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

1. 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.

2. 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.

3. 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 South Wales dated 22 January 2020 indicates that the Legal Aid Review Committee is separate from the Legal Aid Commission, and indicates that the plaintiff's appeal should take somewhere between six to ten weeks to decide.

4. The application for an adjournment is based upon the terms of s 57 of the Legal Aid Commission Act 1979:

“57 ADJOURNMENT OF CERTAIN PROCEEDINGS

Where it appears to a court or tribunal, on any information before it—

(a) that a party to any proceedings before the court or tribunal--

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.”

5. In brief form, that section provides that where the court is informed that a party such as the present plaintiff has appealed against a refusal of a grant of legal aid and that the appeal is bona fide and not frivolous or vexatious or otherwise intended improperly to hinder or delay the conduct of the proceedings and that there are no special circumstances that prevent it from doing so, the court or tribunal "shall adjourn the proceedings" to such date on such terms and conditions as it thinks fit.

6. Mr King urges upon me that the lodgment of an appeal against a refusal of the grant of legal aid operates in effect as an automatic and mandatory provision requiring me to adjourn the proceedings in the factual circumstances as they exist. The proposed defendants contend that they are able to demonstrate, or have demonstrated, the existence of special circumstances that "prevent" me from granting the adjournment that is sought. They contend that those special circumstances are, in effect, generated by the fact that the plaintiff is currently legally represented, his motion to amend the statement of claim is ready to proceed, the proposed defendants are present, instructed by solicitors and barristers, and the matter is in all other respects in a position to be heard.

7. In support of that proposition my attention has been drawn by Mr Maybury of counsel for the Law Society to a couple of decisions, including Bobolas v Waverley Council [2016] NSWCA 139, and in particular to paragraph 186 of the judgment of her Honour McColl JA. At that paragraph her Honour, with the approval or agreement of at least Simpson JA, said the following:

“[186] In the first instance, it might be accepted that the purpose of s 57 is to ensure, so far as practicable, adequate legal representation for all persons involved in court proceedings. Such representation aids not only the parties, but the administration of justice. However, s 57 will also commonly operate in the procedural matrix governed by the overriding purpose expressed in CPA s 56 and its complementary provisions. Considerations those provisions mandate courts to apply will also be relevant.” (footnote omitted)

8. Adopting the burden of that paragraph, Mr Maybury contends, a submission in which Mr Lloyd of counsel also joins, that the very existence of the proceedings in their current form with all parties represented, including the plaintiff, and all preparation for the disposition of this motion having been carried out, amount to special circumstances that "prevent" me from granting an adjournment. Put in different terms, the defendants jointly contend that having regard to the overriding purpose expressed in the Civil Procedure Act 2005, and in particular the terms of ss 56, 57 and 58, it would be other than the provision of a just, quick and cheap resolution of the litigation for me to grant the adjournment.

9. To analyse that matter even further, the proposed defendants contend that my obligation to conform to the dictates of justice as described in the Civil Procedure Act and the provisions that I have referred to taken together or alone mandate that an adjournment should be refused. The proper application of these principles, in other words, prevents me from doing so without disregard for the dictates of justice and the wisdom referred to in the authorities that deal with those provisions of the Civil Procedure Act.

10. Mr King insists that the word "prevent" means inhibit or restrict in a sense that leads to a conclusion in his favour and that in actual or practical terms I am not, or a court in my position is not, in fact inhibited or restricted. With respect, that contention fails to give adequate or sufficient force or effect to the application, in cases such as this, of the overriding purpose. It would, in my view, be an abrogation of the principle enshrined in the Civil Procedure Act for me to grant an adjournment in the present circumstances. As I say, the plaintiff is legally represented. There is no suggestion that Mr King or his solicitor will withdraw from the proceedings if the adjournment is not granted. The grant of an adjournment may or may not lead to the provision of legal aid. If it does not and Mr King and his attorney no longer appear, the plaintiff will be in a worse position than he is now. If legal aid is not granted but Mr King continues to appear then the position is no different to the one we are faced with now.

11. Having regard to the analysis to which her Honour McColl JA has provided, it seems to me that in the present case the circumstances are quite special and the plaintiff's position is significantly enhanced and protected by a refusal of the adjournment. In my opinion the application to adjourn the proceedings should be refused.

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Amendments

12 February 2020 - Amendment to [9]

Decision last updated: 12 February 2020