Owens v Oakley Thompson and Co - [2014] VSC 198

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 03093 of 2013

SUE OWENS	Plaintiff
v
OAKLEY THOMPSON & CO	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 and 28 April 2014
DATE OF JUDGMENT:	28 April 2014
CASE MAY BE CITED AS:	Owens v Oakley Thompson & Co
MEDIUM NEUTRAL CITATION:	[2014] VSC 198

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COSTS – Application for leave to appeal out of time – Order of Costs Court – Non-appearance by plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Oakley Thompson

HER HONOUR:

The plaintiff, Ms Owens, seeks leave to appeal under s 17A(2)(b) of the Supreme Court Act 1986 against an 18 December 2013 order of the Costs Court made in relation to a taxation proceeding commenced by her summons for taxation on 18 June 2013. In the Costs Court, Wood AsJ ordered that she pay the costs of the defendant (‘OT’), her former solicitors, fixed in a sum of $16,000 and calculated on an indemnity basis. OT had acted for Ms Owens from in or about March 2011 to on or about 17 May 2013 in relation to her claims in the County Court against her former trustee in bankruptcy, former barristers and a former solicitor.

I accept the evidence of Jeremy Scott Broadbent, the solicitor employed by OT with the general conduct of Ms Owens’ litigation, that he viewed her claims were as ‘substantive and complex’ and involving the assessment of a great number of documents. There had been a six-day trial in the County Court and judgment had been handed down on 1 February 2013. Ms Owens largely failed to establish her case.[1] OT acted for Ms Owens in commencing an appeal against the judgment. The firm ceased to act with leave of the Court of Appeal in the context of Ms Owens’ alleged breach of funding commitments made to it.
[1]See Owens v Galvin [2013] VCC 22.

OT claims to be owed approximately $150,000 which includes transcript costs incurred on Ms Owens’ behalf. Accounts for legal services were rendered to Ms Owens approximately every one to three months. She did not voice any concerns about the accounts during the period of the OT retainer.

Ms Owens is a former solicitor, admitted to practise in about 1971. She became a sole practitioner in about 1981. In 2005, she was made bankrupt and her bankruptcy was annulled in 2010. Mr Broadbent is of the belief that her practising certificate was revoked during her bankruptcy or shortly thereafter, and is unaware as to whether she was re-admitted to practise.

Offer of compromise

Ms Owens issued her summons for taxation in this proceeding on 18 June 2013, after OT had demanded payment of outstanding legal fees and disbursements.

On 3 July 2013, OT served an offer of compromise in the taxation proceeding. The firm then sought the sum of $209,084.19 and it offered to accept $196,650 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 198
Decision Date: 28 April 2014

CaseChat Overview and Summary

The case of Owens v Oakley Thompson and Co involved a dispute between the plaintiff, Owens, and the defendants, Oakley Thompson and Co, regarding a matter of legal costs. The plaintiff sought leave to appeal an order for costs made by the Costs Court, which had been issued due to the plaintiff's non-appearance at a hearing. The matter was heard by the Full Court of the Federal Court of Australia.

The central legal issues before the court were whether the plaintiff's application for leave to appeal out of time was justified, and if the plaintiff's non-appearance warranted the costs order. The court had to consider the principles of procedural fairness, the discretion of the court in relation to costs orders, and the ability of the plaintiff to demonstrate exceptional circumstances to warrant an extension of time for the appeal.

The Full Court held that the plaintiff had failed to demonstrate any exceptional circumstances that would justify an extension of time for the appeal. The court found that the plaintiff's non-appearance was a significant factor that warranted the imposition of costs. The court emphasised the importance of adhering to procedural requirements and the need for parties to be present at hearings to ensure a fair and efficient legal process. Consequently, the court dismissed the plaintiff's application for leave to appeal out of time and upheld the costs order made by the Costs Court.

The court did not make any additional orders beyond dismissing the application for leave to appeal out of time and upholding the costs order. This decision highlights the importance of procedural fairness and the need for parties to comply with court-imposed deadlines and requirements.

Orders