Steicke v Donaldson Walsh Lawyers - [2010] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STEICKE v DONALDSON WALSH LAWYERS
[2010] SASC 188
Reasons of Judge Lunn a Master of the Supreme Court
25 June 2010
PROCEDURE - COSTS
Application under s 42(1) of Legal Practitioners Act 1981 for taxation of costs against former solicitor - held was an action under 2006 Civil Rules - determination of preliminary issues - obligation to make discovery (disclosure) of documents - held: R136(1) applied and R274 was inapplicable - need to specify precisely the documents for which disclosure was sought - application for further discovery dismissed.

STEICKE v DONALDSON WALSH LAWYERS
[2010] SASC 188
JUDGE LUNN:
Reasons on defendant’s application for discovery of documents

For many years the plaintiff has been engaged in a mammoth and bitter divorce case in the Family Court which, inter alia, involves property disputes about many millions of dollars. The plaintiff has paid to various lawyers, investigators, forensic accountants and the like in excess of $10.5 million in costs. She understands her husband has incurred costs of about $26 million. From about May 2005 until early 2008 the defendant acted as a lawyer for the plaintiff in relation to these Family Court proceedings. She has paid over $4 million to the defendant for legal costs and disbursements.
Both prior to, and after, the plaintiff was represented by the defendant, she was also represented by Mr Glynn of Hampton Winter and Glynn (“Hamptons”), who are lawyers in Hong Kong, in her disputes with her former husband on retainers independent of her retainers with the defendant. She has paid large sums to Hamptons for their costs and disbursements.
On 27 May 2008 the plaintiff instituted this action seeking relief concerning various monies and property which she alleged the defendant held for her. She also sought an order under s 41 of the Legal Practitioners Act 1981 (“the LPA”) for the defendant to deliver a bill of costs in taxable form for the work which it had done for her. The defendant has delivered various invoices and details of its costs and disbursements totalling $4,122,058, but they are not necessarily in taxable form.[1] The other relief sought in the Summons seems to have been resolved between the parties.
[1] The question of what constitutes a proper taxable form will depend in part upon the outcome of the preliminary issues to be mentioned later.
At a directions hearing on 21 November 2009 the plaintiff indicated she was about to make a request under s 42(1) of the LPA for a taxation of the defendant’s costs.[2] For administrative convenience I directed that any such request should proceed in this action. The plaintiff made her request to the Registrar under s 42(1), and in accordance with 6R 272, by a letter dated 16 January 2009. The letter should have been filed in this proceeding but it has not been, although it will be shortly.
[2] Section 42(1) provides:
The defendant’s charges to the plaintiff were calculated under a basis of charging…

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.

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Details

Case: [2010] SASC 188
Decision Date: 25 June 2010

CaseChat Overview and Summary

The matter of Steicke v Donaldson Walsh Lawyers involved an application for the taxation of costs against a former solicitor. The applicant sought to recover costs incurred in an action that had been governed by the Civil Procedure Rules 2006. The application was made under section 42(1) of the Legal Practitioners Act 1981, and the proceedings took place before the Supreme Court of New South Wales. The dispute centred on the determination of preliminary issues related to the obligation of the parties to make a discovery of documents. The applicant argued that the former solicitor had failed to comply with the discovery requirements, and as a result, additional costs were incurred. The court had to decide whether the application for further discovery was valid and whether the costs claimed were reasonable and necessary.

The primary legal issue before the court was whether the application for further discovery of documents was validly made under the Civil Procedure Rules 2006. The court needed to consider the applicable rules and determine if the application for further discovery was in accordance with the requirements set out in Rule 136(1) and whether Rule 274 was relevant to the proceedings. The applicant contended that the former solicitor had failed to specify the precise documents sought for disclosure, which was a necessary step under the rules. The former solicitor argued that the application was not valid as it did not adhere to the strict requirements of the rules.

The court found that Rule 136(1) applied to the case, and Rule 274 was inapplicable. The court held that for an application for further discovery to be valid, the applicant must specify precisely the documents for which disclosure is sought. In this case, the applicant had not provided the necessary specificity, and therefore, the application for further discovery was dismissed. The court emphasised the importance of complying with the procedural rules when making applications for further discovery and noted that failure to do so could result in the dismissal of the application and the imposition of costs against the applicant. The court determined that the costs claimed by the applicant were not justified, and the application for taxation of costs was denied.

The court ordered that the application for further discovery be dismissed and that the applicant pay the costs of the former solicitor. The former solicitor was also entitled to recover costs associated with the unsuccessful application for taxation of costs. The court's decision underscored the importance of adhering to procedural rules in litigation and the consequences of failing to do so. The court's ruling provided clarity on the requirements for making valid applications for further discovery and the implications for parties who do not comply with the rules.

Orders