Lauro v Minter Ellison Lawyers (No 2)

[2018] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Civil)

LAURO v MINTER ELLISON LAWYERS (NO 2)

[2018] SASC 70

Judgment of The Honourable Justice Hinton

29 May 2018

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

On 22 December 2017 a single Judge of this Court dismissed an appeal against the order of a Magistrate dismissing an application to set aside a default judgment entered in relation to a claim for unpaid legal fees: Lauro v Minter Ellison Lawyers [2017] SASC 197. The respondent applied for an award of costs of the appeal relying on the general rule that costs follow the event.

The appellant opposed that application. The matter was adjourned to allow the appellant time in which to file written submissions. In the intervening period the appellant filed two interlocutory applications seeking various orders including the setting aside of the judgment delivered on 22 December 2017 and a stay of the question of costs (FDNs 24 and 31).

In his written submissions the appellant also referred the Court to two other interlocutory applications, filed prior to the hearing of the appeal, which he submitted remained live and required determination (FDNs 7 and 17). These interlocutory applications sought various orders including a stay of the proceedings pursuant to s 41 of the Legal Practitioners Act 1981 and the institution of contempt proceedings against a solicitor employed by the respondent.

In addition the appellant sought an extension of time in which to comply with each of the obligations contained in rule 290 of the Supreme Court Civil Rules 2006 concerning an appeal to the Full Court instituted against the judgment of 22 December 2017.

Held:

1.       The interlocutory applications FDNs 7, 24 and 31 are dismissed.

2.       if it is necessary, and to the extent that it is necessary, the interlocutory application FDN 17 is dismissed.

3.       The appellant is to pay the respondent’s costs of and occasioned by the appeal, such costs to be taxed if not agreed.

4. The appellant is granted an extension of time to 19 January 2018 in which to file a Notice of Appeal to the Full Court against the judgment in Lauro v Minter Ellison Lawyers [2017] SASC 197.

5.       The appellant is granted an extension of time to apply for permission to appeal as required by rule 289(1)(b) SCR to within 21 days of the date of this judgment.

Supreme Court Act 1935 (SA), ss 40, 48, 50; Magistrates Court Act 1991 (SA), s 40; Magistrates Court Civil Rules 2013, r 23, 87; Supreme Court Civil Rules 2006, rr 12, 13, 242, 282, 288, 289, 290, 300, 303; Legal Practitioners Act 1981, s 41, s 70O; Australian Consumer Law, s 101, referred to.
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193, 199-200; Gilbert v Endean (1878) 9 Ch D 259; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and Ors (No 2) [1988] Ch 422 at 429, applied.

LAURO v MINTER ELLISON LAWYERS (NO 2)
[2018] SASC 70

Magistrates Appeals: Civil

HINTON J:

Introduction

1. On 22 December 2017 this Court constituted of a single judge dismissed an appeal against the order of a Magistrate refusing an application by the appellant, Mr Eric Lauro, to set aside a default judgment in action AMCCI-13-2765 (the substantive proceedings).[1] The respondent applied for its costs of the appeal. The matter was adjourned to allow the appellant time in which to file written submissions.

   [1]    Lauro v Minter Ellison Lawyers [2017] SASC 197.

2. In the intervening period the appellant filed two interlocutory applications, the seventh and eighth interlocutory applications (FDNs 24 and 31), seeking various orders including the setting aside of the judgment delivered on 22 December 2017 and the stay of the question of costs. In submissions the appellant also referred the Court to two other interlocutory applications, the second and fifth interlocutory applications (FDNs 7 and 17), filed prior to the hearing of the appeal which he submitted remained live and required determination.

3. Consequently, the Court now has before it four interlocutory applications and the respondent’s application for its costs of the appeal. In addition the appellant seeks an extension of time in which to comply with each of the obligations contained in rule 290 of the Supreme Court Civil Rules 2006 (SCR) concerning an appeal to the Full Court that he has instituted against the judgment of 22 December 2017.

   Background

4. The substantive proceedings subject of the appeal to this Court related to a claim for unpaid legal fees in the amount of $12,526.06 plus interest and the costs of filing the claim. That action, AMCCI-13-2765, was instituted in the Magistrates Court in June 2013. Default judgment was obtained on 26 August 2014. On 15 September 2014 a Magistrate refused to set aside the default judgment. On 7 October 2014 the appellant filed a Notice of Appeal in this Court (SCCIV-14-1393) against the order of 15 September 2014 and other orders made in the course of the substantive proceedings in the Magistrates Court. As mentioned, on 22 December 2017 the appeal against the order of the Magistrates Court refusing an application to set aside the default judgment was dismissed.

5. As also mentioned the respondent applied for their costs of the appeal. In support of its application the respondent submitted that no reason existed to depart from the ordinary rule that costs follow the event. Counsel for the appellant, who was not counsel at the appeal, sought an adjournment. Consequently, the Court ordered that the appellant file and serve written submissions in response to the respondent’s application for costs by the close of business on Wednesday, 31 January 2018, and that the respondent file and serve any reply to those submissions by the close of business on Wednesday, 7 February 2018. Thereafter the application for costs would be dealt with “on the papers”.

6. On 31 January 2018 the appellant filed an interlocutory application (FDN 22), the sixth interlocutory application, seeking an order varying the orders made on 22 December 2017 in relation to the application for costs to the extent that he be granted a further four weeks in which to provide written submissions. In an accompanying affidavit the appellant informed the Court that he no longer had legal representation.[2]

   [2]    Tenth affidavit of Eric Lauro, affirmed 31 January 2018 (FDN 23).

7. The appellant has filed a total of eight interlocutory applications in the appeal proceedings SCCIV-14-1393.

8. Initially the sixth interlocutory application was listed for hearing on 19 February 2018 but due to the parties not all being available that date was vacated and the matter relisted on 27 February 2018. By that time events had largely overtaken the need to hear and determine the sixth interlocutory application.

9. On 16 February 2018 the appellant filed the seventh interlocutory application (FDN 24). In the seventh interlocutory application the appellant seeks the following relief: [3]

   [3]    FDN 24.

   1.An order staying consideration of the respondent’s application for the costs of the appeal in this matter (SCCIV-14-1393) and of the enforcement of the default judgment and costs orders in action no. AMCCI-13-2765 pending:

   a.compliance by the respondent with s 41(4) of the Legal Practitioners Act 1981 (SA) (LPA); and

   b.investigation by the Legal Profession Conduct Commissioner.

   2. In the alternative, that the hearing of the respondent’s application for the costs of the appeal and the enforcement of the default judgment and costs orders in action no. AMCCI-13-2765 be adjourned until:

   a.an appeal to the Full Court from the order made on 22 December 2017 dismissing the appellant’s appeal had been heard and determined;

   b.proceedings instituted in the Magistrates Court on 13 February 2018 and subject of action number AMCCI-18-444 had been heard and determined; and/or

   c.taxation of the respondent’s itemised bills associated with Magistrates Court proceedings subject of action number AMCCI-13-2765 had occurred.

   3.In the further alternative, that an order be made setting aside “all judgments and orders the subject of the within appeal in the justice of the case”.

   4.Time in which to appeal to the Full Court as required under rule 290 SCR be extended by six months or such other time as this Court should think fit.

10. In an affidavit affirmed 16 February 2018 and filed in support of the seventh interlocutory application the appellant advised that he remained unrepresented and was experiencing difficulty in obtaining representation.[4] Nonetheless he confirmed that he had filed a notice of appeal against the order of 22 December 2017 dismissing his appeal which had been accepted by the Registry. Further, he advised that on 13 February 2018 he had instituted fresh proceedings in the Magistrates Court (AMCCI-18-444) seeking orders including the setting aside of the default judgment obtained in AMCCI-13-2765 and a declaration that the appellant is not liable to the respondent in the sum of the default judgment or for any sum at all for any legal fees and costs claimed in AMCCI-13-2765.

    [4]    Eleventh affidavit of Eric Lauro, affirmed 16 February 2018 (FDN 25).

11. The appellant further deposed that in AMCCI-13-2765 the respondent had failed to comply with s 41(4) LPA. As at 28 June 2013, being the date on which the action in the Magistrates Court was commenced, s 41 LPA provided:[5]

    [5] The LPA has since been amended. The equivalent of s 41 is now contained in Schedule 3 Clause 31 of the LPA as amended. In his submissions to this Court the appellant has at times sought in the alternative a stay pursuant to Schedule 3, clause 31(3). Section 41 as it applied as at 28 June 2013, the date on which the respondent’s originating claim was filed in the Magistrates Court, is the applicable provision.

    Division 8—Recovery of legal costs

    41—Bill of costs to be delivered

    (1)   A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person’s last known place of business or residence.

    (2)   The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.

    (3)   A person of whom a request is made under subsection (2) must comply with the request.

    Maximum penalty: $750.

    (4)   Where the defendant to an action for the recovery of legal costs has made a request of the plaintiff under subsection (2), and the plaintiff has not complied with the request, the court must, at the request of the defendant, stay the action until the plaintiff has complied with the request.

12. The appellant deposed to having repeatedly asked the respondent “orally, in writing and by way of ignored Court Applications” for copies of all itemised bills that underpinned the respondent’s claim in AMCCI-13-2765. No detail is given of when the requests said to be made were in fact made, or of their content. The appellant challenged the assertion that the respondent had complied with s 41 by producing documents in the Magistrates Court under cover of a letter dated 19 August 2014.

13. The appellant contended that the respondent’s non-compliance with s 41 LPA (and related breach of s 101 of the Australian Consumer Law)[6] coupled with his appeal to the Full Court and the fresh proceedings instituted in the Magistrates Court in which he contends the merits of his defence in action AMCCI-13-2765 may be determined, and the interests of justice, should result in this Court setting aside the orders made dismissing his appeal. Alternatively, determination of the question of costs of the appeal should be stayed until such time as the appeal to the Full Court is determined, s 41 LPA is complied with and/or compliance is investigated by the Legal Profession Conduct Commissioner, and the proceedings recently instituted in the Magistrates Court are completed.

    [6] Section 101 of the Australian Consumer Law provides that if a person (the supplier), in trade or commerce, supplies services to a consumer, the consumer may request that the supplier give the consumer an itemised bill that:

    (a)  specifies how the price of the services was calculated; and

    (b)  includes, if applicable, the number of hours of labour that related to the supply of the services and the hourly rate for that labour; and

    (c)  includes, if applicable, a list of the materials used to supply the services and the amount charged for those materials.

14. On 27 February 2018 the matter was called on in this Court. The appellant appeared in person. He submitted that the matter should not proceed until such time as he had had the opportunity to retain counsel. The appellant said that he was not prepared to make submissions on the question of the costs of the appeal. He then submitted that there were exceptional circumstances meaning that costs should not follow the event. He further claimed that he did not know who the respondent was and queried whether the respondent was a legal entity that could seek costs or, indeed, had standing to contest the appeal. He added that the appeal should not have been heard in the first place. In this regard he relied upon s 41 LPA. He contended that all interlocutory applications adjectival to his appeal had not been heard and determined. He referred in particular to an application filed in which he had sought a stay of the proceedings in addition to an application that a summons for contempt be issued to Mr Mitchell, a partner with Minter Ellison.[7] Subsequently the appellant conceded that the alleged contempt did not arise out of the appeal proceedings, but maintained that the Court should take action in the exercise of the court’s inherent jurisdiction.

    [7]    FDN 7.

15. It was pointed out that at the hearing of the appeal counsel for the appellant at no stage sought a stay, rather he proceeded to conduct the appeal after first applying to amend the Notice of Appeal trimming the appeal grounds to the two considered.[8] The appellant contended that s 41(4) LPA remained a bar nonetheless and that it should cause the Court to stay or set aside the orders made on 22 December 2017 dismissing his appeal. The appellant also referred to rule 242(1) SCR which empowers the Court to correct an error in a judgment at any time and rule 242(2) to vary a judgment or set aside a judgment and re-open an action if satisfied that the justice of the case so requires.

    [8]    Lauro v Minter Ellison Lawyers [2017] SASC 197 at [6].

16. The appellant then applied for an extension of time in which to appeal the order made on 22 December 2017 dismissing his appeal. The Court was referred to the obligations imposed upon an appellant by rule 290(1) SCR. The appellant sought a six month extension of time in respect of each time limit prescribed by rule 290(1) SCR being time limits in which the notice of appeal, affidavit in support, summary of argument and application book must be filed and served.

17. In view of the appellant being unrepresented and his submission that he was not in a position to address the question of costs of the appeal the following orders were made:

    1.That the appellant have until the close of business on Friday 9 March 2018 to file and serve any further written submission on his application for a stay of the proceedings and the question of whether the respondent’s application for costs of the appeal should be granted;

    2.The respondent have until the close of business on Wednesday 14 March 2018 to file and serve any submissions in response;

    3.The appellant have until close of business on Friday 16 March 2018 to file and serve any written submissions in reply.

18. It was made plain to the appellant and respondent that their written submissions should also address the application for an extension of the times prescribed by rule 290 SCR.

19. On 19 March 2018, following receipt of an application for an extension of time that was not opposed by the respondent, the third order made on 27 February 2018 was varied extending the time in which the appellant may file and serve any reply submissions to the close of business on 20 March 2018 at 10.00 am.

20. On 20 March 2018 the appellant filed the eighth interlocutory application (FDN 31). That application sought orders:

    i       setting aside or re-opening the judgment of 22 December 2017;

    ii.in addition or in the alternative, that the respondent pay the appellant’s costs on an indemnity basis;

    iii.in the further alternative, staying the application for costs and “related Adelaide Magistrates’ Court proceedings or any other legal costs recovery or actions by the Respondent, with the exception of the contempt proceedings also being sought by the Appellant”;

    iv.     that contempt proceedings be instituted against Mr Mitchell;

    v.declaring the respondent responsible for contravening the LPA and/or the Australian Consumer Law;

    vi.directing the Legal Profession Conduct Commissioner to investigate the conduct of the respondent and take disciplinary action or conciliate, or, “in the alternative that this matter be referred to the LPCC for the above actions”;

    vii.    that the appellant’s former lawyers indemnify the appellant;

    viii.that no party be awarded the costs of or incidental to the making of submissions in the within proceedings.

21. In a supporting affidavit the appellant stated that his eighth interlocutory application was filed to regularise the relief sought in his written submissions lodged on 9 March 2018 (subsequently amended and filed on 20 March 2018) and his written reply to the respondent’s submissions filed 20 March 2018.[9]

    [9]    Twelfth Affidavit of Eric Lauro, affirmed 20 March 2018 (FDN 32).

    The Submissions

22. The appellant composed and filed written submissions without the assistance of any legal representation. His submissions are made in support of the seventh and eighth interlocutory applications in addition to addressing the respondent’s application for costs. Further, the submissions address the issues raised in two other interlocutory applications that the appellant submits remain outstanding and should be determined, being FDN 7, his second interlocutory application filed 19 May 2015, and FDN 17, his fifth interlocutory application filed 10 August 2016.[10]

    [10] The appellant also refers to an interlocutory application dated 25 August 2016. The Court Record contains no such application. Whatever the application, the appellant makes plain in his written submissions that he does not wish to pursue it.

23. In the second interlocutory application (FDN 7) the primary relief sought is the stay of the hearing of two appeals, being the appeal instituted from the substantive proceedings (SCCIV-14-1393) and an appeal instituted in relation to orders made in related District Court proceedings (SCCIV-15-248), in consequence of the respondent’s failure to comply with s 41(4) LPA.

1. In the fifth interlocutory application (FDN 17) the primary relief sought is that the appellant be excused from attending a directions hearing listed for 11 August 2016 and that the directions hearing be re-listed at a later date convenient to the appellant. The application does refer to the appellant as also seeking relief in the form of a stay. No grounds for such relief are stated however under the heading “endorsements” the appellant does refer to s 41(4) LPA and rule 192 SCR.

2. I deal with the content of the second and fifth interlocutory applications in greater detail below. I have already referred to the relief sought in the seventh and eighth interlocutory applications (FDNs 24 and 31).

3. In his written submissions the appellant provides considerable information forming the background to the substantive proceedings instituted by the respondent in the Magistrates Court (AMCCI-13-2765) and to proceedings instituted in the District Court (DCCIV-13-1810), the former resulting in the default judgment subject of the appeal to this Court. Both actions were instituted by the respondent under the title, “Minter Ellison a Firm”. The appellant makes numerous allegations of impropriety on the part of the respondent that purportedly relate to the disputes subject of the proceedings in both the Magistrates and District Courts. He asserts that the respondent has never provided him with itemised bills of the legal costs for which the respondent sues in the Magistrates and District Court actions and that related complaints made to the Legal Profession Conduct Commissioner have remained dormant. In light of this the appellant submits:

   31.6To the extent possible and pursuant to, among other things, its inherent jurisdiction (and, if necessary, at a formal hearing with no orders as to costs), I respectfully request that this Honourable Court:

   31.6.1direct the LPCC to investigate the conduct of Minter Ellison, take disciplinary action and assist with conciliation (in lieu of vexatious litigation) pursuant to the LPA,[11] without further delay since 2013; or

   31.6.2refer this matter to the LPCC for such investigation and action pursuant to the LPA, without further delay since 2013.

   [emphasis in original]

   [11]   “As sought, e.g. via my undetermined Application FDN7; see the order sought at paragraph 5 thereto.”

4. The appellant then submits that the respondent had no standing to be heard on the appeal as the retainer subject of the proceedings was entered into with a different entity (Minter Ellison Group not Minter Ellison Adelaide or Minter Ellison-a Firm).[12] Accordingly, the appellant seeks an order pursuant to rule 12(2)(b) SCR setting aside the judgment of 22 December 2017 and an order dismissing the appeal in addition to an order pursuant to rule 13(1)(b) SCR that the respondent pay the appellant’s costs on an indemnity basis.[13]

   [12]   The appellant also refers to unrelated proceedings commenced by a partner at Minter Ellison in his own name (SCCIV-15-1403).

   [13]   Rule 13(1)(b) is a power to compensate procedural irregularities by an order for costs.

5. In the alternative, the appellant seeks:

   38. …an order for the immediate stay [of] all the AMC proceedings and SC proceedings or arising therefrom:

   38.1   including the determination of any Costs Judgement (sic) and any enforcement action;

   38.2   but with the exception of the matters covered in section (H) [the institution of contempt proceedings] and 89.4.3[14] herein due to these matters’ seriousness and adverse impact on me and the justice system.

   [emphasis in original]

   [14]   At paragraph 89.4.3 the appellant sought an order for costs against his previous lawyers for the manner in which they conducted "an unrelated" appeal in April 2012.

6. The primary ground upon which this relief is sought is the failure on the part of the respondent to comply with the obligation contained in s 41(3) LPA. The appellant supports his contention by pointing to evidence contained on the lower court file and, in particular, an affidavit sworn by Mr Mitchell on 5 December 2012. That affidavit, it is said, has exhibited to it some but not all of the invoices “allegedly” provided to the appellant and a schedule of invoices. The appellant challenges the assertion that the affidavit amounts to compliance with s 41(3) LPA. The submission is the same as that advanced in support of the relief sought in the second, fifth and seventh interlocutory applications (FDNs 7, 17 and 24). As framed in the applications, the stay sought extends beyond these proceedings (SCCIV-14-1393) to include staying related proceedings in the District and Magistrates Courts. Further, the appellant asks this Court to find that the respondent is in breach of the LPA and the Australian Consumer Law and/or direct the Legal Profession Conduct Commissioner to investigate and institute disciplinary action or refer the matter for investigation. In addition and in the alternative, for the same reasons, the appellant seeks a stay of the proceedings in the Magistrates and District Courts and or the proceedings in this Court pursuant to rule 192 SCR pending the determination of his appeal to the Full Court, the fresh proceedings he has instituted in the Magistrates Court and taxation of the respondent’s bills.

7. With respect to the respondent’s costs application, on the assumption that a stay is not ordered, the appellant contends that he was disadvantaged because he did not have the benefit of legal representation. Nonetheless he submitted that although costs ordinarily follow the event, the Court retains a discretion whether to award costs. He pointed to the fact that he succeeded in part on the appeal in that he established one of the two limbs required to be established under rule 87 MCR. He then submitted that the respondent should be denied costs because it had adopted an “unreasonable, vexatious and oppressive stance” in its pursuit of the appellant for the legal costs subject of the action instituted in the Magistrates Court. In particular, the appellant submitted that the respondent’s prosecution of the matter in the Magistrates Court and related matter in the District Court and pursuit of the money it says it is owed gave him no choice but to pursue the appeal in this Court.

8. Next the appellant contends that an award of costs in favour of the respondent would operate to punish him where costs are not awarded to punish an unsuccessful party. An adverse costs order would punish the appellant because it would be made in circumstances where he suspects he has had “ineffective or defective representation”, has been denied the opportunity to defend the Magistrates Court proceedings, is subject of an “unjust and wrongful default judgment”, has sustained attacks upon his character, suffered stress and distress, and had to battle oppressive lawyers without the assistance of representation. He repeats that the appeal was brought as a consequence of the respondent’s conduct and submits that the respondent is unjustly enriching itself by obtaining a default judgment, that the true costs incurred could be masked and that he was partially successful on the appeal. The appellant then purports to discount his potential liability for the costs of the appeal on the basis that he was unrepresented, partially successful and the victim in the prosecution of his appeal of maladministration on the part of the Court.

9. In bringing his submissions on the question of costs to a conclusion the appellant repeats his request that all relevant proceedings be stayed but otherwise an order that the respondent pay his costs on an indemnity basis be made.

10. The respondent makes plain that it is a firm of legal practitioners carrying on business as a partnership in South Australia and the Northern Territory and is a law practice within the meaning of the LPA in its current form. Under rule 23(2)(a) MCR the firm is permitted to sue and be sued using the firm name.

11. Thereafter the respondent contends that no stay should be granted on the basis of any relief sought in any interlocutory application in view of the appellant’s decision to proceed with his appeal, that s 41 LPA is not engaged as the application for an award of costs is not an action for the recovery of legal costs, that in any event the respondent has complied with s 41, that any possible investigation and proceedings by the Legal Profession Conduct Commissioner provides no reason not to award costs, and that the fresh proceedings instituted in the Magistrates Court do not bear upon the issue of the costs of the appeal. As to the appeal to the Full Court from the order made on 22 December 2017, the respondent points to rule 300(2) SCR and submits that no proper reason has been demonstrated to justify the grant of a stay. The respondent submits that the Notice of Appeal to the Full Court does not raise a question of general importance, a stay is not necessary to prevent any risk of injustice, and that, costs being the only outstanding issue, the balance of convenience favours the determination of such issue so that any appeal may deal with all orders made at first instance.

12. As to the appellant’s application to set aside the judgment, an application made under rule 242 SCR, the respondent submits that it should be rejected. There is, it contends, no fresh issue of standing, the appellant’s partial success does not warrant the judgment being set aside, and that any dispute between the appellant and his legal representatives as to the conduct of the appeal does not bear upon the issue of costs.

13. With respect to the appellant’s application for an extension of time in which to appeal, the respondent contends that as the appellant has proceeded in accordance with rule 289(1)(a) SCR, the application is one that ordinarily would be heard by the Full Court and that such course should not be deviated from. In any event the respondent is opposed to the application. As at the time of its making the appellant had already had two and a half months to prosecute his appeal.

14. Finally, on the question of costs the respondent maintains its position that no reason arises to depart from the general rule. The question on appeal was whether the Magistrate was right not to set aside the default judgment. On this question the respondent succeeded.

15. In his reply submissions the appellant maintains that a serious question as to the identity and standing of the respondent now arises, one which should cause this court to set aside the judgment of 22 December 2017 under rule 12(2)(b) SCR.

16. On the question of the stay sought in the various interlocutory applications, the appellant concedes that whilst that relief was not pursued on the hearing of the appeal, neither was it abandoned. If the contrary is the case, then the appellant contends that his lawyers have acted without instructions as he had no intention of abandoning or withdrawing his undetermined applications, and he should not suffer further prejudice by not having the applications considered.

17. With respect to the application of s 41 LPA, the appellant contends that the proceedings instituted in the Magistrates Court did concern the recovery of legal costs. He then submits that because the appeal to this Court concerns those proceedings s 41 LPA equally applies to the appeal. He maintains that the respondent has not complied with s 41 LPA and s 101 of the Australian Consumer Law despite repeated requests on his part.

18. The appellant repeats his submission that a stay should be granted as proceedings currently on foot before the Full Court and in the Magistrates Court and an investigation by the Legal Profession Conduct Commissioner may nullify the outcome of the appeal. Each of those proceedings and the investigation, the appellant states, “go to the heart of whether there ever was a retainer”.

19. The appellant raises additional arguments as to why the default judgment should not be allowed to stand; the default judgment was obtained in breach of good faith and/or by fraud in that Mr Mitchell led the appellant to believe that there would be no preparation for trial in the event that the appellant did not attend, no notice of any intention to apply for, or enter, default judgment was given by either the respondent or the Magistrates Court, and the default judgment was entered for a liquidated sum but was for an unliquidated sum that remained untaxed.  He advances these arguments in support of his contention that under rule 192 SCR the application for costs should be stayed.

20. In the alternative to a stay under rule 192 SCR, the appellant repeats his submissions that the matter should be stayed under rule 300 SCR. He contends that his appeal to the Full Court does raise serious questions of general importance, that the proceedings are vitiated by procedural irregularities (those referred to in the paragraph immediately above), that there is a real risk of injustice in that the claimed fees and costs to date remain untaxed, and that there can be no question of convenience favouring the resolution of the issue of costs in circumstances where the substantive judgment is challenged.

21. The appellant maintains that the order of 22 December 2017 dismissing his appeal should be set aside under rule 242 SCR. The basis for invoking rule 242 SCR he contends lies in his being liable for a claim for unliquidated costs incurred without any agreement on his or his father’s part and without any retainer or invoices being provided.

22. The appellant brings his reply submissions to a close seeking a stay of the costs application or the setting aside of the orders of 22 December 2017 dismissing his appeal and a consequential order for costs in his favour. He adds that in the event that the order of 22 December 2017 is set aside the appeal should then proceed on the basis of the Notice of Appeal filed to commence the appeal on 7 October 2014 (FDN 1).

    The procedural history of this matter prior to the appeal

23. It is necessary to set out in greater detail the procedural history of this matter prior to the hearing of the appeal before dealing with the applications on foot.

24. The order made by the Magistrates Court in the substantive action dismissing the application to set aside the default judgment the subject of the appeal was made on 15 September 2014.[15] The appeal to this Court was instituted by the filing of a Notice of Appeal on 7 October 2014. That Notice of Appeal named the Respondent as Minter Ellison Lawyers and challenged orders made by the Magistrates Court on six identified dates including 15 September 2014. For present purposes the relief sought included an order that the respondent’s claim be dismissed or the matter stayed pursuant to s 41 LPA and any and all orders for “contempt of Court by Grant Mitchell for the respondent, by reference to Orders made by the Supreme Court of South Australia on or about 4 February 2013 in action number SCCIV-12-992, which action was a precursor to this Magistrates’ Courts matter and the wholly-related and over-arching District Court action number DCCIV-13-1810.” Further the grounds of appeal complained of a refusal by the Magistrate to stay the proceedings. That ground states:

    (f)   The Learned Magistrate erred to dismiss or refuse the Appellant’s applications to stay the proceedings despite the merits of those applications and by virtue of, among other things:

    (1) The Plaintiff’s non-compliance with s.41 of the Legal Practitioners Act 1981 (SA);

    (2)The Plaintiff’s failure to argue and establish any prejudice in this regard;

    (3)The fact that the fee dispute, involving the Appellant’s father-cum-Respondent’s client dates back to early 2013 and not 2011, as found by the Learned Magistrates in support of his Orders made on 2 April 2014.

    [emphasis in original]

    [15]   In action AMCCI-13-2765.

25. This complaint is repeated in part in ground (p)(1) of the Notice of Appeal.

26. On the hearing of the appeal before me the appellant applied to amend his Notice of Appeal abandoning all grounds contained in the Notice as filed in October 2014 and proceeding on only the two grounds dealt with in the judgment handed down on 22 December 2017. That application was granted. I will return to the significance of this below.

27. On 30 October 2014 the appellant filed and served the first interlocutory application (FDN 3) (the first interlocutory application). In that application, the appellant sought amongst other things:

    1.   That the Honourable Court provide any appropriate directions with respect to matters including, but not limited to, injunctive relief against the Respondent and its actions against the Appellant and his family, and with respect to an application for contempt of Court against, among others, the Respondent’s Partner, Grant Mitchell.

28. In his affidavit sworn in support of the first interlocutory application the appellant details the alleged contempt as the disclosure by Mr Mitchell of confidential information contrary to orders made by this Court in 2013 in relation to a fee dispute arising in the course of what the appellant describes as the “Marble House matter”.[16] The terms of the order breached are not proven, service of the order upon Mr Mitchell and Minter Ellison is not proven, the alleged act constituting the breach of the order is not subject of any evidence in support. No evidence is adduced to establish the allegation made against Mr Tropeano. No attempt is made to comply with rule 303 SCR.

    [16]   Affidavit of Eric Lauro, affirmed 30 October 2014 at [7.38] (FDN 2).

29. In his affidavit the appellant also refers to Minter Ellison as having “refused or failed to give proper account of all payments, trust funds and property in their possession” in breach of the LPA and the Australian Consumer Law.[17] The affidavit complains of the conduct of Mr Mitchell and Minter Ellison generally and is not in this regard limited to the substantive proceedings. The affidavit does not reveal whether in the substantive proceedings a stay was sought under s 41(4) LPA. Critically the appellant does not seek the stay of his appeal. He does seek the referral of all his complaints to the Legal Profession Conduct Commissioner.

    [17]   Affidavit of Eric Lauro, affirmed 30 October 2014 at [7.44] (FDN 2).

30. On 14 November 2014 the first interlocutory application was heard by a Judge of this Court. All relief sought in the application was refused.  The appellant was advised that if he wished to pursue contempt proceedings he would need to do so in the appropriate way. The appeal was adjourned to a date to be fixed to enable the appellant time to consider his position as to the commencement of any related preliminary proceedings including an action for contempt.

31. On 19 May 2015 the appellant filed the second interlocutory application (FDN 7). In that application the appellant sought a stay of his appeal and of an appeal that his father had instituted from proceedings in the District Court (SCCIV-15-248 being an appeal from DCCIV-13-1810) on grounds including the alleged failure by the respondent to comply with s 41(4) LPA. In the alternative the appellant sought relief including:

    2.   That the Honourable Court provide essential directions and/or take action, including granting injunctive relief or similar orders, to:

    a. restrain the Respondent from pursuing their concurrent legal action, to allow for conciliation pursuant to s.70O of the Legal Practitioners Act 1981 (SA) further to recent advice of its availability by the Delegate of the Legal Practitioners Conduct Commissioner, in the context of a pre-existing complaint against the Respondent by Messrs Lauro for, among other things, overcharging;

    b.   in the alternative, initiate contempt of Court proceedings against the Respondent and, specifically, their partner, Grant Mitchell;

    c.   assist with the staged advancement and listing of all underlying Magistrates’, District and Supreme Court Actions that are the subject of the underlying fee dispute, and to which Mr Lauro is a party, with a view to address the:

    i.significant detriment being wilfully caused by the Respondent’s refusal to deliver up all associated files to Mr Natale Lauro and family; and

    ii.the material impossibility for Mr Lauro to continue to front all underlying legal action, concurrently.

1. In his affidavit sworn in support of the second interlocutory application the appellant alleged that the respondent had never complied with s 41 LPA.[18] All the respondent had done, it was contended, was to provide schedules of “allegedly unpaid bills lacking any degree of specificity resulting in further violations of the Australian Consumer Law”. The appellant claimed itemised accounts had never been provided. The appellant refers to the time limit contained in s 41(2) LPA. He contends that the six month period would have lapsed in December 2013. He asserts that he made the relevant request within time. No indication of when he made the relevant request is provided. The appellant also provides further detail of the alleged contempt committed by Mr Mitchell. Specifically it was alleged that Mr Mitchell contravened orders of this Court made on 6 February 2013 in the Marble House matter (SCCIV-12-992) sealing an affidavit that Mr Mitchell had sworn in support of an application to cease acting, by disclosing that affidavit to another solicitor. Whilst the evidence provided in support of the allegation suggests that Mr Tropeano has had regard to the content of the sealed affidavit, there is no evidence to support the assertion that Mr Mitchell provided the sealed affidavit to Mr Tropeano contrary to the Court’s order. Mr Mitchell denied doing so.

   [18]   Second Affidavit of Eric Lauro, affirmed 18 May 2015 (FDN 6).

2. The second interlocutory application was called on for hearing before a Judge of this Court on 27 May 2015. The day before, on 26 May 2015, the appellant filed a further affidavit in support of the second interlocutory application.[19] In it he details three occasions on which a request was made of the respondent for a statement under s 41(2) LPA –

   2.1On 6 February 2013, by way of submissions made by my father to the Supreme Court during a hearing attended by Grant Mitchell;

   2.1On 1 October 2013 when I spoke with Grant Mitchell after a District Court hearing, at which time I referred to the prejudice being caused by the refusal to return my father’s files and I again sought detailed and revised accounts, resulting in Grant Mitchell admitting that thousands of dollars would be deducted even by a taxing officer and that he would write to my father about resolution, but ultimately again failing to do so reconfirming Minter Ellison’s intention to litigate only;

   2.3In late 2013, by calling Australian Credit Management who declined to assist me in relation to the Magistrates’ Court proceedings being appealed against, on the basis that they were no longer agents of Minter Ellison.

   [19]   Third affidavit of Eric Lauro, affirmed 26 May 2015 (FDN 8).

3. The appellant also referred to an email dated 26 March 2013 in which he asserts that the respondent had “not properly itemised all your costs…”,[20] and a further email dated 24 September 2013 in which, in answer to an email sent by Mr Mitchell of the same date, the appellant states:[21]

   Until such time as you attend to your professional duties and the requests made to you (e.g. account of money and property: fully itemised and adjusted invoices in line with your past admissions of fault on the part of your team members; return of files and especially those of Townsends and of my father’s own production), your pursuit of my family through the Courts – just because you can and, as you spitefully said “for as long as it takes” – is both unreasonable and amoral…

   [20]   The email referred to is exhibited to the second affidavit of Eric Lauro, affirmed 18 May 2015 (FDN 6). See EL 3.

   [21]   Exhibited to the third affidavit of Eric Lauro, sworn 26 May 2015 (FDN 8). See EL3-bis.

4. The second interlocutory application was adjourned to 30 July 2015. In advance of the hearing on 30 July 2015 the appellant filed a further affidavit updating the Court on the state of his father’s health.[22] On 30 July 2015 the second interlocutory application was adjourned further until 29 October 2015. The matter was not called on that day due to the non-availability of all concerned.

   [22]   Fourth affidavit of Eric Lauro, sworn 24 July 2015 (FDN 9).

5. The second interlocutory application was next called on in this Court on 11 November 2015. On that same day the appellant filed a third interlocutory application (FDN 11) (the third interlocutory application). The primary relief sought in the second interlocutory application (i.e. that contained in paragraph one) is also sought in the third interlocutory application (paragraph four) although the grounds upon which the stay is sought, which include non-compliance with s 41 LPA, are expanded. The relief sought in paragraph two of the second interlocutory application relevant to the appeal from the substantive proceedings is incorporated into the third interlocutory application. The relief sought in paragraph three of the second interlocutory application was repeated in paragraph seven of the third interlocutory application. The relief sought in paragraph four of the second interlocutory application was repeated in paragraph eight of the third interlocutory application. The relief sought in paragraph five of the second interlocutory application was repeated in paragraph nine of the third interlocutory application.

6. The third interlocutory application appears to be pursued on the basis that it subsume and replace the second interlocutory application.

7. In support of the third interlocutory application the appellant filed a fifth affidavit affirmed 11 November 2015.[23] In this affidavit the appellant refers to amongst other things his second and third affidavits and to the references in those affidavits to his factual contentions regarding the alleged contempt committed by Mr Mitchell and the failure on the part of the respondent to comply with s 41 LPA. The appellant also seeks the referral of the “underlying dispute”, being the dispute over legal fees charged and payable, to the Legal Profession Conduct Commissioner for conciliation and/or investigation and the institution of contempt proceedings against the respondent.

   [23]   FDN 10.

8. The second and third interlocutory applications were adjourned to 19 February 2016.

9. On 19 February 2016 the appellant filed a fourth interlocutory application (FDN 14) (the fourth interlocutory application). Amongst other things the appellant again sought a stay of his appeal “for the reasons set out in the supporting Sixth Affidavit of Eric Lauro” affirmed 19 February 2016.[24] In that affidavit the appellant states that he persists in his application for contempt proceedings to be instituted against the respondent. In the application itself the appellant also sought interim relief in the alternative to a stay in terms largely the same as the interim relief sought in his third interlocutory application; the relief sought in paragraph six and seven of the fourth interlocutory application mirrored that sought in paragraph nine and ten of the third interlocutory application and paragraph five of the second interlocutory application.

   [24]   FDN 15.

10. All matters were adjourned to 29 April 2016.

11. On 29 April 2016 the presiding Judge, after disposing of an application that he recuse himself, listed the third and fourth interlocutory applications for argument on 11 August 2016.

12. On 29 July 2016 the appellant filed an affidavit seeking the adjournment and relisting of the hearing of his third and fourth interlocutory applications.[25]

    [25]   Seventh Affidavit of Eric Lauro, sworn 29 July 2016 (FDN 12).

13. On 10 August 2016 the appellant filed the fifth interlocutory application (FDN 17) in which he sought to be excused from attending the hearing of the following day and that it be adjourned. The appellant filed an affidavit in support.[26]

    [26]   Eighth Affidavit of Eric Lauro, sworn 9 August 2016 (FDN 13).

14. On 11 August 2016 the matter was called on in this Court. The appellant failed to appear. The presiding Judge gave brief reasons dismissing the third, fourth and fifth interlocutory applications.

15. On 26 August 2016 the appellant filed a ninth affidavit.[27] That affidavit purported to be sworn in support of an application of 25 August 2016. The Court Record contains no such application.

    [27]   Ninth Affidavit of Eric Lauro, sworn 26 August 2016 (FDN 16).

16. On 26 September 2016 the Judge who presided on 11 August 2016 ordered that the respondent be awarded the costs of the third and fifth interlocutory applications.

17. On 12 April 2017 Norman Waterhouse, solicitors, filed a Notice of Acting for the appellant.

18. The matter was next called on in this Court on 20 April 2017 at which time the appeal was heard. The appellant was represented by counsel. Prior to the date of the hearing of the appeal the appellant had represented himself ever since his appeal was first instituted in this Court.

19. As indicated on the hearing of the appeal counsel applied and was granted permission to amend the Notice of Appeal filed 7 October 2014 with the consequence to which I have already referred. At no time did counsel suggest that there were any outstanding interlocutory matters that the Court needed to resolve before the appeal could proceed.

    Consideration

20. I commence by dealing with the application pursuant to rule 12(2)(b) SCR to set aside the judgment of 22 December 2017 as a nullity on the grounds that the respondent did not have standing to appear.

21. In describing itself in its Magistrates Court claim as a firm it may be accepted that the respondent intentionally used the language of the Partnership Act 1891 (SA) to signify the fact that it was a partnership.[28] A partnership is not a legal entity. The proceedings against the appellant were as a matter of law instituted by each member of the then partnership. Under rule 23 MCR the respondent was permitted to institute proceedings against the appellant in the firm name. The rule is one of procedural convenience. A similar rule exists in this Court. Any dissolution of the old partnership and formation of a new partnership consequent upon the retirement or addition of partners since the proceedings were first instituted may be expected to be accompanied by arrangements for the transition of rights, including choses in action, and liabilities from one partnership to the next reflecting the change in personal and commercial arrangements. No reason arises to think that the chose in action subject of the claim instituted in the Magistrates Court does not continue in the possession of the firm now defending the appeal.

    [28]   Partnership Act 1891 (SA), s 4.

22. Nothing the appellant has raised causes me to think that the members of the partnership known as Minter Ellison do not have standing to defend these proceedings. That the Minter Ellison partnership in this State enjoys the benefits of affiliation with a similarly named partnership or corporate body interstate but operates wholly separately does not change this. That the respondent took no issue with being described as Minter Ellison Lawyers in the appeal papers as opposed to Minter Ellison or Minter Ellison a Firm, likewise does not cause me concern. In the Magistrates Court the appellant could have sought an order requiring a statement on oath or affirmation of the particulars of those who were partners of the firm at the relevant time. He did not do so. Why now should he, in effect, be able to seek further particulars of the parties suing him? In his defence to the claim filed in the Magistrates Court the appellant admitted that the plaintiff-cum-respondent was a firm carrying on business as a law firm at all material times.

23. I am not persuaded that the respondent has committed a procedural irregularity within the meaning of rule 4 SCR in bringing the substantive proceedings. I add that I consider the application now made opportunistic and disingenuous. No reason arises why it could not have been pursued at the hearing of the appeal and no explanation has been provided as to why it was not agitated in the court below or on appeal. The revelation that Minter Ellison interstate is a related but separate entity to Minter Ellison Adelaide does not change matters. At all times the firm in Adelaide or its successor in Adelaide, assuming changes in the membership of partners to have occurred, has been the plaintiff-cum-respondent. The fact that in a retainer agreement the respondent is styled “Minter Ellison Group” and not “Minter Ellison a Firm” does not mean that they are not one and the same. As I said, in his defence in the substantive proceedings the appellant has admitted as much. I refuse the application to set aside the judgment delivered on 22 December 2017 on the grounds that the proceedings were a nullity.

24. I turn to the appellant’s application under rule 242 SCR that the judgment of 22 December 2017 be set aside and the appeal re-opened. In my view, rule 242 SCR does not apply to appeal proceedings. If I am wrong in that regard I would nonetheless refuse the application. I have already addressed the appellant’s standing argument which is also relied upon in support of the application under rule 242. That the judgment of 22 December 2017 holds that the appellant had an arguable case within the meaning of rule 87 MCR takes the matter no further; the appellant failed to have the default judgment set aside. The recent assertion that the default judgment was obtained by fraud is not supported by any evidence. In any event, fraud is a cause of action in itself that must be commenced in the appropriate court in the appropriate way. As indicated below I am not prepared to act on the assertion contained in the appellant’s written submissions in chief that his legal representation on appeal did not properly advise him or act in accordance with his instructions. Evidence in support of such contention is necessary and the respondent must be given the opportunity to test the same.

25. I refuse the application to stay execution of, or proceedings on, the judgment of 22 December 2017. There is nothing before me to suggest that such action is imminent or would result in unfairness or injustice. I am not satisfied that any of the arguments raised by the appellant constitute proper reason for the order he seeks under rule 300 SCR.

26. The appellant’s Notice of Appeal filed 7 October 2014 engaged the appellate jurisdiction conferred on this Court by s 40 of the Magistrates Court Act 1991 (SA). That in turn enlivened the power to award costs contained in s 40 of the Supreme Court Act 1935 (SA). Any interlocutory application subsequently filed in this Court is necessarily confined to issues ancillary to the conduct of the appeal brought or the exercise of the power to award costs to enable the proper conduct and resolution of the appeal and related costs application.[29] Hence in Gilbert v Endean Cotton LJ said:[30]

    ... [those interlocutory applications] are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.

    [29]   Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and Ors (No 2) [1988] Ch 422 at 429 (Purchas LJ), 444-5 (Nicholls LJ), 448 (Russell LJ).

    [30] (1878) 9 Ch D 259 at 269.

27. The cause in this case was the appeal against the refusal to set aside the default judgment. To similar effect, in ERS Engines Pty Ltd v Wilson,[31] Young J, as he then was, held that interlocutory relief must relate to or arise out of the final relief sought in the initiating process. And in Hardel Pty Ltd v Burrell & Family Pty Ltd[32] Kourakis J, as he then was, said that interlocutory proceedings were to be regarded as procedural or adjectival. It follows that the first question to be asked is; how is the outcome of the interlocutory applications adjectival or ancillary to the determination of the appeal and related application for costs?

    [31] (1994) 35 NSWLR 193 at 199-200.

    [32] (2009) 103 SASR 408 at [34] (Nyland and David JJ agreeing).

28. Accepting this it becomes plain that the contempt the appellant alleges to have been committed cannot in any sense be said to be adjectival to the appeal or costs application before me, occurring, as it is alleged, in the Marble House proceedings (SCCIV-12-992). No doubt that is why the Judge hearing the first interlocutory application suggested that if any contempt proceedings were to be pursued that they should be instituted in the ordinary way. Accordingly, in my view the allegations of contempt made by the appellant cannot be considered in the exercise of the jurisdiction enlivened by his Notice of Appeal and the application is incompetent.

29. An allegation that a party has acted in contempt of the Court is particularly serious and grave. Proof of contempt can result in imprisonment. Such allegation should not be made lightly. If a party decides to pursue contempt proceedings against another party the contemnor must be clearly identified and the details of the contemptuous act clearly set out. The proceedings should be instituted in strict compliance with rule 303 SCR. It is inappropriate for an allegation to be made incidentally in a separate but loosely connected proceeding as has occurred here. It is also inappropriate for a party making such allegation to act as if the onus were upon the Court to investigate the matter, as has also occurred here. If an allegation of contempt is made then, in accordance with rule 303 SCR, it should be supported by evidence capable of giving rise to reasonable grounds to suspect that the contemnor has committed the alleged contemptuous act. Thereafter if the Court requires the Registrar to formulate a written charge and issue a summons to, or a warrant for the arrest of, the contemnor, the party making the allegation must be prepared to undertake proving the contempt alleged to the criminal standard in a trial before a Judge of this Court.

30. As is plain from these reasons, I have read the affidavits filed in support of all interlocutory applications. Even if I were to treat the allegation made against Mr Mitchell in those applications as competent and forgive any non-compliance with the requirements of rule 303 SCR, I am not satisfied on the material provided that there are reasonable grounds to suspect either Mr Mitchell or the partners constituting the respondent to have committed any act contemptuous of the order made by this Court and conveyed to the parties on 8 February 2013. As mentioned in the course of referring to the contents of the second affidavit of the appellant (FDN 6), there is no evidence capable of giving rise to a reasonable suspicion that it was Mr Mitchell who provided a copy of the sealed affidavit to Mr Tropeano, if indeed Mr Tropeano does in fact have a copy of the sealed affidavit. Other possible avenues of Mr Tropeano gleaning the information contained in his outline are not excluded. None of the affidavits filed by the appellant contain any evidence that would support a reasonable suspicion that Mr Mitchell provided a copy of the sealed affidavit to Mr Tropeano. Mere assertion is insufficient. Accordingly, even if I was prepared to entertain the application as one for an order directing the Registrar to issue a summons to Mr Mitchell or the respondent for acting in contempt of court, on the material before me I would refuse to do so.

31. Next, with respect to the second and fifth interlocutory applications, they were not agitated at the hearing of the appeal. Rather counsel for the appellant proceeded to conduct the appeal in the normal way. In proceeding with the appeal the appellant has conducted himself in a manner inconsistent with an intention to seek the relief contained in the second and fifth interlocutory applications. In the circumstances both the Court and the respondent were entitled to assume that the appellant had abandoned the interlocutory applications. In my view that provides reason enough to dismiss both the second and fifth interlocutory applications. To attempt to re-agitate those applications now, without any explanation for them not having been raised prior to the hearing of the appeal, is opportunistic. I note that the appellant floats the notion that his legal representatives may not have acted in his best interests. Without evidence supporting that allegation accompanied, I would expect, by a waiver of privilege, I am not prepared to act upon it.

1. I dismiss the second and fifth interlocutory applications (FDNs 7 and 17).

2. It is to be recalled that in each of the second and fifth interlocutory applications the appellant sought a stay of the hearing of the appeal on the grounds of non-compliance with s 41 LPA. Here it is also to be recalled that the third and fourth interlocutory applications also sought stays on the basis of alleged non-compliance with s 41 LPA and the same contention is advanced in the seventh and eighth interlocutory applications. The third and fourth applications were dismissed for want of prosecution. No appeal against the dismissal of either application has been instituted. Ordinarily a court will not entertain a fresh interlocutory application dealing with a matter previously agitated and disposed of unless some material change in circumstances has occurred. The appellant points to no such change in circumstances. That provides further reason not to deal with the substantive relief sought in the second and fifth interlocutory applications in addition to providing reason to dismiss the argument based on s 41 LPA advanced in the seventh and eighth interlocutory applications.

3. Further again, the Court Record records that the fifth interlocutory application was dismissed on 11 August 2016. The appellant contends that the record is inconsistent with the ex tempore reasons delivered. I disagree. The application was called on 11 August 2016. The reasons clearly record the rejection of the application for an adjournment which was the primary relief sought by the fifth interlocutory application. In my view the stay sought in the fifth interlocutory application is conditioned on the appellant succeeding in obtaining an adjournment. Thus the refusal of the application for an adjournment effectively disposed of the application.

4. If this is wrong, the endorsements on the fifth interlocutory application suggest the stay subject of the application was sought on the same basis as that in the third and fourth applications (i.e. the alleged non-compliance with s 41 LPA). Even if as much of the fifth interlocutory application as was not specifically dealt with remains live, in the wake of the orders made dismissing the third and fourth interlocutory applications, and bearing in mind the content of those applications, some sufficient reason is required before this Court should now proceed to entertain the same point and related relief. None is provided.

5. Moreover, the grounds contained in the appellant’s initial Notice of Appeal (FDN 1) included a ground contending that the Magistrate had erred in not dismissing or failing to stay the claim because of non-compliance with s 41 LPA. That ground appears to relate to an interlocutory application filed in the Magistrates Court on 2 September 2014. Any appeal against the disposal of that application was abandoned.

6. Thus, on no less than five occasions up to the date of the hearing of the appeal, the respondent was required to prepare argument in response to the contention that it had failed to comply with s 41 LPA only for the argument not to proceed. That they find themselves having to do so once again is oppressive.

7. The only reason advanced as to why the appellant should not be held to his abandonment of any argument to the effect that the Magistrate has erred in failing to stay the proceedings in the Magistrates Court in accordance with s 41(4) LPA is the contention that despite his conducting the proceedings as he has, he has requested a stay of the action under s 41(4) in circumstances that oblige the Court to grant the relief he seeks.

8. Section 41 LPA is set out above. The prohibition contained in s 41(1) operates only until a bill specifying the total amount of the costs subject of any action for recovery is delivered to the person liable for those legal costs either personally or by post addressed to the person at the person’s last known place of business or residence. The duty imposed by s 41(4) upon the court is conditioned on a request made under s 41(2) that has not been complied with. The request must be made within six months of the delivery of the bill of costs subject of s 41(1). Importantly, the bill of which s 41(1) speaks is a different creature to the statement referred to in s 41(2).

9. I do not understand the appellant’s submission to be that he has never received a bill specifying the total amount of the costs subject of the substantive proceedings as required by s 41(1). Rather I understand his complaint to be that he had never received a statement showing in detail how the amount of costs to which the bills he received relate were made up having requested the same under s 41(2). Accordingly, the contention is that the respondent is in breach of the duty imposed by s 41(3) and the duty imposed upon the court by s 41(4) is enlivened. This accords with the content of the appellant’s first affidavit where he claimed not to have received “proper account of all payments, trust funds and property in their possession”. It also accords with his second affidavit where he complains of non-compliance with s 41(3) specifically; schedules of unpaid bills had been provided he states, but never “detailed and/or itemised accounts”. The same is advanced in the appellant’s third affidavit and confirmed in his fifth. In his eleventh affidavit the appellant again refers to asking “orally, in writing and by way of ignored Court applications” to be provided with copies of itemised bills. Consistent with this, in paragraph 40 of his written submissions the appellant contends that the respondent has failed to comply with the duty imposed by s 41(3) LPA. In paragraph 42 the appellant refers to the affidavit of Mr Mitchell sworn 5 December 2013 as exhibiting “some, but not all, of the invoices allegedly rendered to me and a schedule of invoices” and in paragraph 43 he appears to deny ever receiving the invoices referred to in Mr Mitchell’s affidavit and related exhibits. However he then characterises his submission as a repeat of the request he made in the second interlocutory application (FDN 7), which was supported by his second affidavit, in the fifth interlocutory application (FDN 17), which was supported by his eighth affidavit, and in the seventh interlocutory application (FDN 24), which was supported by his eleventh affidavit. In those circumstances it appears that despite paragraph 43 of the appellant’s submissions in chief, which is not supported by any evidence, his complaint remains one of non-compliance with a request made under s 41(2) LPA triggering the duty contained in s 41(4) to stay the proceedings. This conforms with the final paragraph in the appellant’s submissions in chief on the topic where he states:

   To the extent that s.41(4) of the LPA (or current s.31 of the LPA) relates to an action for the recovery of legal costs, I respectfully submit that, since the SC proceedings emanate from the AMC proceedings, which are an action for the recovery of legal costs, this Honourable Court must stay all proceedings as sought in all of my undetermined Applications listed above.

   [emphasis in original]

10. The appellant’s argument is best framed as a complaint that the court below erred in not staying the substantive proceedings pursuant to s 41(4) LPA on his interlocutory application of 2 September 2014 filed in that court. I have already indicated that such ground of appeal was abandoned and that the appellant should be held to the manner in which he conducted his appeal. However, even if I was disposed to deal with the appellant’s argument in relation to s 41(4) LPA the difficulty he confronts is that he must be able to point to evidence satisfying me that the facts enlivening the duty contained in s 41(4) may be accepted as established. Significantly there must be evidence of a request made at any time within six months after delivery of a bill. As indicated the appellant does not contend that bills of costs have not been delivered under s 41(1). When they were delivered must be established, however, in order that the Court may be satisfied that the relevant request for the purposes of s 41(2) was made within time. Time for the purposes of s 41(2) does not run as of the institution of the proceedings, but the delivery of the bill or bills subject of the action. In the present case the claim relates to bills going back to 27 April 2012. In his affidavit of 5 December 2013 Mr Mitchell states that all invoices subject of exhibit GM3 have been “rendered”. There is no evidence as to whether they were all “rendered” at the one time or as they were raised. The evidence adduced by the appellant does not allow the Court to determine that a request was made “under subsection (2),” which it could only occur if the request was within time. Accordingly, even if I was disposed to entertain the various applications to the extent that they raise arguments seeking a stay under s 41(4) LPA, I would reject the same.

11. Before leaving s 41 LPA, none of these reasons should be taken as accepting that an appropriate request has otherwise been made. The request must relate to the bill. The failure to comply with a request gives rise to criminal liability. In those circumstances it is appropriate to insist upon a high degree of particularity and specificity. Here the only evidence of any request is as set out in the appellant's third affidavit. In reading that affidavit it must be remembered that during 2013 the appellant was involved in three sets of proceedings involving the respondent, two in which the respondent was suing for its costs and a third in which difficulties had arisen in the respondent acting for the appellant due to unpaid fees. With the exception of the email of 24 September 2013 (exhibit EL3-bis) the remaining “requests” identified, if indeed they can be considered requests, cannot on the material available be necessarily connected to any of the bills subject of the claim in the substantive proceedings. As for the email of 24 September 2013, it could be construed as a request made within time in relation to at least the last of the six invoices subject of the claim. The context in which this communication was made is self-evidently critical to understanding whether or not it amounts to a request for the purposes of s 41(2) and whether such request relates to any or all of the invoices in the claim. That context is not in evidence. More to the point the assertion that fully itemised and adjusted invoices have not been provided may mean that invoices and some form of statement have been provided but the content is considered inadequate by the appellant. That would not necessarily mean non-compliance. The email of 26 March 2013 (exhibit EL3 to the Sixth Affidavit of Eric Lauro) could be similarly read. The assertion that the respondent has not “properly itemised all your costs” (emphasis in original) suggests an attempt has been made but was considered inadequate. Clearly the email of 26 March 2013 could not have referred to the last invoice subject of the claim in the substantive proceedings, but it could refer to the balance. It also provides some greater indication as to how the email of 24 September 2013 should be read.

12. Without more, in any event, I would not be prepared to accept that the purported requests made as identified in the appellant’s third affidavit are requests relating to the invoices referred to in the claim made within six months of each of the invoices subject of the claim being delivered in accordance with s 41(1) LPA.

13. I do not stay to deal with s 101 of the Australian Consumer Law. Assuming the respondent to have acted in breach of s 101, the remedies provided do not prohibit an action such as the substantive proceeding being pursued nor require that a proceeding instituted be stayed.

14. I decline any and all invitations to refer matters to the Legal Profession Conduct Commissioner. No power to make such referral has been identified. I can find none in the LPA as amended. This being so the application becomes more of a request that the Court act in an informal administrative capacity. Even if I were minded to consider so acting, the complaint purports to traverse conduct across three sets of proceedings in three courts. Exactly what conduct is complained of, is not clear. The appellant seems to invite an inquiry into the conduct of the respondent in all of its dealings with the appellant and his parents including but not limited to judicial proceedings. That is a matter he can pursue with the Legal Profession Conduct Commissioner himself.

15. I turn to deal with the submissions that the respondent’s application for costs should be stayed under rule 192 SCR pending the outcome of the appeal to the Full Court, the outcome of the fresh proceedings instituted in the Magistrates Court and taxation of the respondent’s bills of costs. Proceedings on the appeal to a single judge are not finalised until any application for costs is dealt with. This Court has an obvious interest in the speedy and efficient disposal of business. In fact determination of the respondent’s application for costs at this stage will put the Full Court in a position where, should permission be granted to appeal, it may deal with all orders made at first instance in the one appeal. The benefits to the administration of justice are obvious. So proceeding would not be unfair to the appellant. If he succeeds on his appeal any costs order made on the basis that he failed at first instance would need to be revisited.

16. I do not think it is appropriate to await the outcome of the fresh proceedings in the Magistrates Court to see whether that outcome is relevant in some way to the respondent’s entitlement to costs in this case. There is no indication as to when those proceedings will be heard, assuming that the appellant is not precluded from seeking the relief he has sought. The history of this matter suggests that resolution of the fresh proceedings will not occur in the near future. The preferable course is to determine this application for costs now and leave to future proceedings any adjustment to be made if, indeed, it transpires that in some way the respondent becomes disqualified from recovering its costs of the appeal to a single judge.

17. Lastly, any order as to the costs of the appeal to a single judge being stayed or adjourned pending the taxation of the respondent’s costs is unnecessary. An order can be made in terms requiring that costs be taxed in the event that they cannot be agreed. Standing back and considering all of these matters, a stay pursuant to rule 192 SCR would not be in the interests of justice.

18. I turn to deal with the respondent’s application for its costs of the appeal.

19. It is true that the appellant succeeded on the appeal to the extent that this Court was satisfied that the Magistrate erred in concluding that the appellant did not have an arguable case on the merits. However, to succeed on appeal it was necessary for the appellant to establish that the Magistrate erred in relation to both limbs of rule 87 MCR which he did not do. I do not consider that the respondent was unreasonable in arguing that the Magistrate did not err in any respect in his understanding and application of rule 87 MCR. In any event, the lion share of the argument was devoted to the question of whether the appellant had a reasonable excuse and whether the Magistrate had erred in finding to the contrary. Accordingly, I do not consider that the appellant’s partial success should result in the respondent bearing a portion of its costs.

20. I do not accept the submission that the appellant was in some way compelled to appeal because of the respondent’s conduct of the substantive proceedings or the proceedings in the District Court. That complaint seems to be grounded in a fundamental disagreement with the respondent as to how much is owed and by whom. The objection is then with the contrary view held by the respondent which the respondent seeks to vindicate in the proceedings instituted and which the appellant could defend. In the end the appellant finds himself in the position where he appealed because of his conduct in the court below. That is his own doing. I do not accept that to award the respondent its costs would be to punish the respondent. The appellant would have known that he was at risk of an adverse costs order should he fail on his appeal. His appeal occasioned the incursion of legal costs by the respondent. An award of costs compensates the respondent for the expense to which they were put in part. It may be seen as punitive by the respondent who is firm in his belief that the respondent has dealt with him and his family unjustly, but it is not.

21. The respondent also argued that by virtue of his no longer being represented costs should not be awarded against him. Of itself that provides no reason for costs not to be awarded against him. Equally the perceived wealth and resources of the respondent is not of itself a reason not to award of costs.

22. Lastly, from my review of the file I see nothing in the way of the administration of the appellant’s appeal proceedings in SCCIV-14-1393 by the Court that has resulted in the costs liability he is exposed to as a consequence of his appealing and in choosing to conduct the appeal as he did, including in the making of the interlocutory applications referred to, being exacerbated in some way.

23. In my view no reason exists as to why the ordinary rule should not apply. I grant the respondent’s application and order that the appellant pay the respondent’s costs of and occasioned by the appeal, such costs to be taxed if not agreed.

24. Lastly, I deal with the appellant’s application for an extension of the times specified in rule 290(1) SCR. In my view this application misunderstands the process of seeking permission to appeal as provided for by the rules.

25. Under s 50(4)(a)(ii) of the Supreme Court Act 1935 the judgment delivered 22 December 2017 is one in relation to which an appeal lies to the Full Court by permission of that Court. Rule 289(1)(a) SCR requires that such appeal be commenced in the ordinary way, that is, by the filing of a notice of appeal in accordance with rule 282(2) SCR within the time limit set down in rule 281(1) SCR. As mentioned above the appellant filed a Notice of Appeal (FDN 27) on 19 January 2018. His Notice of Appeal was not filed within the 21 calendar days prescribed by rule 281(1) SCR. Rule 295(1)(a) SCR vests power in the Court to extend the time for commencing an appeal or taking any step in the appeal. Rule 295(3)(a) SCR provides that the power vested by rule 295(1)(a) SCR may be exercised on an interlocutory application before a single Judge.

26. To the extent that the appellant requires an extension of time to 19 January 2018 in which to commence an appeal to the Full Court, such extension is granted.

27. Next under rule 289(1)(b) SCR the appellant is to make an application to the Judge who determined the appeal for permission to appeal “within 14 calendar days” of the judgment. Such application is to be made in accordance with rule 291(1) SCR. The appellant is yet to make an application under rule 289(1)(b) SCR and is out of time. I extend time in which the appellant is to make the application required by rule 289(1)(b) SCR to within 21 days of the date of this judgment. The appellant has already had more than three months in which to make the application contemplated by rule 289(1)(b) SCR. No reason for an extension of six months has been advanced other than convenience. The appellant was told that he should not delay in prosecuting his appeal whilst awaiting these reasons. This matter has been in this Court since 2014. It should be brought to a conclusion as quickly as is reasonably possible. In these circumstances I am not minded to grant any greater extension of time.

28. At present rule 290 is not engaged and no need arises to consider any application for an extension of time in relation thereto.

    Conclusion and orders

1. For these reasons the Court:

   1.dismisses the second, seventh and eighth interlocutory applications (FDNs 7, 24 and 31);

   2.if it is necessary, and to the extent that it is necessary, dismisses the fifth interlocutory application (FDN 17);

   3.orders that the appellant pay the respondent’s costs of and occasioned by the appeal (SCCIV-14-1393), such costs to be taxed if not agreed;

   4.orders that:

   a.      the appellant is granted an extension of time to 19 January 2018 in which to file a Notice of Appeal to the Full Court in the matter SCCIV-14-1393.

   b.     the appellant is granted an extension of time in which to make the application for permission required by rule 289(1)(b) SCR to within 21 days of the date of this judgment.