Maddocks v Brown

[2000] FCA 613

FEDERAL COURT OF AUSTRALIA

Maddocks v Brown [2000] FCA 613

JOHN DAVID MADDOCKS v DAVID ALEXANDER BROWN trading as
BROWN & PARTNERS

N 199 OF 2000

LEHANE J
12 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 199 OF 2000

BETWEEN:	JOHN DAVID MADDOCKS APPLICANT
AND:	DAVID ALEXANDER BROWN trading as BROWN & PARTNERS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	12 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 199 OF 2000

BETWEEN:	JOHN DAVID MADDOCKS APPLICANT
AND:	DAVID ALEXANDER BROWN trading as BROWN & PARTNERS RESPONDENT

JUDGE:	LEHANE J
DATE:	12 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who is not legally represented (but apparently is himself a former barrister), seeks, ex parte, an order under O 40 r 10(1) of the Federal Court Rules directing the Registrar to commence a proceeding for punishment of the respondent, a solicitor, for contempt of Court.  The amended application asserts as well that the applicant will move the Court for declarations concerning the nature of certain alleged conduct of the respondent and various other orders.  The applicant, however, made no submission in support of any claim for the declarations and the additional orders and it is sufficient to say of them that there is no basis on which – particularly in proceedings conducted ex parte – any of them could be made.

2. The applicant has tendered evidence and made submissions on two occasions.  On the earlier of those occasions, he read in support of his application an affidavit sworn on 9 March 2000.  I indicated to him that I was not convinced that it was appropriate for proceedings of the kind which he brought to be conducted ex parte and that, in any event, I was far from persuaded that the material before me established a sufficient basis to refer the matter to the Registrar.  The applicant sought an opportunity to file further material, which I granted.  I also invited the applicant to consider whether he wished to submit that it was appropriate to proceed ex parte or whether, on the other hand, it would be appropriate to serve on the respondent the documents which the applicant had filed and on which he sought to rely (that has not been done).  When the matter was again listed for hearing, the applicant read a supplementary affidavit sworn on 7 April 2000 and tendered what appear to be (and what the applicant claimed to be) three pages of a solicitor’s bill of costs prepared for taxation.  He also filed in Court, by leave, an amended application and an amended statement of charge and he made further submissions.

3. The applicant alleges, in substance, that the respondent wilfully misled the Court in bankruptcy proceedings which resulted, on 26 November 1996, in a sequestration order being made against the applicant.  He relies, as explaining and giving colour to that conduct, on certain other conduct which he attributes to the respondent in certain earlier proceedings in which the applicant and the respondent (or the respondent’s predecessor in his practice) were involved.

4. The material before me is somewhat sketchy but, taking together what is said in the two affidavits (and ignoring questions of admissibility) and what the applicant said to me from the bar table, what follows is a summary of the applicant’s allegations.  In 1986, the applicant, then a barrister, appeared on the instructions of the respondent’s predecessor in practice in certain proceedings in the Industrial Court of New South Wales.  The proceedings were successful and an order was made for the payment of costs incurred by the party for whom the applicant had appeared.  Those costs were taxed (the three pages tendered are from the bill of costs) and a sum of $7,250 allowed for the applicant’s fees.  That sum, the applicant says, was received by the respondent’s predecessor but not paid to the applicant.  There followed an investigation of some kind by the Law Society: the material before me does not give a clear picture of what precisely the proceedings were.  They appear, however, to have involved the respondent’s predecessor, not the respondent himself, and they appear to have related to a complaint that the respondent’s predecessor had failed to pay fees due to the applicant.  The applicant appears to complain both of what was put to the Law Society committee by the respondent’s predecessor and of the way in which the committee dealt with the matter, but those matters, I think, are of no particular significance.  There is also a reference in the affidavits to proceedings, presumably before a committee of the Bar Council, against the applicant in which he was represented by the respondent’s predecessor, with whom, it is suggested, the applicant had an arrangement to offset against the costs due to the applicant in the Industrial Court matter the fees which he would be charged by the respondent’s predecessor in respect of the proceedings before the Bar Council.  That arrangement, it appears to be said, was terminated by the respondent when he acquired the practice.

5. The next step was, apparently, that the applicant sued the respondent, or his firm, in the District Court for the fees due to him in the Industrial Court proceeding.  The applicant was unsuccessful in that action, and a costs order was made against him.  The costs payable by him were allowed (apparently by a Registrar of the District Court) at $3,621.50.  The applicant sought a review of the Registrar’s order.  The applicant complains that, when the application for review was adjourned part heard before a judge of the District Court, another judge of that Court was induced to dismiss the application for review.  The District Court costs order was the basis of a bankruptcy notice issued to the applicant at the request of the respondent, failure to comply with which was, ultimately, the act of bankruptcy relied on by the respondent in his creditor’s petition against the applicant.

6. Before turning to the bankruptcy proceedings, there is one other aspect of the history which I should mention, though it is by no means clear what relevance it is said to have.  The applicant’s earlier affidavit refers to further proceedings brought against him in the Local Court by the respondent (or the respondent’s predecessor) in which the applicant sought to offset the fees due to him in relation to the Industrial Court proceeding.  The respondent (or his predecessor), the applicant says, discontinued the Local Court claim.  That circumstance appears to be relied upon (how, it is not entirely clear) to support a claim that the applicant was indeed entitled to an offset.

7. The applicant did not comply with the bankruptcy notice.  He did (he claims) file a notice of grounds of opposition to the creditor’s petition which the respondent then presented.  Although this does not appear in the affidavits, the applicant told me that the sequestration order was made in his absence; he attended the Court but either the matter was adjourned or, for some reason, he was not present in the Court when the sequestration order was made and consequently lacked an opportunity to lead evidence or make submissions in support of his grounds of opposition.  The suggestion is, as I understand it, that the respondent knew that the applicant intended to oppose the petition and knew that the applicant intended to be present at Court to do so, so that the only possible explanation for the making of a sequestration order in the applicant’s absence was (it is said) that the Court was induced to make the order by misrepresentations made by the respondent.

8. I do not think there is any doubt that a practitioner’s conduct in wilfully misleading the Court may amount to contempt: see, for example, U & I Global Trading (Australia) Pty Ltd v Tasman‑Warajay Pty Ltd (1995) 60 FCR 26 at 35. The applicant submitted that the material which he put before me was sufficient to lead to the appropriate level of satisfaction to justify an order under O 40 r 10(1). In my view, however, that is not so. It is unnecessary to express a view as to the precise level of satisfaction which is required. A charge of the kind which the applicant makes is a grave one, particularly where it is made against a legal practitioner. The order which the applicant seeks by his amended application – and the only order which O 40 r 10(1) might justify – is an order directing the Registrar to commence a proceeding for punishment of contempt; despite several references by the applicant’s submissions to investigations which the Registrar might undertake, the rule does not authorise the Court to make – and the applicant in any event does not seek – an order requiring the Registrar to investigate the question whether it might be appropriate to proceed against the respondent for contempt.

9. In any case, I am by no means satisfied that the applicant has established that the commencement of a proceeding against the respondent might be justified.  The evidence (treating, once again, as evidence both everything which is in the affidavits and everything Mr Maddocks told me from the bar table) is lacking in detail, vague in important respects and by no means easy to follow.  The applicant accepted that he was entitled to access to, at least, a good part of the relevant files in this Court and other Courts; but, apart from the three pages of the bill of costs, none of that material is before the Court nor, apart from certain matters in relation to the District Court proceedings, does the evidence inform me of the content of anything in the files.  If the applicant is right, orders were made against him in the District Court both in his absence and in a way which was, at least, irregular; but the applicant, a person with legal training, accepts that he took no step to set aside the orders of that Court.  Nor, though again, if the applicant is right, a sequestration order was made against him in this Court in his absence and in circumstances in which it ought not to have been made, did he take any proceeding to set that order aside.  The applicant told me that he had discussed the matter with his trustee in bankruptcy and had decided, in the circumstances, that it was better to wait out the period until his automatic discharge.  But that is hardly a convincing explanation.  Nor was I given any clear picture – and no picture at all appears in the affidavits – of what actually happened in the course of the bankruptcy  proceedings.  Those matters sufficiently demonstrate, in my view, that there is no basis on which I could properly make an order directing the Registrar to commence proceedings against the respondent for contempt.

10. Accordingly, the application is dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             12 May 2000

Counsel for the Applicant:	The applicant appeared in person
Date of Hearing:	2 May 2000
Date of Judgment:	12 May 2000