McKenzie v Director General of Conservation and Natural Resources & Ors

[2001] VSC 220

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4416 of 1997

PAUL McKENZIE	Plaintiff
v
DIRECTOR-GENERAL OF CONSERVATION & NATURAL RESOURCES AND OTHERS	Defendant

---

JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2001
DATE OF JUDGMENT:	2 July 2001
CASE MAY BE CITED AS:	McKenzie v Director-General of Conservation & Natural Resources & Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 220

---

Solicitor's lien over clients' documents – claim for costs – application for delivery up of documents – insurer retaining solicitors on behalf of insured – solicitor's right to claim costs from insured.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the First to Tenth Defendants	Mr M. Scott	Blake Dawson Waldron
For Ligeti Partners	Mr J. Middleton QC with Mr J. Fletcher	Ligeti Partners

HIS HONOUR:

1. This is the return of a summons, filed by the solicitors acting for the first to tenth defendants (inclusive), seeking an order pursuant to s.76 of the Supreme Court Act 1986 or the inherent jurisdiction of the court, that their former solicitors, Ligeti Partners ("Ligeti"), deliver to their present solicitors all documents, papers, files et cetera in their custody, possession or power relating to the proceeding. Alternatively, they seek an order that their present solicitors be at liberty to inspect the documents and copy them.

The Proceeding

1. On 14 January 1996, the plaintiff, Paul McKenzie, was at a recreation area near Echuca, dived from a swinging rope into the Murray River and suffered very severe injury resulting in quadriplegia.  On 17 February 1997, he issued a writ in this court seeking damages and sued the first defendant, Director-General of Conservation & Natural Resources ("the Department").  Subsequently, a number of other parties were joined, including the State of Victoria, and eight members of a committee of management. 

1. The proceeding has been managed in the Major Torts List and is ready for trial.  It has been referred to the Listing Master to fix a date. 

The Summons

1. The first to tenth defendants (inclusive) are the Director-General of Conservation & Natural Resources, the head of a government department; the State of Victoria; and the eight members of a committee of management ("the relevant defendants").  The relevant defendants at all relevant times were insured by HIH Insurance Ltd ("HIH") and were entitled, pursuant to the contract of insurance, to an indemnity in respect of any damages and costs payable by any or all of them to the plaintiff in the proceeding. 

1. As is well known, HIH has gone into liquidation.  The relevant defendants decided to and did engage another firm of solicitors to act on their behalf.  The firm is Blake Dawson Waldron. 

1. The summons seeking relief was filed in the proceeding and was directed to Ligeti Partners. 

1. Mr John Middleton QC, who appeared with Mr Fletcher for Ligeti, raised the question of the propriety of proceeding by summons in the proceeding.  It was submitted that the application should have been made by originating motion or writ.  Mr Middleton QC made it quite clear that he was not taking a technical objection, but was underlining the fact that this was not an interlocutory application in the proceeding which would have permitted evidence on hearsay.  He objected to certain paragraphs of the affidavit in support. 

1. After some discussion, counsel for the defendants, Mr Scott, applied and successfully obtained leave to call a witness to overcome the objection. 

1. James Edwin Hughes, the claims manager of the Department, gave viva voce evidence.  Mr Middleton QC did not cross-examine him. 

1. I think that since it was an application seeking relief against a partnership which was not a party to the proceeding, the appropriate procedure was by the issue of originating motion or by the issue of a writ.  However, once the hearsay problem was overcome, Mr Middleton QC did not press his objection to the procedure.  Accordingly, I permitted the matter to proceed on the summons. 

History and Nature of the Dispute

1. Upon receipt of a copy of the writ, the Department engaged Clements Hutchins & Co to act as its solicitors.  The Department and the other relevant defendants were covered by a contract of insurance with HIH.  The retainer of Clements Hutchins & Co was pursuant to an agreement between HIH and the Department, pursuant to which the Department was entitled to nominate its own solicitors.

1. Shortly after March 1997, HIH appointed its own solicitors, namely, Ligeti Partners, to conduct the proceeding on behalf of the Department and the other relevant defendants.  The Department and the said defendants were not consulted.  The contract of insurance was not placed before the court, and Mr Hughes gave evidence to the effect that he doubted whether the Department ever received a copy.  However, it was common ground between the parties that such policy would have contained a provision which gave the right to HIH to take over the defence of the proceeding and to engage its own lawyers. 

1. The evidence of Mr Hughes revealed that there was little contact between Ligeti, the Department and the relevant defendants.  From time to time, requests were made through loss adjustors to interview potential witnesses, and HIH forwarded to the Department, from time to time, a bill for disbursements which had been paid by it to Ligeti. 

1. The policy was subject to a $25,000 excess, and the amounts paid by the Department and the other relevant defendants was in respect of the excess. 

1. Mr Hughes stated that he was not consulted in relation to any discussions concerning settlement, that the relevant defendants had not been served with a bill of costs or any claim for fees by Ligeti and further, that the relevant defendants did not have a complete set of court documents or any reports et cetera. 

1. Following the collapse of the HIH Insurance Group, the provisional liquidator sent a circular to solicitors instructed by the group dated 26 March 2001.  A copy of the letter was sent to the Department. 

1. The provisional liquidator informed solicitors who may be acting in respect of claims against an insured, that the solicitors had "no current instructions from HIH to defend any matters brought against insureds". 

1. The letter also noted –

"There is also serious doubt as to the extent to which HIH will ultimately be able to pay any costs or claims against insureds claimable against HIH.  Accordingly insureds should be aware that they are financially exposed in respect of any costs or judgments for which their policies would normally respond.  These claims will rank as non-professional unsecured creditors in any future distributions by liquidators."

1. The circular went on to say that the provisional liquidator had no objection to the firms releasing files to the clients. 

1. The Department and relevant defendants then retained Clements Hutchins & Co to assume conduct of a number of files in which HIH were the Department's insurer and where Ligeti had been instructed by HIH.  Clements Hutchins & Co requested Ligeti to hand over the file in the proceeding. 

1. On 11 April 2001, Ligeti forwarded a letter to Clements Hutchins & Co by facsimile.  After referring to the present proceeding, the letter commenced –

"We acknowledge receipt of your client's recent request seeking that we transfer our file to your office.  We respond as follows:"

1. Thereafter, the undertakings that Ligeti required before it would transfer the file were set out. 

1. The undertakings were not forthcoming.  On 4 May 2001, Clements Hutchins & Co filed a notice of change of practitioner. 

1. On 24 May 2001, Blake Dawson Waldron was retained to act for the relevant defendants.  It filed a notice of change of practitioner. 

1. On 25 May 2001, Blake Dawson Waldron wrote a letter to Ligeti, requesting that the file be forwarded to its office so that it could be photocopied and returned. 

1. By letter dated 28 May 2001, Ligeti refused to do so and further stated that the firm proposed to enforce the lien for its costs. 

1. The relevant defendants' summons was filed on 19 June 2001.

Jurisdiction of the Court

1. The summons seeks relief, inter alia, pursuant to s.76 of the Supreme Court Act 1986.

1. Section 76 provides –

"The jurisdiction of the court to make orders for the delivery by a legal practitioner or firm of legal practitioners of a bill of costs or for the delivery up of any documents in the possession, custody or power of a legal practitioner or firm of legal practitioners or to make any other order in relation to any such documents extends to cases in which the business or part of the business has not been transacted in the courts."

1. In my opinion, the section does not create a jurisdiction in the court, but recognises it and extends the jurisdiction to cases where the business or part of the business has not been transacted in the court. 

1. The alternative basis upon which the application was made was pursuant to the inherent jurisdiction of the court. 

1. There is no doubt that in an appropriate case, the court does have jurisdiction to require a legal practitioner to deliver up documents. 

1. It is equally clear that a solicitor has a lien over documents in respect of unpaid costs, and is not obliged to hand over documents to a client unless the lien is satisfied. 

1. The lien is a right recognised at common law to retain any property, which includes documents in the solicitor's possession until he has been paid costs due with respect to the performance of the retainer. 

1. The lien extends only to the practitioner's costs and charges incurred on behalf of the client against whom the lien is claimed, and for which the client is personally liable.  See Re Mason and Taylor (1878) 10 Ch D 729, and Re Dee Estates Ltd (1911) 2 Ch 85.

1. The lien is a general lien and extends to all costs due to the practitioner. 

1. The nature of the right was discussed in the case of Re Hawkes, Ackerman v Lockhart (1898) 2 Ch 1.

1. In that case, Lindley MR at p.6 said –

"A solicitor's lien is simply a right to retain his client's documents as against the client and persons representing him."

1. The right is maintainable until the full amount of the solicitor's costs payable by the client, are in fact paid. 

1. The fact that there is a change of solicitors in the course of a proceeding does not take away the former solicitor's right, but his right to maintain the lien may be affected depending upon whether he discharged himself as the solicitor or was discharged by the client.  The general rule is that if he is discharged by the client otherwise than for some breach of contract, he is not obliged to produce or hand over the documents until his costs are in fact paid. 

1. This has been the law for many years and the right has always been upheld. 

1. On the other hand, if the solicitor terminates the engagement, he may be required to hand over the documents to the next practitioner, usually on an undertaking that they will be held without prejudice and returned after the proceeding is over. 

1. But the right does depend upon, and only extends to, the solicitor's costs which have been incurred pursuant to a retainer with the client, and for which the client is personally liable.

1. Mr Scott submitted that there was no retainer between Ligeti and the Department and other relevant defendants, that they were not personally liable for the costs, and accordingly, there was no lien enforceable against those parties.  He submitted that the retainer was between HIH and Ligeti.  In the alternative, he submitted that the facts show that Ligeti discharged itself as solicitor and accordingly, was obliged to hand over the documents. 

Nature of Retainer

1. The contract of insurance was not placed before the court.  The Department and other relevant defendants did not have a copy.  However, it was common ground between the parties that it did contain a term to the effect that the insurer had the right to take over the defence of any proceeding, and conduct it on behalf of the insured.

1. In those circumstances, there were two retainers as a result of the insurer retaining Ligeti to act on behalf of the Department and the other relevant defendants. 

1. Where there is a term of a contract of insurance, that an insurer may take over the defence of the proceeding, retain its own solicitors and defend the proceeding on behalf of the insured, the insured contractually agrees to the insurer retaining its solicitors.  When the insurer retains a firm of solicitors in those circumstances, there is a relationship of solicitor‑client between the parties.  Having retained solicitors with the permission of the insured, pursuant to contract, a solicitor-client relationship is created between the insured and the solicitors.  See Groom v Crocker (1939) 1 KB 194 at 201.

1. In an earlier case involving the Groom v Crocker litigation, Clauson J held that when the insurer nominated the solicitors to act on behalf of the insured, the solicitors were the solicitors of the insured and were obliged to give the insured access to the documents in their possession.  See In Re Crocker and Taxation of Costs (1936) Ch 696.

1. Groom v Crocker establishes that the insurers and the solicitors appointed owe a duty to the insured to have proper regard to the interests of the insured in conducting the proceedings. 

1. In my opinion, there were retainers between Ligeti and HIH, and Ligeti and the Department and other relevant defendants, which involved rights and obligations between the various parties.  I reject the submission of Mr Scott that there was no consideration for the retainer between the Department and other relevant defendants and Ligeti.  Clearly, both had obligations to each other and in particular, the solicitors owed a duty of care to conduct the proceedings, taking into account the interests of the Department and the relevant defendants. 

1. But it must be steadily borne in mind that there is a contractual relationship between the Department and other relevant defendants of the one part, and HIH of the other.  See Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1. Hence, where the contract so provides, the insurers have the right to employ their solicitors and to decide what tactics to employ in the conduct of the action, subject to considering the interests of the insured.

1. I also refer to Godfrey Stewart v Victorian WorkCover Authority (1996) 1 VR 518 at 536.

1. If a challenge is made to the existence of a retainer, then the party challenging the retainer bears the onus of establishing the absence of it. 

1. In Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678, Mason CJ quoted with approval what Dawson J said in an earlier hearing in that case at p.679. Dawson J said –

"The mere fact that a person appears on the record as the solicitor for a party does not necessarily justify the conclusion that there is a contract of retainer between a solicitor and that party.  But at least where the party is aware of this and takes no steps to rectify it, then a presumption must arise that there is a contract of retainer between them.  And, both in so far as the court is concerned and as between the parties to an action, the presumption that the solicitor on the record represents the party for whom he is recorded as being solicitor must surely be a strong one."

1. See also Adams v London Motor Builders (1921) 1 KB 495.

1. As Halliday's case confirms, the fact that an insurer engages solicitors to act on behalf of a lay client does not alter the fact that the costs incurred by the solicitor are in fact costs incurred on behalf of the insured.  Mason CJ at 680, after noting that the insurer was exercising its right under the contract of insurance to conduct the litigation on behalf of the insured in the name of the insured, said –

"In that case, there is no need for the insurer to have indemnified the insured before taking over the conduct of the litigation.  In such circumstances costs incurred by the solicitors retained are costs incurred on behalf of the insured."

1. The retainer between the solicitor and the insured, unless there is a provision to the contrary, obliges the insured to pay the legal costs incurred on its behalf.  As a matter of practice, when the client insured is covered by a policy of insurance, invariably the contract of insurance will provide an indemnity for costs, which means that the costs are invariably paid directly by the insurer.  But unless there is a specific provision in the agreement between the solicitor and the insured, or between them and the insurance company that the insured would not be liable for the costs, the solicitor is entitled to look to the insured for the payment of costs. 

1. In Davies v Taylor (No. 2) (1974) AC 225, the House of Lords was concerned with a situation where a successful party to an appeal, who was covered by an insurance policy with respect to the costs, was entitled to recover costs against a defendant who was legally aided. The Legal Aid Act 1964 enabled costs to be recovered where they were incurred by a party to the proceeding.  It was held that although the insurance company covered the costs, the fact was that the party incurred costs. 

1. At p.230, Viscount Dilhorne said –

"In this case the solicitors, no doubt first instructed by the insurance company, were the solicitors on the record as solicitors for the respondent.  They acted for him and, in the absence of proof of an agreement between him and them and between them and the insurance company that he would not pay their costs, they could look to him for payment for the work done and his liability would not be excluded by the fact that the insurance company had itself agreed to pay their costs."

(Emphasis added).

1. This statement was quoted with approval by Mason CJ in Halliday's case, supra, at p.680. 

1. In an earlier case of Adams v London Improved Motor Coach Builders (1921) 1 KB 495, Bankes LJ said at p.501 –

"When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the union also undertook to pay the costs.  It is necessary to go a step further and prove that there was a bargain, either between the union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs."

(Emphasis added).

1. In the same case, Atken LJ summarised the rationale which is based on the premise that if a professional person is requested to do professional services by or on behalf of another, the inference is that the professional person is entitled to look to that person for his costs. 

1. It is important to emphasise that such an inference is subject, of course, to any contrary contractual term which is binding on the parties.  This is made clear by Atken LJ in the Adams case at p.502 when he said –

"It appears to me therefore that the learned judge was perfectly correct in saying that the solicitors were in fact acting as solicitors for the plaintiff.  If they were so acting, they did so upon the ordinary terms applicable to a person who employs a professional man to do professional work on his behalf – namely, that he shall remunerate him.  That is the prima facie obligation which at once emerges when the employment is proved.  It is perfectly possible for the agreement of employment to contain a term by which the agent agrees that he will not claim remuneration from his employer, but will either do the work for nothing or claim remuneration from some third party.  But in the absence of such a term – which would have to be proved by the party setting it up – the ordinary deduction from the employment of a professional man accepted in this way is that the person accepting the agent's services is bound to remunerate the agent."

(Emphasis added).

1. That is the position here where the insurer, exercising a contractual right it had, retained solicitors to provide services for and on behalf of the Department and the other relevant defendants, and to conduct the litigation in their name.  This leads to the conclusion that the solicitors have a retainer with the said clients and further, is entitled to look to those clients for their costs.  This general proposition is subject, of course, to proof of any contractual term to the contrary and in the present case, there was no attempt to set up a term of any contract to the contrary, let alone prove one. 

1. It follows that, in my opinion, Ligeti is entitled to look to the Department and the relevant defendants for the costs incurred to the point where its services were terminated. 

1. This entitlement to costs establishes a right of lien over the documents in its possession relating to the proceeding. 

Discharge of the Retainer

1. It is clear on the evidence that in March 2001, Ligeti's retainers with HIH and the Department and the other relevant defendants were terminated. 

1. The law is that if the solicitor terminates the retainer, whether there are grounds or not for termination, he is obliged to hand over the documents to the new solicitor, usually on an undertaking by the new solicitor to hold them without prejudice to the solicitor's rights to the lien, and to return them intact after the completion of the proceeding.  That has been the law for many years.

1. In Commerell v Poynton (1818) 1 Swan 1; 36 ER 273, the solicitors declined to be further concerned in the proceeding. Lord Eldon LC held that in the circumstances, it was not open to the solicitor to demand payment of his costs by refusing to permit such inspection of the papers in his hands as were necessary for the proceeding.

1. The principle was discussed more recently in the Court of Appeal in Gamlen Chemical Co UK Ltd v Rochem (1980) 1 WLR 614.

1. In that case, Templeman LJ summarised the law at p.624 –

"A solicitor who accepts a retainer to act for a client in the prosecution or defence of an action engages that he will continue to act until the action is ended, subject however to his costs being paid.  …

If before the action is ended, the client determines the retainer, the solicitor may, subject to certain exceptions not here material, exercise a possessory lien over the client's papers until payment of the solicitor's costs and disbursements.  …

The solicitor himself may determine his retainer during an action for reasonable cause, such as the failure of the client to keep the solicitor in funds to meet his costs and disbursements; but in that case the solicitor's possessionary lien, ie his right to retain the client's papers of any extrinsic value or not, is subject to the practice of the court which, in order to save the client's litigation from catastrophe, orders the solicitor to hand over the client's papers to the client's new solicitors, provided the new solicitors undertake to preserve the original solicitor's lien and to return the papers to the original solicitor, for what they are worth, after the end of the litigation."

1. It was submitted on behalf of the Department and the other relevant defendants, that Ligeti terminated the retainer. 

1. I observe that it would be extremely surprising that any solicitor, who has conducted litigation to the point that the proceeding is ready to be fixed for trial and who has a client as big as the State of Victoria, would willingly and consciously terminate the retainer. 

1. But the submission depends upon the evidence.  In my opinion, the evidence establishes beyond doubt that it was the decision of the Department and the other relevant defendants to change solicitors and terminate Ligeti's retainer.  I do not dispute that HIH made it clear to Ligeti that there would be no more funds available to conduct the litigation, but the evidence shows that the clients' retainer was terminated by the clients.  Accordingly, the principle based on termination does not apply. 

Conclusion

1. It follows that Ligeti Partners is entitled to a lien over the documents held by it concerning the proceeding, and is entitled to enforce that lien.  Accordingly, the Department and the other relevant defendants are not entitled to an order that the documents be handed over without paying the costs. 

1. The relevant defendants' summons must be dismissed.  This creates a problem.  The problem is that the Department and the other relevant defendants are entitled to exercise their rights before being compelled to pay the costs of Ligeti.  This may involve the preparation of a proper bill of costs, and compliance with the various statutory provisions concerning the payment of costs.  Much time could pass whilst the necessary steps were being taken, and time would even be further extended if it was necessary to have the costs taxed.  This could result in a substantial delay to the proceeding being set down for trial and heard. 

1. As it is unlikely that the date for trial will be this year, justice to all parties to the proceeding would be best served if the case was fixed for trial.  In the meantime, the relevant defendants can determine their course but they should not be in a position to delay the fixing of a date for trial. 

1. I propose to make the following orders –

1.That the first to tenth defendants' summons filed 19 June 2001 against Ligeti partners is dismissed.

2.That the first to tenth defendants (inclusive) pay the costs of Ligeti Partners of their summons.

---

CERTIFICATE

I certify that this and the 12 preceding pages are a true copy of the reasons for Judgment of Gillard J of the Supreme Court of Victoria delivered on 2 July 2001.

DATED this second day of July 2001.

Associate