Johnson v Powrie

[2018] ACTSC 284

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Johnson v Powrie

Citation:

[2018] ACTSC 284

Hearing Date:

12 February 2015

Submissions Dates:

9, 12 and 24 February 2015

DecisionDate:

12 October 2018

Before:

Refshauge J

Decision:

It is declared that the proceedings have ended, save for any assessment of costs which requires the trustee of the bankrupt estate of Alan Charles Powrie to apply to become a party to the proceedings and seek leave to prosecute them.

Catchwords:

PRACTICE AND PROCEDURE – Settlement of Proceedings – failure of implementation of settlement – dismissal of claim – whether costs can be assessed – defendant made bankrupt – position of trustee

BANKRUPTCY – Proceedings against a bankrupt – application dismissed with costs – right of trustee of defendant’s bankrupt estate to seek assessment of costs – need for trustee to be made a party – need for leave to continue with proceedings

Legislation Cited:

Bankruptcy Act 1966 (Cth), ss 58(1), 86
Court Procedures Act 2004 (ACT), s 11(1)
Court Procedures Rules 2006 (ACT), rr 35(3), 231, 6351, Div 2.17.5
Legal Profession Act 2006 (ACT), s 294A(6), Div 3.2.7
Limitation Act 1985 (ACT)

Cases Cited:

Armour v Mason [2002] NSWSC 464
Gye v McIntyre (1991) 171 CLR 609
Johnson v Powrie [2018] ACTCA 46

Re Davies [1961] ALR 886

Parties:

Noel Patrick Johnson (Plaintiff)

Alan Charles Powrie (Defendant)

Representation:

Counsel

Mr W Sharwood (Plaintiff)

Mr J Weller (Defendant)

Solicitors

Nichol & Co (Plaintiff)

Weller & Associates (Defendant)

File Number:

SC 408 of 2012

REFSHAUGE J:

1. These proceedings constitute one action in the long set of proceedings between the parties arising out of unsuccessful defamation proceedings in the Supreme Court of New South Wales taken by the Plaintiff, Noel Patrick Johnson, for whom the Defendant, Alan Charles Powrie, acted as his solicitor.

1. I have set out the background and progress of the proceedings in Johnson v Powrie [2018] ACTCA 46 at [4]-[73] (“the Court of Appeal decision”). I do not need to repeat those matters and, so far as they are relevant, what I there said is incorporated into these reasons.

The Proceedings

1. By Application in Proceedings dated 30 November 2012 but filed on 3 December 2012, Mr Johnson sought leave to file an Originating Application “out of time”.

1. That Originating Application sought a review under Div 3.2.7 of the Legal Profession Act 2006 (ACT) of certain costs charged by Mr Powrie to Mr Johnson which Mr Johnson then paid.

1. Insofar as r 6351 of the Court Procedures Rules 2006 (ACT) applies to an extension of time, it does not apply here, for the extension is made under s 294A(6) of the Legal Profession Act 2006 (ACT) which, like an extension of the limitation period under the Limitation Act 1985 (ACT), is not made “under these rules [that is, the Court Procedures Rules] or an order of the court” but by a Territory law other than the Rules Court Procedures Rules.

1. It is probable that an Originating Application should be…