Nimlaw Pty Ltd v Scott - [2023] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
NIMLAW PTY LTD v SCOTT
[2023] SADC 42
Judgment of his Honour Judge Slattery
27 April 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT
The applicant is the corporate proprietor of the registered name of a firm of solicitors. The respondent was formerly a client of the firm. During the relationship of solicitor and client, there were two relevant files numbered 12101 and 12567 on which accounts were rendered for professional services and which are the subject of this action.
The applicant contends that on each occasion that a client instructed the firm of solicitors, a letter of retainer which complies with the requirements of Schedule 3 of the Legal Practitioners Act 1981 (LPA) was delivered to and was executed by the client, the respondent.
This action concerns three accounts delivered to the respondent client; two of the accounts were dated the 28th of February 2018 and the 2nd May 2018 related to work on file 12101. The third account dated the 23rd of September 2020 related to work done on file 12567.
The respondent failed to pay each of the accounts, both of which the applicant contends attracted an agreed interest rate component under Clause 23 (2) of the third schedule of the LPA. The applicant agreed to forbear from taking any action from the recovery of the legal costs in consideration of the respondent entering into loan agreements in which the respondent agreed to pay the outstanding debts for legal fees within 14 days of a demand being made therefore together with a further interest rate of 3.5% per annum.
Demand was made by the applicant on the respondent for payment of the amounts due under the loan agreements and the respondent failed to make payment. The respondent contends in her defence that although she accepts her indebtedness and responsibility to pay the outstanding legal fees, the relevant debts are not payable until resolution of a further proceeding which she has attempted to commence from this court but which the Register of this Court has refused to issue.
The applicant seeks orders under UCR 70.3, 143.2 and 144.2 for final relief. This application proceeded as an application for summary relief under UCR 144.2.
The applicant is unable to prove by admissible evidence that a letter of retainer was provided to and signed by the respondent on file 12567 in accordance with the requirements of Clause 10 of Schedule 3 of the LPA. A letter of retainer was provided and signed by the respondent on file 12101 in accordance with the requirements of Clause 10 of Schedule 3 of the LPA.
Whether the applicant is entitled to an order for summary judgment on the accounts delivered on file 12101.
Whether the loan agreement rate of interest under which the respondent is required to pay compound interest under the letter of retainer and the loan agreement is enforceable against the respondent.
Whether in the absence of proof of delivery of a letter of retainer and of its execution in compliance with the requirements of Clause 10 of Schedule 3 of the LPA, the applicant solicitors are entitled to an order for summary judgment upon the accounts delivered within file 12567 or under the loan agreement made in respect of that file.
Held:
1.      The applicant is entitled to an order for summary judgment on the fee accounts due and payable under file 12101.
2. In the absence of proof of compliance by the applicant with the requirements of Clause 10 of Schedule 3 of the LPA, in relation to file 12567, the applicant is not entitled to an order for summary judgment on the fee account issued on that file.
3.      The loan agreements executed by the respondent were each connected with fee accounts for professional legal services rendered by the solicitors and which were, in turn, governed by the operation of the LPA.
4. The ability of a legal practice to charge and recover interest on costs is governed by Part 4 of Schedule 3 of the LPA under which a legal practice may charge interest on unpaid legal costs if unpaid for 30 days or under a costs agreement. The interest rate charged must not exceed the rate prescribed by the regulations.
5.      A legal practice may not charge interest on an unpaid fee account in the absence of a statement on the account that interest on a rate not exceeding the prescribed rate would be charged on that account.
6.      A charge of compound interest under the loan agreements was not disclosed on the face of the fee accounts rendered by the solicitor and it is not enforceable accordingly.
7.      In respect of the fee accounts of the solicitors under file 12567, in the absence of proof of a letter of retainer delivered to the respondent and signed by her, the solicitors are required to seek an adjudication of their costs.
8.      The Court will hear the parties further in relation to consequential orders and costs.
Magistrates Act 1983 (SA); Uniform Civil Rules 2020 (SA), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 ; Grebnev v Perpetual Corporate Trust Ltd (2010) 241 CLR 118; Hegarty v Keogh 2020] SASC 237; Carey v Balfour [2021] SASC 79; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors. [2020] SASC 161; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941; Tavitian v Commissioner of Highways (2015) 123 SASR 306 at [20]; Jennings v Police (2019) 133 SASR 520 ; DW Fox Tucker Pty Ltd v Morgan [2023] SASCA 11; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, considered.

NIMLAW PTY LTD v SCOTT
[2023] SADC 42

This is a Magistrates Court action. The applicant, Nimlaw Pty Ltd trades as the firm of solicitors Minicozzi Lawyers. The respondent, Dr Susan Jane Scott (Dr Scott) was a client of that firm. The director of Nimlaw Pty Ltd who gave legal advice from time to time to Dr Scott was Ms Katherine White. Ms White is now a Magistrate, having been appointed on 12 August 2021. Although this is a Magistrates Court action, in light of the involvement of Magistrate White and her provision of legal advice to Susan Scott, it was appropriate that the action proceed in this court. I therefore am sitting as Magistrate pursuant to s 22 Magistrates Act.[1]
[1]Any of the following persons, namely—
(a)a Judge of the Supreme Court; or
(b)a Master of the Supreme Court; or
(c)a District Court Judge,
may exercise the jurisdiction, powers or functions of a magistrate.
This is an interlocutory application for the summary judgment by the applicant Nimlaw Pty Ltd in the following terms:-
‘orders sought’…
1.That the Defence filed by the Respondent be struck out.
2.That the Applicant have judgment against the Respondent in accordance with the Claim.
3.That the Respondent pay interest from the date of issue of the Claim until judgment.
4.That the Respondent pay the applicant its costs of and incidental to this application and the action.
5.This application is made on the grounds set out in the accompanying affidavits sworn by Nicola Minicozzi on 12 April 2022.
I will later address the affidavits which accompanied the application and which were read at the hearing of the application.
The interlocutory application, FDN 6 dated 13 April 2022 states that the application is made under Magistrates Court Act section 8; that section provides:
8—Civil jurisdiction
(1) The Court has jurisdiction—
(a)to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100 000;
(b)to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $100 000;
(c)to hear and determine an interpleader action where the value of the property to which the action relates does not exceed $100 000;
(d) to grant any form of relief necessary to resolve a minor civil action.
(2)The parties to an action may waive any monetary limit on the civil
jurisdiction of the Court, and, in that event, the Court will have jurisdiction to determine, the action without regard to that limitation.
This section establishes the civil jurisdiction of the Magistrates Court. It follows that this application is not specifically brought pursuant to that section which only provides the power for the exercise of the civil jurisdiction of the Court. This section forms the foundation of this power of the court to exercise its civil jurisdiction; the rules governing the exercise of that civil jurisdiction are founded, inter alia, upon that power. This issue was not addressed in submissions.
Confining my decision to this application it appears that there are a number of bases for this application; these include under UCR 70.3, UCR 143 and UCR 144.2.
UCR 70.3 is the rule based power to strike out a pleading. That rule provides:
70.3—Strike out
(1)     The Court may strike out all or part of a Claim or pleading if—
(a)     it does not comply with these Rules;
(b)     it is frivolous, vexatious or an abuse of the process of the Court; or
(c)     it does not disclose a reasonable cause of action or defence (as applicable).
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
In the application of this rule, there are a number of settled principles arising from the decided cases on this and earlier equivalent rules. They are:
1.The strike out power requires the consideration of the content of the plea and so the claim within the pleading itself. The power arises if the pleading or claim does not comply with the rules, is frivolous, vexatious or an abuse of the process of the court or does not disclose a reasonable cause of action.
2.A power to dismiss a claim is directed to the claim made within the pleading and so, in relation to each, any application to strike out under the rule is generally confined to the content of the pleadings.
3.There is only limited scope to have reference to documents that are referred to in support of the application and in the ordinary course, reference may be had to documents which are referred to in the pleading and upon which the pleading is based. Therefore, the strike out application may only be properly understood by reference to the document referred to in the pleading itself. That is where the document, for example a guarantee, is the basis of the claim.
4.UCR70.3(2) contemplates that, as a general rule, where a pleading is struck out under the rule an opportunity is given to the offending party to replead.[2]
[2] See Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [61] – [69].
There are some similarities between the approach the court might take to an application under UCR 70.3 to strike out all or part of a claim or pleading and an application to strike out an action under UCR 143.2 even though these two rules are directed to a different result. UCR 143.2 provides as follows:
143.2—Judgment for abuse of process
(1)The Court may grant judgment dismissing an action on the ground that it is frivolous, vexatious or an abuse of the process of the Court.
(2)The Court may grant judgment in favour of an applicant in an action on the ground that a defence of or contest to it is frivolous, vexatious or an abuse of the process of the Court.
Under UCR 143.2 a court may grant a judgment dismissing an action where it is frivolous, vexatious or an abuse of the process of the court. The same power is granted in relation to a defence and on the same grounds. There is an obvious overlap between the consideration of an application under UCR 70.3 and UCR 143.2 when regard is had to the content of the pleading and whether it is frivolous, vexatious or an abuse of the process of the court. And, in the same context, whether the applicant, or the respondent, as the case may be, is unable to disclose a pleading which substantiates either a reasonable cause of action or alternatively a reasonable defence. It is at least implicit (perhaps to the level of certainty), that similar considerations will arise and be canvassed in the application of these rules.
UCR 144 provides the power to the court to grant summary judgment. That rule provides:-
Part 4—Summary judgment
144.1—Introduction
Unless the Court otherwise orders, this Part applies only to proceedings by way of claim (including a cross claim).
144.2—Summary judgment
(1)The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)     on a claim if there is no reasonable basis for defending the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a)     on a claim if there is no reasonable basis for prosecuting the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
144.3—Judgment on admissions
(1)The Court may, on application by a party, give judgment in favour of an applicant based on admissions on a claim, cause of action or separate issue that arises in the same manner as it may grant summary judgment under rule 144.2(1).
(2)The Court may, on application by a party, give judgment against an applicant based on admissions on a claim, cause of action or separate issue that arises in the same manner as it may grant summary judgment under rule 144.2(2).
(3)An application for judgment under subrule (1) or (2) must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
144.4—Balance of proceeding
If the Court grants judgment under rule 144.2 or 144.3 which does not finally determine the whole proceeding—
(a)     the Court may make orders about how the balance of the proceeding is to proceed; and
(b)     in any other case—the balance of the proceeding is to proceed in the usual way.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd[3] Doyle J said that consistent with the decision of the High Court in Spencer v Commonwealth of Australia[4] such a power (under UCR 144) should not be exercised lightly but required a practical assessment of whether the applicant had real as opposed to fanciful prospects of success. The court has to be cautious not to do an injustice to a party by summarily determining an action where there were disputed issues of either fact or law or mixed fact and law, merely because a court might form a view that a claim is unlikely to succeed. The court is then left to make a practical assessment and not embark upon a mini trial. Any assessment made is done in a summary manner where evidence might be incomplete and such evidence may inform a statement of claim or defence, or an alternative fact may indicate otherwise.[5]
[3] (2020) 137 SASR 117.
[4] (2010) 241 CLR 118 at [25].
[5] See Hegarty v Keogh [2020] SASC 237; Carey v Balfour [2021] SASC 79.
Most recently, some of these principles have been considered by Blue J in his Honour’s decision in Grebnev v Perpetual Corporate Trust Ltd.[6] This was an appeal against an order for summary judgment granted by a Magistrate against the appellant. After discussing the whole of the evidence before the learned Magistrate,[7] his Honour addressed the summary judgment application. His Honour criticised the fact that at the outset the Magistrate did not identify the received evidence or invite the parties to identify the evidentiary material upon which they relied. Also, it appears that the Magistrate relied upon documents which had not earlier been identified.
[6] (2022) SASC 154 (20 December 2022).
[7] At [3] – [65].
His Honour refused to exercise his discretion to receive new evidence on the appeal. These were documents supplied under a subpoena to a bank showing a receipt by the appellant of the money loaned to the appellant by the assignor of the debt.[8] Therefore, the matter, in part at least, turned on the question of his Honour’s discretion. His Honour gave no reasons why he did not exercise his discretion to allow that material to be received at appeal. As may be seen, this material, if received, would have closed off a number of the evidentiary criticisms made by Blue J as it would have proved the receipt of the loan funds by Mr Grebnev and, at the least gave rise to a claim in debt against him.
[8] At [73] et seq.
His Honour was then critical of the affidavit of a Mr Milsom filed by the respondent about the recording by the financier of the relevant loan. At [90], his Honour said:-
Mr Milson did not describe how Exhibit 12 was generated other than it was generated by Plenti’s computer system. He did not describe the program that recorded or generated the document, what were the inputs into the system and what did the output represent. Nor did he describe what was the acceptance that Exhibit 12 evidenced.
His Honour did not make reference to the banking records exception and the business records exception within the Evidence Act.[9] His Honour then concluded that the appellant had failed to prove the creation of an alleged contract of loan, an assignment by the original lender to the claimant Perpetual of all rights and entitlements under the contract of loan or the giving of notice of such an assignment. His Honour held that the learned Magistrate had erred in not addressing those questions.
[9] Viz s 46, s 47, s 48, s 49, s 50, s 51 Evidence Act 1929.
Although the decision of Blue J in Grebnev appears to have turned on its own peculiar facts, it is a salutary reminder that a summary judgment application should not be granted on incomplete evidence. That is consistent with what fell from Doyle J in Adelaide Brighton Cement at [59] –[60]. At a number of levels, I think that there is another consideration that should be mentioned. Summary judgment applications are often associated with issues of urgency, and often courts are quite conservative in their approach to such applications. Experience teaches that in trials, the evidence takes many unexpected ‘twists and turns’ and in some cases, results are consequently unexpected; this is all part and parcel of the exigencies of litigation. There is another solution. The District Court and the Supreme Court have fast track lists under Part 6 UCR. A trial under that list will, in the main, obviate many of the problems that a court must tackle under a UCR144 application.[10]
[10] Part 6 of the UCR operates only in the District Court and the Supreme court.
I consider that properly understood, the application here is for judgment in favour of the applicant, in the action on the ground that there is no reasonable defence to the applicant’s claim, or that no basis to contest the application is capable of being disclosed. I consider, similar to the position of Doyle J in Adelaide Brighton Cement, there is a significant overlap between the applications for judgment under UCR 70.3, 143.2(1) and (2) and UCR 144.2(1). Any discussion of the application of UCR 144.2(1) and whether or not there was a reasonable basis for defending the claim raises similar issues to an application under UCR 70.3 and UCR 143.2. It is therefore appropriate that I consider the context of UCR 144.2 the content of which have set out in my discussion at paragraph [12] hereof.

I proceed on the basis that the applicant also seeks an order for summary judgment under the operation of UCR 144.2(1)(a) and (b). As will become clear, the contention of the applicant is that there is no reasonable basis for the respondent to defend the claims. The culmination of all of the arguments before me was that the respondent did not challenge the quantum of the claim of the applicant or about her liability for that claim. She contends that the applicant should continue to await the payment of its debt until such time as the action she has most recently commenced against the Crown Solicitor, a Justice of the Supreme Court and others is to be determined. The respondent has informed me that the Registrar of the District Court has refused to accept that proceeding for issuance from this Court.
There is no evidence before me that at any time has the applicant agreed to forbear from ever claiming payment of the amount of its claim on this basis. These issues are developed below.
In support of its applications, the applicant firm of solicitors reads the following affidavit material in its evidence in support of the interlocutory application (FDN 4): the affidavit of Nicola Minicozzi sworn 12 April 2022 (FDN 8); the affidavit of Nicola Minicozzi sworn 8 July 2022 (FDN 16); the affidavit of Nicola Minicozzi sworn 12 September 2022 (FDN 18). The respondent read her affidavits of 1 August 2022 (FDN 17) and 8 April 2022 (FDN 4).
In her affidavit of 1 August 2022 (FDN 17) Dr Scott said in paragraphs 5 – 15 as follows:
5. I did not approach Minicozzi Legal to be assigned a solicitor, FON 13 para 3. Ms White was privately recommended to me in January 2018, FON 5 para 2, FON 16 exhibit NM_B. Ms White explained her practice as predominantly commercial law and the legal practice of Minicozzi Legal as predominantly commercial law: without the recommendation I would not have approached Ms White.
6. It was a highly fraught time but I am quite sure there was no retainer as claimed by the applicant FON 13 para 2,3; I don't recall signing retainers with Minicozzi Legal for either of the related matters and I don't have any copies. In all my communications with Ms White there was no mention of retainers. I do recall signing client agreements with DW Fox Tucker and I have copies. Of the numerous documents listed FON 11 there is no reference to retainers
7.The applicant claims the terms of a retainer as binding on the defendant, to entitle Mr Minicozzi to claim to be my solicitor and therefore to claim knowledge and expertise on any legal matters in which I am involved or have been involved, argument ad verecundiam.
8. The actions of Ms White as solicitor and Ms Clark as counsel, exhibited as SJS_1, including information on the requirement for funds to be held in Ms White's trust account.
9. The financial transactions up to the time of the making of the first loan agreement and caveat, exhibit SJS_2. The sum of $42,000 was been paid into Ms White's trust account as pre- payment or payment within a few weeks from February to May 2018. A further statement of Ms White's trust account reports of $4,000 in May 2018 and
$2,500 paid into the nominated account in December 2018; a total of around $49,000, exhibited as SJS 2.
10.The outstanding fees were covered under the loan agreement of May 2018 with interest and with caveat on my share of the home of my mother and me, as described by Ms White as exhibit SJS_3. The terms stated by Ms
White as Director of Minicozzi Legal, were understood as
a)    the reference to the estate being administered was the caveat being activated, that is, if the estate, my mother's and my home, was required to be sold.
b)    The other conditions were change of circumstances for me or
c)    The firm no longer able to extend credit.
The term administrator had been used by the South Australian government for assumption of control of Mrs Scott's "estate", despite that Mrs Scott was using it at the time. Mr Minarelli, whom my mother had instructed as her solicitor and is acting for me as Executor of my mother's Will, informed me that neither he nor I were administrators.
11.My mother and my home had a complicated ownership, my mother always held half of the property but on divorce, the other half was as joint between four adult children; my mother and I had bought the holdings of two but a remaining eighth property holding was held by another son. Mr Scott has lived interstate for many decades. He and his partner chose to conspire with his siblings and their partners to denounce Mrs AB Scott as jurisdiction to the SACAT. Mr Scott and his partner appear to act on very little comprehension of anything other than a confected antipathy for Dr Scott, extending to any noncompliance, including our mother. Regardless of the legal requirement of estate, para 17 below, neither of my solicitors, Mr Minarelli or Ms White, consider I have or had any financial powers or resources in relation to Mrs AB Scott's estate without further legal action to manage Mr Scott (inappropriate at a time of IFP claim).
12.Without regard to the outstanding fees from 2018, Ms White accepted instructions from Dr Scott on the related matter of challenge to Mrs AB Scott's Testamentary Freedom in October 2019. Dr Scott refused the role of competing plaintiff of the IFP Act implementation in the South Australian Supreme Court. Dr Scott required the presumption of innocence of Mrs Scott, burden of proof to be on the claimants; the charge of section 7.1(b) of the IFP Act be proven; the Forfeiture Rule to be applied to the claimants. The matter is ongoing to the High Court.
13.The making of the 2nd loan agreement, interest and further caveat in October 2020, exhibit SJS_4.
14.Ms White informed me that she had been appointed magistrate in August 2021; that her former business partner, Mr Minicozzi, was aware of the situation of the on-going matter of pursuit of justice before the courts and that she was satisfied that the debts to Minicozzi legal with interest and caveat, represented safety and security to the firm, exhibit SJS_5 (personal matters redacted).
15.Mr Minicozzi disregarded the agreement as known to him from Ms White of the terms, SJS_3, SJS_S and the legal procedures required of Executor, FDN 13 para 5.
I refer in particular to paragraph 6 of this affidavit (FDN17) in which Dr Scott says that there was no retainers as claimed in FDN 13 and which are referred to in the affidavit of Mr Minicozzi of 8 July 2022. Dr Scott said that she did not recall signing any retainers with Minicozzi Legal or for either of the related legal matters and she did not have any copies of those retainers. She said that in all of her communications with Ms White there was no mention of any retainers however she does recall signing client agreements with a second set of solicitors.
In light of the factual dispute about the question of retainers, I made a number of enquiries of counsel for the applicant about whether there was to be any evidence on the topic. The retainers to which reference had been made were not exhibited to an affidavit. No evidence filed by the applicant firm addressed the issue. There was an obvious lacuna in the evidence as a result. It could not be resolved on the papers. After a number of enquiries from me, the applicant elected to call evidence from Mr Minicozzi.
Mr Minicozzi informed me that in 2018 he was working in his own practice, Minicozzi Lawyers, the proprietor of which was the company Minicozzi Lawyers Pty Ltd; he was a Director of that company. Dr Scott was a client of the firm and the solicitor who looked after her was Ms Kate White who was also a director of the corporate proprietor of the firm. Mr Minicozzi informed me that he had made a search of the records of Minicozzi Lawyers Pty Ltd and found a number of files relating to the work done for Dr Scott. The first related to a SACAT matter (no 12101) and the other related to an estate matter, in each of which the firm represented Dr Scott (no 12567).
Mr Minicozzi said it was the universal practice of the firm to obtain a signed retainer agreement with every client for each file opened for a client. This, he said is the firm’s professional duty. Mr Minicozzi was able to identify a signed agreement with Dr Scott dated 1 April 2018 referring to file 12101 under the name ‘Guardianship Board SACAT’. That letter set out the disclosure requirements of the Legal Practitioners Act 1981 and attached to it were a number of schedules in a form required by and reflecting the content of Schedule 3 to the Legal Practitioners Act 1981 (LPA). It was not in dispute before me that the document is signed by Dr Scott on pages 1-12. It was the standard agreement used by Minicozzi Lawyers at the time and it was the invariable practice of the firm that on each time the firm was instructed, such a retainer agreement was executed. Every time a new file was opened, the client would receive a separate retainer letter and it would be signed in satisfaction of the requirements of the LPA.[11] Work on the file would not proceed until such time as there was an executed copy of the retainer on file.
[11] The letter of retainer between Minicozzi Lawyers and Dr Scott dated 1 February 2018 with attachments is Exhibit A1.
Mr Minicozzi did not have involvement with either the first or the second file under the retainer of the firm by Dr Scott. He was aware that there was later an Inheritance (Family Provision) Act 1972 (I.F.P Act) claim between Dr Scott and her siblings concerning their mother’s estate. Mr Minicozzi informed me that he had searched all of the files that were available to him but he was unable to find a copy of the second retainer document. Many of his archived files went with the sale of his practice to the purchasers. They have now been stored offsite and he has relied upon the electronic records of the files.
In answer to questions from me, Mr Minicozzi said that in relation to exhibit A1 and the hourly charge rates that are there set out, those were the rates that were prescribed in every retainer agreement for Dr Scott. There was no change in the rate and there were substantial discounts on costs given to Dr Scott. The rates were charged on the Supreme Court scale for Supreme Court work. Mr Minicozzi said that the invariable practice of the firm was that for all estate matters, commercial rates of solicitor’s fees were not charged; these fees were only charged on commercial files. On estate matters, the Supreme Court scale for that work was charged. The scale of charges for each matter was the same because each matter was connected directly or indirectly with an estate matter.
In cross-examination, Dr Scott challenged Mr Minicozzi and said that she was a client of Ms White until Ms White became a Magistrate. Mr Minicozzi informed me that, Ms White had the full level of autonomy as a director to make arrangements about the firm’s clients and the work of the firm. Accounts were rendered and the invoices were produced for work done by Ms White as a solicitor. He did not control Ms White in the day to day work that she did as she had full autonomy as a director.
Dr Scott cross-examined Mr Minicozzi about an agreement said to contain three conditions that a deed of loan would not be activated until her mother’s estate had been settled and her financial situation was different. Mr Minicozzi informed me that he would honour any agreement made by Ms White as a director. He was aware that Ms White had sent Dr Scott an email which said that Dr Scott would be accommodated in relation to fees as far as the firm could but ultimately, it was a question for the firm to decide if it could no longer deal with Dr Scott and would need to be paid the costs that it was owed.
Mr Minicozzi also informed me that there came a point when the firm stopped acting for Dr Scott, that she represented herself but Ms White continued to assist Dr Scott in her own personal capacity. Mr Minicozzi delivered to Dr Scott the claims for costs in relation to both files.
Following the receipt of evidence in chief from Mr Minicozzi and after his cross-examination, I am satisfied that for the SACAT file, Dr Scott received from the firm of solicitors Minicozzi Lawyers Pty Ltd a letter of retainer which complied with the requirements of the LPA. The letter was in a form as prescribed and was signed by Dr Scott as the party to be charged fees. I am also satisfied on the evidence that the fees charged to Dr Scott in relation to that work were all charged on the basis of the Supreme Court Scale and there was no uplift in fees as might have otherwise been charged for commercial clients of the firm. I am therefore satisfied that for that file, the requirements of LPA have been satisfied. I am also satisfied that Dr Scott received, signed and returned that retainer agreement relating to the work done for her by the firm of solicitors. I am therefore satisfied that Dr Scott is mistaken about her belief that she did not receive that retainer agreement, signed it and returned it to the firm of solicitors.
In order to understand my reasoning in relation to the second retainer, it is necessary to survey the content of Schedule 3 to the LPA.
Clause 10 of that schedule provides:-
10—Disclosure of costs to clients
(1)     A law practice must disclose to a client in accordance with this Part—
(a)     the basis on which legal costs will be calculated, including whether
a scale of costs, or a recommendation as to the calculation of barristers' costs, applies to any of the legal costs; and
(b)if the law practice will not be calculating legal costs in accordance with an applicable scale of costs—that another law practice may calculate legal costs in accordance with the scale; and
(c)     the client's right to—
(i)    negotiate a costs agreement with the law practice; and
(ii)     receive a bill from the law practice; and
(iii)    request an itemised bill after receipt of a lump sum bill; and
(iv)    be notified under clause 17 of any substantial change to the matters disclosed under this clause; and
(d)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and
(e)     details of the intervals (if any) at which the client will be billed; and
(f)     the rate of interest (if any) that the law practice charges on overdue
legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subclause (2)); and
(g)     if the matter is a litigious matter, an estimate of—
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful; and
(h)     the client's right to progress reports in accordance with clause 19; and
(i)    details of the person whom the client may contact to discuss the legal costs;
and
(j)    the following avenues that are open to the client in the event of a dispute in relation to legal costs:
(i)    raising the matter with the practice;
(ii)     adjudication of costs under Part 7;
(iii)    the setting aside of a costs agreement under clause 30;
(iv)    if the client believes there has been overcharging—making a
complaint to the Commissioner; and
(k)     any time limits that apply to the taking of any action referred to in paragraph (j); and
(l)    that the law of this State applies to legal costs in relation to the matter; and
(m)    information about the client's right—
(i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or
(ii)to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
(2)     For the purposes of subclause (1)(f), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.
(3)     The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.
(4)     For the purposes of subclause (1)(g), the disclosure must include—
(a)a statement that an order by a court for the payment of costs in favour
of the client will not necessarily cover the whole of the client's legal costs; and
(b)if applicable, a statement that disbursements may be payable by the client even if the client enters a conditional costs agreement.
(5)     A law practice is taken to have complied with the requirement to disclose the details referred to in subclause (1)(c)(i) to (iii), (h), (j), (k) and (m) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subclause at the same time as the other details are disclosed as required by this clause.
(6)     A form prescribed for the purposes of subclause (5) may, instead of itself containing details of the kind referred to in that subclause, refer to publicly accessible sources of information (such as an Internet website) from which those details can be obtained.
(7)     The regulations may—
(a)require the Society to develop a statement of the relevant details and
to revise it as necessary to keep it up to date; and
(b)require the Society to make the statement publicly available in the prescribed manner.
Clause 12 of that schedule provides:
12—Timing of disclosure to client
(1)     Disclosure under clause 10 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
(2)     Disclosure under clause 11(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.
(3)     Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the person as a client for the purposes of clauses 10 and 11.
Clause 16 of that schedule provides:
16—Form of disclosure
(1)     Written disclosures under this Part—
(a)     must be expressed in clear plain language; and
(b)     may be in a language other than English if the client is more familiar
with that language.
(2)     If the law practice is aware that the client is unable to read, the law practice must arrange for the information required to be given to a client under this Part to be conveyed orally to the client in addition to providing the written disclosure.
Clause 17 of that schedule provides:
17—Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Part as soon as is reasonably practicable after the law practice becomes aware of that change.
Clause 18 of that schedule provides:
18—Effect of failure to disclose
(1)     If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed, the client or associated third party payer need not pay the legal costs unless they have been adjudicated under Part 7.
(2)     A law practice that does not disclose to a client or an associated third party payer anything required by this Part to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been adjudicated under Part 7.
(3)     If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed and the client or associated third party payer has entered a costs agreement with the law practice, the client or associated third party payer may also apply under clause 30 for the costs agreement to be set aside.
(4)     If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed, then, on an adjudication of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the Supreme Court to be proportionate to the seriousness of the failure to disclose.
(5)     If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to the client solely because the retained law practice failed to disclose relevant information to the first law practice as required by clause 11(2), then subclauses (1) to (4)—
(a)do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non‑disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and
(b)     do apply to the legal costs owing to the retained law practice.
(6)     In a matter involving both a client and an associated third party payer
where disclosure has been made to 1 of them but not the other—
(a)subclause (1) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and
(b)subclause (2) does not prevent proceedings being maintained against the one to whom the disclosure was made for the recovery of those legal costs.
(7)     Failure by a law practice to comply with this Part is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any legal practitioner or Australian-registered foreign lawyer involved in the failure.

The obligations to observe the prescriptions under the clauses of Schedule 3 of the LPA are mandatory. Parliament has intentionally used the expression ‘must’ when prescribing the duty of a solicitor under this schedule.
I consider that the plain meaning of the schedule is that for each retainer of the firm by the client, it is necessary to provide the client with a separate retainer agreement. So much is obvious from the ordinary reading of clause 10 alone or when read with clauses 12, 16 and 17 of the schedule. These latter two clauses prescribe the form of the disclosure and then the ongoing obligation to disclose any substantial change in the disclosures already made under the Part as soon as reasonably practicable. The structure of these clauses and their meaning is quite apparent. For each occasion on which a client instructs a solicitor, a disclosure document in a specified form must be given to and signed by the client.
There is an obvious level of tedium involved in preparing separate retainer letters for clients who regularly instruct a firm of solicitors but the philosophy and intention of the schedule and so the intention of Parliament is very obvious. Clients must have the benefit of a written retainer agreement on each occasion that separate instructions are given to the firm of solicitors by that client.
Those obligations are fundamental and so govern an application such as this for the recovery of legal costs. If a letter of retainer cannot be produced in the process of proof of a claim, this absence will govern the attitude of the court to an application under UCR 144. In the background of the operation of clause 18 of Schedule 3, the absence in the chain of proof of that letter of the retainer will in all likelihood govern the result.
In my view these requirements also govern the resolution of the enforceability of a loan agreement about legal costs in the observance and compliance with the LPA and Schedule 3. The solicitor is left to participating in an adjudication of those costs. Where there is a compliance with the LPA and Schedule 3 in relation to the amount on file 12101, I consider that such a loan agreement is required to comply with and reflect the requirements of the LPA in relation to, for example, the payment of interest on outstanding legal costs. A simple example makes the point. Where, as here, the retainer agreement provides for the ‘charging of interest’ and the loan agreement also provides for the charge of interest there will be a compound interest charge of interest upon interest such an agreement would not in comply with the requirements of the LPA and Schedule 3. Clauses 21, 22 and 23 of Schedule 3 provides:
21—Recovery of legal costs
Legal costs are recoverable—
(a) under a costs agreement made in accordance with Part 5 or the corresponding provisions of a corresponding law; or
(b) if paragraph (a) does not apply, in accordance with an applicable scale of costs or any applicable recommendations as to the calculation of barristers' costs; or
(c) if neither paragraph (a) nor (b) applies, according to the fair and reasonable value of the legal services provided.
22—Security for legal costs
A law practice may take reasonable security from a client for legal costs (including security for the payment of interest on unpaid legal costs) and may refuse or cease to act for a client who does not provide reasonable security.
23—Interest on unpaid legal costs
(1) A law practice may charge interest on unpaid legal costs if the costs are unpaid 30 days or more after the practice has given a bill for the costs in accordance with this Schedule.
(2) A law practice may also charge interest on unpaid legal costs in accordance with a costs agreement
(3) A law practice must not charge interest under subclause (1) or (2) on unpaid legal costs unless the bill for those costs contains a statement that interest is payable and of the rate of interest.
(4) A law practice may not charge interest under this clause or under a costs agreement at a rate that exceeds the rate prescribed by the regulations
Any interest charge on unpaid legal costs must conform with clause 23(1) of Schedule 3 where the legal costs are unpaid or under clause 23(2) where it is a term of a costs agreement. The schedule does not permit nor does it contemplate a compounding interest charge. It is known that there is an agreement to pay interest on outstanding legal files within the retainer agreement for file 12101. This action, in part, concerns a claim under a loan agreement executed by the parties which records an agreement for the solicitors to loan, Dr Scott, the outstanding balance on the fee amount plus a further interest component. The result is a charge of compound interest under that agreement. I consider that at least at this level, the loan agreement is unenforceable because it remains a costs agreement in contravenes Clause 23 of Schedule 3. The legal fees were already due and payable. It was for the firm of solicitors to decide for how long it would forbear from claiming payment of those fees. The loan agreement operates only to impose an additional interest burden upon the clients. That additional interest burden is not reflected in the retainer agreement signed by Dr Scott.
I turn then to the application before the Court.This is an application under the Rules and before proceeding it is appropriate I review the contents of the claim and the defences. That is also the case if I am wrong about the operation of the LPA. An initial defence was filed in answer to the statement of claim (FDN 1) on 12 April 2022 (FDN 5); an amended defence was filed with leave on 19 May 2022 (FDN 12).
The applicant pleads that it provided legal services to the respondent. It contends at (paragraph 3) that the legal services are, at least in part, reflected in the content of a tax invoice delivered by the applicant to the respondent dated 2 May 2018 in relation to solicitor’s file 12101. The amount of the invoice was $20,593.44. In paragraph 3 of her defence, Dr Scott denies that the applicant Nimlaw Pty Ltd was her solicitor. She pleads that Ms White was her solicitor and Ms White received her instructions to take whatever action she considered appropriate in respect of the urgency and the nature of the matter about which she was instructed.
It has been quite difficult to precisely identify all of the matters upon which Ms White was instructed. Dr Scott accepted that the instructions to Ms White involved: challenges to orders made by SACAT in respect of her mother Allison Scott (deceased); an application for judicial review of the decision of SACAT in relation to that application concerning Dr Scott’s mother; applications by the siblings of Susan Scott under the IFP Act for further provision from the estate of her deceased mother; an appeal to the Court of Appeal from the orders made by Master Dart under that application; and an application for leave to appeal to the High Court from the decision of the Court of Appeal.
In her written submissions Dr Scott discloses that she has now also brought a claim for civil liability for wrongful acts that she contends caused the death of her mother. The respondents named in this action are the Crown Solicitor, a Justice of the Supreme Court as the President of SACAT, the Public Advocate and finally her sister who was one of the applicants in the IFP claim. That pleading comprises some eighty five paragraphs over eighteen pages of pleading and the orders sought in the prayer for relief are as follows:-
1.The cost claimed to be awarded to the plaintiff. The costs of Helen Scott to be borne by renouncing the provision awarded by the Supreme Court in action of IFP. The costs to the public officers must not reflect liability to the public of South Australia, the public officers have taken a legal oath of service to the people of South Australia, of trust, of ethical code of conduct as not to condone and encourage criminal conduct as not to behave criminally. Therefore they be personally liable for costs.
2.Punitive damages for the egregious conduct of the defendants as public officers as punishment and deterrent.
3.In view of the egregious conduct of the defendants as public officers, the court to make representation to the South Australian Government to repeal the changes to the Coroners Act of 2021 in relation to death in custody; as representing great risk to the people of South Australia with the legalisation of euthanasia at the discretion of SACAT- OPA – SA Health; jurisdiction to the SACAT of the Mental Health Act and Guardianship Act.
In order to comprehend this prayer for relief, it is necessary to canvass some of the content of this proposed pleading. Paragraphs 1-7 of this proposed pleading provides follows:
1.The SACAT member Anita King heard an application for administration of Mrs AB Scott’s property and finances in July 2007 from Helen Scott and Ray Goode, as ex parte hearing. SACAT member Anita King stated she would make orders of administration and guardianship of Mrs Scott at the ex parte hearing, she did so.
2.The OPA applied to SACAT as ex parte hearing for special powers over Mrs Scott, against medical orders of Mrs Scott’s consultant General Practitioner, to determine justification for jurisdiction of Mrs Scott. The SACAT member Neil Rainford granted Special Powers over Mrs Scott to the OPA in January 2018 at the ex parte hearing. Mr Rainford and the SACAT refused or report, audio, transcript of the ex parte hearing to the representatives of Mrs Scott in January 2018.
3.The Crown Solicitors represented the SACAT and OPA in opposition to Supreme Court Judicial Review in actions taken by Dr Susan Scott and in Supreme Court injunction against the orders of the SACAT of ‘Control and Care’ of Mrs AB Scott in March and April 2018.
4.The SA Health’s resuscitation 7 step pathway plan of no resuscitation, including no hydration to Mrs Scott, was made out by the SACAT-OPA- SA Health applicants to SACAT while Mrs Scott was at the Modbury GEM under temporary revocation of the advanced care directive of Mrs Scott, made out in 2015, placing the legal responsibility for the care of Mrs Scott on (Dr Susan Scott) in late January, early February 2018, in ex parte hearing.
5.Mrs Scott died in April 2018.
6.The SA Coroner refused the mandatory inquest of death in custody of Mrs AB Scott, in 2018, 2019, 2020. The SA Coroner refused to release the File of Evidence he held to Mrs Scott’s legal executor in 2019, 2020 and 2021.
7.The Crown Solicitors made representation to the Supreme Court. In 2020, 2021, 2022 against the subpoena of documents of the communications, orders and ex parte hearings of the SACAT, the OPA, the applicants to SACAT as to orders ‘Control and Care’ and the production of the SA Health’s Resuscitation seven step pathway plan of no resuscitation, including no hydration, of Mrs AB Scott in January, February, March and April 2018.
Dr Scott said that her attempt to issue that further proceedings from the District Court of South Australia has been refused by the Registrar. She contended that some of the issues which arise in the face of those proposed pleaded paragraphs were matters upon which Dr Scott instructed the applicant firm of solicitors.
In response to paragraph 3 of the statement of claim in this action which pleads the provision of services by the firm of solicitors to Dr Scott as recorded in the invoice of 2 May 2018, Dr Scott responds that the solicitor whom she instructed was Ms Katherine White and she was (only) in a relationship of solicitor and client with Ms White. On her instructions Ms White retained counsel for the Supreme Court judicial review application and injunction application, she conferred with counsel Ms Clarke and later with Mr Mark Minarelli Solicitor for the estate of her late mother and Mr White, counsel retained by Mr Minarelli and with the solicitor for Mrs AB Scott.
Dr Scott contends that advice was also provided by the solicitor Ms White concerning the conduct of the Coroner, the refusal of the coroner to conduct an investigation into the death of her mother and alleged wrongfulness of the conduct of a number of state functionaries. Dr Scott refers to advice given to her by Ms White in relation to the affairs of her late mother as well as separately in relation to an alleged defamation.
Dr Scott does not technically address the pleadings in paragraph 3 of the statement of claim. Inferentially, she accepts that legal work was done for her by Ms White which is reflected in the cost charges set out in the tax invoice of 2 May 2018 under file 12101.
I am mindful of the content of UCR 67.7, that if a defence does not address an allegation of fact in a statement of claim, it is taken to be denied. Although at first view, that may be thought to be the case in relation to, for example, the content of paragraph 7 of the statement of claim, later paragraphs of the amended defence disclose that these issues as pleaded by the solicitors are addressed and some admissions are made by Dr Scott which removes any controversy about those pleaded facts.
Paragraph 4 of the statement of claim alleges that a demand was made for the payment of the $20,539.44 under the invoice of 2 May 2018. Dr Scott denies that there was any demand for payment of that sum. For the same reason that denial is not controversial.
The applicant pleads that on 13 July 2018, it entered into a deed with the respondent in relation to the first tax invoice. Paragraph 5 of the defence informs the proper consideration of the denial in paragraph 4 that there had been no demand for payment. It provides:-
5.     As to paragraph 5 denies the applicant was my solicitor, says that
(a)     Ms White was fully aware of my financial situation at instigation of client solicitor relationship.
(b)     During the course of the action to save Mrs AB Scott, I became financially indebted, as per 2(d) above to Ms White and thereby to the firm of which she was a Director at Minicozzi Legal
(c)     At the time in 2018, Ms White suggested that as a standard practice of her firm, a Deed as a loan agreement. The caveat on the share I held of Mrs AB Scott’s home with interest as surety of the payment of my debt to Ms White and to her firm as Director of Minicozzi Legal; executed as deed 19^th July 2018.
(d)     I acknowledged my indebtedness and agreed as safety against the charge of injustice in not honouring the client-solicitor financial agreement.
(e)     Ms White stressed that the deed as a loan with interest was sufficient in itself to satisfy the client-solicitor financial agreement without compulsion of the conversion of the Deed to financial settlement, that is, to disregard “14 day settlement”.
(f)     Ms White required that the financial settlement of the Deed be either through the :-
ithe lawful orders of an inheritance Family Provision claim on the estate of Mrs AB Scott;
ii      my choosing to sell my mother’s and my house.
iii     my financial situation allowing direct payment.
(g)     I retain a copy of the Deed in my records.
Regardless of whether there was a demand for payment of the legal fees due under the solicitor’s account of 2 May 2018, Dr Scott: voluntarily entered into an agreement with the firm of solicitors as a loan agreement; agreed to grant a caveat over the share representing her interest in the home that she owned at Woodville with her mother; acknowledged her indebtedness to the solicitors; intended to honour her obligations under the solicitor client financial agreement; and that at least for the present, the solicitors were content with her execution of the deed as her undertaking to pay the costs which had been incurred.
Paragraph 6 of the statement of claim alleges that the applicant firm of solicitors provided further legal services to the respondent as set out in the tax invoice dated 23 September 2020 in relation to file 12567 in the amount of $14,086.30. This is called the second tax invoice.
Dr Scott pleads that Ms Katherine White was aware of a claim under the IFP Act in October 2019. This claim was brought by the siblings of Dr Scott and not by Dr Scott herself. That is made clear in the second sentence of paragraph 6(a) of the amended defence where she pleads:
‘I am Mrs AB Scott’s sole beneficiary and executor of her estate’.
Dr Scott was named as the sole beneficiary of her late mother’s estate and her siblings brought a claim for further provision from the mother’s estate and such orders were made by Master Dart. She then pleads in paragraph 6(b) of the amended defence as follows:-
‘As defence of claim I required the Forfeiture Rule and burden of proof on plaintiff. Mr Minarelli required that the Solicitor’s for executor not assert forfeit; as without conviction and with the Coroners refusal of file of evidence. Ms White could not support forfeit as conflict of Australian Solicitor’s Conduct rules as solicitors duty to client and to the court UCR chapter 1, part 3’
Paragraph 6 of this defence pleads that the firm of Minicozzi Lawyers was not her solicitors but rather Ms White was her solicitor. This is also factually wrong.
Paragraph 7 of the statement of claim alleges that no payments were made under the second tax invoice. In paragraph 7 of the defence, that allegation is admitted. There is an obvious inconsistency between that admission and the denial of paragraph 4 of the statement of claim. I consider that the denial in paragraph 4 of the defence must be viewed in the background of the agreement by Dr Scott of her entry into the loan agreements connected with her liability to pay the debt.
Paragraph 8 of the statement of claim pleads that the applicant made a demand for payment of the sum of $14,086.30 and Dr Scott was unable to comply with that demand. This allegation is denied and a reference is made to paragraph 4 however that appears to be a wrong reference because in paragraph 4 of the defence, there is a denial of the allegation that there was any demand for payment. That assertion is inconsistent for the reasons stated and it will also be considered further below. Then in paragraph 9 of the statement of claim, there is an allegation that on 29 October 2020 Dr Scott entered into a second deed in relation to the second tax invoice. This is addressed in paragraph 9 of the defence which provides:-
‘As to paragraph 9 denies the applicant was my solicitor, says Ms White as my solicitor and Director of Minicozzi Legal:-
(a) Continued to act as my legal representative under terms paragraph 5(d)-(g);
(b) At the time in October 2020 Ms White suggested deed 2nd as loan agreement, as representing the same terms paragraph 5(d)-(g) of deed 1st, to represent me in IFP claim.’
Similar to the first deed, the common sense of what has taken place in the context of these pleadings can really only be understood by reference to the terms of the second deeds. Paragraph 10 of the statement of claim avers that the applicant will rely upon the first and second deed for their full terms and effect. In paragraph 10 of her defence, Dr Scott pleads that she cannot respond to paragraph 10 of the statement of claim and then, in subparagraphs 10 (a)-(e) of her defence Dr Scott pleads as follows:-
‘(a)At the beginning of August 2021, Ms White informed me that she was leaving the firm Minicozzi Legal; Ms White assured me that she was satisfied that the debt as deeds of loan agreement, as representing the client-solicitor financial relationship was safe and secure; that Mr Minicozzi was fully aware of the situation.
(b)That Mr Minicozzi was required to respect Ms White’s acumen as to the safety of debt as interest bearing loan and recovery under terms 5(d)-(g).
(c) I began to receive emails from Mr Minicozzi in regard to debt in November 2021.’
(d)Due to the experience 3(d) above, ad hominem and ad baculum attack, I asked Mr Minarelli, as aware of the situation and aware of my financial situation to explain to Mr Minicozzi as someone whom he would respect and listen to; Mr Minarelli informed Mr Minicozzi of the judgment of Master Dart and if lawful would result in the payment of the debt to Minicozzi Legal.
(e)I appealed the judgment of Master Dart, November – April 2022. Mr Minarelli and Mr White supported action for appeal.’

The pleading does not challenge the operation of the two deeds or the financial obligation upon Dr Scott to pay the solicitor’s fees. Dr Scott has relied again upon the content of paragraph 5(d)-(g) however, the relevant pleading is only to be found in paragraph 5(e) in which Dr Scott admits that the solicitors were content to rely upon the loan agreements and the interest obligation in relation to the solicitor-client financial obligations without compulsion and not to disregard the fourteen day settlement. There is no particular meaning to be given to the phrase fourteen day settlement and that is to be considered below.
Paragraph 11 of the statement of claim pleads that on 18 December 2018, the respondent paid $2,500 of the debt owing on the first invoice. Paragraphs 12-19 of the statement of claim and paragraphs marked as 11-19, 20-21, 22 and under part 3, which sets out the orders sought. Paragraphs 12 – 19 of the statement of claim plead the delivery on 21 December 2021 of the notice of demand under the first deed of that date, but no response was received. A notice of demand was delivered under the second deed on 21 December 2021. The principal amount, including interest and costs claimed, was in the sum of $15,797.29. Payment was sought by 31 January 2022. No response was received to that notice. Then pre-action notices were issued but no responses were received.
In her amended defence Dr Scott pleads that Mr Minicozzi has acted unreasonably and without regard to the agreements that she made with Ms White concerning the claims to be made under the loan agreements. She also pleads that the applicant is not disadvantaged by any delay in collecting the monies owed under the invoice and that there were delays in the IFP Act claim involving the family of Dr Scott due to COVID and other issues.
At paragraph 20 of the amended defence, Dr Scott says that she has no wish to inconvenience the solicitors. She acknowledges that she has debts owed to lawyers because under a client-solicitor professional relationship, services have been provided to her and the accounts referable to those services are attracting an interest obligation (at an agreed rate). Dr Scott pleads that she is not failing in any way in relation to her financial obligations to the applicant. She only instructed the solicitors due to being the subject of unjust conduct, that she has taken legal proceedings, that those legal proceedings have progressed through to the Court of Appeal of South Australia and to the High Court. It is known that both applications have failed.
In part 3 of her pleading, Dr Scott asks this court to enable the debt owed to the solicitors to remain and to accrue interest under the terms of the loan agreements which was agreed by her until such time as the matters of the action that incurred the costs are settled. This is requested as a matter of justice and fairness. She asks for no orders to be made until such time as the High Court challenge that she has made has been resolved and that in the interim, the applicant not proceed to exercise any rights vested in it under the loan agreements. She also asks that any orders made for the recovery of costs be connected only with the legitimate debt that is recorded within the deeds and with interest payable under them.
I have earlier recorded the affidavits read by each of the parties in support of the application. In my view, each of those affidavits must be read and understood in the background of the pleadings of the parties as I have indicated.
I turn then to the authorities which bind me in my consideration of this application.
On the interlocutory application, the first order sought is that the defence filed by the respondent be struck out. An order is then sought for the applicant to have judgment in accordance with the terms of the claim.
Under UCR 70.3, a court may strike out all or part of a claim or pleading if: it does not comply with these rules; it is frivolous, vexatious or an abuse of the process of the court; or it does not disclose a reasonable cause of action or defence (as applicable)
A court may if it thinks fit grant leave to file an amended or substituted document rectifying the matter that caused the original document to be struck out.
I have earlier made reference to UCR 143.1, 143.2, 143.3 and 144.2(1)(b). It is often difficult to maintain what are generally understood as the differences between a strike out of a pleading application and a summary dismissal of action application based upon the pleadings or the reasons the party contends that it is entitled to an order for summary judgment. There is a different approach in relation to the use that may be made of evidence and whether, in the consideration of the content of a pleading, the court may have regard to the document or documents referred to in the pleading itself. In turn, this leads to further questions about whether or not the court may give consideration to some other evidence in order for it to properly comprehend the pleaded allegations.
In argument, reference was made to the decision of Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors.[12] This decision involved, a consideration of UCR 70.3 and UCR 144.2. Briefly, the case concerns an agreement for cement supply by Adelaide Brighton to Hallett Concrete. This agreement obliged Adelaide Brighton to supply cement to Hallett on favourable terms. In turn, Hallett was obliged to purchase cement exclusively from Adelaide Brighton. In its claim, Adelaide Brighton alleged that from early 2018, Hallett had not purchased cement exclusively from Adelaide Brighton and Hallett in its second defence, denied that claim.
[12] [2020] SASC 161.
In turn, Hallett wished to bring a counterclaim alleging a breach by Adelaide Brighton of the original contract under which Adelaide Brighton was obliged to supply Hallett with cement on favourable terms; Hallett alleged that Adelaide Brighton had charged Hallett higher prices that it charged other customers. Hallett did not comply with the rules in relation to the filing of a counter claim and sought an extension and later, at the time of the argument before Doyle J, applied to bring in a second version of the proposed counterclaim. His Honour said that there was sufficient substance in the case to be put by Hallett that justified permission being granted for the amended counterclaim to be filed. Ultimately, Adelaide Brighton sought to reopen the argument on the application by Hallett to file a fresh counterclaim. Alternatively, Adelaide Brighton sought summary judgment under rule 144. Relevantly for current purposes, Doyle J decided that the proposed pleading of Hallett did not disclose a proper basis for the allegations of the breach by Adelaide Brighton that were made in the counterclaim and so the counterclaim was not reasonably sustainable and should be struck out. His Honour rejected Adelaide Brighton’s application to reopen the argument.
At [40] et seq of his Honour’s judgment.[13] Doyle J considered the applications by Adelaide Brighton for summary judgment, summary dismissal, or an order striking out the counterclaim.
[13] [2020] SASC 161 at [40] et seq.
His Honour considered the operation of the Uniform Civil Rules from [41] and held at [46] as follows:-
‘[46] However, it seems to me that the Uniform Civil Rules have been drafted in terms which seek to afford particular prominence and significance to both the objects of the rules, and the complementary obligations upon parties and their lawyers. They seek to encourage and empower the Court (and the parties) to construe and apply the rules in a practical and robust manner designed to promote the just, efficient, timely, cost-effective and proportionate resolution or determination of civil proceedings. Whilst the interests of justice remain paramount, what this requires in the context of modern litigation must be informed by the increasing concerns associated with the complexity, delay and expense associated with civil proceedings.’
His Honour then considered the contents of the pleading rules from [47] and commenced his consideration of the principles applicable to a summary dismissal and summary judgment application under the operation of UCR 143 and UCR 144, and in particular UCR 144.2(2)(a). His Honour held at [54] and [58] as follows:
[54]I do not think that there is any material difference between the test under UCR 144.2(2)(a) and the test that applied under SCR 232. The focus remains upon the existence of a “reasonable basis” for the claim, and the addition of the words “for prosecuting” does not add anything (other than, perhaps, to achieve some symmetry with the reference to “for defending” which appeared in SCR 232(2)(a), and remains in UCR 144.2(1)).
[58]For these reasons, I agree with the observation by Bleby J in Davies v Minister for Urban Development and Planning to the effect that any need for debate about the extent of the lowering of the bar under the South Australian rules has been overtaken by the decision in Spencer v Commonwealth.[14] While aspects of the reasoning in cases such as Ceneavenue Pty Ltd v Martin remain of assistance, they should be seen through the prism of the High Court’s reasons in Spencer v Commonwealth.
[14] Davies v Minister for Urban Development and Planning (2011) 109 SASR 518 at [43].
At [59] His Honour held that the power to determine a claim summarily should not be exercised lightly; the exercise of the power requires a practical assessment of whether the applicant has real, as supposed to merely fanciful prospects of success; the court needs to be satisfied that the claim is hopeless or bound to fail but it must be cautious not to do a party injustice by summarily determining an action where there are disputed issues of fact and merely because the court considers that the claim is unlikely to succeed. Those are the foundational principles on which the court should consider such an application and then ultimately, the court should focus upon the rules and avoid applying any judicial gloss. At [60] Doyle J held that, a court should not embark upon a mini trial of a claim, but the claim should be assessed in a summary matter in the background that evidence is incomplete.
His Honour then turned to a consideration of an application for summary dismissal and for striking out and the general principles applicable to such application. At [61] – [68], his Honour held as follows:-
[61]The grounds upon which the Court may strike out a pleading under UCR 70.3, or summarily dismiss an action under UCR 143 are expressed in similar terms. The grounds for each encompass both (a) a claim, pleading or action that is frivolous, vexatious or an abuse of process and (b) the failure or inability to disclose a reasonable cause of action.[15]
[62]The courts have generally eschewed any attempt to define frivolous and vexatious. While the concepts overlap to some extent, and are sometimes treated as a single compendious concept, the former invites a focus upon whether the claim or issue is worthy of serious attention, whereas the latter invites a focus upon whether the claim or issue is being pursued for the purposes of harassing or vexing the other party.
[63]Abuse of process is a broad concept. It may take a number of different forms, but is usually associated with some improper or collateral purpose. Relevantly in the present context, it will be informed by the overarching obligations of the parties and their lawyers under UCR 3.1, and extend to the pursuit of a claim which does not have a proper basis in light of that rule. The claim might lack a proper basis because it is based upon an assertion for which there is no basis in the material available to the party, which misstates the material upon which it is based, or which extends beyond any assertion for which that material might provide a basis.
[64]As to this last matter, I refer to my earlier articulation (at [26]-[28] above) of the distinction between a pleaded case which is based upon a general inference with a proper foundation, and a pleaded case that involves impermissible fishing or trawling for a case. The latter may be seen as either a species of abuse of process, or the absence of a reasonable basis for the pleaded case.
[65]It has been suggested that abuse of process in this context may include the pursuit of a pleading that does not disclose a reasonable cause of action.[16] However, I consider it unnecessary to dwell on whether abuse of process extends this far given that the failure or inability to disclose a reasonable cause of action is itself a basis for striking out a pleading or summarily dismissing an action.
[66]While the criteria for the exercise of the Court’s power to strike out and summarily dismiss are expressed in similar terms, the difference between the two mechanisms for challenging an applicant’s claim lies in the nature and focus of the challenge. The power to strike out under UCR 70.3 is directed to the applicant’s “Claim or pleading” (with the former defined as the document by which an action is commenced[17]), whereas the power to dismiss is directed to the applicant’s “action” (which is defined to mean a claim in the sense of a proceeding in which the applicant claims a remedy for a cause of action[18]). The focus of the former is thus upon the articulation of the applicant’s case in the relevant document, usually a pleading. And the focus of the latter is upon the applicant’s case itself.
[67]The difference in focus between the two has implications for the use that may be made of evidence in the determination of the applications. In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.[19]
[68]In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process.[20] That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
[15] A pleading may also be struck out on a third basis, namely that it does not comply with the Uniform Civil Rules.
[16] JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [30].
[17] See the definition of “Claim” in UCR 2.1, which cross-refers to UCR 63.1.
[18] “Action” is defined in UCR 2.1 by reference to a “claim”, which is in turn defined in UCR 2.1 in terms that cross-refer to UCR 51.2.
[19] Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941.
[20] Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944.
Adopting the language of Doyle J at [68], in this instance, the application for summary dismissal is, addressed to the absence of any identifiable proper defence. His Honour then went on to hold at [69] as follows:
[69]The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.[21]
[21] Tavitian v Commissioner of Highways (2015) 123 SASR 306 at [20]; although in Jennings v Police (2019) 133 SASR 520 at [31], Kourakis CJ suggested it may do so in some circumstances.
At [70] his Honour said that although different tests are applicable, very often, the distinction between these types of applications is difficult to maintain and there is overlap.
Paragraph 1 of the application of the solicitors seeks an order that the defence filed by the respondent Dr Scott be struck out. This is an application under UCR 70.3 or alternatively under UCR 143. The second paragraph seeks order for judgment. That may follow if paragraph one succeeds under either of these rules or if the application proceeds under UCR 144 and is successful. I consider that there is no utility in proceeding under UCR 70.3 or under the application of UCR 143.2(2) which requires my consideration of whether the defence is frivolous, vexatious, or an abuse of process of the court. This is because many of these questions fall away because of the content of the defence of Ms Scott in which she admits the claim of the applicant but asks for forbearance from the collection of that claimed amount.
Because of the way this application proceeded and the concessions that were made by Dr Scott which reflected the admissions made by her, I think that the better approach is to proceed under UCR 144. This approach is advantageous to Dr Scott because of the burden which falls upon the applicant under that Rule. This is how the matter proceeded.
It is pertinent that at [98]-[143] in Adelaide Brighton, Doyle J set out his reasons why he accepted that the counterclaim pleaded by Hallett did not disclose a proper basis for Hallett’s allegation of widespread breaches. His Honour found that the particulars of the breach did not provide a reasonable basis for an allegation of the breadth made by Hallett in the counterclaim. At [143] his Honour held:
‘… In my view, … the pleading of widespread breaches is no more than an attempt to trawl for a case of breaches throughout the relevant period. Consistently with the objects of the Uniform Civil Rules, I do not think that the court should lightly permit a party without a proper basis for believing in widespread breaches to make an allegation to this effect with a view to generating significant discovery obligation that might reveal some basis for a case. … in my view.. the case as presently pleaded by Hallett in its counterclaim is not reasonably sustainable. It should be struck out as either an abuse of process or on the basis that the pleading does not disclose a reasonable cause of action’
In reaching this decision, Doyle J canvassed in some detail a significant amount of evidence concerning the contract between Adelaide Brighton and Hallett, other contracts for the supply of cement, in part the construction of the contract between Hallett and Adelaide Brighton, the involvement of other separate contracting parties such as BHP, the factual basis of the trading relationship between Adelaide Brighton and other purchasers, alleged failures to charge list prices to at least sixty customers, offers to supply product to seven customers at lower prices and a range of other matters from [132]. After considering all of those matters his Honour came to the conclusion which I have set out above and it is apparent that his Honour had regard to the factual background of the material before reaching his decision.

In those circumstances, it is appropriate that canvass the factual issues before the court, having already identified that the content and the material arising on the pleadings as well as the documents to which reference is made in the pleadings. Doyle J did not confine his consideration of the application merely to the content of the pleadings but had regard to other documents. I acknowledge that in a number of circumstances this may ‘blur the lines’ between an application under UCR 70.3 143.2 and 144.2.
In that background, I turn to the application by the applicant. Based upon the affidavit evidence, I am satisfied that the following matters are not in contest and are factual matters that are proved before me:
1.The firm of solicitors Minicozzi Lawyers is an incorporated legal practice and the corporate proprietor of that business name was Minicozzi Legal Pty Ltd (now called Nimlaw Pty Ltd). One of the directors was the solicitor Ms Katherine White and Ms White provided legal services to the respondent.
2.The name of the proprietor of Minicozzi Lawyers changed to Nimlaw Pty Ltd on 2 February 2022 although the company number did not change. [22]
[22] Exhibit A2, exhibit NM1.
3.There was a retainer agreement executed between the applicant and the respondent on file 12101.[23]
[23] Exhibit A1, letter of retainer between the applicant and the respondent dated 1 February 2018, together with attachments.
4.The letter of retainer was executed by the respondent on 1 February 2018.
5.The letter of retainer reflected the terms of the retainer between the applicant and the respondent and that retainer did not change from 1^st February 2018 onwards.
6.The whole of the services supplied by the solicitors to Dr Scott on file 12101 were charged on the Supreme Court Scale and there is no challenge to the quantum of the accounts delivered by the solicitors.
7.The evidence of Mr Minicozzi was that there was a separate retainer agreement executed between Dr Scott and the firm of solicitors in relation to file number 12567 concerning the Inheritance (Family Provision) Act matters. This retainer agreement has not been provided in evidence. Dr Scott has challenged the existence of that agreement. Any evidence about its existence, absent the production of the document is therefore hearsay.
8.The claims in the action reflected in the account for file No 12567 were determined by Judge Dart. An appeal was brought by Dr Scott to the Court of Appeal of South Australia. That appeal failed. An application for leave to appeal to the High Court was dismissed.
9.The applicant has delivered to the respondent three accounts for the provision of legal services. Those accounts are dated 28 February and 2 May 2018 (on file 12101) and 23 September 2020 on file (12567).[24]
[24] Exhibit NM15, Affidavit of N Minicozzi dated 17 March 2023 (FDN 27).
10.The applicant has paid a portion of the first account in the amount of [$2,500]. Due to having insufficient funds and being unable to make payment of the accounts, Dr Scott entered into a loan agreement with the applicant firm of solicitors under which the firm of solicitors agreed that it would forbear from demanding immediate payment of the debts due in consideration of entry into the loan agreement.[25]
[25] Exhibit A2,NM2 Loan Agreement dated 13 July 2018.
11.Under the first loan deed dated 13 July 2018, the applicant agreed to lend to the respondent the sum of $20,593.44 and the respondent agreed to repay that debt upon demand. Interest was chargeable and the agreed rate of interest was 3.5% per annum, to accrue until the debt was paid in full. The respondent also agreed to allow the applicant to register a caveat over a property at 9 Stanley Street Woodville in which she had a proprietary interest.
12.Under clause 3.2 of the loan agreement, the deed was deemed to be an equitable mortgage over the land.
13.Under the first loan agreement, the date of the making of the loan was 10 May 2018.
14.Under the first loan agreement, the amount of the loan was repayable before the expiration of 14 days from the date upon which the applicant made a demand for payment of the principal sum plus interest.[26]
[26] Deed of loan item 5.
15.On 1 February 2022, the applicant wrote to the respondent and demanded repayment of the loan.[27] The amount has not been repaid.
[27] Exhibit A2, Exhibit NM6.
16.Following the provision of further legal services by the firm of solicitors to the respondent, a second account was prepared and a second deed was entered into to record an agreement for the repayment of the amount of the debt owed by the respondent to the applicant under the second deed.[28]
[28] Exhibit A2, NM3.
17.The second deed was entered into between the applicant and the respondent on 29 October 2020 and under it, the applicant agreed to lend to the respondent the sum of $14,806.30.
18.Same as the first deed, interest was payable under the second deed at a rate of 3.5% per annum until the account was paid for in full and the terms of the security were the same namely the agreement by Dr Scott that the loan agreement would be the subject of the caveat lodged over the Woodville land. The date of the making of the loan was 29 October 2020.
19.The debt due under this second deed was payable on or before the expiration of 14 days from the date on which a demand is made by the applicant for repayment of the principal interest and costs. Those costs are established under item 6 of the deed and the execution date is established under item 7, namely 29 October 2020. A demand for payment under the second deed was made on 21 December 2021.
20.In her affidavit of 1 August 2022[29] the respondent acknowledges the second loan agreement of July 2018; the second caveat; that there was a debt owing to the applicant firm of solicitors for services rendered; she admits executing the deed of loan in July 2018;[30] and she accepts the first and second loan agreements.[31]
21.In her affidavit of 1 August 2022[32] the respondent accepts in paragraph 20 that the debts for legal services rendered are proper debts payable by her and that the loan agreements are proper financial agreements under a solicitor client relationship which are accruing interest. She contends that these debts should remain due and payable and unpaid until such time as all issues involved with the provision of legal services are resolved.
22.The respondent has failed or refused to make payment in full under the terms of either the first or second deed.
23.The notices of demand have been issued for payment of the monies due.
24.Between 6^th September 2021 and 20^th December 2021 a series of emails sent by the applicant to the respondent seeking payment in finalisation of these matters. No payment was made. Notices of demand under each of the two deeds bearing the date 21 December 2021 were delivered by the applicant to the respondent. No payments under either of the deeds of loan or in response to the demands issued under the deeds of loan have been made by the respondent.
25.The respondent does not challenge the existence, execution, operation and legal effect of the first and second deeds.
26.The respondent obtained legal advice from the applicant; she placed money in trust to cover counsel fees and solicitors fees; on her instructions, there were two judicial review applications and an injunction application; that the applicant firm of solicitors continued to provide legal advice notwithstanding her inability to make payment of the accounts rendered to her; and in light of those circumstances, arrangements were made for the loan agreement and for the securing of the debt owing over her home.
27.The applicant contends that the content of the affidavits and the content of the pleading of the respondent disclose that the respondent accepts that the debt for legal services exists under both accounts, those debts remain unpaid, there is agreement to forbear from making any demand for the payment of those debts upon entering into loan agreements which give rise to an obligation to pay interest and those debts remain unpaid.
28.The respondent seeks orders in her defence in that the debts be allowed to remain in accrue interest as a loan agreement until all legal matters are finalised.
[29] Exhibit R7.
[30] Exhibit R7 paragraph 5.
[31] Exhibit R7 paragraphs 5 and 9.
[32] Exhibit R7.
The IFP Act application has been finalised. Orders have been made by Judge Dart in favour of Dr Scott’s siblings; the judgment of Judge Dart was the subject of an appeal by Dr Scott to the Court of Appeal. This appeal was dismissed.[33] An application by Dr Scott for special leave to appeal to the High Court was refused. All of the respondent’s appeal rights with respect to that decision are exhausted. It is not put in contest by Dr Scott that the notices of demand issued by the applicant solicitors for payment under the agreements were made three or more years ago and no payment has been made.
[33] [2021] SASC 96.
In the most recent proceeding prepared by her and which has been rejected by the Registrar of the District Court the respondent now contends that her mother had been killed for financial gain and that such killing had been carried out by the state and the justice systems. [34] Therefore, she contends that complete justice was not done under the IFP Act claim and on that basis, the matter of the estate of her mother is therefore not settled.[35]
[34] T45.35.
[35] Referred to in exhibit R7 exhibit SJS3.
Exhibit SJS3 to exhibit R7, the email of 21 May from Ms Katherine White to the respondent informs the respondent that: there are outstanding fees unpaid; that no charge or security could be taken over any property to procure repayment of the fees; that it was necessary to enter into a loan agreement for the current amounts outstanding; that interest would be payable under those loan agreements; the accounts manager of the applicant firm has provided monthly statements to the respondent; and, no prescription of repayment date was contained within the documents.
The respondent accepts that notwithstanding the agreement of the firm of solicitors to forbear from making any demand for payment of the outstanding debts, the respondent was informed by Ms Katherine White solicitor, that the applicant firm would demand payment sooner or later and a time will come when the firm would not extend further credit to her.[36]
[36] T50.26 et seq.
The factual position of the respondent is as follows:-
1.The respondent does not dispute the amount of the legal fees charged under the loan agreements or whether they are in a reasonable amount or were reasonably incurred or the amount of interest charged in respect of those legal fees;
2.The respondent understood that there would be no demand made under the deed until such time as she was able to make repayment of the debt and which she described as the principle of proportionality.[37]
3.The respondent does not challenge her liability to pay the legal fees.[38]
4.The respondent challenges the assertion by the applicant that the debts under the loan agreements are presently payable even though it has been 4.5 years since the first loan agreement and over 5 years since the debt under it was incurred.[39]
5.The respondent contends that the debts owed to the solicitors are payable when the state is held accountable for the death of her mother because SA Health refused to resuscitate her mother who was suffering dementia.[40]
6.When the state is held liable for the death of her mother, the respondent is comfortable to pay the debts owed to the applicant.[41]
7.The respondent has now commenced a fresh action against the State of South Australia on 20 November 2022. The Registrar of the District Court has refused to accept the proceeding which made a claim for civil liability for a wrongful act of causing death (of her mother).[42]
8.The respondent also contends that notwithstanding the refusal by the Registrar of the District Court to accept for issue of further proceedings, she will pay the fees of the applicant in these proceedings upon resolution of that claim.[43]
9.In the result the respondent refuses to make any payment to the applicant’s firm of solicitors because, in her view, the money owed is safe, it is secure, it is in the name of the solicitors, it is earning interest, and from her point of view it is an act of malice that the payment of that money is demanded.[44]
[37] T51.4; .6-.10.
[38] T51.17.
[39] T52.15-.24.
[40] T53.1-.25.; T53.29-30.
[41] T54.12-.16.
[42] T55.24.
[43] T56.18-.20.
[44] T56.21-.38.
The respondent does not dispute the enforceability of the loan agreements upon which reliance is placed by the applicant. There is no contention by her that the loan agreements were executed involuntarily, under duress, or in circumstances of unconscionability. There is no contention that the debts reflected in the terms of the loan agreements were not due and payable from at least 2018. There is also no contention that she did not agree to pay interest on the outstanding debts at the rate of 3.5 %.
The contention of the respondent is that no amount should be paid under the terms of the loan agreements, notwithstanding their terms, until the new proceedings which she has commenced against the Crown Solicitor, a Justice of the Supreme Court and other persons are resolved. There is no mention within the loan agreements of those proceedings or of any requirement for any other proceedings to be resolved before the debts described in the loan agreements became due and payable.
As earlier recounted, the applicant has not produced to the court a second written costs disclosure agreement provided to (and signed by Dr Scott). I consider this to be a lacuna in the evidentiary trail and is a matter that should have been addressed. At the time that I first reserved judgment and based upon the evidence given by Mr Minicozzi, it appeared that ongoing searches for this document were being conducted. The relevant files were now in the control of the purchaser of Mr Minicozzi’s legal practice. Nothing was heard from the solicitors for the applicant and I set the matter for further submissions on 2 March 2023. A letter was sent from the Court to the parties in the following terms:-
1.The applicant has not provided to the court a copy of the second retainer agreement connected with the account delivered to the respondent dated the 23^rd September 2020 in relation to file 12567. The account was in the amount of $14,086.30.
2.The cost disclosure regime which governs the solicitor/client relationship is established under schedule 3 of the Legal Practitioners Act 1981.
3.Schedule 3 (part 2, clause 3) has application if the law practice of Minicozzi Lawyers is instructed (in this case by Ms Scott). There is no dispute that Ms Scott has instructed the law practice.
4.There has been no exclusion of the operation of part 2, clause 5 of schedule 3 of the Act.
5.Section 10 under part 3 requires particular disclosure in relation to costs including: (a) the basis of the costs charging; (c) client’s rights; (d) estimates of costs; (f) any rate of interest charged on overdue legal costs.
6.Interest is specifically dealt with under part 4 of schedule 3. Under s 23(3) of schedule 3, no interest may be charged unless the bill states that interest is payable. Under s 23(4) of schedule 3, the interest rate must not exceed the rate prescribed.[45]
7.Part 4 of schedule 3 governs the recovery of legal costs. Legal costs are only recoverable under a costs agreement made in accordance with part 5 or the corresponding provisions of the corresponding laws. Therefore, before legal costs are recoverable, it is necessary to identify the costs agreement, particularly in relation to the second account. No such costs agreement has been disclosed in evidence thus far. (schedule 3, part 4, section 21-recovery of legal costs).
8.A failure to make disclosure on schedule 3, means, for section 18 of schedule 3 that there is a prohibition upon demanding payment of legal costs by the client (s 18(1)); furthermore, proceedings may not be maintained against the client for the recovery of those legal costs; (s 18(2) of schedule 3).
The court requires further submissions on these and any other relevant points arising from them.
[45] Regulation 61(2) of the Legal Practitioners Regulations 2014 (SA) prescribe that the applicable rate for interest on unpaid legal costs is equal to Cash Rate Target as the relevant date, increased by 2 percentage points. The Cash Rate Target for March 2019 is 1.5 %. Exhibit A1 prescribes in paragraph 10(f), the rate of interest to be 2% plus the Reserve Bank Cash Target rate.
On 17 March 2023, Mr Minicozzi filed a further affidavit of that date (FDN 27). Further written submissions were also filed. Dr Scott filed further written submissions but did not file any further affidavit material and she did not seek to cross-examine Mr Minicozzi on his further affidavit. At the hearing on 2 March 2023, Dr Scott made some perfunctory oral submissions. I have taken all of this material into account.
I turn then to the further affidavit of Mr Minicozzi of 17 March 2023 (FDN 27).
Mr Minicozzi produces a series of file notes and an email as well as tax invoices sent to Dr Scott under file 12101 of 28 February 2018 and 2 May 2018 and under file 12567 of 23 September 2020. As well he produced records which accompanied the tax invoices. Exhibit NM14 is a record of a conversation between Ms White and Mr Mark Minarelli, Solicitor in relation to the estate of Dr Scott’s mother. One topic of that conversation was a potential IFP Act claim and whether Dr Scott would need to obtain separate representation in her personal capacity. Another topic was whether or not Dr Scott would be in a position to purchase the whole of the Woodville property and that work should commence on a responding affidavit for Dr Scott which pre-empts any other application by her siblings in relation to the estate.
The next document is an email from Ms White to Dr Scott of 19 February 2019. It records a conversation that Ms White had with Mr Minarelli and it sets out some advice. At first, it expresses a view that Dr Scott needs to be independently represented as a beneficiary of her mother’s estate in light of the anticipated IFP Act claim, if that is her wish. She is advised that sometimes, the costs of such an application may be paid out of the estate, that costs will escalate very quickly, that absent a settlement, costs could be in the order of $150,000 in addition to counsel fees, and if there was a negotiated settlement, costs could reach between $50,000 to $75,000 plus counsel fees. She is informed that those costs would be her personal responsibility. They must be taken into account even if she is successful in defending the claim of her siblings.
The first step to be taken is for the grant of probate to be obtained and that there is an issue about the value of improvements that she has made to the Woodville house. A proposition is then put by Ms White that if Minicozzi Lawyers is retained, all of the information about those financial contributions to the Woodville house must be provided and she would need to obtain some advice on whether she has a proprietary interest in the property outside of the question of her status as a beneficiary. Ms White expresses the view that she would want to start work on the affidavit in relation to the IFP claim, she gives some detail about what this affidavit should cover and that it will need to be settled by counsel. Given that Ms Clark had previously been involved in the matter, it may be useful for Ms Clark to be retained.

This document is a note of advice and does not purport to fulfil the disclosure requirements under clause 10 of Schedule 3 of the LPA. It records only a summary of matters that might arise and of matters that might require attention. It is conditional because it is in anticipation of a retainer and does not record a retainer.
There was a further conversation between Ms White and Dr Scott on 19 February 2019. It is recorded in the second file email of that date. It similarly records matters discussed between solicitor and client. The email records that Dr Scott would wish to focus on getting out of the IFP matter as soon as possible, that Ms White could commence collating an affidavit based upon information already held but there would be topics about which she would require further instruction including Dr Scott’s career, her earnings, her assets and her liabilities. There was a further discussion about whether Dr Scott had a proprietary interest in the Woodville home and whether more work needed to be done. Dr Scott must ensure that she does not conflate the two issues of her claims in relation to her mother’s death and the IFP claim. Ms White informed Dr Scott that the firm would be prepared to wait to be paid later but that payment would have to come at some point, including out of the estate assets before or after they were distributed. This document also is not a record of the material required under clause 10 of schedule 3 of the LPA for the same reasons.
There were later conversations including a further conversation on the 19^th of February 2019 at 11.45 am. Dr Scott sends an email on that date at that time. She complains about suffering from nicotine withdrawal and is very jumpy and makes reference to only one or two matters that had been discussed between them and were the subject of the exchanges earlier on the 19^th of February. On the 19^th of February, a further email is sent by Dr Scott to Ms White at 5.13 pm. She says that on the topic of careers, she is not able to provide any information. The email is very hard to comprehend and it appears that Dr Scott does not herself comprehend what is required.
The next document comprises two emails. The first is sent by Ms White to Dr Scott on 20 February 2019 at 12.40 pm. Ms White says that in relation to her fees, she would not be charging on the usual retainer schedule of fees of the firm but only in accordance with the Supreme Court scale. That scale is lower than on the usual retainer terms the response of Dr Scott was:
‘Thanks Kate, that is very thoughtful, hopefully will go for the short punchy..’
It is unclear what is meant by this sentence. The first part of the sentence thanks Ms White for her note in relation to costs. The document does not purport to be a disclosure as to costs to the client as required by clause 10 of Schedule 3 of the LPA. It does not comply with clause 16 of the same schedule because it does not make the disclosure as required by clause 10 in the form of language stipulated.
The balance of the exhibit is the Supreme Court Rules Schedule to scale of costs table of items. This appears to have been sent to Dr Scott with the email of 20 February 2019.
Exhibit NM15 to this affidavit of Mr Minicozzi discloses the accounts from the firm of solicitors to Dr Scott of 7 March 2018, the detail of the accounts, a copy of the account of 10 May 2018 and the account of 30 September 2020.
I turn to the submissions made by the applicant in relation to the documents, in the context of the request made by the court to the applicant by letter of 27 February 2023. In relation to the failure by the applicant to provide a copy of the second retainer agreement applicable to the 23 September 2020 account in file 12567, the submission is that the terms of the retainer agreement of 1 February 2018 were modified and accepted between the parties via an email exchange of 19 -20 February 2019, which I have earlier considered. First, it is said that the retainer agreement of 1 February 2018 in respect of file 12101 was, by its terms to apply in respect of any further matter in which the respondent instructed Minicozzi Lawyers. It contained the following term:-
‘Before being retained by you to provide legal services, the firm is required to give you a statement setting out the general terms and conditions on which it will accept instructions with a view to applying these not only in relation to this particular matter, but any further matters in which you see fit to instruct the firm.’
The argument that the letter of 1 February 2018 may be considered in fulfillment of the disclosure requirements of schedule 3 cannot be accepted. If that were so the inevitable result would be uncertainty about the disclosures within the letter and their application to any other matters. Such a proposition is obviously contrary to the apparent intention of the schedule and Parliament’s intention for there to be certainty between a solicitor and a client about the costs to be charged.
The second weakness of the argument is that it would then be necessary to view that letter of 1 February 2018 together with the emails which I have identified earlier in these reasons. In none of those emails is there any reference to the letter of retainer of 1 February 2018 and in my view, those email letters can only be a general reminder, at best, of the charging practices of the firm of solicitors. As well, that is only one of the disclosures that is required under clause 10 of Schedule 3. In the absence of any confirmation that Dr Scott was then in possession of the letter of 1 February 2018 and that the exchange of emails in 2019 was referable back to that document and that Dr Scott bound herself to the terms of that retainer agreement, in my opinion, this submission of the applicant cannot be accepted. I am unable to accept the submission that the retainer agreement of 1 February 2018 applied in respect of file 12567. That finding is not inconsistent with the decision of the Court of Appeal in DW Fox Tucker Pty Ltd v Morgan.[46] I have taken that decision into account in reaching my conclusion.
[46] [2023] SASCA 11.
In that case, the letter of retainer in respect of work done for a corporation was directed to the Director because, by definition, the letter made reference to ‘you’ and ‘your’ to include any person or company giving instructions to the firm of solicitors to act. Also, the execution clause at the foot of the document identified that the director, Mr Tom Morgan had read and confirmed the terms of the engagement, acknowledged receipt of the identified schedules and signed in his own right and for and on behalf of his company. The Court of Appeal decided, that in the construction of the retainer letter, the objective theory of contract is to be applied, subjective beliefs are irrelevant and when considered objectively, the letter of retainer bound Mr Tom Morgan as well as his company. The preferable view was that it was intended that Mr Morgan be jointly and severally liable with the company; at [42]. The court went on to consider the question of the letter binding Mr Morgan in his personal capacity at [46] et seq. In the application of settled authority and in particular Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[47] the letter bound Mr Morgan. It is not necessary that I develop that matter further for these reasons.
[47] [2004] HCA 52; (2004) 219 CLR 165.
The importance of the decision is that letter of retainer was signed by Mr Morgan for the work done for him. In my view, it is contrary to the spirit, content and intention of clause 10 of Schedule 3 for the client to be expected to piece together the emails and the earlier letter to which no reference was made, and then conclude that this is the letter of retainer. I am unable to accept this argument.
The balance of the contentions put by the applicant relies upon the argument which I have now rejected that the requirements of clause 10 of Schedule 10 have been satisfied because of the documents to which reference has been made.
On the question of interest, the applicant submits and I accept that under the first agreement of April 2018, it was entitled to charge interest on the amounts outstanding pursuant to the terms of the retainer and the Legal Practitioners Act. The applicant then submits that the claim for interest arises from the terms of the first and the second deed and that the respondent has not paid interest from the date that each account was due and payable until the date of the first deed and the second (13 July 2018 and 29 October 2020) respectively. The retainer rate charged under these deeds is higher than that provided in the retainer of April 2018.
I am unable to accept the submission that in respect of both accounts, interest is payable in accordance with an agreement made between the parties. Under the operation of clause 10 of Schedule 3, an interest rate is charged and is payable under the first retainer agreement of 1 February 2018. I will return to that matter later. In the absence of a retainer agreement in relation to the second file, I am unable to accept that submission. There is no agreement which complies with the requirements of the LPA and clauses 21, 22 and 23 of Schedules 3 in evidence which enables the charging of interest on unpaid accounts of the solicitors on that file 12567.
In relation to the question of the right of recovery of legal costs on the accounts for file 12567, I am unable to accept the submission that costs are immediately recoverable. In my view, under the application of clause 18 of Schedule 3, in the usual course there would be an order for an adjudication of the costs claimed on the second account under part 7 of the LPA. I consider that this factual position is fatal to any claim by the solicitor on the loan agreements. First, the failure to comply with the LPA and Schedule 3 means that adjudication on the account for file 12567 is required. The requirements of the Act forestall any right in the solicitors to separately require the client to enter into a loan agreement when the quantum of the loan cannot be known. The whole premise and so the foundation of the agreement fails. A similar but separate difficulty arises in respect of the first account on file 12101. The LPA and the schedule are plainly a code applicable to the commercial relationship between a solicitor and client. The extant agreement carries an enforceable obligation to pay interest. An agreement to pay further interest is, properly understood, an agreement to pay a compounding rate of interest. This is not reflected in the content of the loan agreement. Nor is this reflected in the content of the LPA and the schedule. The LPA and the schedule prescribe the manner by which a solicitor and a client may reach an agreement about the terms of the repayment of debt for the professional fees and interest. This loan agreement does not reflect the requirements of and so does not comply with the LPA and Schedule 3. It is not enforceable for that reason.
I am unable to accept the submission that the applicant has made full disclosure as required by Schedule 3. I am therefore unable to accept the submission of the applicants that it has fully complied with its obligations the LPA.
I am therefore satisfied that the respondent’s pleading does not disclose any proper basis for defending the claim of the applicant under the first two accounts dated 28/02/2018, 02/05/2018, on file 12101. There is no plea of any reasonable basis that those debts are not payable until such time as the new proceedings have been resolved. Those pleadings and the contentions of the respondent are not capable of sustaining any form of defence to the applicant’s claim on those accounts. In my view, the present contentions of the respondent are merely a new argument by her which she attempts to introduce by a ‘side wind’ and which is not reflected within the documents which were settled some four or more years ago. In my view, this fresh claim presently sought to be commenced by the respondent is not reasonably sustainable.
I am satisfied that there is no reasonable basis for the respondent to defend the claim of the applicant on the accounts on file 12101 as above described. I am satisfied that I am in a position to enter summary judgment in respect to those accounts against the respondent. I am also satisfied that it would not be possible to recast the respondent’s case in some way that presents an answer to this part of the case of the applicant. The cost agreement in the letter of retainer documents upon which the applicant relies is self evident, it is executed by the respondent, it remains extant in respect of these accounts and they record the responsibilities of the respondent which is not challenged. If there is any challenge by the respondent, it is only that the debt recorded as payable under the terms of the first retainer agreement is not currently payable for a reason which is not reflected on the face of that retainer agreement.
In that respect, I am not inclined to give the respondent leave to replead because I am also satisfied that an order may be made under UCR144.2(2)(b) that there is no reasonable basis for defending the cause of action of those accounts on that file no 12101 for the reasons already given.
I reject the applicant’s claim for summary judgment under the loan agreements. I am not satisfied that the applicant had any entitlement to press for the execution of such an agreement in the present circumstances without some form of adjudication in relation to the second account. In relation to the first two accounts under file 12101, the letter of retainer authorised the application of an interest amount on any unpaid invoice delivered under that file. The change of interest is reflected in the accounts and it is charged at the agreed rate. The first loan agreement purported to vary the terms of that agreement without notice of such variation to Dr Scott. I consider that such an approach is anathema to the intention and content of Schedule 3 of the LPA and in particular the application of Part 4 of Schedule 3 and of clause 23.
I am not satisfied that the requirements of clause 23 of Schedule 3 have been complied with by the applicant for the costs payable on file 12567. Under that clause a law practice may charge interest on unpaid legal costs if those costs are unpaid for thirty or more days after the bill for the costs in accordance with the schedule being delivered (clause 23(1) of Schedule 3 LPA). A law practice may also charge interest on unpaid legal costs in accordance with a cost’s agreement. As I have indicated, the first costs agreement permitted the applicant law practice to charge interest on unpaid fees. Under Clause 23(3) of Schedule 3 LPA, the interest must not be charged on unpaid legal costs unless the bill for those costs contains a statement that interest is payable and of the rate of interest. The accounts of the applicant legal practice which form part of exhibit NM15 to the affidavit of Mr Minicozzi of 17 March 2023 (FDN 27) in relation to account 12101 comply with the requirements of the clause in the schedule. The claim for interest at the rate recorded is payable by Dr Scott.
However, in relation to the second bundle of accounts under file 12567, because there has been no adjudication of those costs, there is a fetter upon the legal practice bringing an action for recovery of those costs and so to recover any interest on them. Therefore, there is a second basis for refusing to make any orders under the application for summary judgment in relation to the account dated 23 September 2020.
I will hear from the parties about the form of any final orders. For present purposes, I indicate that I am prepared to make an order under UCR144 in respect of the first accounts under file 12101 including on a calculation of interest but based only on the letter of retainer.