Hynes v MacDonnells Solicitors and Notaries (a Firm)
[2001] QDC 364
•22/11/2001
DISTRICT COURT OF QUEENSLAND
| CITATION: | Hynes v. MacDonnells Solicitors and Notaries (A Firm) [2001] |
| QDC 364 | |
| PARTIES: | JILL MAREE HYNES (Appellant) v. MACDONNELL’S SOLICITORS AND NOTARIES (A FIRM) Respondent |
| FILE NO/S: | 27 of 2001 28 of 2001 |
| DIVISION: | |
| PROCEEDING: | Appeal |
| ORIGINATING | Magistrates Court Cairns |
| COURT: | |
| DELIVERED ON: | 22 November 2001 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 26 October 2001 |
| JUDGE: | Shanahan DCJ |
| ORDER: | Appeal 28/2001 is allowed. The appellant is granted leave to adduce evidence from Dr. J. Peters, Dr. J. Stevenson, Gutteridge Haskins & Davey and Mr. R. Davis. Appellant to pay respondents costs of the application in the sum of $345. Respondent to pay appellant’s costs of the appeal to be agreed or assessed |
| Appeal 27/2001 is allowed. In substitution of the order made by the learned Stipendiary Magistrate, the appellant is to pay the costs of the respondent in respect of the adjournment but limited to the costs thrown away as a result of the adjournment. The determination of that amount is referred to the Registrar. Respondent to pay the appellant’s costs of the appeal to be agreed or assessed. | |
| CATCHWORDS: | CIVIL PROCEDURE – personal injury – r.423(3) Uniform Civil Procedure Rules – expert witnesses – application to amend pleadings – lost opportunity caused by professional negligence of solicitor |
| Scott v. Echegaray (1991) Aust. Torts.R. 81-120 State of Queensland v. J.L. Holdings Pty Ltd (1996-97) 189 CLR 146 | |
| COUNSEL: | Mr. I.R. Perkins for appellant Mr. J.D. Henry for respondent |
| SOLICITORS: | Morrow Petersen for appellant Miller Harris for respondent |
These are two appeals from decisions made in the course of actions in the
Magistrates Court Cairns. The respondent has sued the appellant for unpaid
professional fees. That claim is for approximately $4,000. The appellant has
brought a counterclaim for damages for negligence, breach of contract and breach
of fiduciary duty against the respondent. That claim is for approximately $50,000.
Appeal 28/2001 relates to a decision by a learned Stipendiary Magistrate refusing
leave sought pursuant to r.423(3) Uniform Civil Procedure Rules (UCPR) to
adduce evidence from expert witnesses. Appeal 27/2001 relates to a decision by a
different learned Stipendiary Magistrate ordering costs against the appellant of
$1,450 on the claim and of $3,975 on the counterclaim on an adjournment of the
trial occasioned by the consequences of the decision of the first learned
Stipendiary Magistrate.
History of the Matter
The respondent was engaged by the appellant to conduct a claim for damages for
personal injuries. In 1989 the appellant suffered injuries in a fall down a flight of
stairs. Proceedings were instituted in the District Court in August 1992. On 19
December 1997 the appellant’s application for leave to proceed with the action was
dismissed by White DCJ, pursuant to r.377(2) of the then District Court Rules,
where no step had been taken in the action for more than three years.
The respondent subsequently issued proceedings against its former client for
unpaid professional fees. The appellant counterclaimed alleging professional negligence, breach of contract, and breach of fiduciary duty. The claim and
counterclaim were listed for trial to proceed on 26 April 2001 and then 31 July
2001. For a variety of reasons the hearings did not take place on those dates.
The proceedings were eventually listed for trial on 15 and 16 August 2001.
On 10 August 2001 the appellant applied to a learned Stipendiary Magistrate for
leave pursuant to r.423(3) UCPR to adduce evidence from a number of expert
witnesses. The application related to four proposed experts: Dr. J. Peters,
ophthalmic surgeon; Dr. J. Stevenson, medical practitioner; Gutteridge, Haskins
and Davey, engineers and Mr. R. Davis, solicitor. The first three reports had, in
fact, been obtained by the respondent in the course of preparation of the personal
injury action and had been obtained by late 1992. The solicitor expert was
proposed to be called to give evidence of the appropriate steps which a competent
solicitor would have followed in the conduct of the personal injury matter. The
respondent only became aware of that report on 10 August 2001. Rule 423(1) and
(2) of the UCPR were not complied with in relation to the four expert witnesses. It
was submitted to the learned Stipendiary Magistrate that the non-compliance was
as a result of the oversight of the appellant’s solicitors and that no blame should
attach to the appellant personally. The application to the learned Stipendiary
Magistrate under r.423(3) for leave to adduce evidence was refused.
On 15 August 2001, the day listed for the trial to commence, the appellant, then
represented by different solicitors, applied for an adjournment of the trial on the
basis of the change in representation (owing to a conflict said to have arisen
because of the ruling of 10 August 2001) and in the interests of fairness and
justice. The learned Stipendiary Magistrate allowed the adjournment. She
awarded costs against the appellant in the sum of $1,450 on the claim and $3,975
on the counterclaim. The respondent represented itself on the claim and had separate representation in respect of the counterclaim One consequence of the
adjournment will be that, once the matters are given a new trial listing, the
appellant can then comply with the requirements of r.423 UCPR. The decision of
10 August 2001 will be rendered nugatory.
Appeal 28/2001
The Notice of Appeal filed in Appeal 28/2001 relates to part of the decision of the
learned Stipendiary Magistrate of 10 August 2001 where it was ordered/decided
that:
“(a) the appellant’s application filed 9 August 2001 be dismissed;
(b) the orders sought in paras. 2 and 4 of the application be refused; (c) the appellant pay the respondent’s costs in the application in the sum of $345.”
Paragraph 2 of the application related to leave being sought to adduce the
evidence of the experts pursuant to r.423(3) UCPR. Paragraph 4 related to an
application that such evidence be heard by telephone. Because the learned
Stipendiary Magistrate dismissed the first application, he was of the view that there
was no necessity to address the issue of evidence by telephone.
The grounds of appeal argue that the learned Stipendiary Magistrate erred in law
and fact in reaching his decision. Specifically it is argued that the learned
Stipendiary Magistrate failed to determine the application for leave in accord with
the relevant principles laid down by the High Court in State of Queensland v. J L
Holdings Pty Ltd (1996-97) 189 CLR 146 in relation to applications to amend
pleadings. It is submitted that the same principles should apply to applications for leave pursuant to r.423(3). It is submitted that the applicable principle is that leave
should be granted where it is in the interests of justice to do so.
Should The Appeal Be Determined?
The first issue to be determined is whether there is any need to determine the
issue raised in the appeal. As noted above, the decision has been rendered
nugatory as a result of the adjournment. The parties agree that, when a new trial
date is given, r.423 can be complied with and the appellant will be able to adduce
the evidence of the experts upon that compliance. The outcome of this appeal
thus has no impact on the parties to these proceedings.
The appellant submits that the matter is of general importance with impact on other
matters. It is submitted that there are no reported cases on the principles to be
applied in relation to applications pursuant to r.423(3). It is submitted that the
matter is of general application and, in the circumstances of this case, the learned
Stipendiary Magistrate applied incorrect principles in that he did not properly
consider the impact on the appellant’s case of his order and had the effect of
punishing the appellant for the oversight of her solicitors. It is submitted that the
appeal should be resolved in order to establish the appropriate principles to be
applied in considering applications under r.423(3). The respondent submits that
the appeal is pointless because it has no realistic impact on the litigants in the
matter and that the particular facts of the case did not involve the matter of broader
principle asserted. The facts were unusual in that the pleadings of the appellant
did not properly raise the issue in relation to which the expert evidence was sought
to be adduced. The learned Stipendiary Magistrate was being asked to consider granting leave in respect of evidence which could not have been relied on at trial
unless leave had been given to amend the pleadings. The appellant submits that
the matter was raised in the initial pleadings, albeit poorly. In the amended
defence and counterclaim of the appellant dated 25 July 2000, at paras. 12, 17(d)
and 20(e), the appellant pleaded the loss of opportunity of pursuing the personal
injury claim. Since the decision of 10 August 2001, the appellant’s pleadings have
been amended to more appropriately plead the issue.
Although the learned Stipendiary Magistrate was of the view that the above
mentioned pleadings of the appellant were “somewhat deficient” and did not
indicate any reference to prospects of success or quantum (this was incorrect as
paras. 12, 17(d) and 20(e) did refer to a global value of the claim) and that the
respondent would have to change its case to accord with any amendment that
might be made to the pleadings, I am of the view that the issue of lost opportunity
was raised on the appellant’s pleadings as they then stood. It is also clear that that
aspect was a crucial factor in the appellant’s counterclaim. Any deficiency in the
appellant’s pleadings does not persuade me that the case does not raise issues of
fundamental importance. It is appropriate to decide the appeal.
The Appeal
The appellant submits that the learned Stipendiary Magistrate did not take into
account proper considerations in reaching his conclusion and took into account
matters which were not appropriate. It is submitted that the learned Stipendiary
Magistrate did not consider the impact on the appellant’s counterclaim of the order
refusing leave. As noted by the second Stipendiary Magistrate when granting the
adjournment, without the ability to rely upon the experts’ evidence, the appellant’s counterclaim had little or no prospect of success. Thus the decision had a
dramatic impact on the appellant’s case.
In contrast, it is submitted that if the application for leave had been allowed, it
would have had little impact on the respondent’s case. In relation to the reports of
the two medical practitioners and the engineer, there could be no element of
surprise as the reports had actually been obtained by the respondent in the
preparation of the personal injury matter. The issue of “lost opportunity” was a
core feature of the appellant’s counterclaim and had been clearly put in contest in
the respondent’s pleadings and correspondence. The proposed solicitor’s expert
evidence, whilst a surprise to the respondent, should not have been unexpected
and, if the respondent had been prejudiced in its trial, it would have been entitled to
an adjournment with costs.
It is submitted that the learned Stipendiary Magistrate gave undue weight to the
history of the matter and was, by his order, effectively punishing the appellant’s
solicitors. It is submitted that no fault could be attributed to the appellant
personally and that the fault lay with the appellant’s solicitor. This was accepted by
the second Stipendiary Magistrate in granting the adjournment. It is submitted that
the punishment of a defaulting solicitor was an inappropriate consideration,
particularly considering the impact of the refusal on the appellant’s counterclaim.
It is further submitted that the learned Stipendiary Magistrate took into account in
refusing the application, that the proposed solicitor’s evidence swore the issue to
be decided in the trial and may thus have been of no assistance to the court. It is
submitted that this issue had no bearing on the application for leave under r.423(3)
and, in any event, was incorrect. It is submitted that such evidence was
admissible, although its weight was a matter for the court (Scott v. Echegaray (1991) Aust.Torts R. 81-120). The respondent submits that much of the solicitor’s
evidence was objectionable because it went to the ultimate issues. It is submitted
that this was a consideration relevant to the court’s exercise of discretion. I am of
the view that the issue of admissibility was an inappropriate consideration in
considering the application under r.423(3) and was more appropriate for the trial. I
am, however, of the view that this consideration played no role in the learned
Stipendiary Magistrate’s decision.
It is submitted that the applicable principle which should be applied in deciding
applications under r.423(3) is that enunciated by the High Court in State of
Queensland v. J L Holdings Pty Ltd (1996-97) 189 CLR 146 in relation to
applications to amend pleadings. It is submitted that the applicable principle is that
leave should be granted, where it is in the interests of justice to do so. In J L
Holdings the High Court overturned the primary judge’s refusal to allow an
amendment to pleadings. Dawson, Gaudron and McHugh JJ said at p.155:
“Justice is the paramount consideration in determining an
application such as the one in question. Save in so far as costs
may be awarded against the party seeking the amendment, such an
application is not the occasion for the punishment of a party for its
mistake or for its delay in making the application. Case
management, involving as it does the efficiency of the procedures of
the court, was in this case a relevant consideration. But it should
not have been allowed to prevail over the injustice of shutting the
applicant’s out from raising an arguable defence, thus precluding
the determination of an issue between the parties.”
It is submitted that the learned Stipendiary Magistrate erred in his decision
because of the dire consequences the decision had on the appellant’s
counterclaim for an error made, and admitted to, by her legal representatives. It is submitted that the interests of justice required that the application be granted with
the possible consequence of an adjournment of the trial, and, in that event, the
respondent to be compensated by an appropriate costs order.
The respondent submits that the real issue was that the trial within the trial issue
had not been properly pleaded or pleaded at all. No application to amend the
pleadings was made. It is submitted that the proposed evidence of the medical
practitioners, the engineer and the solicitor went to significant matters of fact which
had not been pleaded. The respondent knew nothing of the substance of the
solicitor’s evidence until the day of the application. It is submitted that the
appellant was seeking leave to adduce evidence which was inadmissible on the
case as pleaded. That was a determinative issue in the exercise of discretion as to
whether leave should be granted to adduce such evidence.
As noted above, the issue of “lost opportunity” had been pleaded, if somewhat
deficiently, in the original pleadings of the appellant. It was a central issue in the
dispute and would obviously need to be proved if the appellant was to have any
prospects of success in her counterclaim. Had an application to amend the
pleadings been made, the principles espoused in State of Queensland v. J L
Holdings Pty Ltd would have had application. Indeed, the learned Stipendiary
Magistrate in his reasons, adverted to the possibility of a later application to amend
the pleadings.
I am of the view that the principles applied in State of Queensland v. J L Holdings
Pty Ltd in relation to an application to amend pleadings also are relevant to an
application under r.423(3) UCPR. In this matter, the overwhelming impact on the
appellant’s chance of success in her counterclaim of the refusal of the application
should have been determinative. In this respect it was important to note that the non-compliance was as a result of the oversight of her legal representatives and
not one for which she was personally responsible. When this is coupled with the
limited prejudicial impact on the respondent of the granting of the application,
which could have been compensated for by an adjournment and an appropriate
costs order, I am of the view that the learned Stipendiary Magistrate erred in his
ruling.
With respect to the Notice of Appeal in relation to the application to hear evidence
by telephone, that was, in the circumstances of the refusal of the primary
application, not dealt with by the learned Stipendiary Magistrate. In those
circumstances I do not propose to deal with that aspect. That matter can be dealt
with on the trial. Also with respect to the appeal in relation to the costs order in
relation to the application, the respondent bore no responsibility for the necessity of
the appellant bringing the application. The learned Stipendiary Magistrate’s order
as to costs should stand.
Appeal 28/2001 is allowed. Leave is granted to the appellant to adduce evidence
from Dr. J Peters, Dr. J. Stevenson, Gutteridge Haskins & Davey and Mr. R. Davis.
The appellant is to pay the respondent’s costs of the application in the sum of
$345. The respondent is to pay the appellant’s costs of the appeal to be agreed or
assessed.
Appeal 27/2001
After the learned Stipendiary Magistrate allowed the appellant’s application for an
adjournment on 15 August 2001, she ordered that the appellant pay costs in the
sum of $1,450 on the claim and $3,975 on the counterclaim. Her reasons were:
“In relation to costs, I do note that the application for the
adjournment was brought at a very late stage, and notice of the
application to the plaintiff, the solicitor on the claim and the solicitor
and counsel on the counterclaim, was brought at a very late stage,
and that matters in preparation for trial, of course, would have been
well on the way and perhaps completed by the time of notice of the
application for the adjournment. The outcome of today may well
mean that there are other issues to be considered on trial, and
those issues may require further – well, will require further
preparation for trial.
I consider that the amount sought in the counterclaim, and the
claim, for preparation of trial are appropriate and in order. Given the
complexity of the issues it would seem that separate representation
is appropriate also.”
The respondent represented itself on the claim and instructed other solicitors and
counsel on the counterclaim. The learned Stipendiary Magistrate was of the view
that separate representation was appropriate. The appellant argues that because
of the separate separation there was some overlap in the costs award, particularly
as it seems to relate to preparation for trial. In my view, considering the nature of
the issues, it was appropriate for the respondent to have separate representation
in relation to the counterclaim and separate costs orders should have been made.
The issue in the appeal is whether the quantum assessed by the learned
Stipendiary Magistrate, which apparently comprised preparation for the trial of the
claim and the counterclaim, was appropriate in the circumstances.
The respondent submits that the learned Stipendiary Magistrate was entitled to
take the view in assessing costs that since the application for adjournment was
made on the morning of the trial, the respondent was entitled to the costs of
preparation and costs in respect of which was to have been the first day of the trial.
It is submitted that because of the foreshadowed amendments to the appellant’s
pleadings (which have now eventuated), that the respondent must in due course
prepare for a quite different trial than was prepared for previously. It was thus
appropriate to award the amounts ordered.
As noted above, I am of the view that the foreshadowed amendments to the
appellant’s pleadings did not alter the scope of the trial to any great degree. The
loss of opportunity of the failed personal injury action was central to the appellant’s
counterclaim. It was clearly in contest. It is also worth noting that the appellant’s
application for adjournment of the trial was occasioned by the decision of the
learned Stipendiary Magistrate on 10 August 2001 which I have found was in error.
Had that application been granted, it may have been that the respondent would
have applied for an adjournment of the trial. If that had been the case, the
respondent would have been entitled to the costs thrown away because of the
adjournment.
I am of the view that the award of costs should not have included amounts to cover
the preparation for trial of the claim or the counterclaim or for the costs of a full
days hearing. Those costs are really a matter for decision at the conclusion of the
trial. While, because of the circumstances of the matter, it was appropriate that the
appellant should pay the respondent’s costs occasioned by the adjournment, those
costs should be limited to the costs thrown away.
Appeal 27/2001 is allowed. In substitution of the order made by the learned
Stipendiary Magistrate, the appellant is to pay the costs of the respondent in
respect of the adjournment, but limited to the costs thrown away as a result of the
adjournment. I refer the determination of that amount to the Registrar. The
respondent is to pay the appellant’s costs of the appeal to be agreed or assessed.
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