Lickiss v Docking, Abetz Curtis and Docking and Docking and Associates
[2001] TASSC 84
•1 August 2001
[2001] TASSC 84
CITATION:Lickiss v Docking, Abetz Curtis & Docking and Docking & Associates [2001] TASSC 84
PARTIES: LICKISS, Dorothy Elizabeth
v
DOCKING, Murray Dale
ABETZ CURTIS & DOCKING (A firm)
DOCKING & ASSOCIATES (A firm)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 347/1999
DELIVERED ON: 1 August 2001
DELIVERED AT: Hobart
HEARING DATE: 23 July 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Procedure - Costs - Interlocutory proceedings - Order made setting aside an appearance the entry of which had not been authorised - Circumstances justifying an award of costs to the applicant.
Aust Dig Procedure [602 - 606]
REPRESENTATION:
Counsel:
Plaintiff: C W Law
Defendants: A B Walker
Applicant Curtis: R J Phillips
Solicitors:
Plaintiff: Page Seager
Defendants: Dobson Mitchell & Allport
Applicant Curtis: Phillips Taglieri
Judgment Number: [2001] TASSC 84
Number of paragraphs: 6
Serial No 84/2001
File No 347/1999
DOROTHY ELIZABETH LICKISS v MURRAY DALE DOCKING,
ABETZ CURTIS & DOCKING (A firm) and
DOCKING & ASSOCIATES (A firm)
REASONS FOR JUDGMENT COX CJ
1 August 2001
This is an interlocutory application by Roger Andrew Curtis for the following orders:
"1That the Appearance entered by the firstnamed Defendant on the Applicant's behalf be withdrawn.
2Or a declaration that the Writ in this action has not been served on Roger Andrew Curtis.
3Such further or other orders as the Court deems appropriate.
4That the plaintiff pay the costs of and incidental to this application."
On 30 April 1999, the plaintiff issued a writ seeking damages as the result of breaches of agreement and/or negligence and/or breaches of statutory duty and/or misleading and deceptive statements and/or negligent misstatements while acting for the plaintiff as her solicitor between on or about 19 November 1991 and 6 January 1999. The writ was addressed to Murray Dale Docking of 8 Montpelier Retreat, Battery Point and Abetz Curtis & Docking of 83 Davey Street, Hobart and to Docking & Associates of 8 Montpelier Retreat, Battery Point. From 6 January 1992 to 22 February 1994, the partners of the second named defendant were Mr Eric Abetz, Mr Curtis and the first named defendant, Mr Docking. On the latter date, Mr Abetz left the firm and the partnership between Mr Curtis and Mr Docking continued under that name until its dissolution on 30 June 1998. I infer from the fact that the writ was addressed to the first and third named defendants at an address different from that of the second named defendant firm that the plaintiff had knowledge at the time the writ was issued that the partnership between Mr Docking and the other member or members of the second named defendant firm had been dissolved.
On 12 July 1999, an appearance was entered by the third named defendant purporting to act as solicitors for all three defendants, in the following form:
"TAKE NOTICE that this Appearance has been filed by or on behalf of the defendants whose address for service of documents is C/- Docking & Associates of 8 Montpelier Retreat, Battery Point.
DATED this 12 day July 1999.
DOCKING & ASSOCIATES
Per: (indecipherable)
Solicitors for the Defendants"
It will be noted that such an appearance failed to comply with the requirements of O54, r5, which was the relevant provision at the time and which provided that when persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall nevertheless continue in the name of the firm. Order 54, r3(2) provides:
"3 (1) …
(2) In the case of a co-partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable."
As the partnership of Abetz Curtis & Docking had been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons was required to be served on, inter alios, Mr Curtis. It was not. Mr Curtis knew nothing of the existence of the writ until informed by letter of 27 March 2001 from Messrs Dobson Mitchell & Allport who, on 14 September 1999, had filed a notice of change of solicitors advising their appointment as solicitors for the defendants in place of Messrs Docking & Associates. The letter enclosed a copy of a statement of claim dated 14 February 2001 in which, in short, it was alleged that Mr Docking had received instructions to act for the plaintiff in respect of an action for medical negligence and an unrelated workers compensation claim and, while a member of the second named defendant firm, had failed to properly pursue the common law claim, as the result of which the plaintiff lost the opportunity of recovering damages in respect thereof and, furthermore, that Mr Docking had made false and misleading statements as to a settlement of the workers compensation claim in consequence of which the plaintiff had suffered further damage.
Upon being advised of the action by the letter of Messrs Dobson Mitchell & Allport, Mr Curtis responded that he had not been served with any documents and queried how the requirement for personal service upon him "under R 310(3)" (ie, the present equivalent of O54, r3(2), save that the current rule does not require that the plaintiff know of the dissolution of the firm prior to commencing proceedings) was said to have been satisfied. On 4 April 2001, Mr Curtis spoke to the plaintiff's solicitors and conveyed the same information to them, indicating his intention, if necessary, of making the present application. On 9 April 2001, he wrote to them again saying that such an application would be made if the action were not discontinued against him and advising that if the application were successful, he would rely on the letter in seeking costs. On 30 April 2001, Mr Curtis' present solicitors wrote to the plaintiff's solicitors seeking confirmation that the action would not proceed against their client and again giving notice of an intention to make this application if the confirmation were not forthcoming. In a letter dated 1 May, the plaintiff's solicitors said they would discuss the matter, but would first obtain clarification of the position from Messrs Dobson Mitchell & Allport. Next day Mr Curtis' solicitors demanded an answer to the matters raised within seven days or the application would be filed. It was filed on 26 June 2001 and at the hearing the making of the order that the appearance entered by the first named defendant, purportedly on Mr Curtis' behalf, be withdrawn was not opposed by counsel appearing for the plaintiff, nor by counsel instructed by the solicitors on the record for the defendants named in the writ.
There is power for the court to make an order setting aside an appearance the entry of which has not been authorised (Re Gray (1891) 65 LT 743; Yonge v Toynbee [1910] 1 KB 215; Porter v Fraser (1912) 29 TLR 91; The Neptune (1919) P 17). As such an order is not opposed and it is clear that Mr Curtis' partnership with Mr Docking had been dissolved prior to the issue of the writ and consequently Mr Docking had no authority to enter an appearance on Mr Curtis' behalf, it is appropriate to make an order that the appearance entered on Mr Curtis' behalf be set aside and I so order.
The substantive issue before me was confined to the question of costs, it being contended by Mr Phillips for Mr Curtis that the plaintiff should pay the latter's costs of the application from 22 June 2001 by which time the plaintiff, through her solicitors, had been fully apprised of the situation, and Mr Law for the plaintiff contending that, the entry of the appearance by Mr Docking being quite out of the control of the plaintiff, it would be unjust for the plaintiff to be ordered to meet the expense of rectifying the situation. It is, of course, a very unfortunate situation which seems to have been brought about by Mr Docking's failure to advise his former partner of the issue of a writ which might affect him in respect of alleged tortious behaviour by Mr Docking. It appears, however, that Mr Curtis has no confidence that an order against Mr Docking would be satisfied and so he has not sought such an order. I think the justice of the situation requires that the loss should fall on the plaintiff rather than on Mr Curtis. The plaintiff's solicitors should have been aware that to attach liability to Mr Curtis, the writ needed to be served upon him personally. It was their responsibility to arrange service and they must have been aware from their process server's report that service had been effected only on Mr Docking or on his firm, Docking & Associates. Furthermore, the appearance itself was defective in that it did not comply with O54, r5 and this fact should have alerted them to the possibility that Mr Curtis had not been served with the writ. Added to this material is the further fact that they were promptly told of the true situation by Mr Curtis and his advisers and invited to co-operate in remedying it. This was not a case of the applicant seeking an indulgence. The matters to which he deposed in his affidavit were or ought to have been known to the plaintiff's solicitors and did not require reduction to affidavit form to satisfy them of the justice of Mr Curtis' position. In my view, the plaintiff should bear the costs of the application from the date nominated by Mr Phillips. Whether or not the plaintiff should bear the costs personally depends upon what has passed between her and her solicitors and the degree of control she has exercised over the course that has been taken by them. I leave it to their integrity to make such accommodation with her as may be just, but lest she wishes to be heard on the issue, I reserve to the plaintiff herself liberty to apply.
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