(Applications Under Various Acts or Rules: Application)
LYONS v LEGALESE PTY LTD & OTHERS
[2016] SASC 160
Judgment of The Honourable Justice Hinton
5 October 2016
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - LEGAL REPRESENTATION - GENERALLY
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
Application for an order restraining the first and third defendants from acting in an inferior court.
The second defendant instituted proceedings in the civil jurisdiction of the Magistrates Court seeking damages for personal injuries she sustained in a motor vehicle accident that occurred as a consequence of the plaintiff’s negligence.
The Magistrates Court proceedings were instituted eight days out of time. The second defendant applied for an extension of time in which to institute the proceedings, based in part on the conceded negligence of her solicitors.
The plaintiff sought an order from this Court restraining the first and third defendants from further acting as the solicitors for the second defendant in the Magistrates Court proceedings.
Held, granting the application:
1. The conduct of Peter Scragg & Associates is so integrally identified with the issues subject of the application of an extension of time that it is appropriate to exercise the discretion to restrain the defendants from acting for the second defendant.
2. The first and third defendants are restrained from acting for the second defendant in the Magistrates Court proceedings.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lyons v Legalese Pty Ltd & Ors [2016] SASC 160
Case
[2016] SASC 160
Decision Date
CaseChat Overview and Summary
The case of Lyons v Legalese Pty Ltd & Ors involves Kathy Morris, the plaintiff, against Legalese Pty Ltd, Peter Scragg & Associates, and others. The dispute revolves around the limitation period for instituting proceedings and the appropriateness of Peter Scragg & Associates continuing to represent Morris. The case was heard in the South Australian District Court.
The primary legal issue before the court was whether Peter Scragg & Associates should be restrained from representing Morris in the Magistrates Court proceedings, given that the proceedings were commenced eight days beyond the statutory limitation period. This issue hinged on whether the firm's conduct warranted the exercise of the court's inherent jurisdiction to restrain a party from being represented by particular legal practitioners.
The court held that the conduct of Peter Scragg & Associates warranted the exercise of the court's discretion to restrain them from acting for Morris. The firm's failure to issue the proceedings within the statutory time limit was an oversight, acknowledged by Peter Scragg. The court noted that Morris had expressed her satisfaction with the firm's conduct, despite the error, and her preference for them to continue representing her. However, the court emphasised the importance of maintaining public confidence in the administration of justice. It found that the firm's conduct was integrally linked with the application for an extension of time, and thus it was appropriate to exercise the discretion to restrain them from acting for Morris.
In conclusion, the court ordered that Peter Scragg & Associates, and any legal practitioners employed by them or acting as their agents, be restrained from representing Kathy Morris in the Magistrates Court proceedings. The court further directed that the parties be heard regarding the costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In her affidavit Ms Morris: -Indicated that she was aware that the proceedings in the Magistrates Court instituted on her behalf were instituted eight days out of time and was advised of this on 9 September 2014;-Stated that she understood that if she fails in her application for an extension of time then she may make a claim against Peter Scragg & Associates for her loss; -Expressed the wish that Peter Scragg & Associates continue to represent her in the Magistrates Court proceedings. -Advised that Peter Scragg & Associates was acting for her in two unrelated matters and had acted for other members of her family over the past 20 years;-Expressed a desire for the Magistrates Court proceedings to be finalised as quickly as possible and concern at the delay that might arise from having to seek new solicitors; and-Stated she was happy with the appointment of an independent barrister to act as her counsel in the Magistrates Court proceedings and that she found the barrister to be approachable, was confident that he would act in her best interests and was happy for him to provide her with independent advice as required. -Claimed Peter Scragg & Associates knew her case and had been upfront and direct with her regarding the time issue and the possibility of retaining other solicitors to act for her. She said she had established a rapport with those who have worked on her matter since Mrs Scragg ceased to do so.-Stated that she had been advised by each of counsel, Mr Scragg and a solicitor employed by Peter Scragg & Associates of her right to retain other solicitors to act on her behalf. She said she chooses not to do so.The evidence of Peter Scragg At paragraph 3 of his affidavit Mr Scragg states:3. In breach of our client’s general implied instructions my firm failed to issue Action within 3 years of the accident, being the time limit prescribed by section 36 of the Limitation of Actions Act 1936 (SA) (the Act). The Magistrates Court Action was filed on 9 September 2014, eight days after the limitation period expired, and contained a plea seeking an extension of time for their institution. I acknowledge however, that the failure to institute the Magistrates Court Action on or before 1 September 2014 was an oversight made by the practitioners of my firm. In his evidence in this Court Mr Scragg said that Rosita Scragg, his wife, was initially principally responsible for Ms Morris’ file. By March 2015, however, much of the day to day work was being done by the firm’s associate. He added that Mrs Scragg continues to be a partner of Peter Scragg & Associates but is now no longer involved in Ms Morris’ matter. Mr Scragg said that it was he who first realised the claim was out of time in the course of settling the then draft claim. That occurred on 8 September 2014. He raised the issue with his wife and was advised that time would not be an issue. He agreed in cross-examination that the application for an extension of time had been imperfectly pleaded in the claim. He said that he had not turned his mind to the requirements of s 48 of the Limitations of Actions Act 1936 (SA), but reiterated that he and his wife understood the time limitation point would not be taken by Allianz, and, consequently, was not too concerned at the claim having been filed out of time. He added that this had occurred in numerous other matters involving Allianz and had not prevented the ongoing negotiation of claims to settlement.
Decision
Reasons for decision
HINTON J
I recognise that Ms Morris has an interest in these proceedings being resolved as quickly as possible. However, in my view, any disruption or inconvenience to Ms Morris is outweighed by the public interest in the maintenance of confidence in the administration of justice. In my view, the conduct of Peter Scragg & Associates is so integrally identified with the issues subject of the application of an extension of time that it is appropriate to exercise the discretion to restrain the defendants from acting for Ms Morris.Conclusion and orders For the reasons given above, I order that the first and third defendants, and any legal practitioner employed by them or acting as agent for them, be restrained from acting for Kathy Morris (nee Butcher) in Action No. AMCCI-14-3641 in the Magistrates Court of South Australia. I will hear the parties as to the costs of the application.