Royds v Sumner Potts

[2005] QSC 15

SUPREME COURT OF QUEENSLAND

CITATION:

Royds v Sumner Potts & Ors [2005] QSC 15

PARTIES:

WILLIAM JAMES ROYDS
(plaintiff)
MICHAEL SUMNER-POTTS
(first defendant)
THE BAR ASSOCIATION OF QUEENSLAND
GLEN MARTIN
PETER LYONS
DAVID BODDICE
MICHAEL BYRNE
JEAN DALTON
MARTIN DAUBNEY
BRIAN DEVEREAUX
RALPH DEVLIN
RICHARD DOUGLAS
SHANE DOYLE
GRAHAM GIBSON
PHILIP HACK
DOMINIC MURPHY
DOUGLAS MURPHY
ANDREW PHILP
JENNIFER ROSENGREN
COLIN WHITE
(second defendants)

FILE NO:

271/2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

10 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2005

JUDGE:

Mackenzie J

ORDERS:

1. I order that the counterclaim of the first defendant be struck out pursuant to r171(1)(b) Uniform Civil Procedure Rules 1999 (Qld)

2.          The application for summary judgment on the counterclaim is refused

3.          The respondent first defendant is ordered to pay the applicant’s costs of and incidental to the application to be assessed

CATCHWORDS:

SUPREME COURT PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – COUNTERCLAIM – IN GENERAL – where application to strike out counterclaim pursuant to r 171 Uniform Civil Procedure Rules 1999 (Qld) –where barrister claiming money owed for fees by solicitor – where respondent claims he was briefed by applicant – whether there is a basis upon which a barrister can recover fees from solicitor – whether counterclaim has a tendency to prejudice or delay proceedings – whether counterclaim should be joined with claim for defamation.

Uniform Civil Procedure Rules 1999 (Qld), s171

Mostyn v Mostyn (1870) 5 Ch App 457, considered
Wells v Wells (1914) P 157, considered
Kennedy v Broun (1863) 143 ER 268, considered
Re Le Brasseur and Oakley (1896) 2 Ch d 487, considered
Shand v Doyle (1997) ANZ Conv R 134, considered

COUNSEL:

The plaintiff appeared on his own behalf
The defendant appeared on his own behalf

SOLICITORS:

The plaintiff appeared on his own behalf
The defendant appeared on his own behalf

1.   MACKENZIE J:The applicant plaintiff seeks the following relief in respect of the first defendant’s counterclaim:

1.That pursuant to r 171 Uniform Civil Procedure Rules 1999 (Qld) the counterclaim of the first defendant be struck out.

2.Alternatively, pursuant to r 292 and r 293 Uniform Civil Procedure Rules 1999 (Qld), that judgment be given to the plaintiff against the first defendant in respect of the first defendant’s counterclaim.

1. The second defendants, the Bar Association of Queensland and its committee members, are not concerned directly in the present application.  On a previous occasion objection was taken, because of the composition of the second defendant, to any member of this Court conducting hearings in the matter.  The applicant renewed his objection in the present application.  Notwithstanding this, I will proceed to determine the application because it is one not involving any issues of credibility and is not otherwise of a kind that may reasonably enliven an objection of that kind.

1. The claim in respect of which the defence and counterclaim has been filed is for defamation.  On the pleadings, the primary question of fact in the action against the first defendant is whether he was briefed by the applicant or whether he appeared for a party pursuant to a direct arrangement made between him and the party.  The primary issue in the action against the second defendants is whether they acted recklessly and with contumelious disregard for the plaintiff or for the truth in informing members of the legal profession that the applicant had failed to pay a debt due to the first defendant, with adverse consequences to his credit, character and reputation and to his profession, occupation and business calling.  There is also a Trade Practices Act claim against the second defendants based on hindering or preventing the applicant from engaging in supplying services to corporations because of his difficulty in engaging the services of barristers as a consequence of publication of the information.  

1. In relation to the counterclaim there are three issues.  The first is whether there is a basis in law upon which a barrister can recover, from a solicitor who has briefed him, moneys representing fees for work done by the barrister.  The second is whether in this instance the first defendant was briefed by the applicant.  The third is the quantum if both of those questions are answered in the affirmative. 

1. It may be seen that the question whether the first defendant was briefed by the applicant is common to both the claim against the first defendant and the counterclaim.  However, the issue of quantum is not.  The evidence in the present application discloses that there are serious questions to be tried as to whether the first defendant was briefed by the applicant or whether he appeared for a party pursuant to a direct arrangement.  There are also serious questions to be tried concerning quantum in the event of the former proving to be the case.  Although the quantum is only alleged to be $16,650, evidence is likely to be relatively contentious and detailed.

1. The applicant has elected trial of the action by jury.  Trial by jury has additional complications over and above those in a non-jury trial.  In the present case there is the issue whether there is a basis in law upon which a barrister may recover, from a solicitor who has briefed him, moneys representing fees for work done by the barrister.  Unlike in a non-jury trial, a jury trial would require this issue to be determined before the directions were given to the jury.  The usual situation in a trial by judge alone of determining the issue while the decision is reserved is unavailable.  If there proved to be no basis in law for the claim, there is a potential for significant time and cost to be wasted exploring issues of quantum.  Since the first defendant’s essential submission was that the viability of the claim as a matter of law should be determined in a factual context rather than in the abstract, further delay may well be occasioned by lengthy argument and, perhaps, deliberation over the issues raised before the jury can be directed.  It is not irrelevant that there are other parties, not involved in the counterclaim, who would be inconvenienced by prolongation of the trial.

1. All of these factors in my view point to the undesirability of joining this particular counterclaim with the claim for defamation. In terms of r 171(1)(b) of Uniform Civil Procedure Rules 1992 (Qld) (UCPR), the pleaded counterclaim has a tendency to prejudice or delay the fair trial of the proceeding and, for that reason alone, should be struck out. 

1. Notwithstanding the first defendant’s reliance on the notion that moneys paid to a solicitor by the client are impressed with a trust and that his counterclaim is in effect a claim for breach of trust, presumably to avoid having to rely on a right to sue in contract or for moneys had and received, there is in my view significant doubt whether the claim is viable.  (Mostyn v Mostyn (1870) 5 ChApp 457, 459; Wells v Wells (1914) P 157, 163). It may also be noted that in the Green Paper on Legal Profession Reform, June 1999, the following paragraph appears at p21:

“It has been suggested that barristers should be permitted to sue for costs and the current system of blacklisting solicitors who do not pay their accounts should be abandoned.  … Comment is invited on those propositions.”

1. The paragraph reflects the rule of long standing that the relation of counsel and the professional client renders the parties mutually incapable of making any contract of hiring and service concerning advocacy in litigation (Kennedy v Broun (1863) 143 ER 268, 287; Wells v Wells (supra) 162-3; Re Le Brasseur and Oakley (1896) 2 Ch 487, 493, 495-496). The fact that there appears to be nothing in the Legal Profession Act 2004 (Qld) addressing the issue strongly suggests that the Act proceeds on the assumption that the pre-existing law remains in force.

1. The policy considerations justifying the rule are undoubtedly expressed in a somewhat archaic way in the seminal cases.  There is also a comprehensive critique of the rule in an article “The Recovery of Counsel’s Fees” by Associate Professor GE Dal Pont in (2004) 23 The University of Queensland Law Journal 381.  In Shand v Doyle (1997) ANZ Conv R 134, the ongoing cogency of the policy considerations underpinning the rule in modern conditions was raised.

1. The counterclaim is to be struck out on the basis of r 171(1)(b) UCPR.  I am not persuaded that I should give summary judgment. It is, in my view, more appropriate that all of the issues relating to the subject of the counterclaim be explored in the context of any proceedings, brought in a court of competent jurisdiction, for recovery of the alleged debt in the event that the necessary pre-requisites for its existence are established. 

1. Orders

1.I order that the counterclaim of the first defendant be struck out pursuant to r 171(1)(b) UCPR.                

2.The application for summary judgment on the counterclaim is refused.

3.The respondent first defendant is ordered to pay the applicant’s costs of and incidental to the application to be assessed.