Sudholz v Brown
[1999] VSC 377
•1 October 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 6275 of 1996
| MICHAEL SUDHOLZ | Plaintiff |
| v | |
| BROWN & PROUDFOOT | Defendant |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 1999 | |
DATE OF JUDGMENT: | 1 October 1999 | |
CASE MAY BE CITED AS: | Sudholz v Brown & Anor | |
MEDIA NEUTRAL CITATION: | [1999] VSC 377 | |
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Appeal – leave to reinstate appeal – leave to appeal out of time – Order 46 – discovery of privileged documents – prejudice.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr M.S. Whelan QC with | Behan & Speed |
| For the Defendant | Mr P.G. Cawthorn | Middletons Moore & Bevans |
HER HONOUR:
I have before me a number of applications in relation to a matter fixed for trial on Thursday next, 7 October. The claim brought by the plaintiff, Michael Sudholz, against the defendant, Brown & Proudfoot, relates to allegations of negligence with respect to the failure to draw a will or draw a will competently whereby the plaintiff alleges that he was deprived of a bequest under the will of his late father.
A dispute arose between the parties concerning discovery of documents. In an affidavit of documents sworn by Mr Sudholz on 26 March 1999 privilege was claimed with respect to a number of memoranda of advice by counsel and opinions given by counsel. These documents are described as items 31, 32, 33, 34, 35 and 36 in the affidavit of discovered documents.
Privilege was claimed with respect to each of these memoranda. As a result, the claim for privilege together with privilege claimed concerning other documents was the subject of a summons issued by the defendant returnable before Master Wheeler on 18 August 1999.
After reserving his judgment, the Master made orders on 31 August 1999 finding that privilege was not waived with respect to the relevant documents.
In the course of making his orders, the Master gave written reasons. I have had the opportunity to consider those reasons.
Subsequent to the orders made by the Master on 31 August 1999, the solicitors for the defendant filed a notice of appeal on 6 September 1999 returnable before a judge in the practice court on 13 September 1999. On the return of that appeal, hereafter called the first notice of appeal, there was no appearance for either party. As a result, the notice of appeal was dismissed. The first notice of appeal was within time pursuant to the rules.
As matters transpired, it is apparent from affidavits filed by the solicitors for both parties that discussions ensued between the respective solicitors. Ultimately, the solicitors for the defendant indicated to the plaintiff's solicitors that an appeal would not be pursued against the orders of the Master made on 31 August 1999.
It would appear from an affidavit sworn by the plaintiff's solicitor, Mr Papier, that he was not aware and certainly not served with the first notice of appeal. After the issue of the first notice of appeal, a number of discussions occurred between the solicitors, and on
9 September 1999 Mr Papier was advised by a person called "Diane" from the office of the defendant's solicitors that, "The defendants had given them instructions not to proceed with the appeal".
So far as the plaintiff's solicitors were concerned at that stage, it was regarded as the end of the matter concerning any appeal from the orders made by the Master on 31 August 1999. Thereafter, a number of discussions occurred between the respective solicitors, in particular discussions concerning a proposed mediation to be conducted later in the month of September.
In the meantime on 15 September 1999 the matter was called over before the Listing Master and the trial date of 17 October 1999 was confirmed.
It is deposed on affidavit by Mr Papier that no mention was made by the defendants at the callover of any intention to further appeal against the decision of the Master.
Subsequently, the matter proceeded to a mediation on 22 September 1999. The mediation did not resolve the proceeding. As a result, counsel continued to be retained in the matter for the plaintiff and the matter was prepared for trial.
It transpires that having resolved on a previous occasion not to proceed with the first notice of appeal, the defendant determined to change course. In an affidavit sworn by Mr Guy Boyd, the solicitor for the defendant, he has deposed with respect to the resolution not to proceed with the first notice of appeal, "My client instructed my firm not to commence an appeal at that time as counsel had advised that on balance the appeal could fail and result in further legal costs being payable by my client". There is no other reference or explanation provided in the affidavit of Mr Boyd as to the fact of the issue of the first notice of appeal and the determination not to proceed with that notice, save for the inference that can be drawn from the quotation I have just made. In any event, other counsel was briefed in the matter for preparation for the trial on behalf of the defendant. As a result of advice from that counsel, the defendant was apparently advised to proceed with seeking leave for an appeal against the orders of the Master and to conduct the appeal forthwith.
It seems that as a result a further notice of appeal was filed and, on this occasion, served. The notice of appeal I hereafter refer to as the second notice of appeal was filed on 28 September 1999 and made returnable this day.
On the return of the second notice of appeal this morning, I raised with counsel for the defendant as to the position of his client given that the second notice of appeal was out of time and, furthermore, the fact that the first notice of appeal had been dismissed. It was apparent that counsel, through no fault on his behalf, had not been given instructions as to the existence of the notice of appeal.
In any event, as a result of these circumstances, I have before me a number of applications.
Firstly, an oral application on behalf of the defendant seeking an order pursuant to Order 46.08 to set aside the orders made on 13 September 1999 concerning dismissal of the first notice of appeal. There is no summons in support of that application; nor is there any affidavit.
For the reasons I have already indicated, there is nothing in the affidavit of Mr Boyd to support that application.
The second matter before me is an application that if the oral application to set aside the orders on
13 September 1999 succeeds, then for the appeal to proceed on the basis of the first notice of appeal.
I have then a third application which is that contained in the second notice of appeal, being the application for extension of time to appeal and the second notice of appeal itself.
Turning firstly to the oral application to set aside the orders made on 13 September 1999, as I have said, there is no evidence to support that application. In any event, if I allow the best view possible on the matters deposed to by Mr Boyd in his affidavit, it is apparent that there has been no mistake or error on the part of the defendant. Rather, the defendant has embarked upon a deliberate course not to proceed with the first notice of appeal.
In effect, having made that decision, the defendant now seeks to vary its position, change course and have the consequential orders, made on the basis that it determine not to proceed with the first notice of appeal, set aside. The authorities indicate that the discretion under Order 46.08 should not be exercised unless it is apparent that there has been a mistake or error or tardiness on the part of the party concerned. That is not the case here. There has been a deliberate decision made. Accordingly, it follows that the first application, the oral application pursuant to Order 46.08 fails.
In any event, if I am in error with respect to that application, I turn to the issue as if the first notice of appeal had been reinstated. I have taken the opportunity, as indicated, to consider the written reasons of the Master underlying his orders made on 31 August 1999. I have also taken the opportunity with the consent of counsel for both parties to read the four documents that are now the subject of the application before me.
Having had that opportunity, I make a number of observations. Firstly, the document referred to as memoranda No. 5 refers to, "This memorandum is to confirm our advice previously given that our client should compromise his claim against the estate".
The reference to "our advice" is not and cannot be taken to determine or indicate a reference to the previous memoranda, being memoranda numbers 1, 2, 2A and 4. In any event, even if I am wrong with respect to that matter, I have, as I have indicated, taken the opportunity to consider those four memoranda. I am satisfied that the matters contained in those memoranda are concerned with proceedings against the solicitors, namely, these proceedings, and therefore are clearly privileged.
I note that in his reasons the Master stated, "I have now read each of the other memoranda being documents 31 to 35 and find nothing in those which to my mind could in any way contain advice or information privileged to which could be waived by the waiver of the privilege in respect of document 36". It is fair to say most of the matters considered in those memoranda go quite separately to the negligence of the father's former solicitors, namely, the defendants to this proceeding.
Having had the opportunity to consider the relevant documents, I agree entirely with the opinion formed by the Master.
It follows then that I consider that even if the defendant was allowed to proceed on the basis of the first notice of appeal, it is totally unmeritorious and no purpose would be served with allowing that notice of appeal to proceed.
I turn now to the third application, which is the application for extension of time for appeal and the notice of appeal being the second notice. In my view, the discretion ought not be exercised for the reason that the application by the defendant is tantamount to a second attempt at appeal, it having determined on an earlier occasion, not by error, not by mistake, and not by tardiness, but in fact by election, not to proceed to appeal. In my view, the defendant is bound by that course, and it ought not seek an indulgence from the court having made that decision.
It follows from the reasons I have expressed that in any event the application for extension of time with respect to the bringing of the second notice of appeal is refused. Even if I am in error with respect to the refusal of that extension of time, for the reasons already indicated with respect to the merits of the first notice of appeal, I consider that the second notice of appeal would fail.
It is appropriate to consider the issue of prejudice with respect to the oral application to reinstate the first notice of appeal and the application for leave to proceed on the second notice of appeal. Upon the defendant's solicitors declaring their client's position not to proceed with an appeal the plaintiff has confirmed the setting down of the matter, proceeded to a mediation and prepared for a trial less than a week hence. The plaintiff has embarked therefore on a course that he might not otherwise have done and which might not necessarily be compensated for by an order for costs. Furthermore, if the defendant was permitted to set aside or disregard its election with respect to the first appeal and succeeded on either appeal the plaintiff's trial date might be affected. On balance, the defendant is the victim of circumstances of its own making. The plaintiff should not be compelled to risk the potential prejudice I have described because of the conduct of the defendant.
In all those circumstances, the applications on behalf of the defendant should be dismissed.
The orders I make are:
1.The oral application by the defendant to set aside the orders made on 13 September 1999 is dismissed.
2.The defendant's application by notice of appeal dated 28 September 1999 is dismissed.
3.The defendant pay the plaintiff's costs.
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