the first three days, did not appear. I think he should have. The magistrate gave leave to the appellants' solicitors to withdraw and the application for an adjournment on behalf of the first appellants was refused. In my view, the discretion to refuse the adjournment at that stage miscarried."

Later in his reasons his Honour said:

"... I am concerned that the trial effectively miscarried at a much earlier stage than when the decision was handed down. In the circumstances, it seems to me at least arguable, that had the defendants had separate, competent legal representation, and had the magistrate had the benefit of the assistance to which he surely was entitled throughout the trial, and of which assistance he was deprived, justice would have been done between the parties involved in these proceedings."

There appears, with respect, to be some confusion in his Honour's remarks on this subject.

Except in rare circumstances, there is no obligation upon counsel, and generally speaking no authority

on his part, to continue appearing in civil litigation once the solicitors briefing him have terminated his

instructions. If in saying that counsel "should have" appeared for the first defendant Abela on 25 January

1995, his Honour was implying that counsel was ethically bound to continue appearing if the second

defendant wished him to do so, it is perhaps enough to say that there is no evidence that that was what

Abela wished. For all we know, Mr Morrow's instructions may have been terminated with a view to

briefing some other counsel in his place. As it is, it seems likely on all the material that Abela had simply

failed to provide funds with which to pay his solicitors, who had accordingly terminated counsel's

instructions rather than incur responsibility for his and perhaps other fees and outlays which they were

not furnished with means to pay. It is not the law that a solicitor is bound to finance his client's litigation

out of his own pocket. Unless some special (and legally permissible) arrangement has been made with

the client, solicitors and counsel do not act as partners or joint venturers with the client in the subject

matter of the litigation or its proceeds, and they cannot be expected to provide their time and

professional services for nothing. Of course, it must be said that there is an honourable tradition in the

profession of acting without fee particularly in criminal cases; but it is not something which in civil

litigation a client is entitled to expect, or which is indispensable to the proper determination of a matter

in court.

The judge was therefore wrong in suggesting or implying that there was an obligation upon either

the solicitors or counsel to continue acting for the first defendant free of charge either generally or in

order to ensure that the magistrate received what his Honour described as "the benefit of the assistance

to which he was surely entitled throughout the trial". The notion underlying the decision on appeal that

the trial could not properly proceed unless the first defendant was armed with competent legal

representation is plainly mistaken. It would, as was pointed out on the appeal before this Court, have

the consequence that until a defendant was financially in a position and chose to pay for such legal

representation, he would be entitled to a more or less indefinite adjournment of proceedings brought

against him. If that were so, few creditors would ever succeed in recovering what was due to them.

In order for the first defendant to succeed on the appeal to the District Court on the ground that

an adjournment should have been granted at the trial, it was necessary for him to establish that the

magistrate's decision refusing the adjournment was wrong. Referring to the decision in Maxwell v.

Keun [1928] 1 K.B. 650, Brennan, Deane and McHugh JJ. in Sali v. S.P.C. Ltd. (1993) 67 A.L.J.R.

841, at 843 col. 2 E-G., said that, although an appellate court would be slow to interfere with the

discretion of a trial judge to refuse an adjournment, "it will do so if the refusal will result in a denial of

justice to the applicant, and the adjournment will not result in any injustice to any other party".

Reference has been made to the circumstances in which the adjournment was applied for in the present

case and the likely consequence if it had been granted. In Sali v. S.P.C. Ltd., their Honours added that

the propositions in Maxwell v. Keun had been formulated at a time "when court lists were not as

congested as they are today and the concept of case management had not developed into the

sophisticated art it has now become". In the present instance the magistrate had, on 6 October 1994,

set aside a further three or four days beginning on 23 January 1995 within which to complete it. There is evidence that another such period for hearing the action would not have become available until May

or June of 1995. An adjournment would have operated unfairly on the plaintiffs, who no doubt had

debts of their own to pay, and had been waiting for payment since June 1992. If the first defendant was

financially embarrassed in January 1995, there was no assurance that he would have been in a position

to proceed if an adjournment to May or June had been granted. He had since 6 October 1994 been

aware that the hearing would be resumed on 23 January 1995, and had for some 20 days before that

date known that his existing solicitors would no longer be prepared to act for him.

The magistrate was entitled to take account of these factors in exercising his discretion as he

did. No offer was made by the first defendant to pay or secure the costs occasioned by the

adjournment, or to provide any form of assurance that the first defendant would be able to proceed on

the next occasion when the hearing was resumed if it had been adjourned as requested. In all the

circumstances, it is not possible to regard the decision to refuse the adjournment as wrong. The judge

was not justified in holding that it was. As was said by the Federal Court in Mundingberri Station Pty.

Ltd. v. A.M.I.E.U. (1986) 12 F.C.R. 10, at 13, "where there is no question of absence of jurisdiction,

breach of the rules of natural justice, or other positive error, a mere refusal of an adjournment can very

rarely ... be a fit subject for a grant of leave to appeal". The question here is not one of leave to appeal;

but, if anything, that provided an even stronger reason for not interfering with the magistrate's decision

in the present case.

As it was, instead of electing to withdraw when the decision went against him, the second

defendant chose to stay on and conduct the proceedings in person. If he had succeeded in defeating

the plaintiffs' claim, he would not now be complaining about the refusal to adjourn. Instead, he failed,

and now wishes to challenge the decision as unfair. He cannot claim to have the best of both worlds simply because unlike his opponents, and through no fault of theirs, he was not legally represented

during part of the hearing.

Ironically, the first defendant's only other point on this appeal is that the plaintiffs themselves

made an election that was fatal to their claim against him. It was argued that, by electing to take

judgment by default against the second defendants, the plaintiffs had somehow forfeited their right to

retain their judgment on the merits against the first defendant. On the authority of Petersen v. Maloney

(1951) 84 C.L.R. 91, at 103, it was submitted that a plaintiff cannot sue an agent to judgment and then

sue the principal. As, however, was pointed out in Petersen v. Maloney, the rule is not dependent on

the doctrine of election, but "on the right of a co-contractor when sued in a second action on the same

contract to insist, though not a party to the first action, on the rule that there shall not be more than one

judgment on one entire contract" (Hammond v. Schofield [1891] 1 Q.B.453, at 457); or, as in

Petersen v. Maloney their Honours considered (at 103) it to be more accurately expressed, that "there

must not be more than one judgment where there is only one antecedent obligation". But, as plainly

appears from the reasoning of Dixon, Fullagar and Kitto JJ. in Petersen v. Maloney (1951) 84 C.L.R.

91, at 103-104, the rule applies only to a final judgment, and only "so long as it remains of record". If

the judgment is not final, or if it is set aside, the second action is maintainable: cf. Greig & Murray &

Co. Ltd. v. Hutchinson (1890) 16 V.L.R. 334, at 336.

In the present case the liability of the first defendant and the second defendants was, properly

speaking, alternative. The plaintiffs' pleading makes it clear that they were sued in that way and in a

single action. Having succeeded in obtaining judgment on the merits against the first defendant, it may

not then have been open to them also to obtain judgment in default against the second defendants. That

they did so does not, however, work a forfeiture of the judgment against the first defendant. There is nothing in the authorities to suggest that any such consequence ensues. At most it means that the second

defendants were entitled to have the judgment against them set aside, which is what has happened in

this case. It was not a final judgment, and the plaintiffs have now elected not to pursue it. To the extent

that the rule discussed in Petersen v. Maloney is applicable here, there is now no obstacle to the

plaintiffs' retaining their judgment against the first defendant alone. The decision in that case, where a

judgment against one person was substituted for a judgment against the other, is sufficient authority for

that course.

The appeal should be allowed with costs against the first defendant. The order below, which

allowed the first defendant's appeal and ordered a new trial, should be set aside. The judgment for

$19,034.40 with costs of the action, given for the plaintiffs against the first defendant in the magistrates

court, should be restored. No orders are now sought with respect to the second defendants. The

consequence is that the order for a new trial of the action against those defendants will stand. No doubt

the plaintiffs can, if so advised, simply file notice of discontinuance against the second defendants. The

costs of the action against the second defendants ought properly to have been borne by the first

defendant as the person held to be legally liable. The first defendant is accordingly ordered to pay to

the plaintiffs the costs which in the District Court they were ordered to pay to the second defendants.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 231 of 1995

Brisbane

[Hopkins v. Abela & Anor]

BETWEEN

WILLIAM JOHN HOPKINS and PAULINE ELVINA HOPKINS
trading as BULLET ENGINEERING

(Plaintiff) Appellant

AND

WILLIAM ABELA

(First Defendant) First Respondent

AND

S.W. BAGLIN and E.M. BAGLIN

(Second Defendants) Second Respondents

McPherson J.A.
Davies J.A.

Pincus J.A.

Judgment delivered 21/06/96

Reasons for judgment by the Court

APPEAL ALLOWED WITH COSTS AGAINST THE FIRST DEFENDANT. THE ORDER BELOW, WHICH ALLOWED THE FIRST DEFENDANT'S APPEAL AND ORDERED A NEW TRIAL, IS SET ASIDE. THE JUDGMENT FOR $19,034.40 WITH COSTS OF THE ACTION, GIVEN FOR THE PLAINTIFF AGAINST THE FIRST DEFENDANT IN THE MAGISTRATES COURT, IS RESTORED. THE ORDER BELOW, WHICH ORDERED A NEW TRIAL OF THE ACTION AGAINST THE SECOND DEFENDANTS, STANDS. THE FIRST DEFENDANT IS ORDERED TO PAY TO THE PLAINTIFFS THE COSTS WHICH IN THE DISTRICT COURT THEY WERE ORDERED TO PAY TO THE SECOND DEFENDANTS.

CATCHWORDS	APPEAL - Application for adjournment refused at trial - Whether Magistrate's decision refusing the adjournment was wrong. Maxwell v. Keun [1928] 1 K.B. 650; Sali v. S.P.C. Ltd. (1993) 67 A.L.J.R. 841; Mundingberri Station Pty. Ltd. v. A.M.I.E.U. (1986) 12 F.C.R. 10.
LEGAL PRACTITIONERS - Duties and liabilities - Solicitors and counsel cannot be expected to provide their time and professional services for no remuneration.
REMEDY - judgment obtained against both of alternative defendants - One defendant entitled to have judgment set aside - Petersen v. Maloney (1951) 84 C.L.R. 91; Hammond v. Schofield [1891] 1 Q.B. 453.
Counsel:	L. Boccabella for the appellant
J. Sullivan for the respondent
Solicitors:	A.J. Torley & Associates for the appellant
Quinn & Co. for the respondent

Hearing Date: 31 May 1996

FURTHER REASONS FOR JUDGMENT - THE COURT

Further Reasons for Judgment delivered the 26th day of November 1996

In this appeal the Court gave judgment on 21 June 1996 allowing an appeal from the District

Court and restoring the judgment given in the magistrates court. As appeared from the appeal record

and the notice of appeal, it was a judgment in the magistrates court for $19,034.40 together with interest

and costs. In fact, interest and costs had already been calculated and added to that sum, so that the

total for which judgment was in fact given in the magistrates court was $33,118.06. The appeal record

did not refer to that amount; but it was the amount for which, in the end, judgment should in fact have

been given on the appeal to this Court. It was the amount identified in a document handed up by Mr Boccabella of counsel for the appellant on the hearing of the appeal. The transcript of the appeal

hearing records such a document being handed up; but it was overlooked in giving the judgment on

appeal.

Although the notice of appeal was never formally amended to reflect that change in amount, it

is clear that we have ample power under the slip rule O.32, r.12 to correct the amount of the judgment

on appeal. See Shaddock & Associates Pty. Ltd. v. Parramatta C.C. (No. 2) (1982) 151 C.L.R.

590. In a written submission to this Court the respondent has opposed the making of that correction.

He does so essentially on the ground that he has incurred costs in appearing and opposing bankruptcy

proceedings based on the original judgment of the Court of Appeal. He also argues that the costs in

the magistrates court and the District Court should now be taxed by “a taxing officer” (presumably

meaning an officer of this Court), and not simply allowed in the amount fixed in the magistrates court and

the amount (if any) fixed, or to be fixed, in the District Court.

With respect to the second objection, it now appears that the costs of the magistrates court

proceedings were fixed (and so “taxed”) in that court. No attempt was made by the respondent on

appeal to challenge them or the amount of them. As regards the District Court costs, the process of

taxing or fixing those costs must (if it remains to be done) be performed in that Court. It will serve no

useful purpose to order that a taxing officer of this Court perform that function. The order made on 21

June 1996 will therefore be amended to include an order that the first respondent (first defendant) pay

the costs of the appellant (plaintiff) and of the second respondent (second defendants) of and incidental

to the appeal to the District Court to be taxed.

In addition the original order will be amended by omitting the sentence:

“the judgment for $19,034.40 with costs of the action, given for the plaintiff against the
first defendant in the magistrates court, is restored.”

and substituting the following:

“The judgment for $33,118.06, given for the plaintiff against the first defendant in the

magistrates court, is restored”.

The incidence of any costs wasted or incurred by the first defendant in the bankruptcy

proceedings, is a matter not for this Court but for the Federal Court in its bankruptcy jurisdiction. It is

therefore not a reason for refusing to correct the amount of the judgment delivered in this Court on 21

June 1996.

There should be no costs of this application to amend the order of this Court dated 21 June

1996.

It may be useful to add that the orders now made do not alter the indemnity certificate already

granted on this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 231 of 1995

Brisbane

[Hopkins v. Abela & Anor]

BETWEEN

WILLIAM JOHN HOPKINS and PAULINE ELVINA HOPKINS
trading as BULLET ENGINEERING

(Plaintiff) Appellant

AND

WILLIAM ABELA

(First Defendant) First Respondent

AND

S.W. BAGLIN and E.M. BAGLIN

(Second Defendants) Second Respondents

McPherson J.A.
Davies J.A.
Pincus J.A.

Judgment delivered 21/06/96

Further reasons for judgment delivered 26/11/96

THE ORDER MADE ON 21 JUNE 1996 IS AMENDED TO INCLUDE AN ORDER THAT THE FIRST RESPONDENT (FIRST DEFENDANT) PAY THE COSTS OF THE APPELLANT (PLAINTIFF) AND OF THE SECOND RESPONDENT (SECOND DEFENDANTS) OF AND INCIDENTAL TO THE APPEAL TO THE DISTRICT COURT TO BE TAXED.

IN ADDITION THE ORIGINAL ORDER IS AMENDED BY OMITTING THE SENTENCE: “THE JUDGMENT FOR $19,034.40 WITH COSTS OF THE ACTION, GIVEN FOR THE PLAINTIFF AGAINST THE FIRST DEFENDANT IN THE MAGISTRATES COURT, IS RESTORED.” AND BY SUBSTITUTING THE FOLLOWING: “THE JUDGMENT FOR $33,118.06, GIVEN FOR THE PLAINTIFF AGAINST THE FIRST DEFENDANT IN THE MAGISTRATES COURT, IS RESTORED”.

Counsel:	L. Boccabella for the appellant
J. Sullivan for the respondent
Solicitors:	A.J. Torley & Associates for the appellant
Quinn & Co. for the respondent
Hearing Date:	31 May 1996