Thorpe v NK Ceilings (1992) Pty Ltd
[2007] WADC 41
•3 APRIL 2007
THORPE -v- NK CEILINGS (1992) PTY LTD [2007] WADC 41
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 41 | |
| Case No: | CIV:1994/2006 | 23 FEBRUARY 2007 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 3/04/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application unsuccessful | ||
| PDF Version |
| Parties: | ANDREW CECIL THORPE NK CEILINGS (1992) PTY LTD (ACN 057 779 978) |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Application of defendant for summary judgment and to strike out statement of claim Whether suspended practitioner may recover for services previously rendered Legal Practice Act 2003, s 3 and s 230 |
Legislation: | Legal Practice Act 2003 |
Case References: | Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 Lashansky v Legal Practice Board [2006] WASC 247 Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NK CEILINGS (1992) PTY LTD (ACN 057 779 978)
Defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application of defendant for summary judgment and to strike out statement of claim - Whether suspended practitioner may recover for services previously rendered - Legal Practice Act 2003, s 3 and s 230
Legislation:
Legal Practice Act 2003
Result:
Application unsuccessful
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J Curthoys
Defendant : Mr D J Garnsworthy
Solicitors:
Plaintiff : B W Duckham & Co
Defendant : Hotchkin Hanly
Case(s) referred to in judgment(s):
Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
Lashansky v Legal Practice Board [2006] WASC 247
Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151
(Page 3)
1 DEPUTY REGISTRAR HARMAN: By the plaintiff's claim in the action he seeks to recover the cost of legal services provided to the defendant together with an agreed sum for his costs of the defendant's application for an extension of time within which to request itemisation of the plaintiff's account.
2 The defendant seeks summary judgment, alternatively to strike out the statement of claim. The applicant carries the onus of persuasion. The standard set by Dixon J in Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 at 90 when speaking of the Victorian equivalent of O 16 of the Supreme Court Rules1971 was that it
"… is the counterpart for defendants of O X1V. It confers a power of summary dealing with an action which …. should be reserved for exercise as to actions that are absolutely hopeless."
3 At p 91 his Honour went on to say:
"A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff from presenting his case for determination in the appointed manner by the Court …"
4 The relevant history of the relationship between the parties is that prior to his suspension from practice in September 2004 the plaintiff had provided services to the defendant under a common law retainer established in or about May 2002. The plaintiff's account for the services the subject of this action was rendered on 25 November 2004. After the defendant had made an application in the Supreme Court of Western Australia for an itemised account the parties agreed that the plaintiff would provide the itemisation and the defendant would pay the plaintiff's costs of the application in the amount of $600. The itemised account is dated 21 September 2006. On 16 October 2006 the action was commenced.
5 In support of the application the defendant relies upon the affidavit of Joe Impicciatore sworn 6 November 2006 to which he annexes the account and the itemised account and deposes to the fact that upon legal advice he believes that the plaintiff has no valid cause of action against the defendant.
(Page 4)
6 Section 230 of the Legal Practice Act 2003 is as follows:
"(1) A legal practitioner must not sue for the recovery of any services, fee, charges or disbursements until a bill for the services, fee, charges or disbursements has been served upon the party charged.
(2) The bill may be –
(a) a bill containing detailed items; or,
(b) a bill for a lump sum."
"(a) who is admitted as a legal practitioner, whose name is on the Roll of Practitioners and who is not a disqualified person; or
(b) who is an interstate practitioner who practices in this State;"
8 It defines a disqualified person as a person who:
"(a) has been struck off the Roll of Practitioners or a roll kept outside the state that corresponds to the Roll of Practitioners (unless the person has been re-admitted); or
(b) is suspended, disqualified or otherwise prohibited from engaging in legal practice in this State or in any other place (whether in or outside Australia)."
9 The applicant submitted that on 16 October 2006 plaintiff was not entitled to sue as he was not then a legal practitioner. The plaintiff submitted that his suspension had no greater effect than to preclude him from undertaking the work of a legal practitioner: it would not preclude him from recovering fees for services rendered prior to his suspension.
10 Counsel were unable to refer to any authority directly on point although reference was made to persuasive reasons provided by the Supreme Court in two recent decisions. In the first of those cases, Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151 Jenkins J dealt with an application to extend a caveat lodged to secure costs. It is my understanding of that case that those costs had not been quantified. Paragraphs 46 and 47 of the reasons are in part as follows:
(Page 5)
- "… The taxation of that account came before Registrar Powell on 11 November 2005. The Registrar declined to proceed with the taxation. He reasoned that as the plaintiff was suspended from practice at the time he rendered the bill he was not a legal practitioner as defined in the Legal Practice Act 2003 (WA) ("the Legal Practice Act"). As only legal practitioners can render bills under that Act, Registrar Powell decided that the plaintiff could not rendered a bill whilst he was suspended from practice. Therefore he had no power to tax the bill. His reasoning applies all the bills the plaintiff purportedly rendered in February 2005. (Sic)
On this reasoning, which is not challenged in this application, and if the Legal Practitioner Act, s 230 is applicable, the plaintiff is presently unable to sue for his outstanding legal costs by utilising the provisions of the Legal Practice Act. Section 230 requires a legal practitioner to serve a bill before suing on it. If the plaintiff is not a legal practitioner, as defined by the Act, then he cannot serve a bill. …"
11 After that point the determination reflected the circumstances of the parties before her and she ultimately applied the appropriate test for maintaining or extending a caveat; none of which has any bearing on the determination of the issue before me. Having said that, the plaintiff in that case and the case before me are the same and at the time of the decision the process of disqualification of the plaintiff had not reached its conclusion.
12 The other decision is reported as Lashansky v Legal Practice Board [2006] WASC 247, the relevant portion of the reasons upon which the parties sought to rely is expressed at par 79 is as follows:
"Clearly, when the costs were paid, Mr Lashansky was a disqualified person, by reason of his suspension from practice. That being so, he was not then a legal practitioner. However, I do not consider that the disqualification provisions of the Legal Practice Act were intended to deprive Mr Lashansky of valuable rights which came into existence before his suspension."
13 In that case the suspended practitioner had sought to maintain his lien over funds as against the liquidator of a corporation. I would interpret the extract from the reasons of Templeman J as support for the
(Page 6)
- proposition that a practitioner once suspended would not deprived of the right to recover the cost of services previously provided unless there had been an express provision in the relevant legislation to that effect.
14 That observation reinforces the submission of the plaintiff; that the issue raised by the application is ultimately a matter of statutory interpretation. In similar circumstances where issues of interpretation have arisen it has generally been my view that they are more appropriately determined at trial despite the fact that it is likely that there would be little more evidence produced at trial. My reasoning is that if there is scope for a debate in relation to the meaning of a provision, then that scope reveals something other than a clear case; the hallmark of success in a summary judgment application. Before I conclude I would add that along with the issue of statutory interpretation there is at least scope to consider that s 230 simply does not apply.
15 Although no case was expressly put in relation to the part of the claim for recovery of agreed costs, I took from the submissions that the defendant would contend that the plaintiff has not provided an itemised account. What impact that would have on the agreement I do not know and that observation simply underlines the fact that there is insufficient evidence to consider whether summary judgment would be justified.
16 I did not understand that the application put in relation to the pleading was any different to that in support of summary judgment.
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