Johnson v Powrie

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Johnson v Powrie

Citation:

[2018] ACTSC 283

Hearing Date:

12 February 2015

Submissions Dates:

9, 12 and 24 February 2015

DecisionDate:

12 October 2018

Before:

Refshauge J

Decision:

No orders or directions in the conduct of these proceedings may be made or given until Stephen Hundy, trustee of the bankrupt estate of Alan Charles Powrie applies to be made a party to the proceedings.

Catchwords:

PRACTICE AND PROCEDURE – Costs – defendant made bankrupt – whether trustee of defendant’s bankrupt estate can apply for costs – need to be made a party and given leave

Legislation Cited:

Bankruptcy Act1966 (Cth), s 58(3)

Court Procedures Rules 2006 (ACT), r 231
Legal Profession Act 2006 (ACT), Div 3.2.7
Supreme Court Rules 1937 (ACT), r 10

Cases Cited:

ANZ Banking Group Ltd v Computer Plus [1992] 1 VR 607

Doran v Isaacs (1912) 12 SR(NSW) 699
Johnson v Powrie [2018] ACTCA 46
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Law Society (ACT) v Powrie [2017] ACTSCFC 4;  12 ACTLR 184
Re Davies [1961] ALR 886

Re-Engine Pty Ltd (in liq) v Fergusson [2007] VSC 57

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 766 of 2005

REFSHAUGE J:

1. These proceedings commenced in the Australian Capital Territory are part of litigation that has been in the Courts of this Territory and the Supreme Court of New South Wales for over a decade.  It is litigation that could properly be described as a saga and one in which the conduct of all involved has exhibited many of the undesirable characteristics of litigation conducted between what might accurately be described as warring parties, abetted by their lawyers.

1. The genesis of the proceedings was when the Plaintiff, Noel Patrick Johnson, retained, the Defendant, Alan Charles Powrie, then an Australian lawyer, as his solicitor to conduct ultimately unsuccessful defamation proceedings in the Supreme Court of New South Wales.

1. The background of the proceedings and their progress is set out in a decision of the Court of Appeal, Johnson v Powrie [2018] ACTCA 46 at [4]-[73] (“the Court of Appeal decision”). I do not need to repeat what I there said but, so far as what I said is relevant, I incorporate it into these proceedings.

The Proceedings

1. By Originating Application filed on 26 October 2005, Mr Johnson commenced these proceedings claiming from Mr Powrie damages in compensation for negligence of which Mr Powrie was asserted to have been guilty in the conduct of the defamation proceedings.

1. At the time, the Supreme Court Rules 1937 (ACT) made provision for proceedings in the Court to be commenced by Originating Application. Those rules expired on 1 July 2006 when the Court Procedures Rules 2006 (ACT) came into force.

1. As required under r 10 of the Supreme Court Rules, a Statement of Claim…