Simons Parsons and Co v Barker
[2004] TASSC 135
•17 November 2004
[2004] TASSC 135
CITATION: Simons Parsons & Co v Barker [2004] TASSC 135
PARTIES: SIMONS PARSONS & CO
v
BARKER, Susan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 20/2004
DELIVERED ON: 17 November 2004
DELIVERED AT: Hobart
HEARING DATES: 26 October 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Procedure – Inferior courts – Tasmania – Local courts – Practice – Trial and judgment – Summary judgment – Requirements as to affidavits.
Magistrates Court (Civil Division) Rules 1998 (Tas), r115(2).
Aust Dig Procedure [420]
Professions and Trades – Lawyers – Remuneration – Bills of costs – Actions to recover costs – When signed bill necessary – Action brought by assignee.
Legal Profession Act 1993 (Tas), s130.
Aust Dig Professions and Trades [248]
REPRESENTATION:
Counsel:
Appellant: R J Howroyd
Respondent: S R Worsley
Solicitors:
Appellant: Bennett Howroyd
Respondent: Worsley Darcey & Associates
Judgment Number: [2004] TASSC 135
Number of Paragraphs: 23
Serial No 135/2004
File No LCA 20/2004
SIMON PARSONS & CO v SUSAN BARKER
REASONS FOR JUDGMENT BLOW J
17 November 2004
This is an appeal pursuant to the Magistrates Court (Civil Division) Act 1992, s28, from an order of a magistrate that summary judgment be entered for the respondent against the appellant for $9,316 plus costs. The appellant is a Victorian firm of solicitors. Until 10 August 2001, that firm had a branch office in Hobart. In or about June 2001, a solicitor employed by the firm in its Hobart office briefed a Tasmanian barrister, Mr Barker, to appear for a client of the firm in proceedings before the Workers Rehabilitation and Compensation Tribunal. Mr Barker appeared for that client at a hearing before the Tribunal which, according to the Tribunal's decision, proceeded on 16 and 17 July and on 8, 14 and 23 August 2001. When the firm closed its Hobart office on 10 August 2001, Mr Barker's instructing solicitor was sacked. Following the conclusion of the hearing, Mr Barker did not send a note of his fees to the appellant firm. He assigned to the respondent the debt that was owing to him by the firm for his services. The respondent subsequently instituted proceedings against the appellant firm in the Civil Division of the Magistrates Court claiming $9,416 by way of counsel's fees assigned to her, inclusive of GST thereon. As a result of a mathematical error, the amount claimed by way of fees was $100 too high.
The firm defended the proceedings. It admitted that Mr Barker was a barrister, and that it had not paid him or the respondent. All other ingredients of the claim were put in issue. The following specific allegations were pleaded in the defence:
"3The Defendant closed its Hobart office on or about 10th August 2001 and thereafter did not practice [sic] as solicitors in Tasmania.
4The Defendant transferred the file of Cindy Allen [the client] to other solicitors prior to the proceedings referred to in paragraph 3 of the Particulars of Claim.
5The Defendant did not instruct Barker in the said proceedings.
6The Defendant incurred no liability to Barker to [sic] counsel's fees in the said proceedings.
7Barker has never rendered an account to the Defendant for counsel's fees in the said proceedings."
The respondent, as claimant in the proceedings below, made two applications for summary judgment. The learned magistrate refused the first for technical reasons, but did so "without prejudice to a second application", referring to Union Bank of Australia v Lambell (1898) 24 VLR 458. The second application was successful. One of the principals of the appellant firm, Mr Parsons, was cross-examined on the hearing of the first application. The learned magistrate treated the evidence given by Mr Parsons under cross-examination during the first hearing as if it were before him in relation to the second application, and treated the matters decided by him on the first application as if they had been decided for the purpose of the second application unless a submission was made as to some particular point. No complaint has been made about that approach.
On the hearing of this appeal, counsel for the appellant applied to amend the notice of appeal so as to substitute five new grounds of appeal. I allowed the amendment only in relation to grounds 1, 3, 4 and 5. I will deal with them in order.
Ground 1 ¾ Magistrates Court (Civil Division) Rules 1998, r115(2)
By this ground the appellant contends that the learned magistrate erred in holding that the respondent had complied with the Magistrates Court (Civil Division) Rules 1998 ("the rules"), r115(2). Rule 115 provides as follows:
"115 ¾ (1) A party, at any stage of the proceedings, may apply to the Court for ¾
(a)summary judgment in an action; or
(b)the disposal of the whole or part of an action; or
(c)immediate relief.
(2) The party is to file an affidavit in support of an application under subrule (1), specifying ¾
(a)the reason any other party, on any possible view of the facts or law, does not have a good action or defence on the merits; or
(b)the reason relief ought to be granted.
(3) On hearing the application, the Court may ¾
(a)enter judgment accordingly; or
(b)grant the whole or part of the relief sought and order that the action continue in relation to the part not disposed of; or
(c)make an order for an early trial; or
(d)make any other order.
Counsel for the appellant submitted that r115(2)(b) should be interpreted as applying only to an application under r115(1)(c) because each of those provisions used the word "relief". He submitted that an applicant for summary judgment was required to comply with r115(2)(a). On the hearing of the relevant application, the learned magistrate had before him three affidavits sworn by the then applicant, as well as affidavits of Mr Barker and his original instructing solicitor. The appellant contends that the affidavits in question were not worded in such a way as to satisfy r115(2)(a).
It is certainly true that neither any single affidavit nor any combination of affidavits expressly specifies any fact or group of facts as the reason that the appellant firm "on any possible view of the facts or law" did not have a good defence on the merits. However the affidavits relied on in support of the application, taken together, contained evidence that the appellant firm instructed Mr Barker; that he appeared before the Tribunal in accordance with the firm's instructions; that his retainer had not been terminated; that he had assigned to the then applicant the fees payable to him by the firm; that a solicitor acting for the then applicant had sent an itemised note of the outstanding fees to the firm; that the quantum of the fees was appropriate having regard to the work done and Mr Barker's usual hourly rate; and that the applicant believed that the defendant did not have a good defence on the merits. She deposed to that belief in her second affidavit. She said that she held that belief on the basis of the matters set out in her first affidavit. In her first affidavit she deposed to the particulars of claim in the proceedings being true to the best of her knowledge, information and belief. She went on to state which paragraphs were based on her own knowledge, and which were supported by information supplied to her by her then solicitor and by her previous solicitor. The affidavit material made it perfectly clear exactly what the applicant's case was, and exactly why it was contended that the appellant did not have a good defence on the merits. It would therefore take a very strict and literalistic interpretation of r115(2) for this ground to succeed.
I think it is evident from other provisions in the rules that they were not intended to be construed in any such way. In particular, I think that is clear from rr4 and 5, which read as follows:
"4 ¾ Proceedings in the Court are to be conducted ¾
(a)with the least possible delay; and
(b)in a manner that ensures, as far as is practicable, that the parties are on an equal footing; and
(c)in a manner that saves costs; and
(d)in a manner that is proportionate to ¾
(i) the amount of any claim; and
(ii) the importance or complexity of the action; and
(iii) the financial positions of the parties.
5 ¾ If the Court determines that the justice of the case so requires, the Court may make an order or do any other thing necessary or expedient to give proper effect to these rules or the Act."
The Acts Interpretation Act 1931, s8A, requires an interpretation of a legislative provision that promotes the purpose or object of the legislation to be preferred to one that does not promote that purpose or object. That section applies to subordinate legislation by virtue of s5(1) of that Act. One very important purpose or object of the rules is, in my view, the avoidance of delay and expense that is out of proportion to the quantum of disputed claims coming before the Civil Division of the Magistrates Court. An interpretation of r115 that unnecessarily confines the availability of summary judgment as a remedy would not promote that purpose or object, but a less strict interpretation of r115 would promote that purpose or object. I also take into account the Acts Interpretation Act, s24(d), which provides that "words in the singular shall include the plural". In my view the affidavits relied on in support of the application for summary judgment, since they made it clear exactly what the case was and why it was contended that there was no good defence on the merits, should be regarded as having complied with r115(2)(a). Alternatively, if I am wrong about that, giving the rules a purposive interpretation, r115(2)(b) should be regarded as applying to all three paragraphs of r115(1), and I think the affidavits should be regarded as specifying sufficiently the reason relief in the form of summary judgment ought to have been granted. Ground 1 must fail.
Ground 3 ¾ Onus in summary judgment applications
By this ground, the appellant contends that the learned magistrate erred "in holding that as long as the Claimant's application and affidavit satisfied the requirements the onus is on the Defendant to show cause why leave to defend ought to be granted." This ground relates to a remark made by the learned magistrate in his reasons for dismissing the first application for summary judgment. The remark should be considered in context. The learned magistrate said the following:
"… I will start with the test or tests to be applied. This can be phrased as whether there is a question which ought to be tried, or whether there is a good defence on the merits. Such a question may be about factual or legal issues. As long as the claimant's application and affidavit satisfy the requirements, the onus is on the defendant to show cause why leave to defend ought to be granted. The basic requirement is to show the defendant to be justly and truly indebted to the claimant in the amount claimed, and there needs to be expressed the belief that there is no defence."
Rule 115 is the only provision in the rules relating to summary judgment. It is silent as to the procedure to be followed once a party has applied for summary judgment and filed one or more supporting affidavits under r115(2). It says nothing about the filing of an affidavit by a defendant. Under r10(b), a magistrate may "with necessary modification, … adopt the practice and procedure of the Supreme Court" if the manner of "taking a proceeding or doing any other thing" is not prescribed by the rules. Under the Supreme Court Rules 2000, r359, a defendant may show cause against an application for summary judgment by affidavit, and a judge must grant leave to defend if there is an issue or question in dispute that ought to be tried, or if for some other reason there ought to be a trial of the claim or part of the claim. It has been held in relation to similar provisions in other jurisdictions that a defendant needs to swear an affidavit that condescends to the plaintiff's particulars so as to satisfy a judge that there are facts, or asserted facts, which make it reasonable for leave to defend to be granted: Wallingford v Mutual Society (1880) 5 App Cas 685 at 704; Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 128 – 129. I take it that the remark complained of was no more than a reference to the burden that a defendant bears when an application for summary judgment has been made.
However it is fundamental that a plaintiff or claimant applying for summary judgment must show that there is a clear case against the defendant which the defendant cannot possibly answer: Jones v Stone [1894] AC 122; Roberts v Plant [1895] 1 QB 507; Stephens v Hewett 36/1983; Australia and New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12. There is nothing in the learned magistrate's reasons to suggest that he lost sight of that fundamental point. The impugned remark indicates no more than a recognition of the extent of the burden borne by a defendant faced with a summary judgment application. I am not persuaded that it reflects any error of law on the part of the learned magistrate. Ground 3 fails.
Ground 4 ¾ Mr Parsons' evidence
By this ground the appellant contends that the learned magistrate erred "in rejecting the Appellant's evidence". No doubt this is a reference to the evidence of Mr Parsons, a partner in the appellant firm. The learned magistrate rejected certain evidence of Mr Parsons when stating his reasons in relation to the first application, in the following passage:
"The barrister did not send his account. In the interim, the defendant ceased practice and this happened when the action was part heard – that is to say he ceased practice in this State.
There is some factual dispute about the effect of this on the contractual relationship between the barrister and the solicitor. The solicitor's version of this is completely unconvincing, being against the probabilities, contrary to other evidence and because it was given in an unconvincing way. I reject it. In my opinion there is no reasonable chance that a tribunal of fact could conclude that the barrister's instructions to appear as counsel at the trial by the defendant was [sic] terminated when the solicitor ceased practice in Tasmania as a contractual issue between them. The defendant was therefore liable to pay the barrister for the whole trial."
Counsel for the appellant submitted that a finding as to credibility has no place in the context of a summary judgment application, and that the learned magistrate erred in rejecting Mr Parsons' evidence on the basis of it lacking credibility.
The significant passages in Mr Parsons' affidavit read as follows:
"1 My partner Gary Singer and myself carried on practice as a firm (the Defendant herein) in Tasmania up until the 10th August, 2001.
2 On that date, our office in Tasmania literally closed, all clients and counsel including Mr Peter Barker, were advised of same.
3 I personally advised Mr Peter Barker in the week of 10th August in Hobart, that we were terminating our involvement in all matters (including the Allen matter) and that he was to obtain a new instructor for any matters, at that time. I believe her made his own subsequent arrangements, possibly with [the solicitor who was sacked].
…
7 No account was rendered to this firm by Mr Peter Barker in that matter. No brief was returned to this firm by Mr Peter Barker in that matter. We were unaware that Mr Barker had in fact been briefed in this matter. …
8 Mr Barker was retained in several matters on a contingency basis.
…".
Mr Parsons made some substantial concessions when he was cross-examined. He conceded that his firm had initially briefed Mr Barker. He did not suggest, under cross-examination or in his affidavit, that Mr Barker had been retained in relation to the matter in question on a contingency basis. He conceded that, although his firm's Hobart office had closed on 10 August 2001, he had continued to practice as a solicitor in Victoria as a partner in a firm of solicitors, and said that he thought he remained admitted to practise in Tasmania, in the sense that he remained on the roll. He conceded that a barrister was not entitled to withdraw without the authority or instruction of his client. He conceded that he had no basis to believe that the relevant client had instructed Mr Barker not to appear for her any further. He said that he spoke to Mr Barker about the closure of the Hobart office at "an after hours premises down at Salamanca"; that they had discussed the case in question, which was part heard; that he had asked Mr Barker whether he could run it himself; and that Mr Barker had given him to understand that he could either run it himself or get another instructor. He conceded that he had asked Mr Barker to suggest another firm if he needed an instructor. He said that after 10 August 2001 "we were unaware of whether Mr Barker had dealt with it [the part heard matter] or not." Obviously, Mr Parsons had learned at some stage that Mr Barker had completed the hearing before the Tribunal. He made a concession to the effect that he had seen an account for Mr Barker's work that had been drawn up by the respondent's solicitors.
A Tasmanian barrister may sue his or her instructing legal practitioner for outstanding fees: Rules of Practice 1994, r93. In my view that rule abrogated the common law rule that an instructing solicitor's debt to a barrister for his or her fees was a "debt of honour" that could not be enforced in court proceedings. I think it must follow that a debt owing by an instructing solicitor to a barrister is now subject to the general law of contract, subject of course to any overriding legislative provision. Mr Barker was engaged to represent the client for the duration of the tribunal hearing. From the outset, the appellant firm had a contractual obligation to pay him, following the completion of the hearing, his reasonable fees for the work done by him as counsel on that hearing. That obligation was not discharged by the firm closing its Hobart office before the conclusion of the hearing. If anything said or done by the appellant firm or Mr Parsons at or about that time amounted to a repudiation of the firm's contract with Mr Barker, that repudiation was not accepted. Indeed it was Mr Barker's ethical duty not to accept any such repudiation, but to complete the hearing, unless authorised or instructed by the client to cease representing her. Had the client engaged another firm to instruct Mr Barker for the latter days of the hearing, the appellant firm's liability to Mr Barker would have been limited to his fees for the work done prior to the change of solicitors. But the uncontradicted evidence is that Mr Barker completed the hearing without any change of solicitors. It must follow that the appellant became liable to pay Mr Barker's fees for the whole of the hearing.
There is ordinarily no place for an assessment of the credibility of a witness in the determination of an application for summary judgment. However there are exceptional cases. If the evidence of a defendant is not credible, literally and absolutely, then there is no fair or reasonable probability of the defendant setting up a defence, and summary judgment can be granted to the plaintiff: National Westminster Bank plc v Daniel [1994] 1 All ER 156; Commonwealth Bank of Australia v Wallis (1995) ATPR ¶41-387. In my view the concessions made by Mr Parsons in cross-examination made it unnecessary for the learned magistrate to undertake any assessment of his credibility. There was simply no basis for the firm to contend that it was not liable to pay Mr Barker for the work he did after the closure of the Hobart office. Since there was no possibility of the firm having a good defence, the evaluation and rejection of the evidence of Mr Parsons involved error on the part of the learned magistrate. However that error made no difference to the outcome of the summary judgment application. Since the error that has been identified was immaterial, ground 4 must fail.
Ground 5 ¾ Legal Profession Act 1993, s130
By this ground the appellant contends that the learned magistrate erred in rejecting an argument that summary judgment should be refused because the above section had not been complied with. The section reads as follows:
"130 ¾ (1) A legal practitioner who wishes to commence an action against a client for the recovery of costs claimed in respect of services provided to the client must ¾
(a)serve an account of those costs on the client; and
(b)if an account is not itemised, inform the client that the account may, at the client's request, be itemized; and
(c)notify the client that a disputed itemized bill of costs may be submitted to a taxing officer under section 135 or an arbitrator under section 143.
(2) Service on a client of an account of costs may be made ¾
(a)by delivering the account to the client in person; or
(b)by sending it by post to the usual or last known place of residence or business of the client.
(3) A legal practitioner must not charge a client for drawing or engrossing an account or itemized bill of costs which does not exceed one folio."
As I have said, there was affidavit evidence from the respondent to the effect that a firm of solicitors acting for her had sent the appellant firm an account for the work done by Mr Barker. A copy of the account was annexed to one of her affidavits. It was an itemised account. Mr Parsons conceded in cross-examination that he had seen "the account that was in fact drawn up by Ms Barker's solicitors".
Counsel for the respondent submitted that s130 is inapplicable because it relates only to actions against clients for the recovery of solicitors' costs, whereas this action is one against an instructing solicitor, rather than a client, and is one for the recovery of counsel's fees, rather than a solicitor's costs. He further submitted that s130 applies only to actions commenced by legal practitioners, whereas this action was commenced by an assignee of a barrister.
As long as ago as 1843, the British Parliament legislated to prohibit attorneys and solicitors, and their assignees, from instituting proceedings for the recovery of fees, charges and disbursements until at least one month after signing and delivering or posting a bill of such fees, charges and disbursements: Solicitors Act 1843 (6 & 7 Vict c 73), s37. Corresponding provisions have been included in Tasmanian legislation since at least 1888: Legal Practitioners Act 1888, s34; Legal Practitioners Act 1896, s28; Legal Practitioners Act 1959, s33. All three of those provisions applied to assignees. Assignees were expressly mentioned in s34 of the 1888 Act. In the 1896 and 1959 Acts, the word "practitioner" was defined so as to include assignees for the purposes of the relevant provisions. However no such provisions were included in the 1993 Act. The term "legal practitioner" is defined in s3, but the definition does not extend to include assignees, unlike its predecessors. Having regard to the history of the relevant provision, and to the ordinary meaning of the term "legal practitioner", I cannot see any basis for interpreting that term in s130 as including an assignee of a legal practitioner who is not, himself or herself, a legal practitioner. According to the respondent's affidavits, she is a secretary. There is no suggestion that she is a legal practitioner. It follows that she was not obliged to comply with s130. Ground 5 must therefore fail. I therefore need not address the other arguments that were presented in relation to this ground.
Conclusion
For the above reasons, the appeal is dismissed.
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