Hughes v Hughes

[2005] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION	: PERTH
CITATION	:  HUGHES -v- HUGHES [2005] WADC 147
CORAM	: DEPUTY REGISTRAR HEWITT
HEARD	: 12 JULY 2005
DELIVERED	: 1 AUGUST 2005
FILE NO/S	:  CIV 2681 of 2003
BETWEEN	: THOMAS ANDREW HUGHES

AND

PETER MALCOLM HUGHES

FILE NO/S : CIVO 325 of 2004

BETWEEN : JANET WALTON

Plaintiff

AND

THOMAS ANDREW HUGHES

Defendant

Catchwords:

Practice - Western Australia - Whether taxing party had a valid retainer with his solicitors

[2005] WADC 147

Legislation:

Nil

Result:

Objections not allowed

Representation:

CIV 2681 of 2003

Counsel:

Plaintiff	:	Mr R J Grayden
Defendant	:	No Appearance
Intervener	:	Ms J Walton

Solicitors:

Plaintiff	:	Hammond Worthington
Defendant	:	Not applicable
Intervener	:	J Parry & Co

CIVO 325 of 2004

Counsel:

Plaintiff	:	Ms J Walton
Defendant	:	Mr R J Grayden

Solicitors:

Plaintiff	:	J Parry & Co
Defendant	:	Hammond Worthington

[2005] WADC 147

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

Nil

Case(s) also cited:

Nil

[2005] WADC 147

DEPUTY REGISTRAR HEWITT

1. DEPUTY REGISTRAR HEWITT: In April 2005 I dealt with bills of costs for taxation pursuant to orders made in favour of Thomas Hughes against Janet Walton variously a plaintiff in action Civo 325 of 2004 and what I might describe as an intervening applicant in action Civ 2681 of 2003. Objections to the taxation have been filed in relation to those taxations the gist of which is that the evidence before the court raised sufficient doubt as to the legal validity of the retainer relied upon by the solicitors acting for Thomas Hughes as to require the court to conduct an inquiry into the validity of that retainer prior to embarking upon the taxation. Again speaking broadly the gist of the submissions made by the Ms Walton is perhaps reflected in pars 2, 3 and 4 of the affidavit sworn 25 November 2004 filed in support of the originating summons in Civo 325 of 2004. Those paragraphs are in the following terms and form the basis upon which the applicant sought to stay the proceedings pursuant to the Vexatious Proceedings Restriction Act 2002.

   "This application is made and is based upon a more fundamental concern that the action itself is an abuse of process in that it is instigated and maintained without the willing and free consent of the Plaintiff to it, without his being fully and independently advised as to the consequences of it, at his costs and expense, in circumstances of undue influence and duress to an extent, which could amount in law to the commission of the tort of 'false imprisonment' against him, at the instigation of his son Kenneth Hughes and his former solicitor Craig McIntosh in order to put their best interest over and above that of the named Plaintiff.

   There has been a history, since mid 2000 of in intention on the part of the son Kenneth Hughes to take and maintain control over the conduct of the Plaintiff's financial and legal affairs which is well documented on a continuing basis up to and including correspondence as recently received as 28 September 2004 to my office from the current solicitors who act in the name of the Plaintiff.

   These issues should be properly determined before the proceedings are permitted to continue in this Court but they are matters relating to professional conduct, which may involve breach of contract, tort offences and or breaches of fiduciary duty. Where the interests of the Plaintiff are concerned, it is the responsibility of the Legal Practice Board to deal with these matters."

[2005] WADC 147

DEPUTY REGISTRAR HEWITT

2              In my view the objection which is raised on the taxation is in

substance the same as the basis upon which the applications were founded namely that Mr Thomas Hughes was in effect a puppet manipulated by his son Kenneth Hughes and former solicitor Craig McIntosh and that there was not therefore a proper retainer between Messrs Hammond Worthington who represented Mr Thomas Hughes in both the originating summons and the substantive action. By affidavit sworn 13 October 2004 Mr Thomas Hughes in par 3 deposed:

"The action was commenced on behalf by my solicitors Hammond Worthington. I instructed my solicitors to commence the action freely and willingly and after having obtained legal advice from my solicitors."

3              It is apparent therefore that the depth of the conspiracy which is

alleged against Mr Hughes is considerable and must at the least include the partners of Messrs Hammond Worthington and perhaps a number of employees of that firm as well.

4              My difficulty with the objection is that it appears to me to reflect

exactly the same issues as were litigated and lost in the originating motion. It is contended that there is an onus on the solicitors for the taxing party to prove the existence of a retainer.

5              There is evidence on oath from solicitors representing Mr Thomas

Hughes that they were so retained and additionally there is before me exhibited to one of the bills filed in action Civ 2681 of 2003 a copy of a retainer agreement between Mr Thomas Hughes and his present solicitors.

6              In my opinion it was not necessary in the process of this taxation to

embark upon a forensic enquiry to determine whether or not a proper retainer exists between the solicitors and their client Mr Thomas Hughes. That was the issue which was the subject of the originating summons. It was resolved against the applicant Ms Walton and in favour of the respondent Mr Thomas Hughes. The matter being so resolved I take the view that Ms Walton is estopped from raising and relying upon the same issue which has been determined against her and in my view there is no proper basis upon which the enquiry which she alleges should have been a precursor to the taxation of the various bills of costs could have been undertaken. For those reasons the objections are disallowed and each of the bills will be allowed in the sum determined at taxation save for the bill in originating summons Civo 325 of 2004 which shall be the subject of an additional allowance for the costs of the objection of $200.