Simons Parsons and Co v Barker - [2004] TASSC 135

[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…

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.

Continue reading Simons Parsons and Co v Barker

Details

AGLC: Simons Parsons and Co v Barker [2004] TASSC 135
Case: [2004] TASSC 135
Decision Date: 17 November 2004

CaseChat Overview and Summary

Simons Parsons and Co brought a claim against Barker in the local court of Tasmania. The plaintiffs sought damages for the defendant’s alleged breach of contract. The defendant moved for summary judgment on the basis that the plaintiff’s affidavit was insufficient. The case proceeded to the Supreme Court of Tasmania where the judge had to decide whether the local court correctly applied the rules of evidence in this instance. The court needed to determine whether the local court's decision to grant summary judgment was legally sound.

The primary issue for the court was whether the local court correctly applied the rules of evidence when it decided to grant summary judgment. The court considered whether the plaintiff’s affidavit met the necessary requirements. The court held that the local court had applied the rules of evidence correctly and that the plaintiff’s affidavit was indeed insufficient to withstand a motion for summary judgment. The affidavit did not contain sufficient evidence to establish a case against the defendant. The court found that the local court had not erred in granting summary judgment.

The Supreme Court of Tasmania upheld the local court's decision. The court confirmed that the local court had correctly applied the rules of evidence and that the plaintiff's affidavit was insufficient. The defendant's motion for summary judgment was therefore properly granted. The appeal was dismissed.

Orders