Spautz v Morrow

[1999] NSWSC 568

CITATION:	Spautz v Morrow [1999] NSWSC 568
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2043/99
HEARING DATE(S):	3, 5 - 6 May 1999 Reserved 19 May 1999
JUDGMENT DATE:	10 June 1999
PARTIES :	Dr Michael Edward Spautz (Plaintiff) David Morrow (Defendant)
JUDGMENT OF:	Bergin J

COUNSEL :	Dr Spautz in person (Plaintiff) Mr A Colefax (Defendant)
SOLICITORS:	Dr Spautz in person (Plaintiff) Ebsworth & Ebsworth (Defendant)
CATCHWORDS:	Application for leave to commence proceedings - s84 Supreme Court Act 1970 (NSW): requirement that Court be satisfied proposed proceedings are not an abuse of process and have prima facie ground.
ACTS CITED:	Supreme Court Act 1970 (NSW) - section 84(4)
CASES CITED:	Spautz v Williams (Supreme Court of New South Wales McInerney J unreported 9 December 1993) Charles Forte Investments Ltd v Amanda (1964) 1 Ch 240 Mann v Goldstein (1968) 2 All ER 679 Bryanston Finance Ltd v De Vries (No 2) (1976) Ch 63 Jones v Skyring (1992) 66 ALJR 810 Attorney-General (Cth); Ex Parte Skyring (No 2) (1996) 70 ALJR 985
DECISION:	Leave refused: Summons dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J
DATE 10 JUNE 1999
2043/1998 SPAUTZ v MORROW
JUDGMENT
1 This is an application brought by Michael Edward Spautz (Dr Spautz) by Summons in which he seeks the following orders against David Morrow, his former solicitor;
1. Leave to seek the following orders:

2. That the defendant give to the plaintiff bills of costs in the proceedings for wrongful dismissal and false imprisonment, for 1991 to the present; (Bills of Costs Proceedings)
3. That the defendant give to the plaintiff all of the documents to which the plaintiff is entitled in regard to the said proceedings which are in his and briefed barristers’ possessions; (Delivery up of Documents Proceedings)
4. That the plaintiff be granted leave to sue the defendant for alleged torts committed by him as specified in the accompanying affidavit; (Alleged Torts)
5. Costs.

2 This matter was first listed before me on 30 April 1999 in the duty judge list but was not reached and proceeded to hearing before me on 3 May 1999 in the duty list. Dr Spautz appeared in person and Mr Colefax, of counsel, appeared for the defendant. The evidence concluded on that day and final submissions were being made when Mr Colefax applied for leave to call some evidence in relation to the delivery up of documents proceedings. That leave was granted and directions were given as to the filing and serving of that evidence and any evidence in reply. An affidavit of Mr Morrow sworn on 3 May 1999 was filed and Dr Spautz filed an affidavit in reply.
3 The matter proceeded on 5 May when Mr Morrow was cross examined by Dr Spautz and submissions concluded. I indicated that I would deliver my judgment at 2 pm on 6 May 1999.
4 On the morning of 6 May 1999 Dr Spautz made application to put further submissions to me in respect of matters which had arisen during the course of the afternoon of 5 May 1999 to which I will refer later. I granted that leave and directed further submissions be completed by 19 May 1999.
Necessity for leave
5 The need for Dr Spautz to seek leave to initiate these proceedings arises from the following orders made by McInerney J on 13 June 1990 pursuant to s84 of the Supreme Court Act 1970 (the Act) in proceedings numbered 14464 of 1989 Attorney-General in and for the State of New South Wales v Michael Edward Spautz;
1. Until further order the defendant be restrained by himself or by his servants or agents from;

(i) instituting any legal proceedings, whether civil or criminal, in any Court in this State without the leave of this Court;
(ii) instituting any application in any legal proceedings, whether civil or criminal, already instituted in any Court in this State without the leave of this Court;
(iii) instituting any appeal in respect of any legal proceedings, whether civil or criminal, in any Court in this State without the leave of this Court.
2 The defendant give not less than (3) days’ notice in writing to the Crown Solicitor of any application for leave pursuant to the foregoing orders.

6 When such an order is made s 84(4) of the Act provides that the Court shall not give such a person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.
The parties and their history
7 The background to Dr Spautz’s relationship with the University of Newcastle and his dismissal therefrom and consequences flowing from it including subsequent litigation has been the subject of a number of judgments since 1980.
8 It is not necessary to set out in detail the background to that relationship however some relevant parts of it are summarised appropriately in the judgments of McInerney J in Attorney-General v Spautz ( unreported 30 June 1990) and Spautz v Williams (unreported 9 December 1993).
9 Mr Morrow commenced acting as Dr Spautz’ solicitor in about February 1991. He was instructed to act for him in the matter of Spautz v University of Newcastle (3055 of 1980) (the wrongful dismissal proceedings) and subsequently in relation to the matter of Spautz v Dempsey, Butterworth and the State of New South Wales (18905 of 1986)(the unlawful imprisonment proceedings). Mr Morrow also acted for Dr Spautz in the appeals in both cases and the application for leave to appeal to the High Court.
10 Dr Spautz was unsuccessful in his litigation and it is apparent that Mr Morrow’s retainer was terminated although the date of that termination is not in evidence.
11 In the last twelve months Dr Spautz has written to Mr Morrow on numerous occasions relating to matters pertaining to his wrongful dismissal proceedings and his false imprisonment proceedings. In the course of those communications Dr Spautz has requested from Mr Morrow a number of documents within his various files. He also requsted bills of costs in respect of the matters in which Mr Morrow was retained.
12 Mr Morrow has provided copies of many, many documents to Dr Spautz during the last two years. However Dr Spautz has maintained that a number of documents have not been provided to him. The requests for the bills of costs are dealt with later in this judgment.
Course of the evidence
13 On 3 May 1999 Dr Spautz’ affidavit was read and this was supplemented by some documentary exhibits. Mr Morrow did not put on any evidence. Final submissions were then made.
14 Dr Spautz had prepared a list of some 35 documents to which he claimed entitlement and which he claimed had not been delivered to him. I was satisfied that he had copies of all the documents to which he was entitled except for a submission dated 9 December 1993 which became know in the proceedings before me as document 29. This document allegedly contained some submissions in the appeal in the Court of Appeal in the wrongful dismissal case for which Dr Spautz had been asking Mr Morrow for some time.
15 I raised with Mr Colefax the question as to whether Mr Morrow had in fact delivered document 29 to Dr Spautz. Mr Colefax informed me that his instructions were that Mr Morrow did not have a copy of those submissions and that his client could not produce what he did not have. It was at this stage Mr Colefax sought and was granted the leave to call some evidence in relation to the documents in Dr Spautz’ list.
16 It has not been suggested at any stage in these proceedings that Dr Spautz was not entitled to a copy of document 29.
17 Mr Morrow swore an affidavit on 3 May 1999 in which he said that he did not have document 29 in his possession. He also deposed to the enquiries he had made of both counsel briefed for Dr Spautz as to whether they held any documents and stated that they had advised him that they did not. Indeed his evidence was that Dr Spautz had attended, junior counsel, Mr Cameron’s chambers in 1997 after the appeal and taken away all of the documents held by counsel.
18 Dr Spautz maintained that he had not obtained nor received a copy of document 29.
19 I allowed Dr Spautz to cross examine Mr Morrow on 5 May 1999 and his evidence in relation to document 29 was as follows;
· He was aware that there was a document that counsel had prepared which would answer the description of document 29;
· he believed document 29 had been sent to him by counsel and he reviewed it and discussed it with counsel but did not know where the document was at the time he gave his evidence;
· he denied it was missing because he did not want Dr Spautz to see it and said;

The probable explanation for its absence from my file is that it was delivered to you earlier in 1997 when you attended my office on four or five occasions and took with you large plastic bags of many, many documents that I didn’t need any further.

· he agreed that it was probably a year ago that Dr Spautz first asked him to obtain documents from counsel but he was not sure that document 29 was specifically requested;
· Dr Spautz had informed him that a number of documents were very important to him but he was not able to recall whether document 29 was mentioned in this context;
· when shown a letter of 5 August 1998 from Dr Spautz to him which referred specifically to document 29 he said;

I can see what is written in the letter, yes. I must say that I didn’t read the letter when I got it. Dr Spautz for the last 18 months I suppose has been delivering to me up to three times a week long letters alleging numerous things and apart from glancing at them briefly I have simply put them in a file and ignored them, with some exception, where I felt a response was required but I paid no further attention to them.

· he was never conscious that Dr Spautz was specifically asking for document 29;
· Mr Morrow denied the various suggestions made by Dr Spautz that he had intentionally kept document 29 from him because he knew it would help Dr Spautz win his case against the Newcastle University and/or he knew that it would provide Dr Spautz with ammunition to sue him and counsel in the matter.
20 The evidence concluded and Dr Spautz made final submissions between the morning and luncheon adjournment. When the court reassembled in the afternoon Mr Colefax advised that after Mr Morrow had given his evidence he returned to his office somewhat concerned about Dr Spautz’ interest in the missing document. He advised that Mr Morrow had found a document at the bottom of a pile in an obscure part of his office.
21 It was apparent from the description given that this was a copy of document 29. Mr Colefax then sought leave to re-open the defendant’s case to tender the document. In the circumstances I allowed Mr Colefax to re-open but on the basis that Mr Morrow gave evidence of the circumstances surrounding the location of the document.
22 Mr Morrow gave the following evidence in chief;
I returned to my office this morning and because of the concern that Dr Spautz had about some document that related to submissions to the Court of Appeal it occurred to me that I should look in the bundle of papers that were separate from my files, in fact under my computer. I did not expect to find anything there but a number of copies of the University of Newcastle Act and By Laws.

In view of my evidence this morning I thought I ought to check that. I found under these copies of the Act two documents, one of which is the document Mr Colefax mentioned.
Might I say I apologise to the Court for inadvertently misleading the Court this morning.

23 The document was then tendered and Dr Spautz reserved his position to study the document and compare it with his files and the Registry file. On that basis he did not object to the tender but submitted that it should not be seen as a concession that he agreed that it was the document he had been looking for. The document became Exhibit 2.
24 Mr Morrow was cross examined upon the search he had made and it was suggested to him that it was an incredible coincidence that he had found the document on that day. Mr Morrow said that he did not expect to find the document but he had made the search because he had been so adamant in his evidence that he did not have it.
25 Mr Morrow was asked why he did not send the document to Dr Spautz at the time he received it. Mr Morrow was not sure when he received Exhibit 2 but felt it was in 1997 or later. He said that it had been the practice in Dr Spautz’ cases that he would receive and discuss draft submissions with counsel before they were finalised. He gave the following evidence;
In this case there was a decision taken, of which Dr Spautz was aware at the time, to abandon some points of the appeal. It may be I did not see draft submissions in the case because things were changing fairly quickly at the time.

I believe I did not send you in 1993 a copy of any submissions.
For two reasons. The submissions were prepared on the basis of instructions you gave me that the appeal should proceed only on the basis of Rath J’s decision. Your instructions having been received it seemed to me there would be no point in spending the money in sending a copy of the submissions to you. It would not be my practice to send submissions of a technical nature to a client.
The second reason is at that time and for some months before December 1993 you were not particularly interested in the conduct of this case, or any other case for that matter. I am not quite sure why but whenever I would speak to you about certain instructions you would say if that is your advice go ahead and do it.
At that time and before the decision was made to abandon some points of appeal, before I instructed counsel to abandon those points I telephoned you and told you what senior counsel had advised and what I thought your instructions ought to be. You told me you were happy because of the advice for those points of appeal to be abandoned. Subsequently I wrote to you confirming the advice.

26 The evidence concluded on 5 May 1999 and submissions were finalised. The matter was finally concluded by 19 May 1999 in the circumstances to which I have referred in paragraph 4 above.
Test to be applied
27 Before any leave can be granted to Dr Spautz I have to be satisfied that the proceedings for which he has applied for leave to commence are not an abuse of process and there is prima facie ground for them.
28 McInerney J considered the test to be applied and posed the question for himself in relation to the prima facie ground as whether or not there is some substance, on the face of it, in the allegations made. He also said:
This legislation may be considered to be draconian and its consequences for a litigant are severe. Be that as it may, once the orders are made under s84(1) the plaintiff carries the onus of satisfying me this material is not an abuse of process and that there is prima facie ground for the proceedings.

(Spautz v Williams & Ors p15-16)

29 Leave was refused in that case on the basis that it cannot be said he has established these proceedings are not an abuse of process or have a prima facie chance of success (p. 22).
30 It is an abuse of process to commence proceedings which are doomed to failure (Charles Forte Investments Ltd v Amanda (1964) 1 Ch 240; Mann v Goldstein (1968) 2 All ER 679 at 771; Bryanston Finance Ltd v De Vries (No2) (1976) Ch 63 at 76-79). Proceedings may be doomed to failure because no reasonable cause of action is disclosed or, to use McInerney J’s expression, they have no prima facie chance of success.
31 The requirement to establish the matters within s84(4) of the Act allows the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance.(Jones v Skyring (1992) 66 ALJR 810 per Toohey J)
Bills of Costs proceedings
32 Dr Spautz claims that between 1997 and 1999 Mr Morrow was requested to provide him with bills of costs in assessable form for each of his cases. Dr Spautz gave evidence that Mr Morrow had persistently ignored or refused his request for the bills of costs.
33 On 24 March 1999 Dr Spautz wrote to Mr Morrow giving him what he described as notice of intention to apply for assessment of costs.
34 Dr Spautz relied upon what he described as statements of fact in respect of the requests for the bills of costs.
He persistently refused to provide me with an itemised bill of costs until induced to do so by the OLSC (Office of Legal Services Commissioner).

When he finally produced it he failed to include all of the information mandated by the Rules and Regulations pursuant to the Legal Profession Act.
He has unjustifiably ignored my repeated requests for a properly amended bill or supplementary bill or supplementary statement.

35 Additionally he claimed that in the false imprisonment case:
He has unjustifiably ignored several requests for a copy of the draft bill of costs that he prepared and made available to the Crown Solicitor and/or a final bill of costs which I need for purposes of negotiating with the Crown Solicitor for recovery of costs.

He has unjustifiably refused to continue the negotiation with the Crown Solicitor for recovery of costs which he started in 1997.
He unjustifiably insisted that I abandon my right to receive a itemised bill of costs from the Crown Solicitor and barrister for each of the proceedings in the Supreme Court and Court of Appeal.
He unjustifiably insisted that I abandon said right as a precondition for resumption of the said negotiations.
He unjustifiably persisted in said refusal when even after I obtained the required bill of costs from the Crown Solicitor personally (which was many months after I first requested it and only after intervention by the OLSC).
He has unjustifiably ignored several requests for an itemised bill of costs for his (incomplete) work including the said partial negotiation in 1997. He unjustifiably paid himself for said work out of the trust account knowing that I did not approve of it.

36 Mr Colefax who appeared for Mr Morrow submitted that the Court would not be satisfied that there was prima facie ground for these proceedings. He submits that Dr Spautz vacillates between claims that Mr Morrow has refused to provide a bill of costs yet states that he has received a bill of costs after intervention by the OLSC. Mr Colefax submits that the onus is firmly on Dr Spautz and that he has not discharged that onus.
37 Dr Spautz approach to this matter lacks precision. However he submits that he is entitled to a bill of costs in assessable form because he claims that he has been overcharged. There is no evidence before me as ot the amount charged, the basis of the charge, when fees were rendered and/or paid or whether any, and if so, which aspects of the services provided by Mr Morrow were covered by a grant of legal aid. There is some evidence which suggests that there was a grant of legal aid for a limited period.
38 Mr Morrow provided some of his legal services without fee. This appears from a letter in evidence from Mr Morrow to Dr Spautz dated 15 April 1999 which stated;
I note that you recently asked me to turn over to you my file relating to the unsuccessful application to the High Court in the wrongful dismissal case. As that matter was undertaken by me and by counsel on the basis that no fee would be charged unless that appeal succeeded, and as no fees have in fact been charged in the matter I regard the contents of the file as my property.

Mr Morrow went on to offer Dr Spautz photocopies of the file at his expense.

39 There is also some evidence that Dr Spautz raised with Mr Morrow his entitlement to transfer moneys from his trust account to pay Mr Morrow’s costs and counsels’ fees. This matter was raised in mid 1998 and Mr Morrow did respond to Dr Spautz on this occasion in the following terms:
In relation to your query about the payment of legal fees and disbursements from my trust account I advise that the payment was made pursuant to the Authority and Charge dated 9 September 1991 and relevant provisions of the Legal Profession Regulation.
40 I am not aware of the period to which the bill or bills of costs which have been produced to the Crown Solicitor’s Office relate(s). None of these bills are in evidence.
41 Dr Spautz has made broad allegations which, as Mr Colefax submits, vacillate from production to non-production in a most unsatisfactory manner. Additionally Dr Spautz claimed in paragraph 45 of Annexure A to his affidavit of 29 April 1999 that;
He has unjustifiably ignored several requests for a copy of the draft bill of costs that he prepared and made available to the Crown Solicitor;

Dr Spautz then claimed in paragraph 50 of Annexure A to the same affidavit;

He unjustifiably persisted in said refusal even after I obtained the required bills of costs from the Crown Solicitor personally (which was many months after I first requested it and only after the intervention of the OLSC)
42 It appeared to me on this evidence that Dr Spautz had obtained the bill of costs that Mr Morrrow had given to the Crown Solicitor. However in submissions on 5 May 1999 this topic was dealt with in the following way;
Her Honour; You say that he gave it to the Crown and.. that you have asked him for a copy and.. he unjustifiably refused to give you a copy of the document he gave to the Crown

Dr Spautz;. Made available, I didn’t say gave, made it available in a letter and they never took up his offer. Made available is not the same thing as giving.
I suppose on one view this may be technically correct but it was an unimpressive submission in the light of paragraph 50 of the annexure to Dr Spautz’ affidavit.

43 Even on his own evidence it is clear that Dr Spautz has some bills of cost. It is not clear what the alleged problem may be with those bills except in the sense that Dr Spautz makes a very broad allegation that they are not detailed enough for him. As I have said I do not have those documents before me.
44 Dr Spautz also claims that he wishes to have bills of cost in all the matters referred to in the proposed order for the last 7 years. Dr Spautz apparently signed an authority in 1991 and apparently received accounts from Mr Morrow in the matters other than the matters to which the grants of legal aid applied and the matter in which Mr Morrow acted without a fee. However once again I do not have any evidence before me setting out these matters.
45 In all the circumstances on the evidence before me I am not satisfied that Dr Spautz has discharged his onus to satisfy me that the bills of costs proceedings are not an abuse. I am also not satisfied that there is prima facie ground for the proceedings. I therefore refuse leave to commence the bills of costs proceedings.
The delivery up of documents
46 Dr Spautz maintains that he is entitled to an order for the delivery of certain documents which are contained in an annexure to his affidavit sworn on 29 April 1999 in support of the application.
47 I am satisfied that Dr Spautz has all the documents on that list except for the originals of the letters he sent to Mr Morrow and the copies Mr Morrow retains of the letters he sent to Dr Spautz. However I am satisfied that Dr Spautz has copies of all those documents.
48 The only document which it appeared Dr Spautz may not have had to which he was entitled was document 29. I am satisfied that he now has that document in the form of the copy of Exhibit 2. This exhibit is identical to the document that is in the Registry file of the Court of Appeal matter to which both parties have had access and which I have had copied and marked as exhibit 4.
49 In all these circumstances I am not satisfied that there is prima facie ground for the proceedings and I am not satisfied that the proceedings are not an abuse. I therefore refuse leave to bring the delivery up of documents proceedings.
Alleged Torts Proceedings
50 Although Dr Spautz has filed a formal complaint against Mr Morrow in relation to his professional conduct with the Office of the Legal Services Commissioner (OLSC) it must be made clear that I am dealing with Dr Spautz’ entitlement to leave to bring proceedings in this court for what he claims are alleged torts.
51 Although it is not clear Dr Spautz seems to put his case thus;
· He instructed Mr Morrow to appeal on a basis which included a ground that the wrongful dismissal matter should be referred back to Rolfe J as, it is alleged, Rolfe J did not answer a number of questions which should have been answered;
· Mr Morrow did not appeal on this ground but on others and this ground was abandoned without Dr Spautz’ authority and/or in the face of express instructions not to abandon it.
52 Mr Morrow gave evidence that he had discussed the abandonment of grounds of appeal with Dr Spautz and that he had been given instructions to proceed on that basis. Indeed he gave evidence that at that time Dr Spautz had said that if it was his advice he should go ahead and do it. There is no issue between Dr Spautz and Mr Morrow that Mr Morrow did tell him that the ground of appeal was doomed to fail or alternatively was futile.
53 In any event a question that arises is where does all this take Dr Spautz. There is no evidence before me from which I could infer that Mr Morrow’s conclusion about the particular ground of appeal was other than a sound professional judgment at the time.
54 Dr Spautz made many broad allegations within the affidavit in support of his application such as He frequently gave me bad advice and He frequently failed or refused to explain his advice or to quote the authorities on which he was relying.
55 Although there is material alleging that Mr Morrow has transferred money from his trust account without authority there is no particularity to the claim as to when this may have occurred or in what amount or in which particular case. Mr Morrow has referred Dr Spautz to the authority he signed in 1991 in his letter referred to in paragraph 39 above. That letter refers to a query about the payment. That query has now surfaced as an allegation.
56 I have taken into account the fact that Dr Spautz is not legally qualified and that he is a litigant without legal representation. I am conscious of the view expressed in Attorney General (Cth);Ex Parte Skyring (No 2)(1996) 70 ALJR 985 by Kirby J at 987 that;
It is always necessary to keep open the possibility, particularly where a person is not represented, that there might be, in the issues which he or she wishes to litigate, some question of substance hidden amongst all the words.
57 I have looked very carefully amongst all the words and I cannot discern from them the essential features of any proper cause of action.
58 Dr Spautz relied upon the circumstances to which I have referred earlier in relation to Mr Morrow’s location of document 29 as evidence which would ground a finding adverse to Mr Morrow on this application. There is no doubt that the circumstances were somewhat controversial in the light of the history of the matter and the parties’ history generally. However far from forming any adverse view of Mr Morrow urged upon me by Dr Spautz I have formed the view that Mr Morrow acted honestly in a situation which might reasonably have been viewed as exquisitely embarrassing for him.
59 The allegations made by Dr Spautz against Mr Morrow of perversion of the course of justice and conspiracy to pervert the course of justice have been made without a scintilla of credible evidence.
60 I am not satisfied that this is not an abuse of process and I am not satisfied that there is prima facie ground for the proceedings. I therefore refuse leave to commence the alleged torts proceedings.
Conclusion
61 I refuse leave to commence any of the proceedings in the Summons. The Summons is dismissed. Having regard to the late discovery of document 29 the parties are to pay their own costs.
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Last Modified: 06/11/1999