Nagy v Ryan

NAGY v RYAN
[2003] SASC 37
Magistrates Appeal
Gray J

This is an appeal against the judgment of a magistrate in a civil claim.
Background
The respondent Christopher James Ryan, a solicitor, brought proceedings against a former client, the appellant George Geza Nagy, for non-payment of professional fees. The matter proceeded to trial. On 19 July 1999 the Magistrate entered judgment in favour of Mr Ryan for $24,551.00 inclusive of costs and interest.
The Plaintiff’s Case
Mr Ryan was instructed to act in regard to criminal charges brought against Mr Nagy. Mr Ryan acted from February 1998 until January 2001. He appeared as counsel at the jury trial in 1999. Mr Nagy was convicted. He subsequently lodged an appeal. The Court of Criminal Appeal dismissed the appeal on 22 December 1999.
Mr Ryan gave evidence before the Magistrate that he had discussed the issue of fees with Mr Nagy when first instructed. It was Mr Ryan’s evidence that, conditional on him also having the conduct of Mr Nagy’s personal injury matter, Mr Nagy would not be required to pay any fees to Mr Ryan until the resolution of the personal injury claim. Out of pocket expenses for both matters were to be paid by Mr Nagy. The amount of $12,000.00 was agreed between Mr Nagy and Mr Ryan for the professional fees for the trial.
Mr Ryan informed the Magistrate that Mr Nagy had instructed him to engage counsel for the appeal. Mr Ryan engaged an Adelaide law firm as his agent. The argument for leave to appeal was heard on 14 October 1999. Prior to that date a meeting took place at his Adelaide agent’s office in which the matter of fees was again raised with Mr Nagy. Mr Nagy agreed to pay the anticipated fees of counsel into the agent’s trust account. It was further agreed that out of pocket expenses would continue to be paid by Mr Nagy as the matter proceeded. A letter requesting payment was forwarded to Mr Nagy on 14 October 1999. The payment of monies into trust did not eventuate.
Mr Nagy’s personal injury claim remained in the negotiation stage until January 2001. At that time Mr Ryan was contacted by another solicitor who informed him that he had received instructions to act for Mr Nagy. The solicitor requested that Mr Ryan’s files relating to the personal injury claim be sent to him. At this point Mr Ryan explained the fee agreement that had been reached with Mr Nagy. Mr Ryan was prepared to forward the personal injury file on the condition that he retain a first charge over any monies received. The new solicitor did not agree.
On 29 January 2001 Mr Ryan wrote to the new solicitor enclosing a memorandum of his fees. A second account from Mr Nagy’s Adelaide agent was sent to Mr Nagy through his new solicitor. Mr Nagy did not pay either account. Mr Nagy did not challenge either account before proceedings were issued. Mr Nagy did not seek any particularisation of the accounts.
The Defendant’s Case
Mr Nagy entered a defence in the following terms;
“I am denying the plaintiff’s claim for the following reasons.
I recieved no notice of intention to sue.
I recieved no itemised bill of costs, I only recieved a bill through my solicitor for a total from Chris Ryan, then I recieved a summons for a different amount with a substantial difference in the costs.
He did not carry out my instructions. He was incompetent, throughout court proced. He was negligent in that he did not professionally prepare the case, and he was incompetent in court.
He does not deserve any fee.”
It appears from the transcript of the proceedings before the Magistrate that the only matters of substantive dispute were the amounts charged in relation to a visit by Mr Ryan to Coober Pedy. The claim being the agreed fee $12,000.00 for the trial and the Adelaide agent fee for the appeal were not in dispute. Mr Nagy appeared to admit that he owed those monies. The only issue raised with respect to these amounts was that Mr Nagy was unable to pay the money immediately.
“Her Honour Do you agree that you got those accounts?
DefendantI agree the $18,000 [inclusive of the $12,000 and counsel fees] if I can pay by terms maybe I can pay it because I have no money…
Her Honour Do I understand you to say to me that you agree that you owe $18,000.
DefendantMr Ryan drop it down $15,000 maybe I can find somewhere…”
In relation to the amount claimed by the Adelaide agent, Mr Nagy said;
“Her Honour Are there any questions you want to ask Mr Ryan about that bill.
DefendantNo, I don’t have to because Mr Lindblom send me the bill about six months ago, but I haven’t got money. How can I pay. I promise I pay him.
Her Honour Do you agree that those amounts are payable, do you.
A.I do.
DefendantFirst I have to get some money for pay”
Mr Nagy did not give evidence before the Magistrate.
The Magistrate’s Reasons
The Magistrate’s reasons included:
“The plaintiff’s amended claim in this matter is for $21,232.50, being fees for legal services and disbursements, said to be owed by the defendant to the plaintiff, for legal work in relation to criminal charges he faced and for a subsequent criminal trial and for a personal injuries claim. The amount is made up of two amounts. One from Mr Ryan in the sum of $17,790.05 and one from Lindbloms Lawyers, who were acting as Adelaide agents for Mr Ryan, the total of that amount being $3,442.45.
The plaintiff called evidence from Mr Ryan and tendered exhibits P1 to P6. The defendant did not call any evidence. It is for the plaintiff to satisfy me, on the balance of probabilities, that the defendant owes the amount claimed. The defendant did not dispute many of the amounts claimed of the $17,790.05. The defendant did not dispute the following items:
$900.00 owing for a report to Dr P Gauvin
        $3,500.00 owing for counsel fees to Mrs Shaw QC
        $352.00 travelling expenses – Mount Gambier to Adelaide
        $376.00 for accommodation expenses
As to the $12,000.00 for legal work done by Mr Ryan, the only evidence before me is Mr Ryan’s evidence that the defendant agreed to pay this amount after his criminal trial. I accept that evidence together with items not in dispute. That makes a total of $17,128.00. In addition, the defendant did not dispute the total of the Lindblom account being $3,442.45.
In essence, the only items in dispute were $229.05 for the cost of the Budget Rent-a-Car from Coober Pedy to Mintabie and $65.00, the related cost of fuel (Exhibit P4 covers both of those items) and the sum of $368.00 for half of that return airfare from Mount Gambier to Coober Pedy (Exhibit P5 relates to that item).
Mr Ryan, at the time of these matters, was conducting his legal practice from Mount Gambier. It was Mr Ryan’s evidence that he tried to make arrangements to visit the defendant at Coober Pedy prior to his criminal trial in July 1999. The defendant was not able to be at Coober Pedy at the time Mr Ryan was there. Mr Ryan therefore attended at Coober Pedy for another matter and then hired a car and proceeded to Mintabie, where the defendant lived, as that was the most cost effective way of taking his instructions and preparing for trial. He charged half of the airfare to Coober Pedy because he was also going for another matter. He arrived at Mintabie until late in the afternoon, stayed the night with a friend and the following morning spent between one-and-a-half and two hours with the defendant going through the declarations which the prosecution had provided and preparing for the criminal trial.
Mr Ryan provided straightforward and detailed evidence. I have no hesitation in accepting it. I am satisfied that on the balance of probabilities the amounts of $229.05, $65.00 and $368.00 were not only spent, but were proper and reasonable amounts in the circumstances to obtain detailed instructions from the defendant prior to the trial, which was to be conducted by Mr Ryan in the Supreme Court. I note that the only evidence before me on those disputed amounts was that of Mr Ryan. There is no evidence from Mr Nagy, who gave no evidence.
In the circumstances then the plaintiff is entitled to the amounts of $17,128.00 and $3,442.45 in addition to the amounts not disputed making a total of $21,232.50. The plaintiff is also entitled to the costs of his filing fee and his solicitor’s costs, making a grand total of $22,319.50. I award interest in total in the amount of $2,231.50. There will therefore be judgment for the plaintiff in the amount of $24,551.
In addition, the plaintiff is also entitled to costs of today’s hearing to be agreed or taxed.”
Preliminary Issues on Appeal
Appeal lodged out of time
Supreme Court Rule 97.04 provides that an appeal of this nature must be instituted within 14 days of the decision of the lower court. An application for waiver of fees was filed within that period however the notice of appeal in this matter was filed out of time.
The waiver of fees application was lodged promptly following the decision of the Magistrate. The delay caused by that process was the only material delay in the filing of the appeal. The delay has not resulted in any prejudice to Mr Ryan. An extension of time to appeal is granted.
Amendment to Grounds of Appeal
Counsel for Mr Nagy sought to amend his grounds of appeal. It was submitted that the notice of appeal was prepared without the benefit of either the transcript of the Magistrate’s decision or legal advice.
The amendment caused no hardship or prejudice to Mr Ryan. The time in which Mr Ryan had to respond to the amended grounds was sufficient to ensure that he was not disadvantaged. I grant leave to amend the grounds of appeal.
Procedure on Appeal
It was agreed by the parties that this matter would proceed without oral argument. Written submissions were filed. Those submissions formed the substantive argument in this case.
Issues on Appeal
Section 41 of the Legal Practitioners Act
The appellant submitted that the Magistrate erred in failing to take into account section 41 of the Legal Practitioners Act 1981 (SA) (“the Act”):
“1) A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.
(2) The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.
...”
It was said that the amount of the claim filed in the Magistrates Court was in excess of the bill delivered by the respondent.
An invoice of 29 January 2001 prepared by Mr Ryan outlined the charges for his professional services and all disbursements incurred through the period he acted for Mr Nagy. The total amount of the invoice was $18,833.45. A further invoice dated 15 February 2001 from Mr Ryan’s agents was forwarded to Mr Nagy. The total of that account was $3,442.45.
The appellant submitted that the amount of Mr Ryan’s claim exceeded the amount of the bills rendered. As a result it was said that section 41 precluded an action for recovery. There is no substance to this submission[1]. The amount of the claim in the Magistrates Court was the total of the two invoices forwarded to Mr Nagy. The fact that one account was delivered by Mr Ryan’s agent is not to the point. Mr Nagy received appropriate notice of the accounts prior to proceedings being issued. It does not appear that Mr Nagy sought further particulars of the accounts.
Delivery
[1] Section 41 of the Act does not appear to have been raised at trial.
It was further submitted that the bill relied on by Mr Ryan was not delivered personally to Mr Nagy, but to a solicitor who was acting for Mr Nagy in a separate matter. Section 41(1) specifies that the bill be “delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.” Mr Nagy’s counsel claimed that Mr Ryan had not established that this had occurred. Counsel argued that the claim for recovery should therefore be dismissed.
Counsel for Mr Ryan submitted that the accounts had been properly served on the solicitor acting for Mr Nagy. It was said that the section did not require personal service. Attention was drawn to the fact that service by post to a last known address was sufficient. It was said that notice to Mr Nagy’s solicitor was more direct notice than postal notice. It was said that it was not in dispute that Mr Nagy had received notice of both the accounts.
The purpose of section 41 is to ensure that the client has notice of the account. In this case the account went to Mr Nagy’s solicitor. The accounts were brought to Mr Nagy’s attention. Mr Nagy did not deny that he had received the accounts. Mr Nagy received personal notice.
For the purposes of this case, delivery to Mr Nagy’s solicitor was adequate. Whatever the circumstances of the delivery of the accounts, it was accepted that Mr Nagy received notice. There is no substance to this ground of appeal.
Failure to Tax
The appellant submitted that the Magistrate erred in failing to consider and exercise her discretion pursuant to sections 42(1) and 42(5) of the Legal Practitioners Act. These sections provide a discretion to order that costs be taxed and to adjourn any recovery proceedings until the taxation of costs has been completed. Section 42 is in the following terms:
“(1) On the application —
(a) of a person claiming to be entitled to legal costs; or
(b) of a person who is liable to pay, or who has paid, any legal costs, the Supreme Court may tax and settle the bill for those costs.
…
(5) Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs taxed in accordance with this section, and may adjourn the proceedings until the taxation has been completed.”
Counsel for Mr Ryan submitted that section 42 provides a discretion to order taxation following an application for taxation. It was said that no such application had been made. Mr Nagy had made no complaint regarding the accounts. There had been no request before proceedings for an itemised account. In any event at the trial there was no dispute with respect to the agreed fee for the trial or the agent fee for the appeal.
Counsel further submitted that the power in section 42(5) was discretionary. The section provides that the court ‘may order’ and ‘may adjourn’. Counsel said that it was reasonable for the Magistrate not to exercise her discretion to make such an order. This was particularly relevant given that Mr Nagy made no prior complaint about the claim for professional fees.
I accept these submissions. As was apparent from evidence presented to the Magistrate the vast bulk of the account was undisputed. Taxation of the bill had not been requested by Mr Nagy. This ground is without substance.
Valid and Binding Agreement
Counsel for Mr Nagy submitted that the Magistrate erred in finding that there was a valid and binding agreement on costs. Mr Nagy did not dispute that there had been an agreement. However, Counsel asserted that the fee agreement was not supported by consideration, and that the agreement was too vague to be enforceable. It was argued that there was no written evidence of the agreement and that the claim for costs should fail on that basis.
Counsel for Mr Ryan submitted that on the evidence presented to the court, the Magistrate had acted within her discretion. The work undertaken was charged at a rate that accorded with the Supreme Court scale. The total was then reduced after discussion with Mr Nagy. Mr Ryan’s evidence was not disputed. As earlier observed Mr Nagy admitted that he owed Mr Ryan the $12,000.00 for professional fees for the trial.
There is no reason to doubt the Magistrate’s acceptance of Mr Ryan’s evidence. The appellant has identified no error of approach. All relevant material has been considered. No irrelevant material was bought into account. There is no basis on which to disturb the Magistrate’s acceptance of Mr Ryan’s evidence.
Non-compliance with Rule 9.14
Rule 9.14 of the Legal Practitioner’s Conduct Rules provides:
“It is a practitioner’s duty to communicate effectively and promptly with clients.
Without limiting sub-rule (i) the practitioner shall unless it is unreasonable or inappropriate in the circumstances so to do:
(a)    as soon as practicable after first taking instructions from a client provide to the client written advice as to the reasonably estimated range of costs and disbursements the client may incur by pursuing the legal activity and the method of calculation of those costs;
(b)    provide to the client as soon as practicable after taking instructions written advice as to the basis upon which the practitioner accepts the client’s retainer and in particular setting out the basis upon which the practitioner intends to charge the client for the services rendered and the current rates that apply to such charges; provided that such advice will not be required where there exists an applicable prior agreement by which all work done by the solicitor for that client or all work of a certain kind is subject to an agreed charging rate.
(c)    Provide to the client as and when reasonably requested, a review of the estimated costs and disbursements and the reasons therefore; …”
Mr Nagy submitted that the Magistrate erred in failing to take into account Mr Ryan’s failure to comply with this rule by omitting to provide written advice to Mr Nagy after taking first instructions. This point was not raised before the Magistrate. There was no evidence to suggest that any alleged failure caused prejudice in this case. This ground is without substance.
Acceptance of the Respondent’s Evidence
Counsel for Mr Nagy submitted that the Magistrate erred in accepting the evidence of Mr Ryan as to the claim for half Mr Ryan’s travelling costs with respect to the visit to Coober Pedy. Counsel asserted that the evidence was insufficient to establish that the claim was reasonably based.
Mr Nagy denied that he had requested Mr Ryan’s attendance at Coober Pedy. Mr Ryan had “dropped in” because he was in the area for other business. Mr Nagy questioned Mr Ryan as to why the instructions taken on that day could not have been taken by telephone or post. Mr Nagy submitted that the other business would have taken up more than half of Mr Ryan’s time while in Coober Pedy.
Counsel for Mr Ryan submitted that on the evidence before the Magistrate, the findings that were made were open to her. No error had been demonstrated.
The Magistrate was entitled to act on the evidence of Mr Ryan. There was no evidence presented to the Magistrate to contradict Mr Ryan’s account. This ground is without substance.
Unrepresented Litigants
The appellant submitted that the Magistrate failed to give adequate assistance to Mr Nagy as an unrepresented litigant.
The adversarial justice system is designed to be conducted with the assistance of persons of appropriate professional skill. It is inevitable that the presence of unrepresented litigants can give rise to difficulties.
It has been observed that an unrepresented person is disadvantaged, not merely because of insufficient legal knowledge and skills, but also because a person in such a position is unable dispassionately to assess and present a case in the same manner as counsel.[2] Extra consideration is required on the part of the judiciary to compensate for any unfairness arising as a result of one or more parties being unrepresented by counsel.
[2] As was noted by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 302
In a recent report, the Australian Law Reform Commission concluded[3]:
“A court is faced with different challenges in cases where one or both parties are unrepresented…Judges need to ensure that all relevant evidence is heard, relevant questions asked of witnesses, and that the unrepresented party knows and enforces their procedural rights…”
[3] Australian Law Reform Commission, Review of the Federal Justice System, Discussion Paper 62, August 1999, at p362

There has been no judicial attempt to exhaustively list the attributes necessary to ensure a fair trial for unrepresented litigants. Guidelines have been attempted but as each case is different, it is difficult to make any general statement. As the Full Federal Court said in Abram v Bank of New Zealand;
“What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[4]”
[4] [1996] ATPR 42340 at 42347
The prevalence of actions involving unrepresented parties is increasing. In resolving the issues arising from these cases, much judicial comment has been made regarding the problems faced and issues raised by unrepresented litigants. In Minogue v HREOC[5], the Full Federal Court observed;
“A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation ... However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial.”
[5] (1999) 84 FCR 438 at 446
In Moore-McQuillan v Police[6] Bleby J addressed unrepresented litigants and observed:
"[A] magistrate... must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party's attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.”
[6] (1998) 196 LSJS 488 at 496 - 497. See also Brehoi v Minister for Immigration [2001] FCA 931
These remarks are apposite.
The Appellant’s Complaint
Counsel for the appellant complained that the Magistrate failed in her duty to Mr Nagy as an unrepresented party. It was said that Mr Nagy displayed an ignorance of court procedure and exhibited difficulties with language throughout the trial. It was further complained that the Magistrate failed to assist Mr Nagy in formulating questions in cross-examination, failed to assist or advise Mr Nagy with respect to the consequences of his failure to give evidence, failed to address the issue of taxation of costs or to assist the defendant as to his claim that the legal work had been carried out incompetently and to advise Mr Nagy of his right to an interpreter.
Consideration of the Complaints
A review of the transcript discloses that the Magistrate went to considerable lengths to identify the real issues in the case. As a result it became clear that the issues were discrete. There was no real challenge to the major items of the claim. The items that were in dispute were the subject of cross-examination. The transcript reveals the extent of the Magistrate’s effort to materially assist Mr Nagy. Other substantive issues related to a general unspecified complaint about Mr Ryan’s competence. These complaints only appear to have arisen following the issue of proceedings.
The Magistrate offered general assistance to Mr Nagy. During the course of the hearing Mr Nagy advised the Magistrate that he had intended to be represented by counsel. Once this request had been made, the Magistrate adjourned the case to allow Mr Nagy to contact his solicitor. Following the adjournment, Mr Nagy continued the case without representation.
The Magistrate advised Mr Nagy of the procedures of the court as it became necessary. She told Mr Nagy when he would have the opportunity to speak, or to ask questions of witnesses. She explained to him the importance of his questions in cross-examination and assisted with those questions. She directed Mr Nagy’s attention to particular documents about which she indicated he may desire to ask questions.
The Magistrate informed the appellant of the right to and purpose of cross-examination. Mr Nagy then undertook cross-examination of Mr Ryan. From the transcript it is clear that the Magistrate provided appropriate assistance to Mr Nagy. She intervened on occasions to advise when questions were incorrectly formulated. She also clarified and rephrased questions to Mr Ryan at various times during cross-examination. An extract from the transcript of Mr Nagy’s cross-examination of Mr Ryan demonstrates this.
“ Mr NagyDid you remember one afternoon you ring me up from Coober Pedy and he said I would like to come see you. About 4 o’clock afternoon next day you arrive in my place…There is one other thing I come up here and I found it out next day you been in Marla Court working for Harper.
Her Honour        Now, what’s your question, are you saying to Mr Ryan that he only came to see you because he happened to be passing by, is that what you’re saying.
...
Is that your question. You were actually going to Marla anyway and you just called in to see me at Mintabie?
Mr NagyYes.
Her Honour        Mr Ryan I think that’s the question, do you have any response to that?
Mr Ryan            No, that’s not correct…
Her Honour        Just pausing there – the question is was it just a social visit to Mintabie, is that right?”
A further example of the Magistrate’s assistance to Mr Nagy was as follows:
“Her Honour       The next item on that bill is $368 as a half proportion of the air fare from Mount Gambier to Coober Pedy, do you agree.
Mr NagyI have no idea why he can’t work Coober Pedy. My case never been heard in Coober Pedy or in Adelaide.
Her Honour        Are you suggesting to Mr Ryan that there was no reason to go to Coober Pedy.
Mr NagyNot for me. I never ask him.
Her Honour        Mr Ryan, it’s being suggested to you that there was no reason to go to Coober Pedy, is there anything you want to respond to.”
The extent of the obligation on the court to assist litigants in person is contextual[7] and may depend on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case[8]. The court may also have regard to the position of the other party or parties concerned and the efficient conduct of the proceedings.
[7] Minogue v HREOC (1999) 84 FCR 438
[8] Abram v Bank of NZ [1996] ATPR 41-507
Where a litigant appears unrepresented they will usually be at a disadvantage because of their lack of legal training or skill.[9] The judiciary are obliged to reduce the disadvantage to ensure a fair trial.[10] This proposition, however, is subject to the need for the court to maintain its neutrality[11]. The court must be careful not to confer an advantage on the litigant in person over the represented party.[12]
[9] Rajski v Scitec Corporation Pty Ltd Unreported NSW (CA) 16 June 1986
[10] Minogue v HREOC (1999) 84 FCR 438
[11] Minogue v HREOC (1999) 84 FCR 438
[12] Rajski v Scitec Corporation Pty Ltd (Unreported NSW (CA) 16 June 1986
With these matters in mind, the Court in In Marriage of F[13] said:
“…we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served.
Therefore, the application of the guidelines must depend on the circumstances of the particular case.”
It is clear from a reading of the transcript that in this case Mr Nagy received appropriate assistance from the Magistrate.
[13] (2001) 161 FLR 189 at 223-224
The Magistrate informed Mr Nagy of the importance of giving evidence and the consequence of his failure to do so. She provided ample opportunity and in fact encouraged the appellant to give evidence. This is demonstrated in the following passages from the transcript:
“Her Honour      As I explained to you before lunch, the plaintiff has presented their case to me. They have called some evidence. You have had a chance to cross-examine. The evidence before me at the moment is what the plaintiff’s witness has said, and the documents. If you want to give any evidence that you ask me to rely on and consider when I decide how much, if any, of the amount claimed should be paid by you, you have an opportunity now to decide whether or not you want to give evidence. If you want to give evidence, now is your opportunity to do so. Do you intend to give evidence?
Mr NagyThank you very much, but I don’t want to say any more. The business is finished.
Her Honour        Do you want to give evidence to me as to why you say any of the amounts that I have to think about, are payable or not. Do you want to give that evidence? …
…This is not whether you can pay or not, I understand that, this is for me to decide whether or not you should pay. Do you want to give some evidence about that?
...
“Her Honour       …the evidence before the court is the evidence that Mr Ryan had given and the documents that have been produced to me. If you want to give evidence in this matter, it will be an opportunity for you to do so…
Mr Nagy, as you can see, this is an opportunity for you to say anything you want to say to me about the evidence I’ve heard. It doesn’t mean in general; it just means about what has been said, and the documents that have been given to me. Is there anything you want to say to me about what has been said in evidence and the documents that have been given to me?
Mr NagyAll that I would like is that I can pay a reasonable time because I don’t deny, I never deny that I not pay, but if I haven’t got, I haven’t got.”
There is no basis to the claim that the Magistrate failed to advise Mr Nagy in relation to this aspect of his case.
Counsel for Mr Nagy asserted that he was disadvantaged in not having the assistance of an interpreter at the hearing.
Mr Nagy apparently did not request an interpreter at his earlier criminal trial in 1999. The court records show that he gave evidence without any such assistance. No request for the services of an interpreter was received from his solicitor although he was aware of the hearing for some weeks before it began. Mr Nagy did not indicate to the court that he was unable to understand the proceedings. The lack of an interpreter was not raised with the Magistrate at any time.
The court has discretion as to whether a defendant should have the assistance of an interpreter. This is based on the right of the defendant to understand the nature of the proceedings. In this instance no miscarriage of justice had occurred because of the lack of an interpreter. It was clear that Mr Nagy understood the nature of the proceedings.
No evidence was placed before this Court to support the assertion that Mr Nagy had difficulty in understanding, or that he suffered any prejudice because of the lack of an interpreter. A review of the transcript disclosed that where Mr Nagy was unclear as to a question or comment, it was repeated and rephrased until he understood.
It is relevant to observe that no evidence was placed before this Court to suggest that any evidence existed to support Mr Nagy’s allegations in any material way. No affidavit was filed indicating evidence that Mr Nagy would have led had Mr Nagy better understood the court processes. There is no suggestion that there is any wider dispute as to the extent of professional work undertaken. No particulars of the alleged professional incompetence were provided to the Court. Counsel for Mr Nagy has been unable to demonstrate that any of the alleged irregularities have led to an injustice.
Conclusion
In the hearing before the Magistrate Mr Nagy agreed that fees were owed to Mr Ryan. His only complaint in regard to those fees seemed to relate to three items totalling $662.05. On these matters the only evidence provided to the Magistrate was the evidence of Mr Nagy. The Magistrate found Mr Ryan to be a credible and reliable witness and accepted his version of events as being truthful. No basis to doubt this finding has been established.
The grounds advanced by Mr Nagy are without substance.
The appeal is dismissed.
CITATION LISTED AS THEY APPEAR IN THE JUDGMENT
1 Section 41 of the Act does not appear to have been raised at trial.
2 As was noted by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 302
3 Australian Law Reform Commission, Review of the Federal Justice System, Discussion Paper 62, August 1999, at p362
4      [1996] ATPR 42340 at 42347
5 (1999) 84 FCR 438 at 446
6 (1998) 196 LSJS 488 at 496 - 497 see also Brehoi v Minister for Immigration [2001] FCA 931
7     Minogue v HREOC (1999) 84 FCR 438
8     Abram v Bank of NZ [1996] ATPR 41-507
9      Rajski v Scitec Corporation Pty Ltd Unreported NSW (CA) 16 June 1986
10     Minogue v HREOC (1999) 84 FCR 438
11     Minogue v HREOC (1999) 84 FCR 438
12     Rajski v Scitec Corporation Pty Ltd (Unreported NSW (CA) 16 June 1986
13 (2001) 161 FLR 189 at 223-224

[2003] SASC 37

19 February 2003