Plenty & Plenty v Seventh Day Adventist Church of Port Pirie - [2009] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
PLENTY & PLENTY v SEVENTH DAY ADVENTIST CHURCH OF PORT PIRIE
[2009] SASC 134
Judgment of The Honourable Justice Gray
20 May 2009
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT
PROFESSIONS AND TRADES - LAWYERS - OTHER MATTERS
Appeal from order of a Master declaring that the solicitors had ceased to be solicitors for the appellants - whether Master erred in rejecting appellants' submission that solicitor had given undertaking to appellants and Full Court that solicitor would continue to act for appellants.
Held: appeal dismissed - Full Court did not seek undertaking from solicitor and none was proffered - Master made appropriate order on evidence before the Court.

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Appellants sought disqualification of a Judge on basis of bias - whether apprehension of bias established in relation to Judges who decided substantive appeal in Full Court.
Held: no bias or appearance of bias established - fact that members of Full Court upheld findings of trial Judge on demeanour and credibility did not disqualify any member of that Court from determining subsequent interlocutory appeal - interchange between Full Court and solicitor did not give rise to reasonable apprehension of bias.
Plenty & Anor v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; Plenty & Anor v Seventh Day Adventist Church of Pirie Pirie (No 2) [2009] SASC 103; Plenty & Anor v The Seventh Day Adventist Church of Port Pirie [2009] SASC 10, considered.

PLENTY & PLENTY v SEVENTH DAY ADVENTIST CHURCH OF PORT PIRIE
[2009] SASC 134
Civil
GRAY J

This is an appeal from an order of Master Lunn made on 4 February 2009, declaring that, subject to compliance with the Rules of Court, Strachan Carr have ceased to be the solicitors for the plaintiffs and appellants in this action.
On 27 January 2009, Strachan Carr, the solicitors on the record for Mr and Mrs Plenty sought a declaration that they had ceased to act as solicitors for the plaintiffs in both this action and in a related defamation proceeding, of Plenty & Plenty v Dickson & South Australian Conference of the Seventh Day Adventist Church.[1]
[1] Supreme Court Action No 3169 of 1980.
The appeals in the within proceeding and the defamation proceeding were heard at the same time. Both parties agreed to this course and to the affidavits filed in each proceeding being treated as before the Court in regard to both proceedings.
The within action was commenced in 1982 and related to the disfellowshipping of Sydney Graham Plenty and Deanne Plenty from the Seventh Day Adventist Church at Port Pirie on 1 December 1979. After several decades of delay, the action went to trial in 2002. It was Mr and Mrs Plenty’s case that the disfellowshipping decisions, taken by the Port Pirie Church, were contrary to natural justice, and were illegal, null and void. On 10 March 2003, the Judge reached the conclusion that Mr and Mrs Plenty had been denied natural justice.[2]   The Judge also considered that it was appropriate that a declaration be made. In his reasons for judgment, the Judge concluded “there will be a declaration that the purported disfellowshipping of the plaintiffs from the defendant church on 1 December 1979 was void and of no effect”.[3]
[2]    Plenty & Anor v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214.
[3]    Plenty & Anor v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214 at [100].
Mr and Mrs Plenty appealed to the Full Court complaining about the failure of the Judge to award damages in respect of the conduct of the Port Pirie Church. The Church cross-appealed contending that the declaration should not have been made. The appeal was dismissed by the Full Court. On the cross-appeal, the Full Court upheld the trial Judge’s conclusion that there had been a denial of natural justice. However, the Court set aside the declaration having regard to a number of considerations, including the unconscionable delay that had occurred since the acts of disfellowshipping. The Port Pirie Church sought a special order as to costs having regard to the terms of a Calderbank letter of offer. The Court reserved its decision on costs to permit the parties to make written submissions. Following the receipt of those submissions the Court made a special order for costs.[4]
[4] Plenty & Anor v Seventh Day Adventist Church of Port Pirie (No 2) [2009] SASC 103.
In a joint affidavit filed in support of the appeal in the within proceedings, Mr and Mrs Plenty deposed that requests had been made by Strachan Carr for the payment of costs and disbursements with respect to the appeal proceedings, the subject of a Full Court judgment.[5] The claims were for professional charges for work undertaken by Strachan Carr, disbursements with respect to the preparation of appeal books and counsel fees. The affidavit attached correspondence between the solicitors and Mr and Mrs Plenty. Mr and Mrs Plenty had not paid the accounts.
[5] Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10.
Mr and Mrs Plenty, in the joint affidavit, set out their basis for opposing the application. They assert that special circumstances existed that provided clear reason for the solicitors’ application to be rejected. They assert that the special conditions of the contract of retainer entered into with Strachan Carr had been breached. It was also claimed that Mr Carr had given an undertaking both to the Full Court and Mr and Mrs Plenty that he would deal with the issue of submissions to the Court with respect to costs. It was said that Mr Carr had breached this undertaking.
Rule 87, r 11.06(1) under which the Master acted provides:
Application by a solicitor that he has ceased to act
(1)Where a solicitor who has acted for a party in an action has in fact ceased to act, and the party has not given notice under either Rule 11.02 or 11.04, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor for the party in the action.
(2)Any application under this Rule shall be made by an application in the action and be served on the solicitor’s former client and every party to the action.
(3)The application shall be supported by an affidavit stating the grounds of the application which shall be served with the application on the solicitor’s former client. Unless otherwise ordered the affidavit shall not be served on any other party to the action and may be filed in a sealed envelope or handed to the Judge or Master hearing the application.
(4)The Court shall consider the application and may in its discretion make a declaration that the solicitor has ceased to be the solicitor for the party in the action.
(5)If an order is made on the application, the solicitor shall continue to be considered as the solicitor for the party until the solicitor has:
(a) caused the order to be settled and entered and also to serve a copy of it on the former client and every other party except a party who has not filed an address for service; and
(b) filed in the Registry a certificate signed by the solicitor that the requirements of subrule (a) have been complied with.
Master Lunn gave reasons for making the declaration. He drew attention to Clause 6 of the Strachan Carr retainer agreement:
Without limiting the circumstances in which the firm is otherwise by law entitled to cease acting for the client, if:-
(a)     The client without good cause refuses to act in accordance with the firm’s advice; provided that the firm shall not act under this subparagraph without giving to the client 10 days prior written notice by facsimile of the basis for wishing to cease to act and the firm undertakes to confer with the client in an endeavour to resolve the basis upon which that notice has been given.
(b)     An amount in excess of $200.00 in respect of an account (including an interim account) is outstanding to the firm for more than 21 days; or
(c)     The client does not, within 7 days, comply with a request to pay a disbursement under clause 2 or an advance under clause 8;
then
(d)     The firm shall not be obliged to take any further steps in the conduct of the matter;
(e)     The firm shall be entitled to cease acting for the client and to bring an Application of Ceasing to Act;
(f)     If the firm continues to act for the client or takes any further steps on behalf of the client, it does so without affecting its rights under this clause.
Master Lunn then reasoned:
The plaintiffs contend as subparagraph (a) has not been complied with in that Strachan Carr has not undertaken to confer with them Strachan Carr have no right to cease to act under subparas (d) and (e). However, subparas (a), (b) and (c) are in the alternative, and are not cumulative conditions. Subparas (b) and (c) are each satisfied. Although there is a dispute about the amounts payable, (b) is satisfied in that at least $200 has been outstanding for more than 21 days and at least some of the disbursements for the copying fees and (c) is satisfied in that at least some of Mr Walsh QC’s fees have been outstanding for more than 7 days after the demand for payment made by the letter of 19 January 2009. Accordingly, sufficient pre-conditions for the operation of subparas (d) and (e) have been satisfied.
The plaintiffs contend that Mr Carr of Strachan Carr gave an undertaking to the Full Court on 19 January 2009 that Strachan Carr would continue to act for the plaintiffs. I have looked at the transcript of the hearing on 19 January 2009 and the fiat made by the Full Court on that day. Whether a statement by a lawyer to the Court amounts to an undertaking to the Court is a matter of the proper construction of what was said by the lawyer in its proper context: Ex Parte Hales (1907) 2 KB 539. I am satisfied that Mr Carr did no more than to give intimations to the Full Court about the future steps to be taken in the matter on behalf of the plaintiffs/appellants. It was implied that it was subject to him not having proper grounds thereafter to cease acting for the plaintiffs/appellants, and also that the plaintiffs/appellants did not terminate his instructions. If what he said amounted to an undertaking, it could be dealt with by contempt by the Court on any breach of the undertaking. What he said was not in a context of there being remedies attracted in contempt if the directions given were not complied with. This ground of opposition to the order sought is not made out.
I am satisfied on the evidence before me that the solicitors have ceased to act and are entitled to so cease to act. There are no sufficient special circumstances to refuse the order sought by the solicitors: Plenty v Gladwin (1986) 67 ALR 26.
On the hearing of the appeal, Mr and Mrs Plenty submitted that the Master had erred in finding that the pre-conditions for the operation of an entitlement of Strachan Carr to cease to act had been satisfied. In my view there is no substance to this submission. As Master Lunn observed, clause 6(b) and (c) had in fact been satisfied, giving rise to the entitlement of Strachan Carr to cease to act.
On the appeal the contention was developed that Master Lunn erred in rejecting the submission of Mr and Mrs Plenty that Mr Carr had given an undertaking to Mr and Mrs Plenty and to the Full Court, that Strachan Carr would continue to act for Mr and Mrs Plenty. The Master has correctly summarised the effect of the statements made to the Full Court. Mr Carr did no more than give an intimation to the Full Court about future steps to be taken in the matter on behalf of Mr and Mrs Plenty. The affidavit material before the Court does not establish any undertaking by Mr Carr to Mr and Mrs Plenty that in any way varied or rendered inoperative the provisions of the retainer agreement. The Full Court did not seek any undertaking from Mr Carr and none was proffered. There is no substance to this complaint.
No error on the part of the Master in his consideration of Rule 87, r 11.06(1) or in the exercise of the discretion reposed in him by the Rule has been established. The Master has not been shown to have misapprehended any fact or to have had regard to any irrelevant material. No circumstances have been established to justify the refusal of the order. The order of Master Lunn was well within his discretion. I consider the Master made the appropriate order.
There is one other matter to be addressed on the present appeal. Mr and Mrs Plenty requested that I withdraw from the hearing of this appeal and the appeal in related proceedings because of bias or an appearance of bias. Mr and Mrs Plenty gave notice that they objected to six members of the Court hearing the appeal. The members of the Full Court, Gray, Vanstone and Anderson JJ, who decided the substantive appeal in the Full Court, were three of the six. In that respect, by affidavit, Mr and Mrs Plenty alleged:
8.4The Honourable Judges Gray, Vanstone, and Anderson, as they were the Full Court Judges who heard the plaintiffs appeal from the Trial Judge, and also because they have upheld the findings of Judge Duggan upon the plaintiffs’ demeanor and credibility; further,
8.4.1. a crucial part of the appeal is dependent upon whether or not Mr Carr gave an undertaking to the Full Court on the 19^th January 2009; and therefore, these Honourable Judges will be asked to make Judgements upon a controversial matter they have been involved in.
8.4.2. There are matters of verbal agreements between Mr Carr and ourselves that will depend upon how our credibility is viewed, and we have concerns and an apprehension that there is a possibility that the above named Honourable Judges could hold adverse views in regard to our credibility.
8.5.Further, the reasons we have given are matters that could cause right thinking members of the public, including ourselves, to have a reasonable apprehension that the Honourable Judges we have referred to in paragraph 10, might not have an impartial and/or unprejudiced mind to the resolution of the present matters before the Court.
This suggested basis said to give rise to an appearance of bias is without substance.
The fact that the members of the Full Court upheld the findings of the trial Judge on demeanour and credibility does not disqualify any member of that Court from determining a subsequent interlocutory appeal arising in the proceedings. The suggestion that Mr Carr gave an undertaking to the Full Court on 19 January 2009 concerns a matter that happened before the Full Court, and concerned a response of Mr Carr to an inquiry of the Full Court. The Court did not seek an undertaking from Mr Carr, and Mr Carr did not proffer an undertaking. No right thinking member of the public hearing the interchange between the Court and Mr Carr would have any reasonable apprehension that any member of the Court might not have an impartial and unprejudiced mind when dealing with the resolution of the present appeal. To the contrary, the view could be taken that each member of the Full Court was in the best position to determine whether the Court had sought an undertaking and whether an undertaking had been provided.
Mr and Mrs Plenty also drew attention to an interchange on a later occasion between Mr Carr and the Court with respect to the outstanding costs issue. They asserted:
Yet, on 18^th February 2009, His Honour, Judge Gray, upon his own initiative, wrongly manipulated Mr Carr to make a “statement” which would wave [sic] his rights under the Commentary to Rule 11.06.5, (in regard to engaging new solicitors), and/or, which either neutralized or reversed it’s [sic] effect;
And we quote from the transcript of that date at pages 4 (line 29) –5 (line 5), as follows:-
“His Honour: Well now let’s just deal with that.
Mr Carr, if the Plentys were to get separate advice in regard to that cost [issue], is it a matter that you would raise at all as being of any relevance or prejudice to their position in regard to their appeal against Judge Lunn’s order?
Mr Carr: My submission is that it has no relevance.
His Honour: No, I’m seeking more that [sic] your submission. I’m seeking your statement to me that it would not be used in any way to prejudice Mr and Mrs Plenty.
Mr Carr: I’m prepared to make that statement.
His Honour: Thank you. Now, Mr Plenty, that overcomes that difficulty. … …”
It was contended that I gave Mr Carr instructions or a directive to do what I wanted “Mr Carr to do to overcome His Honour’s difficulty in order to achieve his own objectives in regard to removing any obstacle for him to hear the appeal…”:
We submit that His Honour in the above, gave Mr Carr an instruction and/or, a directive, as to what His Honour wanted Mr Carr to do to “overcome ‘His Honour’s’ difficulty”; in order to achieve his own objectives in regard to removing any obstacle for him to hear the appeal, which also provided a complete undermining of our rights to our opposition to Mr Carr’s breaking his undertaking to the Full Court; which was in fact, an integral part of our appeal from Master Lunn.
Further, it also had the effect of negating our entitlement to have the continuity of our legal representatives and their unique expertise and understanding of our complex situation by the fact that they had conducted the actions, to do the costs submissions for the Full Court.
Mr and Mrs Plenty have misunderstood the position.
On 18 February 2009, one matter being considered by the Court was an application by Mr and Mrs Plenty for a stay of the costs application, or alternatively, the seeking of more time in which to make submissions with respect to the special orders for costs of the Full Court appeal. Mr and Mrs Plenty were concerned that if they instructed other solicitors, this fact would be used against them in their appeal against the orders that Strachan Carr had ceased to act. Mr Carr in the above interchange, accepted unequivocally that if Mr and Mrs Plenty obtained separate legal advice, that fact would not be raised or used against them on the hearing of the present appeal. As a result, Mr and Mrs Plenty were able, if they wished, to take separate legal advice without prejudice to their position on the within appeal.
In my view, the reasonable observer would not and could not reasonably have interpreted the interchange in the manner suggested by Mr and Mrs Plenty. I do not consider that any basis has been established to justify the application that I disqualify myself. For these reasons, I declined to disqualify myself from the hearing of the within appeals.
Conclusion
This appeal is dismissed. The appellants are to pay the respondent’s costs to be taxed.