Linfox Transport (Aust) Pty Ltd v Arthur Yates and Co Ltd; Dynamic Lifter Pty Ltd v Linfox Transport (Aust) Pty Ltd
[2005] NSWSC 25
•7 February 2005
CITATION: Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd; Dynamic Lifter Pty Ltd v Linfox Transport (Aust) Pty Ltd [2005] NSWSC 25
HEARING DATE(S): 16/12/04
JUDGMENT DATE :
7 February 2005JURISDICTION: Equity Division
Commercial ListJUDGMENT OF: Brownie AJ
DECISION: I direct the Registrar to forward a copy of my reasons for judgment of 21 October 2004 to the Commissioner for Legal Servicers, drawing to the atttention of the Commissioner pars 1197 to 1202, and asking that the Commissioner treat that as a complaint within the meaning of the Legal Profession Act 1987. I direct the Registrar to provide to the Commissioner access to or copies of such documents as may be appropriate, consistently with the proper conduct of any appeal from the judgment of 21 October 2004, or any other decision given in these proceedings.
CATCHWORDS: Legal practitioners - no question of principle.
LEGISLATION CITED: Legal Profession Act 1987 s171 S(2)
Legal Profession act 1987 Div 9A Pt 10PARTIES: Linfox Transport (Aust) Pty Ltd (Plaintiff in 50125/2000, Defendant in 50112/2003)
Arthur Yates & Co Ltd (Defendant in 50125/2000)
Dynamic Lifter Pty Ltd (Plaintiff in 50112/2003)
DEFENDANT
Linfox Transport (Aust) Pty LtdFILE NUMBER(S): SC 50125/2000; 50112/2003
COUNSEL: Mr SK Wilson QC, Mr GL Meehan (Plaintiff in 50125/2000, Defendant in 50112/2003)
Mr RM Smith SC, Mr NJ Kidd (Defendant in 50125/2000, Defendant in 50112/2003)SOLICITORS: Corrs Chambers Westgarth (Plaintiff in 50125/2000, Defendant in 50112/2003)
Coudert Brothers (Defendant in 50125/2000, Plaintiff in 50112/2003)
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
BROWNIE AJ
Monday 7 February 2005
50125/2000 Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd
50112/2003 Dynamic Lifter Pty Ltd v Linfox Transport (Aust) Pty Ltd
REASONS FOR ORDERS
1 On 21 October 2004 I directed Mr Wilson QC, Mr Meehan and Ms Whiting to show cause why I should not refer to the Legal Services Commissioner for his consideration the question whether one or more of them had been guilty of professional misconduct or unsatisfactory professional conduct, and the further question whether I should make an order disallowing some part of the costs they had charged.
2 Subsequently, their former client (“Linfox”) made it clear that it did not seek any order disallowing any part of the costs it had been charged. Given this announcement I do not propose to do anything further about this question. Part 52A rules 43 and 43A exist for the purpose of protecting clients against their lawyers. If a client such as Linfox, demonstrated to be able to look after its own interests, having taken independent advice and having considered its position, takes the stance that it does not seek to be protected, then, absent other circumstances, that should be the end of the matter.
3 The question about a reference to the Commissioner stands on a different footing. Linfox also announced that it maintained a claim for client legal privilege in respect of all communications passing between it and its former lawyers, and the lawyers submitted that in those circumstances they could not properly address the suggestion that they might have been guilty of misconduct. Further, they submitted that in order to address the suggestion they would need to attack some of the findings I have made, and that the appropriate method of doing this would be for Linfox to attack those findings in the course of an appeal from my judgment. Therefore, they submitted, whilst I should deal with the question now and not leave it unresolved, I should not refer the matter to the Commissioner. Finally, they submitted that I should do this by letter addressed to their solicitors, and not by way of a public judgment.
4 The matter has not been argued, and at this stage there is no contradictor to Linfox’s claim for client legal privilege. However, it is not obvious that such a claim will succeed. See for example, s171 S(2) of the Legal Profession Act 1987. Further, in respect of some of the matters to which I referred in my reasons for judgment of 21 October 2004 at 1199, the question of privilege may be irrelevant. Without intending to do more than to explain why I do not regard the submissions as persuasive, and without intending to be exhaustive, I refer by way of example to pars 102, 185-186, 193, 229, 337, 348-349, 434-443, 557, 617, 645-647, 808, 883, 922 and 1079 of my earlier reasons for judgment.
5 I accept the submission made that the question whether I should refer the matter to the Commissioner should be resolved promptly. I see possible difficulties if, upon some action by the Commissioner the former lawyers for Linfox wish to challenge some finding or findings of fact that I have made, but presumably any such difficulty can be met by deferring whatever action is taken pending the resolution of the appeal to be brought by Linfox.
6 I do not accept that I ought to deal with the question by correspondence rather than by judgment or order made in open court. Questions about the discipline of legal practitioners are matters of public interest (distinguishing public interest from public curiosity), and in some circumstances there must be publication made about what has happened: see Division 9A of Part 10 of the Legal Profession Act. In any event, this matter having already been made public, it seems inappropriate to continue now by saying nothing in public, and directing something be done or not done in private.
7 I direct the Registrar to forward a copy of my reasons for judgment of 21 October 2004 to the Commissioner for Legal Services, drawing to the attention of the Commissioner pars 1197 to 1202, and asking that the Commissioner treat that as a complaint within the meaning of the Legal Profession Act 1987. I direct the Registrar to provide to the Commissioner access to or copies of such documents as may be appropriate, consistently with the proper conduct of any appeal from the judgment of 21 October 2004, or any other decision given in these proceedings.
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