WILLIAMS v Solomon Brothers
[2003] WASC 141
WILLIAMS & ORS -v- SOLOMON BROTHERS [2003] WASC 141
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 141 | |
| Case No: | CIV:1492/2003 | 22 JULY 2003 | |
| Coram: | WHEELER J | 31/07/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RUTH EILEEN WILLIAMS GALE CURTIS WILLIAMS MARK CURTIS WILLIAMS SOLOMON BROTHERS |
Catchwords: | Practice Application to remit action to Supreme Court pursuant to s 76 District Court of Western Australia Act 1969 Implied contractual term in retainer agreement Costs Taxation of costs Inherent jurisdiction of Supreme Court to regulate conduct of practitioners |
Legislation: | District Court of Western Australia Act 1969, s 76 Legal Practitioners Act 1893 (WA), Pt VI, Div 2 |
Case References: | D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 189 Harrison v Tew [1989] QB 307 Pryles & Defteros v Green [1999] WASC 34 Woolf v Snipe (1932) 48 CLR 677 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- GALE CURTIS WILLIAMS
MARK CURTIS WILLIAMS
Plaintiffs
AND
SOLOMON BROTHERS
Defendant
Catchwords:
Practice - Application to remit action to Supreme Court pursuant to s 76 District Court of Western Australia Act 1969 - Implied contractual term in retainer agreement
Costs - Taxation of costs - Inherent jurisdiction of Supreme Court to regulate conduct of practitioners
Legislation:
District Court of Western Australia Act 1969, s 76
Legal Practitioners Act 1893 (WA), Pt VI, Div 2
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr P S Bates
Defendant : Mr M A Blundell
Solicitors:
Plaintiffs : Arns & Associates
Defendant : Solomon Brothers
Case(s) referred to in judgment(s):
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Case(s) also cited:
Harrison v Tew [1989] QB 307
Pryles & Defteros v Green [1999] WASC 34
Woolf v Snipe (1932) 48 CLR 677
(Page 3)
1 WHEELER J: This is an application, pursuant to s 76 of the District Court of Western Australia Act 1969, that District Court Action 1217 of 2001 between the defendant to the originating summons, as plaintiff (the plaintiff), and the plaintiffs in the originating summons, as defendants (the defendants), be remitted to the Supreme Court for hearing and determination. The basis of the application is that the District Court does not have jurisdiction to determine certain of the matters which the defendants in that action seek to raise by way of defence. The difficulty with the application is that it does not appear to me that the issues which the defendants seek to agitate in that action, and which they submit are within this Court's exclusive jurisdiction, appear in any intelligible way from the defence which it has filed. The somewhat complex history of the proceedings, which sets this view which I have reached in context, is as follows.
2 In August 2001 the plaintiff, a firm of legal practitioners, filed a statement of claim in the District Court which alleged that the defendants were indebted to the firm in the sum of approximately $66,000 in respect of work done and accounts rendered over the period 11 September 2000 to 12 March 2001 for legal work performed by the plaintiff. The plaintiff obtained default judgment due to the failure of the defendants to file a defence within the time stipulated by the Rules. Apparently that failure was due to a mistake on the part of the solicitor representing the defendants, and default judgment was set aside in March 2002.
3 In March 2002 the defendants filed a defence, set off and counterclaim. A significant portion of that pleading is concerned with the alleged negligence of the plaintiff in performing legal work for the defendants, as a result of which it is alleged the defendants suffered loss and damage. The relevant portions of the pleadings for this application are relatively confined. They allege, broadly, that in relation to particular legal services there were agreements between the plaintiff and the defendants as to the provision of those legal services which were "partly oral and partly implied". Insofar as they were implied, it is pleaded that it was an implied term of each agreement that "the plaintiff would be remunerated for its legal services in accordance with determinations of the Legal Costs Committee made in accordance with Division 2 of Part VI of the Legal Practitioners Act 1893". It is also pleaded in the alternative that in relation to each of the various legal services that "it was a requirement of Part VI of the Legal Practitioners Act 1893 that the plaintiff was only entitled to remuneration for its legal services in accordance with determinations of the Legal Costs Committee made in accordance with Division 2 of Part VI of the Legal Practitioners Act 1893".
(Page 4)
4 It is extremely difficult to ascertain what this pleading is intended to convey. Determinations of the Legal Costs Committee do not determine what costs are payable in relation to particular individual legal services between particular solicitors and clients. Rather, they set out broad principles governing the appropriate remuneration for various types of legal services, and generally provide for a maximum amount which may be charged for particular aspects of such services unless special orders altering those maximum amounts are obtained.
5 There are a number of possible ways of understanding the pleading. It may be intended to convey that it was not open to the plaintiff to charge for its services an amount in excess of the maximum amount to be found in the relevant determination relating to the particular aspect of the legal service in question. In may be intended to convey that there was an obligation on the plaintiff to have regard to the relevant determination and to claim for remuneration in a way which reflected the various items contained within the determination (eg by the provision of an itemised bill consistent on its face with the determination). No doubt other interpretations are open. It seems most improbable that the pleading is intended to convey that the plaintiff could only claim from the defendant an amount which either was the amount allowed by a taxing officer of this Court on a taxation or which did not exceed the amount which would be allowed by a taxing officer of this Court on a taxation, were a taxation to be conducted. I suggest that this last meaning is improbable on its face both because there is nothing in the pleading which refers to a taxation of costs, directly or indirectly, and because such a pleading would appear to be prima facie inconsistent with the regime for taxation of costs set up by the Legal Practitioners Act, which puts some onus upon the practitioner's clients to bring about a taxation by requesting an itemised bill and by requesting taxation, and which provides time limits within which these things must be done.
6 I will return to the proper understanding of the pleading shortly.
7 At a pre-trial conference in the District Court on 23 August, proceedings were adjourned in order to permit the defendants to seek an order from this Court extending the period within which they might have the bills of costs taxed. On 25 October 2002 Registrar Powell declined to enlarge the time to permit taxation of the various bills in question.
8 On 23 January this year, Acting Master Chapman dismissed an appeal from that decision. There are a number of matters to be noted about the Acting Master's decision. The first is that he apparently
(Page 5)
- recognised that the question of whether costs claimed by the plaintiff were above that which might be allowed on taxation would not appear to be open to the defendants to raise in the District Court; I do not understand the Acting Master to have made a positive finding to this effect, which is not surprising in view of the lack of clarity in the pleadings. However, it should also be noted that a principal reason for dismissing the appeal was that the Acting Master was "far from persuaded" that the question of delay by the defendants had been satisfactorily dealt with.
9 Further and better particulars of defence were filed by the defendants in February this year. On 21 February Deputy Registrar Hewitt dealt with the plaintiff's application for judgment in the amount of the plaintiff's claim by reason of the defendants' alleged failure to comply with an order for provision of further and better particulars, it being submitted that the further and better particulars were inadequate. The Deputy Registrar went on to make certain observations, and to make orders, which do not appear to flow naturally from the application as he described it. I assume that those observations and orders reflect the way in which the application was in fact fought before him. The Deputy Registrar noted the unsuccessful application for enlargement of time for taxation, and expressed the view that:
"I am of the view that insofar as this defendant seeks to have the taxation of the plaintiff's costs conducted here in the forum of this trial rather than in the Supreme Court under the provisions of the Legal Practitioners Act, it should not be permitted to do so. Therefore, insofar as the defendant purports to put matters of overcharging in issue, in my view it should not be permitted to do so."
- In conclusion, he said:
"I consider that all the material which is contained within the defence which alleges overcharging and in effect invites this Court to undertake a taxation which was refused in the Supreme Court to be an abuse. It will therefore be struck out."
He noted there would in consequence have to be a further pleading, and that he was inclined to invite counsel to submit a proposed amended defence to accommodate the decision which he had reached.
10 It appears that no minute of proposed amended defence was produced. That is unfortunate, since it might have significantly clarified the issues with which I have to deal.
(Page 6)
11 The defendants appealed the Deputy Registrar's decision, and that appeal was dealt with by Muller DCJ on 23 April this year. His Honour found, in my view correctly, that this Court has exclusive jurisdiction to tax costs as between solicitor and client. His Honour however went on to find that the District Court "does not have jurisdiction to examine issues relating to alleged overcharging of costs as between solicitor and client". In relation to the pleading that there was an implied contractual term that the plaintiff would be remunerated for its services in accordance with the determination of the Legal Costs Committee and that it would be open to the District Court to make a finding in relation to that allegation, his Honour observed:
"I am unable to see how this could be done. Such an exercise would be tantamount to a taxation of costs as between solicitor and client and would lie outside the jurisdiction of this Court. Apart from this fundamental obstacle, the submission does not in itself have any merit".
- His Honour went on to make certain observations as to the merit of the submission.
12 In my view, the observation which his Honour made which suggests that the District Court would not in any circumstances be able to determine a claim that an implied term of contract as to costs had been breached, appears to me not to flow from the principles which his Honour considered. If it is open to a defendant to raise such an implied contractual term, then to examine the question of whether there has been a breach of it is not to conduct a taxation which is beyond the jurisdiction of the District Court. It may be that it is not open to a defendant to raise such an implied contractual term, either because the term could not meet the tests which apply to determine whether a term is to be implied in a contract, or because the implication of such a term would be inconsistent with the provisions of the Legal Practitioners Act regulating the remuneration of practitioners. However, it does not appear to me that such questions were argued before his Honour. They are issues which would properly be ventilated on a strike out application, but there was no such application here.
13 However, the defendants have not sought to appeal the decision of Muller DCJ. Rather, they have sought the transfer of the action to this Court, accepting his Honour's conclusion that the District Court lacked jurisdiction, but asserting that this Court has jurisdiction to deal with the defence which they plead. In this Court, that defence was framed in submissions in a way which does not appear to me to reflect any of the
(Page 7)
- pleadings, or of the decisions relating to the pleadings, to date. Before me, submissions were made to the effect that there was an inherent jurisdiction in the Supreme Court to entertain a claim or defence based upon overcharging, which inherent jurisdiction flowed from the inherent jurisdiction of the court to ensure that a legal practitioner, as an officer of the court, "is remunerated properly and no more" for work undertaken as a legal practitioner. The submission was developed by a reference to cases which make it clear that this Court has jurisdiction to regulate the conduct of practitioners as officers of the court, and that overcharging may in certain circumstances constitute professional misconduct.
14 I am not at present persuaded that a defence of the kind described may properly be maintained. As Ipp J pointed out in D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198, the legal rules governing the determination of costs payable to practitioners, and the ethical rules relating to misconduct are "fundamentally different concepts" (p 209). In any event, however nowhere in the pleadings of the defendants is the inherent jurisdiction of any court invoked; rather, the defences pleaded rest on either an implied contractual term or upon the provisions of a statute, namely the Legal Practitioners Act. Further, there is no pleading which is remotely suggestive of any relevant misconduct.
15 In summary, the position appears to me to be as follows. In the District Court, both Deputy Registrar Hewitt and Muller DCJ took the view that the defendants sought in effect by their defence to secure a taxation of costs, and that to the extent that their defence sought to do so, it was an abuse of process. Those findings are not the subject of appeal. In this Court, the defendants suggested that they are attempting to invoke some broader supervisory jurisdiction of this Court, but pointed to no basis in the pleadings for that submission. In my view, the only way in which this matter can be sensibly resolved is for the defendants to reconsider the conceptual basis of their defence, and, having drafted an amendment which makes that basis clear, either to approach the District Court and seek amendment, or to make a further application for remitter of the matter to this Court. On the present state of the claim and defence, there is no reason justifying a transfer to this Court.
16 For the sake of completeness, I should note that there was affidavit material produced to me which sought to justify a conclusion that in any event the amount of the defendants' counterclaim exceeded the jurisdiction of the District Court, or might exceed that jurisdiction. That was not an issue which was pressed before me, counsel for the defendants
(Page 8)
- having expressly declined to found submissions on it. I would dismiss this application.
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