Von Doussas Legal Pty Ltd v Nasr - [2008] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
VON DOUSSAS LEGAL PTY LTD v NASR
[2008] SASC 206
Judgment of The Honourable Justice White
25 July 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - NECESSITY FOR FINDING TO BE CLEARLY WRONG
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - RETAINER - EXTENT OF RETAINER
Appeal against judgment entered by a magistrate for part only of a solicitor's claim against a former client for legal fees in respect of a Supreme Court appeal - whether Magistrates Court had jurisdiction to hear and determine all issues concerning the liability for the claimed costs - whether magistrate erred in finding that respondent was not liable for costs of the appeal - whether magistrate erred by failing to make any award of interest.
Held: Magistrates Court had jurisdiction to hear and determine all issues concerning the liability (but not the quantum) for legal fees - magistrate's finding that respondent was not liable for costs of the appeal was based on his assessment of the credibility of witnesses - magistrate's conclusion was not glaringly improbable or inconsistent with incontrovertible facts or uncontested testimony - magistrate did not overlook the issue of interest on the judgment sum but simply entered judgment for the amount agreed between the parties - appeal dismissed.
Magistrates Court Act 1991 (SA) s 34; De Facto Relationships Act 1996 (SA) s 9; Legal Practitioners Act 1981 (SA) s 41, s 42, s 43; Legal Practitioners Act 1936-72 (SA) s 17; Supreme Court Act 1935 (SA) s 40, referred to.
Fox v Percy (2003) 214 CLR 118; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Keyte (2000) 78 SASR 68; Geister v Police [2008] SASC 177; Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165, applied.
King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd (1981) 29 SASR 316, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED
"glaringly improbable", "contrary to compelling inferences", "inconsistent with incontrovertible facts or uncontested testimony"

VON DOUSSAS LEGAL PTY LTD v NASR
[2008] SASC 206
Magistrates Appeal

WHITE J: The appellant (von Doussas) and another firm of legal practitioners (J P Stevens Lawyers) sued the respondent in the Magistrates Court for the non-payment of legal fees. Save in respects which were admitted by the respondent, the claims failed. The magistrate accordingly entered judgment for the plaintiffs for $6,393.73, which represented part only of their claim.
The dispute determined by the magistrate concerned the liability of the respondent to von Doussas and to J P Stevens in respect of the costs of an appeal to this Court.[1] That appeal was against an order by the District Court restraining von Doussas and, in particular, its consultant Mr Carabelas from acting for the respondent in certain District Court proceedings. I will call that appeal “the Conflict Appeal”. Each of von Doussas and J P Stevens had acted, at different times, for the respondent in prosecuting the Conflict Appeal.
[1] Nasr v Vihervaara [2005] SASC 83; (2005) 91 SASR 222.
The issues raised by the von Doussas’ notice of appeal are these:
1.Did the Magistrates Court have jurisdiction to hear and determine all issues arising in the proceedings? This issue is raised by von Doussas despite it having itself invoked the jurisdiction of the Magistrates Court, and despite it having sought an order from the Magistrates Court that the respondent pay the sum of $20,318.17 to it.
2.Did the magistrate err in failing to find that the respondent was liable to von Doussas in respect of the costs of the Conflict Appeal?
3.Even if judgment was appropriately entered for the principal sum of $6,393.73, did the magistrate err by failing to make any award of interest under s 34 of the Magistrates Court Act 1991 (SA) (MCA)?
4.Did the magistrate err by failing to make an order in respect of the costs of the proceedings?
5.Has the magistrate determined the claim of J P Stevens without having heard from it?
Background Circumstances
On 21 October 2004, a Ms Vihervaara instituted proceedings against the respondent in the District Court (the De facto Action). She sought a division of property under s 9 of the De Facto Relationships Act 1996 (SA) in consequence of the termination of a relationship which she alleged had subsisted between her and the respondent for many years. The respondent retained von Doussas in relation to the dispute about her entitlements. Ms Vihervaara applied to the District Court for an order restraining von Doussas from acting for the respondent in those proceedings. She contended that von Doussas and, in particular, Mr Carabelas, had previously acted for her in relation to her claim; that confidential information given by her to von Doussas may be used to her detriment; and that von Doussas was in breach of fiduciary duties owed to her.
On 2 November 2004, a District Court judge made an order restraining von Doussas and Mr Carabelas from acting for the respondent in relation to the De facto Action. On 10 November 2004 the judge declined to vary his order so as to permit von Doussas to prosecute an appeal by the respondent to this Court.
An appeal against the order made on 2 November 2004 (the Conflict Appeal) was brought by the respondent to this Court. Despite the terms of the District Court order, that appeal was instituted on the respondent’s behalf by von Doussas. When the appeal was called on for hearing on 7 February 2005 the Full Court declined to hear it while von Doussas remained the solicitors on the record for the respondent. The hearing was adjourned to 8 February 2005. J P Stevens was then retained and filed a notice of change of address for service. The hearing of the appeal commenced on 8 February after counsel announced that he was now instructed by J P Stevens. The precise means by which J P Stevens was instructed was not disclosed in the papers on this appeal. The respondent succeeded on the Conflict Appeal.[2] On 15 March 2005 the Full Court ordered that the restraining order made by the District Court be set aside and that Ms Vihervaara’s application to restrain von Doussas and Mr Carabelas from acting be dismissed with costs. The Full Court ordered that Ms Vihervaara pay the respondent’s costs of the appeal, save that von Doussas and Mr Carabelas were ordered to pay Ms Vihervaara’s costs thrown away on 7 February 2008.
[2] Nasr v Vihervaara [2005] SASC 83; (2005) 91 SASR 222.
On 2 June 2005, von Doussas, on the respondent’s behalf, obtained a certification from this Court that the costs payable by Ms Vihervaara to the respondent in relation to the Conflict Appeal had been fixed at $12,096.50, and that that sum was now payable by her. However, as a result of some arrangement between the respondent and Ms Vihervaara, that costs order has not yet been enforced. As I understand it, the sum of $12,096.50 comprised counsel fees of $5,348.00, the fee charged by J P Stevens of $1,448.15, and von Doussas solicitors’ fees of $5,300.35.
The respondent had retained von Doussas as his solicitors in July 2004. On 20 July 2004, he signed a written Terms of Engagement letter prepared by von Doussas. The letter commenced by stating that it set out the general terms on which von Doussas accepted instructions “not only in relation to this particular matter but any further matters in which you may kindly instruct us”. The letter described the particular work for which von Doussas was retained as “[a]ll matters and advice incidental to alleged de facto property settlement and children’s issues matter”.
After March 2005 von Doussas continued to act for the respondent in the De facto Action. However, their relationship gradually deteriorated and on 7 October 2005 von Doussas ceased acting altogether. On 21 October 2005, von Doussas and J P Stevens commenced the proceedings in the Magistrates Court. They sought an order that the respondent pay $20,318.17 (including $1,448.15 to J P Stevens) “for costs and disbursements for work and services rendered to the defendant by the respective plaintiffs in relation to an action in the District Court of South Australia”. By his defence, the respondent denied any liability for the costs of the Conflict Appeal. He claimed that Mr Carabelas had told him that he (Mr Carabelas) considered the District Court decision to be wrong, and that he regarded it as an affront to his professional reputation and probity. For that reason, Mr Carabelas was prepared to conduct the Conflict Appeal at no expense to the respondent in order to vindicate his own position. The respondent also denied that he had in any event entered into any retainer at all to J P Stevens. He admitted liability for the balance of the costs claimed by von Doussas, but claimed a set off in respect of a sum which he had earlier paid into the trust account of von Doussas on account of costs.
The magistrate considered the respondent to be an honest witness. It is apparent that the magistrate had reservations about the reliability of the evidence of Mr Carabelas. The magistrate accepted the substance of the respondent’s evidence and concluded that von Doussas had not established its entitlement to the full amount claimed. The parties agreed, in the light of the magistrate’s findings, that the quantum of von Doussas’ claim was $8,393.73.
On 14 March 2008, the magistrate entered judgment “for all plaintiffs against all defendants” in the sum of $6,393.73, being the sum agreed upon by the parties less the sum of $2,000 “paid into Court”. On appeal, I was told that the sum of $2,000 had not been paid into Court, but into von Doussas’ trust account. The magistrate’s order is in error in this respect but the parties agreed that the sum of $2,000 was to be brought into account in the respondent’s favour.
It does not seem that it was argued at first instance that conduct of the respondent in relation to the obtaining of the certification of the costs of the Conflict Appeal gave rise to some form of estoppel, or was otherwise relevant to the determination of von Doussas’ claim. In any event, no submission to that effect was made on this appeal.
The Challenge to the Jurisdiction of the Magistrates Court
Von Doussas submitted that the Magistrates Court had jurisdiction to determine whether or not the respondent had retained it as his solicitors, but not the jurisdiction to determine the terms of the retainer (whether as originally agreed or as varied subsequently), nor whether particular work had been performed under the retainer. Put slightly differently, the submission was that the Magistrates Court had jurisdiction to determine an issue going to the existence of a retainer but no jurisdiction to determine disputes about the liability for costs arising under it. Von Doussas submitted that once it was acknowledged or found that a retainer existed, it is the Supreme Court which has the exclusive jurisdiction to hear and determine the remaining issues arising on a claim for costs.
The submission was directed only to the kind of claim made in this case. That is, to cases in which the costs claimed were not incurred in relation to proceedings in the Magistrates Court itself. The power of the Magistrates Court under s 37 of the MCA concerning the cost of civil proceedings conducted in that Court was not questioned.
Counsel for von Doussas based his submission on s 42(1) of the Legal Practitioners Act 1981 (SA) (LPA) and on the decision of the Full Court in King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd (KWLC).[3] Section 42(1) of the LPA provides:
(1)     On the application—
(a)     of a person claiming to be entitled to legal costs; or
(b)     of a person who is liable to pay, or who has paid, any legal costs,
the Supreme Court may tax and settle the bill for those costs.
Section 43 has the effect that s 42(1) “applies to costs for any business done by a legal practitioner in his or her professional character whether the business is of a litigious nature or not”.
[3] (1981) 29 SASR 316.
In KWLC the plaintiff (a firm of solicitors) sued a former client in the Local Court to recover costs for non litigious work. Two questions arose for determination. The first was whether the Local Court had jurisdiction to determine issues going to the existence of the retainer relied upon. The second was whether the defendant could dispute in the Local Court action that the charges claimed were reasonable and proper. The Full Court held that the Local Court had jurisdiction to hear and determine the dispute about the existence of the retainer, but not any issue concerning the reasonableness of the charges. That was because the Local Court did not have jurisdiction to tax a bill of costs for work which had not been performed in connection with Local Court actions. King CJ (with whom Mohr and Matheson JJ agreed) suggested that the appropriate course for the Local Court to adopt, having determined that the defendant was liable under a contract of retainer, was to offer it an adjournment for a reasonable time so as to enable it to obtain a taxation of the costs under s 17 of the Legal Practitioners Act 1936-72 (SA) (a predecessor provision of s 42(1)). A failure by the defendant to take advantage of the opportunity could be regarded as an acceptance that the amount charged was proper and reasonable. If the costs were taxed in the Supreme Court, the Local Court could then enter judgment for the amount so certified.
Counsel submitted that KWLC is authority for the proposition that all issues arising in an action to recover costs, when the costs do not relate to an action in the same court, are (apart from any issue as to the existence of a retainer) in the exclusive jurisdiction of the Supreme Court.
In my opinion, this submission should be rejected. It fails to give full effect to the reasons of King CJ and to s 42(1) of the LPA. The distinction drawn in KWLC was not between the existence of a retainer, on the one hand, and the reasonableness of the costs, on the other. It was instead the distinction between issues of liability and issues of quantification. King CJ referred to the English practice of a court, having determined the issue of liability, referring issues as to the reasonableness of the claimed bill to a taxing master.[4] King CJ noted that there were difficulties applying that practice in South Australia bearing in mind the different jurisdictions of the Local Court and the Supreme Court. He suggested, however, that once the Local Court had determined that the defendant is “liable”[5] under a contract of retainer it could adopt the procedure outlined earlier of offering the defendant an adjournment for a reasonable time to enable it to seek a taxation of costs. In the same vein, King CJ later referred to the determination by the Local Court “of the issue of liability”.[6] As it happened in KWLC, the only issue raised as to liability was the issue of the existence of the retainer. That explains the focus in the reasons of King CJ on that issue. I do not see, however, any indication in those reasons that the issues of liability to which King CJ referred were confined to issues about the existence of a retainer.
[4] Ibid at 318.
[5] Ibid at 319.
[6] Ibid at 320.
Section 42(1)(b) of the LPA grants a power to this Court to tax and settle a bill of costs on the application of, amongst others, a person who is liable to pay legal costs. If such a person does not admit the liability to pay the costs, s 42(1) cannot be invoked. In that case, all issues arising in the dispute about liability will have to be determined by other means. Section 42(1)(a) does contemplate an application by a person claiming to be entitled to legal costs, and s 42(1)(b) permits an application by a person who has already paid legal costs. On application from those persons, this Court may have to determine issues of liability. The language of s 42(1) does not suggest however that the power to determine disputes in these circumstances is exclusive of the jurisdiction of other courts. Further, s 41(1) specifically contemplates that a practitioner may bring an independent action for the recovery of legal costs.[7] It does not specify that such an independent action may be brought only in the Supreme Court. In my opinion, the terms of s 41(1) are inconsistent with this Court having an exclusive jurisdiction to determine disputes about the liability for costs.
[7]s 41(1) A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.
Acceptance of the submission of von Doussas could produce very inconvenient results. It would involve the prospect of one court determining the existence of a retainer but being unable to determine the content of the terms of the retainer. Resolution of those issues in different courts may involve two separate courts hearing and determining disputes based on substantially the same evidence. That is another reason to reject the submission of von Doussas.
As noted, the liability which the present respondent disputed relates to the costs of the Conflict Appeal to this Court. Counsel did not refer to s 40 of the Supreme Court Act 1935 (SA). Section 40(1) provides that, subject to certain qualifications, the costs of and incidental to all proceedings in the Court are in the discretion of the Court and that the Court has full power to determine by whom and to what extent such costs are to be paid. Counsel did not submit that s 40 had the effect that von Doussas’ claim against the respondent, being a claim in respect of proceedings in this Court, could be enforced only by an action (or a taxation) in this Court.
In summary, my conclusion is that the Magistrates Court did have jurisdiction to hear von Doussas’ claim, including the issues raised by the respondent about liability for those costs. The Magistrates Court did not have power, once it had resolved the issues of liability, to assess the amount of the entitlement, but it did not purport to do so. Instead it entered judgment for the sum which the parties agreed was the appropriate quantum.
Did the Rejection of the Claim for the Appeal Costs Involve Error?
At trial, Mr Carabelas was the sole witness called by von Doussas. The respondent gave evidence but did not call any other evidence. Both parties tendered some documents.
The resolution of the dispute between the parties turned very much upon the magistrate’s assessment of what had been said between Mr Carabelas and the respondent in a discussion on 24 November 2004. In turn, that depended very much upon the magistrate’s assessment of their credibility and reliability.
This Court is obliged to conduct a real review of the evidence at trial and of the magistrate’s reasons. It must draw its own inferences and conclusions. However, in doing so, this Court must give respect and weight to the conclusion of the magistrate.[8] The circumstances in which this Court interferes with findings of fact which depended, to a substantial degree, on the magistrate’s assessment of the credibility of witnesses are limited. This Court can intervene if the magistrate has “failed to use or has palpably misused his advantage” of seeing and hearing the witnesses or if his conclusions are inconsistent with incontrovertible facts or uncontested testimony.[9] Even when the facts fall short of being incontrovertible, this Court can, in rare cases, intervene if it considers that the decision at trial is “glaringly improbable”[10] or “contrary to compelling inferences”[11].
[8] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-28 [22]-[29] per Gleeson CJ, Gummow and Kirby JJ, 138-47 [65]-[93], per McHugh J.
[9] Ibid at 139 [66] per McHugh J.
[10] Ibid at 128 [29] per Gleeson CJ, Gummow and Kirby JJ, 139 [66] per McHugh J.
[11] Ibid at 128 [29] per Gleeson CJ, Gummow and Kirby JJ.

In the present case, von Doussas submitted that the magistrate’s decision was inconsistent with the documentary evidence and involved a conclusion which was glaringly improbable.
The Evidence of Mr Carabelas
Mr Carabelas is an experienced solicitor. He said that he regarded the work on the Conflict Appeal as having been carried out under the Terms of Engagement signed by the respondent on 16 July 2004.
Mr Carabelas said that he discussed with the respondent the prospect of an appeal from the District Court order restraining von Doussas from acting. The respondent was distressed and angered by the District Court order and considered that he was being disadvantaged by Ms Vihervaara. Mr Carabelas said that he also considered for a time instituting judicial review proceedings in this Court in which von Doussas would be the plaintiff and the District Court the defendant. A draft of these proposed judicial review proceedings dated 19 November 2004 was exhibited at the trial. Mr Carabelas also admitted that on 22 November 2004 he had written a letter to Ms Vihervaara’s solicitor in which, amongst other things, he had said:
We advise that we are presently in the process of completing documentation intended to instigate an action pursuant to Rule 98 of the Supreme Court Rules and to seek Orders by way of Judicial Review in respect of the Orders made by [the District Court] in the above action on 2^nd November 2004 and 10^th November 2004.
…
We confirm that we are not presently acting, nor purport to act for Mr Nasr in fear of contravention of the Orders but the proceedings intended will be issued on behalf of the writer and our firm of solicitors as plaintiffs with the District Court of South Australia as respondent.
On 24 November 2004 Mr Carabelas obtained the respondent’s instructions to institute an appeal. He was very confident that the appeal would be successful. When taking instructions from the respondent on 24 November 2004 he did tell the respondent that “in all probability” von Doussas would not be able to charge him in the event that the appeal was unsuccessful. Mr Carabelas said that he said that because he considered that if the conflict of interest of von Doussas was confirmed it would mean that it was inappropriate for it to have acted in the first place. He believed that in those circumstances von Doussas would “probably” not be entitled to charge for its services. Mr Carabelas denied that he had told the respondent that if the appeal was unsuccessful von Doussas would forego its costs. When the Full Court said on 7 February 2005 that it was not prepared to hear the appeal while von Doussas remained the solicitors on the record, he arranged for J P Stevens to act for the respondent. The evidence does not disclose whether that was done with, or without, the respondent’s instructions.
Mr Carabelas did not make any file note of his meeting with the respondent on 24 November 2004. He said that he often did not make notes in relation to his discussions with the respondent. Mr Carabelas did, however, produce a letter dated 10 December 2004 which he had sent to the respondent and which he said accurately reflected their discussion. The letter included the following:
We wish to report that we have now completed your instructions with respect to the institution and service [of] a Notice of Appeal to the Full Bench of the Supreme Court of South Australia in respect of the Orders made by His Honour Judge Smith concerning the supposed conflict of interest issue.
Firstly, we wish to confirm that the Appeal was instituted after lengthy discussions with you and, in particular, your firm request that we do proceed with the Appeal as concluded in the course of discussions on 24^th November 2004.
Specifically, we wish to confirm that the background to the matter includes your very firm and specific instructions to the effect that you were very unhappy with the decision of Judge Smith and that you wanted to have the matter Appealed.
Also, we refer specifically to the very firm advice given to you following the orders of Judge Smith in which we informed you very specifically that in all the circumstances it is a decision for you whether you wish to continue to have us as your solicitors and the writer to have the conduct of the matter or whether you may be prepared to consider having other solicitors carry on with the conduct of the matter.
It is in this context that we must make it very clear that we have always advised you of your rights to have other solicitors to act for you but you have specifically resisted any such alternative and have specifically requested that we continue to act for you.
Mr Carabelas denied that he had been angered or affronted by the District Court order of 2 November 2004. He said that it was the kind of matter with which a solicitor of his experience was accustomed to dealing. He denied being willing to pursue the appeal at von Doussas’ own expense because he regarded the District Court decision was an affront to his own probity as well as that of von Doussas. Mr Carabelas denied that the judicial review proceedings had been drafted in the name of von Doussas because of that same feeling. He said that von Doussas had been named as the plaintiff in the draft judicial review proceedings because of the concern that it may, in acting for Mr Nasr on an appeal, be in breach of the District Court order.
Mr Carabelas admitted that he had not asked for funds to be placed into the trust account on account of the costs which would be incurred in relation to the appeal, saying that it was not his usual practice to do so. He admitted that he had not given the respondent advice about the cost ramifications of the appeal, including the respondent’s potential liability for Ms Vihervaraa’s costs in the event that the appeal was unsuccessful. He also admitted that he had not made any claim for the costs from the respondent until sending a bill in June 2005.
Mr Carabelas admitted that the costs of the appeal could have been avoided by the simple stratagem of the respondent instructing a different firm of solicitors to act for him in relation to the District Court action. He said, however, that the respondent was strongly against dealing with the issue in that way.
Mr Carabelas said that as it was always the intention that counsel would be retained to argue the appeal, von Doussas would not have been prepared to meet the costs of such counsel from their own resources.
Mr Carabelas admitted that in his letter of retainer to counsel on 21 January 2005, he had said:
It is important that the matter be given close attention and although we do not expect the argument to be extremely lengthy it is, nevertheless, of importance to us as well as to the legal profession generally.
He denied, however, that these words reflected his own deep concern about the conflict of interest finding and the pursuit of the appeal in von Doussas own interests. He denied that von Doussas had agreed to fund the Supreme Court appeal because of his concern about the impact of the conflict of interest finding on him and of the firm itself.
The Evidence of the Respondent
The respondent said that Mr Carabelas telephoned him shortly after 2 November and told him of the District Court restraining order. They arranged to meet on 24 November 2004. At that meeting Mr Carabelas told him that he was angry about the District Court ruling and that, as he had been in practice for 38 years, he regarded the decision as an insult to him and his profession. He wished to challenge the decision. He told the respondent that he had already prepared the appeal papers. He then discussed with Mr Carabelas the option of simply retaining another firm to act for him in relation to the District Court proceedings, but Mr Carabelas told him that the appeal papers had already been prepared and it would take only two or three months to get a hearing. The respondent said that Mr Carabelas told him that the appeal would be at no cost to him because von Doussas would fund the appeal. The respondent said that he decided to stay with von Doussas while it appealed the District Court decision only because Mr Carabelas had agreed to undertake the appeal “for free”. Otherwise he would have retained another firm.
The respondent admitted receiving the letter of 10 December 2004, and admitted that he had not responded to it. He agreed that the letter accurately recorded instructions which he had given but said that he had only given the instructions because Mr Carabelas had said that von Doussas would pay the cost of the appeal. The respondent said that he was shocked when, in mid 2005, Mr Carabelas had asked him to pay the costs of the appeal. The respondent said that he had not instructed Mr Carabelas to engage J P Stevens to act on his behalf. He denied himself being angered by the District Court decision.
The Reasons of the Magistrate
The magistrate considered the respondent’s evidence to be credible and reliable. He said:
Mr Nasr’s responses to questions were consistent and plausible. I found him to be an honest witness. Notwithstanding persistent and skilful cross-examination, Mr Nasr remained emphatic that at the meeting on the 24^th of November, Mr Carabelas promised to cover the cost of the appeal and that he, Mr Carabelas, felt aggrieved by [the District Court] determination.
The magistrate had earlier commented adversely on the manner and content of the evidence of Mr Carabelas. He identified a number of matters causing him to have reservations about the reliability of that evidence.
The magistrate considered that there was other evidence supporting the respondent’s account. He referred to the draft judicial review proceedings dated 19 November 2004 and the letter to Ms Vihervaara’s solicitors dated 22 November 2004, each of which indicated that at least until shortly before the meeting with the respondent on 24 November 2004 von Doussas had proposed commencing its own judicial review proceedings. Further, each of those documents had been prepared without instructions from the respondent. In addition, the magistrate considered that the letter to counsel dated 21 January 2005 created “a persuasive argument that Mr Carabelas did indeed wish to pursue the matter personally”. The magistrate concluded that, despite his denials, Mr Carabelas had been affronted by the District Court decision and had been determined to take his own action to overturn it.
The magistrate concluded:
I am satisfied that the plaintiff did, through its agent Mr Carabelas, agree to pursue the Supreme Court Appeal at its expense on the condition as outlined by the defendant and that the notion of charging for the Appeal was an afterthought. The plaintiff failed to advise the defendant in explicit and unequivocal terms concerning the matter of costs precisely because payment by the defendant was not contemplated at the relevant time. I prefer the defendant’s version of events, particularly when combined with [a] the lack of any written record of the meeting of 24^th November; [b] the lack of a separate retainer or amendment to the one that existed, and [c] the documents already referred to.
Consideration
In the ordinary course, legal practitioners act for clients under a retainer which provides for the practitioner’s remuneration. However, there are many circumstances in which practitioners agree to act pro bono. Those circumstances include public spiritedness by practitioners, an acceptance of a professional responsibility to make legal representation available to those whose liberty is jeopardised and who are unable themselves to afford legal representation, and a willingness to assist the courts in the proper administration of justice. The circumstances also include cases in which practitioners accept some level of personal responsibility for the predicament in which the client finds himself/herself, or simply loyalty to the client. In other words, it is not unknown for practitioners to agree to act in a matter without an expectation of payment. The attitude attributed to von Doussas by the respondent in the present case has to be assessed against that general experience.
Counsel submitted that the magistrate had erred by attaching significance to the lack of a separate retainer or an amendment to the Terms of Engagement dated 20 July 2004. I consider that the absence of a separate retainer or an amendment was really a neutral factor. On one view, it could be said that the Conflict Appeal to this Court was so different from the work for which von Doussas had been engaged originally that a separate retainer, or at least an amendment to the existing retainer, could have been expected. But on the other hand, the Terms of Engagement letter said expressly that it was setting out the general terms upon which von Doussas would act, not only in relation to the de facto property issues but on “any further matters in which you may kindly instruct us”. In my opinion, those Terms of Engagement were capable of encompassing the Conflict Appeal. That being so, the absence of a separate retainer or an amendment to the original, was not, in my opinion, particularly significant. However, I note that the magistrate’s reference to the absence of a separate retainer, or an amendment, appears not to have been a primary reason for his acceptance of the respondent’s evidence. Instead, it was a matter which he used by way of confirmation, having already decided that the respondent’s evidence was credible and reliable.
I do not accept that the magistrate’s decision is inconsistent with the retainer contained in the Terms of Engagement letter, so as, by itself, to warrant this Court’s intervention. Had there been no evidence of variation, the letter may have been significant. But the effect of the magistrate’s reasons is that irrespective of the Terms of Engagement, the parties agreed that it did not govern von Doussas’ work in relation to the Conflict Appeal.
Von Doussas submitted that the magistrate had overlooked submissions which its counsel had made. The magistrate did refer to the letter of 10 December 2004 and to the submissions which the respondent’s counsel had made in respect of it. He did not, however, refer specifically to the response which counsel for von Doussas made to the respondent’s submissions. Nor did the magistrate refer specifically to certain criticisms which counsel had about the respondent’s evidence, for example, that the respondent had changed his position on various topics when, under cross-examination, the implications of his original answers became apparent. Von Doussas also submitted that the magistrate did not refer to submissions which its counsel had made about the sheer improbability of Mr Carabelas having used some of the language attributed to him, eg, “the huge impact” on his practice if the District Court decision stood.
It is true that the magistrate did not specifically mention these matters ( and some others to which counsel referred). However, the magistrate did give detailed reasons. It was not necessary for him to address every submission made by each counsel. In Soulemezis v Dudley (Holdings) Pty Ltd,[12] Kirby P said:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.[13]
[12] (1987) 10 NSWLR 247.
[13] Ibid at 259.
It is to be remembered that the magistrate’s decision was very much based upon his assessment of the evidence of Mr Carabelas and the respondent. In criminal trials by a judge or magistrate sitting alone, detailed explanation of the reasons for a decision which is based upon the impression made of witnesses is not required. So much is apparent from the judgment of Doyle CJ (with whom Wicks J agreed) in R v Keyte:[14]
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.[15]
Of course, reasons for decision in civil trials come from a different tradition and one cannot transpose all of the reasoning from the criminal cases. But they do indicate that there are limitations on what is expected by way of reasons for decisions based upon the assessment of the manner in which evidence is given.
[14] [2000] SASC 382; (2000) 78 SASR 68.
[15] Ibid at [56], 81. I refer to the other authorities reviewed in Geister v Police [2008] SASC 177 at [18]-[19].
In any event, the letter of 10 December 2004, which counsel emphasised in his submissions, does appear to be somewhat self-serving, especially when considered in the light of the evidence indicating von Doussas’ then recent determination to institute its own judicial review proceedings.
The documentary evidence to which the magistrate referred was important evidence. Instead of being inconsistent with the magistrate’s decision it provided support for the respondent’s evidence that von Doussas was, independently of his own view, prepared to take action to challenge the District Court decision. It explained what otherwise would have been implausible, namely, von Doussas accepting responsibility for (at least) the solicitors’ costs in relation to the Conflict Appeal. The magistrate did not overlook Mr Carabelas’ explanation for the preparation of the draft judicial review proceedings and the letter to Ms Vihervaara’s solicitor of 22 November 2004, ie, a concern that von Doussas was prevented by the District Court order from acting in an appeal. That may well have been a concern, but it does not answer the point that von Doussas was prepared to commence its own judicial review proceedings, with the exposure to a costs liability which that involved, without reference to the respondent and without any indemnity or other commitment from him with respect to costs.
Counsel emphasised the improbability of von Doussas accepting responsibility for the counsel fees and the costs of Ms Vihervaara in the event that the Conflict Appeal was unsuccessful. This is a significant consideration. It has given me some pause when considering whether the magistrate’s conclusion is glaringly improbable. The significance of the point is diminished however by the absence of any discussion at all between Mr Carabelas and the respondent as to the cost implications of undertaking the Conflict Appeal. Mr Carabelas acknowledged that there had not been a discussion as to the costs consequences which would follow success or failure of the Conflict Appeal. The absence of an explanation by Mr Carabelas to the respondent about those costs implications seems remarkable. Perhaps Mr Carabelas’ confidence that the Conflict Appeal would succeed caused him to overlook giving advice on this topic. He may have been confident that a costs order would, in due course, be obtained against Ms Vihervaara. Alternatively, it may be that Mr Carabelas simply overlooked giving advice on this topic and, in turn, overlooked the implications for von Doussas in saying that it would meet the costs of the appeal. Alternatively again, it may be that Mr Carabelas made an assumption when he said that von Doussas would conduct the Conflict Appeal “for free” which was not communicated to the respondent. That assumption was that the respondent would accept responsibility for counsel fees while von Doussas accepted responsibility for the solicitor’s fees. That may have resulted in Mr Carabelas not qualifying his statement that von Doussas would conduct the Conflict Appeal “for free” thus conveying, objectively, the impression to the respondent that he would not have to meet any of the costs at all. It is what would have been conveyed objectively which is the important consideration.[16]
[16] Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 at 178-80 [38]-[41].

As I say, this feature of the appeal has given me some pause. But in the end, I am not satisfied that it makes the magistrate’s preference for the respondent’s account of the conversation on 24 November 2004 inappropriate.
The magistrate’s reasons are reasonably detailed. They advert specifically to several of the features of the evidence and of counsel’s submissions.
Having reviewed the trial evidence, I am not satisfied that the magistrate’s conclusions based on his assessment of the credibility of Mr Carabelas and the respondent are inconsistent with incontrovertible facts or uncontested testimony. I am not satisfied that the decision at trial is either glaringly improbable or contrary to compelling inferences. Accordingly, I am not satisfied that the magistrate’s decision should be overturned on appeal.
The Absence of Interest in the Judgment Sum
Counsel submitted that the magistrate had erred by not including an award of interest in the judgment sum. Interest had been claimed in the summons issued by von Doussas.
The respondent pointed out that the magistrate had entered judgment for the amount upon which the parties had agreed. That being so, the magistrate had not overlooked interest. He had simply entered a judgment in the terms to which the parties had agreed.
The Magistrates Court record and the affidavit of Mr Guthrie, which I received on the appeal, support the respondent’s submission. It should be accepted. This aspect of von Doussas’ appeal has not been made out.
The Costs of the Magistrates Court Proceedings
Ultimately, von Doussas did not contend that the magistrate had been in error in failing to make an order for the costs of the proceedings in the Magistrates Court. It is plain that the magistrate has reserved the question of costs and will determine that issue upon the completion of this appeal.
The Position of J P Stevens
The contention that the magistrate had determined the plaintiff’s claim in the Magistrates Court without hearing from J P Stevens was not pursued on appeal. In any event, J P Stevens has not appealed the magistrate’s order. The Court was informed that J P Stevens had notice of the appeal of von Doussas. It has not sought to intervene.
Conclusion
For the reasons given above, my conclusion is that the appeal should be dismissed.