Jordan v Estate of Stephen John Morris (deceased) No. Scgrg-94-2155 Judgment No. S6409

[1997] SASC 6409

JORDAN v THE ESTATE OF THE LATE STEPHEN MORRIS DECEASED

Master's Appeal

Millhouse J

On 11 June this year the applicant, a legal practitioner for nearly 20 years, filed his application:-

1. That the time for institution of an appeal against the decision of
   His Honour Kelly. J. in this action and the time for filing of Notice of Appeal and Grounds of Appeal be extended .  ........"

Judge Kelly, sitting as a Master of the Court, had published his Reasons on 15 March 1996.  They concerned a taxation of costs in an estate matter.  The applicant had lodged a bill for taxation at over $23,000.  The Master, making strong criticism of the applicant and of the way in which he had handled the estate, allowed  $3,500. 

At the time another solicitor, Mr T N Cogan, was acting for the applicant.  The applicant gave Mr Cogan instructions to appeal.  Mr Cogan advised that the opinion of counsel should be taken.  He pointed out in various letters over the next few months that they should get on with it.  There was a good deal of to-ing and fro-ing, in letters between them.  The applicant knew he was out of time.  The real problem, I am confident from the evidence - it consists of affidavits, exhibits and the oral evidence of the applicant and of Mr  Cogan - was that the applicant either could not or would not put Mr Cogan in funds to instruct counsel and Mr Cogan was not prepared to go on doing work for nothing, let alone incurring personal liability to counsel for fees. 

By 19 August 1996 Mr Cogan had, amidst acrimony, ceased to act for the applicant.

During the hearing of this application the applicant has sought to blame Mr  Cogan for not doing anything effective, not filing a Notice of Appeal and application for extension of time.  Having looked at the affidavits - the amount of paper this application has generated is daunting - if I were to canvass all that has been written and said these Reasons would go on and on and on: there would be no point in it - and having heard them both I am satisfied that in no way had Mr Cogan been responsible for the delay.

However from 19 August the applicant has not had a solicitor: he has been acting for himself.  Before he ceased to act Mr Cogan had approached Mr Christopher Brohier to act as counsel.  Mr Cogan asked the applicant to put him in funds to the extent of $5,000 before he briefed Mr Brohier.  The applicant did not give him any money for the purpose and Mr Brohier was not briefed.  After Mr Cogan ceased to act the applicant approached Mr Brohier direct but Mr Brohier,  wisely and properly if I may say so, refused to act directly but only if the applicant instructed another solicitor.  The applicant did not do that.

Even assuming in the applicant's favour that the responsibility for the delay before the middle of August was Mr Cogan's - I have already pointed out in fact it was not but assuming it was - the applicant has to explain a delay of nearly 10 months when even he acknowledged the responsibility was his.

All he can do is to complain that he was being pursued relentlessly by the Legal Practitioners Disciplinary Tribunal and was overwhelmed by work and worry.  He just did not get round to it. 

The applicant called a psychiatrist, Dr Paul C Davis.  Dr Davis has been treating the applicant since last September.  Dr Davis agreed that his patient is not suffering from any psychiatric illness but he is suffering from stress: he has significant symptoms of anxiety and some symptoms of depression which have impaired his performance.

In my view neither the evidence of Dr Davis nor the excuses given by the applicant for the inordinate delay of nearly 10 months - not taking into account the other, earlier five months when Mr Cogan was acting - amount to sufficient reason to excuse that delay.  The applicant could and should have got on with it.  He had no good reason for not.  I say that, quite apart from the requirements  of Rule 2, Case Flow Management, which if anything, reinforces the obligation to get on with things and observe time limits.

For the reason of the delay alone I would not be prepared to grant the application but I may say that the decision from which the applicant wants to appeal is based on findings of credit (adverse to the applicant) and reached in the exercise of the wide discretion which the Master had on a taxation.  The chances of success on appeal are low.

The applicant also asserted that the delay had caused no prejudice to anyone.  Wrong!  The applicant seems to have forgotten altogether how this particular litigation began - out of an estate.  What about the beneficiaries?   They have been waiting for years for the estate to be wound up.  They have suffered and continue to suffer prejudice.

Finally the applicant said during his evidence - it appeared faintly in the earlier correspondence - that he and his solicitor had been in a dilemma as to whether the proposed proceedings should be regarded as an appeal from the judgment of Master Kelly or whether it was an application for a review of the Master's taxation.  The latter, the applicant thought, had no time limit within which to make the request for review.  He acknowledged in evidence that by now anyway he is well out of time to request a review.

I have not been concerned with a review of the taxation.  This application relates to "the decision of His Honour Kelly J in this action."  That is what I have considered: an appeal from the decision, the Reasons for which the Master published on 15 March 1996.  The applicant should take whatever steps, if any, he considers appropriate to proceed by way of review of the taxation.  I make no decision about that nor express an opinion on it.

The application is refused.