Jo-Anne Finch v Arnold Thomas and Becker Pty Ltd

[2015] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0068

JO-ANNE FINCH	Applicant
v
ARNOLD THOMAS & BECKER PTY LTD	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 246

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LEGAL PRACTITIONERS – Solicitors – Application by applicant’s solicitor for leave to file and serve a notice of ceasing to act – Relationship of solicitor and client irretrievably broken – Application granted – Supreme Court (General Civil Procedure) Rules 2005, rr 20.03, 64.15, 64.27 and 64.40.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

BEACH JA:

1. This is an application by the solicitor for the applicant, Philip Andrew Tribe, trading as Tribeca Legal, for leave under r 20.03 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the rules’) to file and serve a notice of ceasing to act in the applicant’s application for leave to appeal to this Court, from orders made in the County Court on 18 June 2015, following a 16-day trial in the County Court between the applicant and the respondent.[1]

   [1]Arnold Thomas & Becker v Finch (Unreported, County Court of Victoria, Judge Macnamara, 18 June 2015).

1. The genesis of the litigation between the parties to the application for leave to appeal can be found in the decision of the Victorian Civil & Administrative Tribunal in Finch v The Heat Group Pty Ltd.[2] The subsequent progress of the applicant’s litigation into this Court, the High Court, the County Court and this Court again can be found in various decisions between the applicant and The Heat Group Pty Ltd,[3] and between the applicant and the respondent to the applicant’s application for leave to appeal.[4] 

   [2][2010] VCAT 802.

   [3][2010] VSCA 256; [2011] HCASL 117; [2011] VSCA 100; and [2011] HCASL 139.

   [4][2014] VSCA 45; and [2015] VSCA 86.

1. Mr Tribe was not the applicant’s solicitor at trial.  He entered into what he describes as a ‘limited retainer agreement’ with the applicant, on 9 July 2015.

1. In support of his application for leave to file a notice ceasing to act for the applicant in this Court, Mr Tribe has deposed that:

(a)               he entered into a limited retainer agreement with the applicant to act for her in relation to the preparation and filing of appeal documents in the present application for leave to appeal;

(b)               the appeal documents he undertook to prepare have been prepared and accepted for filing by the Court;

(c)               an amount payable upon the acceptance of the documents for filing has not been paid by the applicant, notwithstanding that an invoice, sent in accordance with a costs agreement, payable upon receipt has been provided to the applicant;  and

(d)              he does not believe that there is any reasonable prospect that he will enter into a further retainer agreement with the applicant.

1. In relation to his belief that there is no reasonable prospect that he will enter into a further retainer agreement with the applicant, Mr Tribe has deposed:

I have formed this belief based upon apprehended issues going to the heart of any future solicitor/client relationship between myself and the applicant.  In stating this, I am not intending to be critical of the applicant, I am simply wanting to highlight that there is an obstacle in my view to my continuing to act in the matter.

1. The applicant opposes Mr Tribe’s application.  In her notice of opposition to Mr Tribe’s application, the applicant provides four reasons for opposing the application:

1.The application is not full and proper and contains no evidence in support of the grounds in which it relies upon (sic).

2.The retainer is a fixed fee agreement of which performance is incomplete.

3.The grounds relied upon are unjustified, including, as a consequence of paragraph 2 above.

4.Tribeca Lawyers have acted in a dilatory manner, resulting in unnecessary delay with this application and overall.

1. In resisting Mr Tribe’s application, the applicant relies upon two affidavits:  a 47 paragraph affidavit sworn by the applicant; and a 10 paragraph affidavit sworn by the applicant’s husband.

1. Pursuant to r 64.15(1) of the rules, Mr Tribe’s application was referred by the Registrar to a single judge of appeal to be considered and dealt with under r 64.15. Pursuant to rr 64.15(5)(b), 64.27(3) and 64.40 of the rules, it was then determined, by this Court, that Mr Tribe’s application should be heard by a single judge of appeal without an oral hearing. Thus, the application now falls for me to determine.

1. In opposing Mr Tribe’s application, the applicant makes the point that the application ‘is not full’.  It may fairly be said that Mr Tribe’s affidavit is not long on detail.  However, it appears to me that this is so because Mr Tribe has been at pains not to disclose any more of his confidential dealings with the applicant than might be necessary for present purposes.  That said, Ms Finch’s affidavit is not short on detail.  It discloses, with considerable force, her unhappiness with Mr Tribe’s conduct of her matter to date.  Amongst other things, after making various complaints, the applicant deposes:

The Court has power to order a legal practitioner to bear costs which have been incurred by the serious neglect, incompetence or misconduct of a legal practitioner or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. 

1. This Court is not in a position to resolve the dispute between the applicant and Mr Tribe concerning Mr Tribe’s conduct of the applicant’s matter.  If it is the applicant’s case that Mr Tribe has committed some actionable negligence for which she has suffered loss, then the applicant will have to litigate that dispute in a separate proceeding between her and Mr Tribe.  All that needs to be said for present purposes is that, on the documents, I am unable to conclude that Mr Tribe has not completed his retainer.  The Court has accepted for filing the applicant’s application for leave to appeal, a draft appeal book index, a summary for the Court of Appeal, the applicant’s written case and the applicant’s list of authorities.  On the terms of the written costs agreement between Mr Tribe and the applicant, it does not appear that Mr Tribe was required to do more.  But as I have said, that is a matter that the applicant can litigate with Mr Tribe in another court or tribunal.

1. Having read the applicant’s affidavit, there can be no doubt that the relationship of solicitor/client between Mr Tribe and the applicant has irretrievably broken down.  I see no basis for compelling Mr Tribe to remain as the solicitor for the applicant.

1. There will be an order giving leave to Mr Tribe to file and serve a notice of ceasing to act for the applicant.

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