Walker v Scott HC Auckland CIV 2008-404-8353

[2010] NZHC 1012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-8353

BETWEEN  GILBERT WALKER Plaintiff

ANDL M SCOTT Defendant

Hearing:         8 April 2010

Appearances: A S Ross for plaintiff

Defendant in person

Judgment:      8 April 2010

ORAL JUDGMENT OF WYLIE J

Solicitors:

Chapman Tripp, Auckland:  [email protected]

Russell McVeagh Auckland: [email protected]

L Scott, 506 McLaren Falls Road, Tauranga

GILBERT WALKER V L M SCOTT HC AK CIV 2008-404-8353  8 April 2010

[1]      These proceedings have been allocated a fixture on 22 and 23 April 2010. The defendant, Mr Scott, has applied for an adjournment.   He also seeks to have them transferred to Rotorua or Hamilton.

Background

[2]      The statement of claim was filed on 15 December 2008.  Gilbert Walker, a firm of barristers and solicitors practising in Auckland, are seeking to recover fees it says are owed to it by the defendant, Mr Scott.   It alleges that it entered into an agreement in writing in October 2007, whereby Mr Scott instructed it to represent him in High Court proceedings against his mother and sisters.  It says that pursuant to the fee agreement the firm agreed to represent Mr Scott on a contingency basis, and the contingency was satisfied on 3 December 2007.

[3]      Mr Scott has filed a statement of defence.   He admits he entered into a contingency fee arrangement with Gilbert Walker.  Inter alia, he asserts that the firm agreed to cap the fees and that it was an implied term of the agreement that Gilbert Walker would provide legal services through to final judgment including any cost related issues.  He denies that the contingency has been met.

[4] The proceedings were stayed throughout much of 2009, because Mr Scott filed a complaint on 22 January 2009 against Gilbert Walker with the New Zealand Law Society. That complaint asserted that the fees charged by Gilbert Walker were unjustified and excessive. Pursuant to s 161(1) of the Lawyers and Conveyancers Act 2006, the proceedings for the recovery of the amount Gilbert Walker says is owed to it could not be progressed until the complaint had been finally disposed of.

[5]      Mr Scott’s complaint was dismissed in October 2009.   The Costs Assessor apparently expressed the opinion that Gilbert Walker’s fees and disbursements were “on the lower side of what is normally charged”.

[6]      Mr Scott then sought to challenge the Cost Assessor’s decision by applying for review by the Legal Complaints Review Officer.  That application was dismissed for want of jurisdiction.  Apparently Mr Scott failed to pay the required filing fee in a timely fashion.

[7]      The High Court proceedings came before Associate Judge Bell on 3 February

2010.  He put in place a timetable order which inter alia required Gilbert Walker to serve its evidence by 19 February 2010, and Mr Scott to serve his evidence by 12

March 2010.

[8]      Gilbert Walker complied with the timetable and served its briefs of evidence. [9]      Mr Scott failed to comply with the timetable.  Rather than file his briefs of

evidence on 12 March 2010, he filed a memorandum which asserted that there had been fraudulent acts committed by the defendants in the original proceedings, which Gilbert Walker had failed to address during the proceedings.  He also asserted that he was unable to obtain legal representation.  Mr Scott requested an adjournment.  He also sought that the matter should be heard either in Rotorua or in Hamilton, and not in Auckland.

[10]     Gilbert  Walker  responded  with  a  memorandum  filed  on  its  behalf  by

Mr Ross, dated 16 March 2010.

[11]     The matter came before Lang J by way of telephone conference on 23 and again on 31 March 2010.  Mr Scott appeared in person in the course of the telephone conference held on 23 March 2010.  Mr Crotty represented him in the course of the telephone  conference  held  on  31 March  2010.    Mr Scott  also  appeared  on  that conference.

[12]     Lang J’s minute issued  on 31 March  2010  recorded  that Mr Crotty had advised that Mr Scott had instructed him to apply for an adjournment of the trial on the basis that new material had come to hand which rendered it inappropriate for the trial to proceed.  His Honour directed Mr Scott to file and serve any application for

an adjournment of the trial, together with any supporting documentation no later than

5 pm on 1 April 2010.

[13]     No application for adjournment of the trial was filed either by Mr Scott or Mr Crotty on his behalf by 5 pm on 1 April.  Rather, on 7 April 2010, Mr Crotty filed an application seeking leave to withdraw from the proceedings.   On the same day Mr Scott  personally  filed  an  application  in  Tauranga  seeking  an  adjournment. Mr Scott  also  filed  a  supporting  affidavit.  That  application  and  affidavit  were forwarded by e-mail to this Court.

[14]     The matter was called before me this morning.  I dealt first with Mr Crotty’s application  for  leave  to  withdraw,  and  then  with  Mr Scott’s  application  for  an adjournment.

Leave to withdraw

[15]     Mr  Crotty  sought  leave  to  withdraw  because  he  was  unable  to  obtain sufficient   timely   instructions   from   Mr Scott   in   respect   of   the   adjournment application, and because he was unable to agree on the basis for a reasonable fee being paid at the appropriate time.

[16]     Mr Scott opposed the application for leave to withdraw.  The basis for that opposition was not clear.  He did not dispute the matters advanced by Mr Crotty in support of the application.   Rather, he asserted that he had been waiting for an opinion which he had since received.   Mr Ross took no stance in relation to the matter.

[17]     I was satisfied that it was appropriate to grant Mr Crotty leave to withdraw and I made the appropriate order to that end.  I then stood the matter down for 30 minutes  to  enable  Mr Scott  to  prepare  to  deal  with  his  application  for  an adjournment.

[18]     Mr Scott’s application for an adjournment was filed out of time.  There is no explanation tendered for that failure.  On the face of it, it cannot be explained by Mr Crotty’s application seeking leave to withdraw.  Both were filed on the same day, which was some six days after the application for the adjournment should have been filed.  Nevertheless, in my view it is appropriate to deal with the substance of the matter, rather than to rely on this technicality.

[19]     Mr Scott asserts that the matter should be adjourned because he says that on

31 March 2010, in the course of the telephone conference before Lang J, Mr Crotty advised that a fraud had been committed by others involved in the defence of the original High Court proceedings, in respect of which Gilbert Walker was retained. He says he has made a further complaint to the New Zealand Law Society regarding Gilbert Walker’s conduct, and that this is a more cost effective way of dealing with the matter than the High Court proceedings.  He asserts that Gilbert Walker failed to deal with the alleged fraud, and that he requires time to consider whether or not it is necessary to join other parties to the Gilbert Walker proceedings.  He also says it is inappropriate for the scheduled fixture to take place until the issues are considered by the New Zealand Law Society.

[20]     Mr  Ross  refers  to  the  history  of  this  matter,  noting  that  it  has  been outstanding for some considerable time.  He submits that the Law Society is functus officio in regard to the issue of costs, and that the most recent application to the Law Society lodged by Mr Scott does not expressly relate to the quantum of Gilbert Walker’s costs.  He submits that the allegations of fraud are not new;  that they have formed the basis of two appeals Mr Scott filed but did not pursue, and in any event, the  allegations  of  fraud  have  nothing  to  do  with  the  matters  in  issue  in  this proceeding.

[21]     It seems clear to me that the documents on which Mr Scott relies in asserting that there was fraudulent conduct have been known to him for some time.  Mr Scott told me that they were disclosed on discovery in the original proceedings on which Gilbert Walker acted.  Further, Mr Scott’s complaint that Gilbert Walker should have addressed the allegedly fraudulent acts at the trial is not a new point.   He sought leave to adduce the documents he says disclose the alleged fraud before the Court of Appeal.  That application was dismissed for want of prosecution: Scott v Scott [2010] NZCA 21.

[22]     Further, it is not obvious to me that that alleged fraud has anything to do with Gilbert Walker’s bills of costs the subject of the present proceedings.   If Mr Scott wishes  to  pursue  the  allegations  he  makes,  then  it  is  open  to  him  to  bring proceedings against Gilbert Walker for breach of the contract of retainer and/or for negligence.  It is significant that he has not taken this step.

[23]     I note that the issue was raised by Mr Scott when he lodged a complaint with the Law Society on 31 March 2010 – the same day as the telephone conference with Lang J, in which his Honour made it clear that any adjournment application would be heard today, and that in the event the application was unsuccessful, an order would be made requiring Mr Scott to serve his briefs of evidence during the week commencing 12 April 2010.

[24] I have been referred to s 161(1) of the Lawyers and Conveyancers Act. Mr Scott has complained to the Law Society about Gilbert Walker’s “conduct, service and costs”. As I have already noted, an earlier complaint, also about conduct, service and costs, was dismissed by the Society in October 2009. It must be arguable that the Law Society is functus officio, at least in regard to the costs aspect of the latest complaint. Even if I am wrong in that regard, s 161(1) does not bar the Gilbert Walker proceeding at least insofar as liability is concerned. I refer to the judgment of Stevens J in Simpson Grierson v Gilmour HC Auckland CIV 2008-

404-8674, 27 August 2009 at [62]–[68].

[25]     In summary, in relation to the alleged fraudulent acts, this ground does not suffice to entitle Mr Scott to an adjournment.

[26]     I now turn to the representation issue.  It is clear from the papers filed that Mr Scott has had a very large number of lawyers acting for him over the years.  They have all sought leave to withdraw – the latest example being Mr Crotty’s application which I dealt with today.  It also seems clear from the documentation that various attempts  have  been  made  by  Mr Scott  and  by  others  on  his  behalf,  to  secure representation for him.   For one reason or another those attempts have been unsuccessful.

[27]     In  my  view,  there  is  force  in  Mr  Ross’s  submission  that  Mr Scott  is contriving to create the difficulties he faces in regard to legal representation.  It is not be open to a litigant to unhorse counsel at the eleventh hour in order to secure an adjournment.  Gilbert Walker is entitled to expect that its case will be brought on at the earliest reasonable opportunity.   It is unfortunate that Mr Scott may have to proceed to represent himself, but litigation cannot be frustrated by contrived delays.

[28]     Rule 10.2 of the High Court Rules provides that the Court may before, or at trial, if it is in the interests of justice, postpone or adjourn a trial for any time, to any place and upon any terms it thinks just.

[29]     Having considered the matter, I am not persuaded that it is in the interests of justice between the parties to adjourn the present proceedings.  I am not satisfied that everything practicable has been done to avoid an adjournment by Mr Scott.   I am entitled to take into account the interests of Gilbert Walker.  It wishes to retain the benefits of the fixture it has been allocated.  The balancing exercise I am required to undertake compels the conclusion that an adjournment should be declined. Accordingly, I direct that the matter will proceed to hearing on 22 and 23 April next.

Transfer of proceedings

[30]     Finally, and for the sake of completeness, I deal with Mr Scott’s application to transfer the proceedings to Hamilton or Rotorua.

[31]     As long ago as 15 December 2008, a Mr Harris filed an affidavit as to the place where the cause of action arose.  He asserted that the cause of action arose in Auckland, because that is where the contract of retainer on which Gilbert Walker relies was formed.   There is no material before me to deny this assertion.   In the circumstances it is appropriate that the proceedings remain in Auckland.

Further timetable orders

[32]     Mr Scott was due to file and serve his brief of evidence by 12 March 2010. As already noted, he has not done so.

[33]     Mr Ross seeks that I impose a further timetable in this regard, accompanied by an unless order.   Mr Scott opposed this suggestion because he is a layman, currently without legal representation.

[34]     I accept that such orders are appropriate.   Mr Scott has breached previous timetable orders.  He appears to be determined to resist the matter coming to trial.

[35]     I order that Mr Scott is to file and serve his briefs of evidence, which briefs are to be signed, by 5 pm on Friday 16 April 2010.  Unless the briefs of evidence are filed and served on or before that time, Mr Scott is to be debarred from defending these proceedings.

[36]     Both parties are to file and serve their respective opening statements by 5 pm on Tuesday 20 April 2010.

Costs

[37]     The costs of today’s hearing are reserved.

Wylie J