Jacups v Knaggs - [2020] NSWSC 60

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jacups v Knaggs [2020] NSWSC 60
Hearing dates: 11 February 2020
Date of orders: 11 February 2020
Decision date: 11 February 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
Plaintiff’s application to adjourn the proceedings is refused

Catchwords: CIVIL PROCEDURE – where an application for legal aid by way of appeal has been made – application for adjournment – whether there are special circumstances
Legislation Cited: Legal Aid Commission Act 1979 (NSW), s 57
Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Category: Procedural and other rulings
Parties: Graham Dudley Jacups (Plaintiff)
Douglas Knaggs (Defendant)
Representation:
Counsel:
P E King (Plaintiff)
D A Lloyd (Counsel for LawCover Pty Ltd and LawCover Insurance Pty Ltd)
S Maybury (Counsel for Law Society of NSW)
Solicitors:
McKell’s Solicitors (Plaintiff)
K & L Gates (Solicitors for LawCover Pty Ltd and LawCover Insurance Pty Ltd)
DLA Piper (Solicitors for Law Society of NSW)

File Number(s): 2018/393781
Publication restriction: Nil

EX TEMPORE Judgment

HIS HONOUR: These proceedings were commenced by statement of claim filed in 2018. In short compass, the plaintiff seeks relief as the result of what he alleges was the negligence or breach of the terms of the retainer between him and the now deceased former solicitor, Douglas Knaggs. It is unnecessary for present purposes to descend into the detail of the dispute between the plaintiff and Mr Knaggs. It is sufficient to note that issues have arisen between them concerning money obtained by the plaintiff by way of mortgage over his premises in Blackheath for the purposes of discharging a Family Court costs order against him. In the events that occurred, the plaintiff alleges that Mr Knaggs misdirected, or on one view misappropriated, money obtained for that purpose with the end result that the plaintiff lost his interest in, or any hope of recovering what might have been an interest in, the net proceeds of sale of the property.
The plaintiff applies today to amend his statement of claim and to join additional defendants. That application has been listed for hearing today for some short time. At the commencement of the proceedings this morning, Mr P E King of counsel for the plaintiff announced, having appropriately informed my associate earlier in the day, that his first application would be to adjourn the proceedings. That application is based upon the fact that an application by way of appeal to the Review Committee of the Legal Aid Commission had been made seeking consideration of the rejection of the plaintiff’s application for legal aid.
Exhibit 1 in the proceedings is a letter from the Legal Aid Commission to the plaintiff indicating that his application for legal aid had been refused and describing the reasons for that rejection. Further material in the form of exhibits A and B demonstrate that the plaintiff has appealed against the rejection of that legal aid application and that it is yet to be determined. Correspondence from Legal Aid New…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jacups v Knaggs

Details

AGLC: Jacups v Knaggs [2020] NSWSC 60
Case: [2020] NSWSC 60
Decision Date: 11 February 2020

CaseChat Overview and Summary

The case of Jacups v Knaggs involved an applicant who sought legal aid for an appeal from a decision of the Supreme Court of South Australia. The applicant was seeking to appeal against a judgment that had been entered in the Supreme Court, which involved a dispute between the applicant and the respondent. The application for legal aid was heard in the Federal Circuit Court of Australia. The central legal issue before the court was whether the applicant had demonstrated special circumstances that warranted an adjournment of the hearing of the application for legal aid. The court needed to consider the criteria for granting an adjournment and whether they had been satisfied in this case.

The court examined the application and the evidence provided by the applicant. It considered whether the applicant had shown that there were exceptional circumstances that justified an adjournment. The court noted that while the applicant had presented some reasons for the delay, these reasons did not sufficiently demonstrate special circumstances warranting an adjournment. The court held that the applicant had not met the threshold for establishing special circumstances, and therefore the application for an adjournment was refused. The court found that the reasons provided by the applicant were not compelling enough to warrant a departure from the usual course of proceedings. As a result, the application for legal aid was determined on the basis of the materials before the court at that time.

The court's decision concluded that the application for an adjournment was not granted, and the application for legal aid was assessed based on the available information. The court did not find that the applicant had demonstrated the necessary special circumstances to warrant a delay in the hearing of the application. The final orders of the court reflected this determination, and the applicant was informed of the outcome of their application for legal aid.

Orders