Steicke v Pederick

Case [2019] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STEICKE v PEDERICK & ANOR

[2019] SASCFC 148

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Lovell)

29 November 2019

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS

Application for permission to appeal against decision of a Master to dismiss an interlocutory application.

Where court orders were prepared by the parties and made with the consent of all parties – where the consent orders contained a self-executing order – where the consent orders had expired and proceedings were concluded – where the applicant filed an interlocutory application seeking for the proceedings to be referred to mediation or in the alternative to be granted an extension of time to comply with the consent orders – where the application for referral to mediation or an extension of time was dismissed – where the applicant seeks to tender further evidential material on the appeal – where the applicant applies for permission to appeal to the Full Court.

Whether further evidential material should be admitted on the appeal – whether the matter should be heard by the Full Court – whether the Master erred in determining he was unable to stay the consent orders and refer the proceedings to mediation – whether the Master correctly identified the consent orders as a contract – whether the Master applied the correct legal test when considering a retrospective extension of time – whether the Master gave weight to irrelevant factors – whether the Master failed to give any weight to relevant factors – whether the Master erred in determining there had not been a misrepresentation by silence on the part of the respondents – whether the exercise of the discretion to dismiss the application was plainly unreasonable.

Held, per Kelly J (Nicholson and Lovell JJ agreeing), refusing permission to appeal:

1.  The applicant has not satisfied the test for admission of further evidential material on the hearing of the appeal and the evidence is not admitted.

2.  In appealing an interlocutory judgment of a Master of the Supreme Court, permission is required to appeal to the Full Court.

3.  Absent a retrospective extension of time, there were no proceedings to stay or refer to mediation and it was not open to the Master to do so.

4.  There has been no misapplication of the principles relating to consent orders.  The Master was correct to characterise the consent orders as a contractual agreement between the parties.  There were no grounds put forward where the interests…

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Steicke v Pederick [2019] SASCFC 148
Case
[2019] SASCFC 148
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia from an interlocutory decision of a Master. The applicant, Ms Steicke, had engaged the respondents, a firm of solicitors, to represent her in long-running Family Court proceedings between 2008 and 2011. Despite receiving itemised invoices and paying the majority of fees and disbursements, Ms Steicke later disputed the respondents' costs. Approximately three years after the retainer ended, Ms Steicke filed an application to tax the respondents' costs. This application was filed on the second day of a Family Court trial concerning the respondents' lien over their files. Ms Steicke also sought an adjournment of the Family Court trial based on this application, which was unsuccessful.

The legal issues before the Full Court included whether permission to appeal should be granted, and in relation to an interlocutory application made by Ms Steicke, whether leave should be granted to adduce further evidence on the appeal. The test for admitting further evidence on appeal requires that the evidence could not have been obtained with reasonable diligence for the original proceedings, would have had an important influence on the result, and is credible, with a real possibility of an opposite outcome had it been before the court at first instance. The Court also considered the public interest in the finality of litigation, particularly where the evidence sought to be adduced relates to matters that occurred before the hearing at first instance.

The Court reasoned that the Master's decision not to grant an extension of time for Ms Steicke to particularise her complaints regarding the respondents' costs was not plainly unreasonable. The Master had considered the lengthy history of the proceedings, the need for finality, and Ms Steicke's failure to particularise her complaints or provide evidence for her delay, even after consent orders intended to provide a final opportunity. The Court found that the Master had applied the correct legal principles and had not erred in exercising his discretion.

Consequently, the Court refused Ms Steicke permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

I agree with the proposition advanced by the respondent. I will now consider whether permission to appeal should be granted. It is first necessary to summarise the factual and procedural history of this matter.Background The respondents were one of a number of different law firms which represented the applicant in long-running Family Court proceedings. The respondents acted for the applicant between 2008 and 2011. Judgment was entered in the Family Court proceedings in November 2017. During the time that the applicant was represented by the respondents, the applicant was provided with regular itemised monthly invoices. The applicant did not dispute any of the respondents’ invoices during the period the respondents were retained, and the applicant paid to the respondents the majority of the fees and disbursements incurred. However, the respondents at times effectively carried the applicant without payment for periods of up to 9 months and, at the time that the respondents ceased acting for the applicant, fees for professional services and disbursements including counsel fees were still owed. Even though the respondents held funds in trust for the applicant in the sum of $300,000 at the time of ceasing to act, the respondents sought orders of the Family Court to have the monies paid into the Family Court Registry in order to enable the applicant to use those funds to continue her preparation for her Family Court trial and to avoid any prejudice to her in that matter. After the respondents’ termination of their retainer, the applicant’s then solicitor, Mr Winter, first floated an issue with the respondents’ fees, although at that time Mr Winter said he still expected the respondents’ outstanding accounts would be paid. On 12 April 2011, Mr Winter told the respondents that he was instructed to tax the fees but nothing eventuated from this. Between 22 June 2011 and 3 December 2012, the issue of taxation of the respondents’ fees was raised on various occasions in correspondence between the parties, however no further particularisation was forthcoming. Approximately three years after the respondents terminated their retainer, on 3 March 2014, the applicant filed the originating application in these proceedings: an application pursuant to the Legal Practitioners Act 1981 (SA) to tax the respondents’ costs (‘Originating Application’). The proceedings giving rise to this appeal arose out of the Originating Application. It was not disputed by the respondent that of the approximately $3 million in fees and disbursements charged by the respondent, most have been paid by the applicant and that the Originating Application therefore related to, for the most part, costs already paid. However, the respondents had separately commenced proceedings in the District Court for recovery of unpaid costs and had also commenced an action in the Family Court claiming a lien over its files. The Originating Application was filed on the second day of the trial in the Family Court with respect to the lien. The applicant made an unsuccessful application to adjourn that trial on the basis of the Originating Application having been filed.

Evidence

Evidence Before The Court

There are certain preliminary matters that must first be addressed. On 24 May 2019, the applicant lodged an interlocutory application seeking leave to adduce further evidence at the hearing of the appeal in the form of affidavits, and seeking that the appeal be heard by the Full Court. That application was heard at the outset of the appeal hearing before the Full Court on 7 June 2019. It is appropriate to consider this application before turning to consider the issues on appeal, as that will determine the jurisdictional issue and the extent of the admissible evidence that was before the Court on the hearing of this appeal. Interlocutory application: admission of further evidence and jurisdictionAdmission of further evidence Rule 286 of the Supreme Court Civil Rules 2006 (SA) (‘SCR’) permits this Court, at its own discretion, to hear further evidence on a question of fact. The applicant seeks to adduce further evidence by way of an affidavit of the applicant, Elisabeth Steicke, sworn 23 May 2019. That affidavit annexes four more affidavits, which the applicant seeks to have admitted into evidence, as follows: ·Affidavit of Luke Rowley, sworn 13 February 2018, which was prepared for the hearing on 27 February 2018 of the respondents’ application for dismissal of the applicant’s original application, which ultimately culminated in consent orders signed by the parties on 28 February 2018;·Affidavit of Elisabeth Steicke, sworn 23 February 2018;·Affidavit of Elisa Capone, sworn 14 March 2017, outlining the reasons why her daughter, the applicant, was overseas at particular times;·Affidavit of Anna Capone, sworn 29 November 2017, which further annexes:- A letter from Dr Richard Clark dated 10 August 2017 explaining the applicant’s health conditions; and- A Medical Certificate dated 5 October 2017. The test for the admission of further evidence on an appeal is that the evidence could not, with reasonable diligence, have been obtained for use during the original proceedings, the evidence is such that it would have had an important influence on the result of the decision the subject of the appeal, and the evidence is credible.[3] The test is ultimately one of what the Court determines is in the interests of justice and there must be a real possibility that an opposite result would have been reached had the evidence been before the Court at first instance.[4] Where the evidence sought to be adduced is further evidence of matters that occurred at a point in time before the hearing at first instance, that material ought to have been adduced at the initial hearing of the matter and ought not be introduced on appeal, due to the public interest in the finality of litigation.[5] [3] Sunlight Nominees Pty Ltd v Zotti & Zotti [2019] SASCFC 11; Orchard v Orchard (1972) 3 SASR 89; Ferguson v Apex Steel Supplies Pty Ltd [2018] SASC 89.[4] Woods v Roberts (1997) 195 LSJS 328. [5] Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235.

Decision

Reasons for decision

KELLY J
In light of all of the above considerations, the decision of the Master cannot be said to be plainly unreasonable. The Master had regard to all of the relevant material, including the lengthy history of the proceedings, and also had regard to the need for finality in proceedings such as these. The applicant had instigated her application for adjudication of costs in 2014 and had failed to particularise her complaints in any detail whatsoever. The Consent Orders were intended as a final opportunity for her to provide the respondents and the Court with some guidance as to the substance of her complaints. She failed to do so, and failed to provide any evidence or explanation for the failure to do so. There was no evidence before the Court as to what the applicant would do even if an extension of time was granted. The nature of the Consent Orders was such that it would not have been in the interests of justice to grant the applicant’s application for an extension of time. The Master’s decision was reasonable in all of the circumstances. Conclusion For the reasons set out above, I consider that the Master applied the correct legal principles when assessing the Interlocutory Application. I do not consider that the Master erred in exercising his discretion in the manner that he did. The result was not plainly unreasonable. I would refuse the applicant permission to appeal to this Court. NICHOLSON J: I agree that permission to appeal should be refused for the reasons given by Kelly J. LOVELL J: I agree for the reasons given by Kelly J that permission to appeal should be refused.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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