Appellant v Respondent

Point not put below Mond v Lipshut [1999] VSC 103; [1999] 2 VR 342.

1 This is an appeal under section 109 of the Magistrates' Court Act 1989 ("the Magistrates' Court Act"), which provides that a party to a civil proceeding in the Magistrates' Court may appeal to this Court, on a question of law, from a final order of the Magistrates' Court in that proceeding.

2 It appears that the respondent ("Rigby Cooke"), a firm of solicitors, acted for the appellant ("Mr Collier") on a building dispute before the Building Appeals Board. In the events that happened, Rigby Cooke brought proceedings in the Magistrates' Court to recover from Mr Collier the sum of $11,294.09 (later amended to $8,762.61) on account of professional fees and disbursements. This is an appeal from the final order in those proceedings, made on 1 April 2004 by the Magistrates' Court at Melbourne constituted by Magistrate Macleod. By that order Mr Collier was ordered to pay Rigby Cooke $4,500 with interest of $653.33 and costs of $4,958.00.

3 On 7 May 2004 Master Wheeler ordered that the question of law shown to be raised by the appeal was:

Did the learned Magistrate err in not finding that the costs agreement capped at $7,000 had been repudiated by the respondent (see inter alia exhibits 9 and 18 within exhibit "AC 5")?

4 After the Building Appeals Board delivered its decision, it invited the parties to send in written submissions on the question of costs. Exhibit AC5 is a bundle of documents which were exhibited in the Magistrates' Court. Exhibit 9 in that bundle is a letter dated 18 November 2002 from Mr Thomas, a partner in Rigby Cooke, to Mr Collier, which reads in part:

As requested, enclosed are itemised bills of the work performed to date. . . .

I refer to our telephone conversation and your email of today. Contrary to your assertion, there is no "agreement of 30 September" as to our fees. As stated in my letter of 29 October, my email of 4 October set out the basis on which I was prepared to continue to act in the matter.

Be that as it may, I am more than happy to prepare your submission on costs on payment of our outstanding fees. I note the submission is to be lodged with the Building Appeals Board by 20 November.

5 The enclosures are not exhibited as such with the letter. However, Mr Collier deposes in paragraph 16 of his affidavit of 30 April 2004 that at the hearing in the Magistrates' Court Mr Thomas admitted that the outstanding fees appearing from the invoices sent to Mr Collier at that time totalled over $11,000.

6 Mr Thomas, in his answering affidavit of 29 June 2004, deposes in reference to inter alia paragraph 16 of Mr Collier's affidavit:

In the absence of reading the transcript of the evidence of the Appellant and myself, I do not believe that the allegations made by the Appellant in those paragraphs are accurate.

He does not specify the inaccuracies to which he refers. However, it would presumably not have been necessary for him to refer to the transcript in order to check the amount of the outstanding fees appearing from the itemised bills enclosed in his letter of 18 November 2002.

7 Mr Antill, for Mr Collier, relied on the final paragraph of Exhibit 9, following earlier communications between the parties as to the basis on which Rigby Cooke's costs should be calculated, in support of his submission that the answer to the Master's question should be Yes. He submitted, relying on the decision of McCardie J in In re Rubel Bronze and Metal Company, Limited, and Vos, [1] that, being a matter of the interpretation of a written document, the interpretation of that paragraph was a question of law, not a question of fact.

8 The Magistrate's findings of fact and reasons for his decision were delivered in the course of discussion with counsel after the close of the evidence, rather than in the more usual narrative form. However it is not in issue that he found that there was an agreement between Rigby Cooke and Mr Collier which capped Rigby Cooke's legal costs in respect of the whole of the building dispute, including the submissions on costs, at a maximum of $7,000.

9 The submission of Mr Antill was that the final paragraph of Exhibit 9, read with its enclosures, evinced an intention to prepare the submissions on costs only on payment of an amount greater than the agreed capped figure of $7,000. In his submission this amounted to repudiation of the agreement between the parties.

10 Evidence of what occurred in the Magistrates' Court was before this Court in the shape of a transcript of that part of the hearing which took place after the close of the evidence. The reporter who prepared that transcript, Ms Furlong, deposed that she had been provided with a tape of the hearing, and had produced the transcript exhibited to her affidavit from an extract of that tape. The affidavit of Mr Collier which has already been referred to, with its exhibits, was before the Court. The respondent did not put in any answering affidavit as to substance, [2] and the decision not to put in such an affidavit was a decision which was open to it to make.

11 Mr Collier deposes that his affidavit was prepared with the assistance of Mr Antill (who had appeared for Mr Collier before the Magistrate) after Mr Antill had listened to the tape, and that it contains "a true account of the evidence given and the proceedings taken at the hearing according to the best of my recollection and belief". Mr Antill indicated that the reason for not transcribing the balance of the tape was that the cost would have run into thousands of dollars, in the context of a relatively small claim.

12 Mr Lithgow, for Rigby Cooke, submitted that this was not an appropriate procedure. The Court should have before it the best evidence, and given that the tape was available, the best evidence would be a transcript of the whole of the tape. The evidence was not before the Court in an adequate form and accordingly the appeal should be dismissed.

13 However, I note the view of the learned author of Cross on Evidence that the best evidence rule "has long lost its title to be regarded as a general principle of law of evidence" [3] and is limited in its application to written documents stricto sensu. I do not regard it as relevant to the question of the sufficiency of Mr Collier's affidavit as a means of putting evidence before the Court.

14 Mr Antill submitted that the appellant, by filing the affidavit of Mr Collier, had complied with Rule 58.08 of the Supreme Court (General Civil Procedure) Rules ("the Rules") as in force at the relevant time. However, Rule 58.08 at all relevant times has related only to the application to the Master for an order under Rule 58.09 of the Rules, and has no application to the hearing of an appeal by a Judge.

15 Mr Antill asserted that the question in the Master's order is a question of law to be determined by the interpretation of the letter of 18 November 2002, and he did not (as he might have done) raise the issue as to whether there was evidence (for instance, as to the existence of the cap, and as to whether Rigby Cooke continued to work under the agreement [4] ) on which the Magistrate as a reasonable man could find as he did on that question.[5] That being so, I consider that the affidavit of Mr Collier provides, for present purposes, a sufficient account of the evidence for the purposes of this appeal.

16 Nevertheless, I should point out that that will not be so in all cases. As I said to Mr Antill during the hearing of the appeal, litigation in this Court is, unfortunately, expensive, and the likely expense must always be a factor to be taken into account by those who seek, in effect, to litigate here on small claims. There will be many appeals the determination of which requires the provision of a full transcript of the hearing below.

17 The transcript discloses that Mr Antill's submission to the Magistrate on the issue of repudiation was that "if it's found that there was a costs agreement based on the $7000 cap, then the plaintiff has clearly repudiated that agreement in various letters, and I can take your Worship to these". Before Mr Antill had had the opportunity to refer to any specific document, the Magistrate replied that Mr Thomas had failed to repudiate the agreement, and his conduct amounted not to a repudiation, but to an attempted variation of the agreement, which had failed. There was no repudiation, the Magistrate ruled, because, as he found as a fact, Rigby Cooke had continued to work under the agreement. That is a finding which is not challenged in this appeal; it is not suggested that there is no evidence on which the Magistrate could make that finding.

18 After some discussion of Exhibit 9 specifically, Mr Antill submitted to the Magistrate that the writing of the last paragraph of that document amounted to unconscionable conduct which would prevent Rigby Cooke from relying on the original agreement. The Magistrate found that the paragraph did not involve unconscionable conduct, but indicated a misunderstanding as to the terms of the agreement.

19 As I have said, Mr Antill's submission in this Court was that the only claimed repudiation was contained in the last paragraph of Exhibit 9, to which the question in the Master's order alludes. However, it appears that he did not put that submission to the Magistrate; the submission he put to the Magistrate as to that paragraph was the submission that it constituted unconscionable conduct.

20 Mr Lithgow submitted, and I accept, that as the submission that that paragraph constituted a repudiation was not put to the Magistrate, it is not appropriate that it be relied upon before this Court. In Mond v Lipshut [6] Ashley J considered, with reference to authority, the position under section 109 of the Magistrates' Court Act and concluded:

I consider that any unfairness in denying an appellant an unassailable appeal point ought be balanced against the great undesirability of making the trial a mere "preliminary skirmish" - a characterisation adopted by Gibbs CJ, Wilson, Brennan and Dawson JJ in [Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1] at 7 - marked by inadequate attention to issues; and balanced against the undesirability of trawling the proceedings at first instance to see if some unassailable point, not put at trial, can be located. Every time that courts on appeal permit such a point to be raised, there is left in the wake of that permission at least a thorough waste of court resources, and the depletion of the financial resources of the litigants.

In adopting that passage, I do not wish to suggest that the point here in question was "unassailable". It is not necessary for me to make any finding on that point and I do not do so.

21 I have found that the Magistrate's ruling that there had been no repudiation of the agreement was based on an unchallenged finding of fact; and that the only question of law before the Court is not appropriate to be brought here. Accordingly, the appeal will be dismissed. Counsel may wish to make submissions as to costs.

[1] [1918] 1 KB 315 at 322-3

[2] see [6] above

[3] JD Heydon, Cross on Evidence, 6th Australian edition 2000 at [1480]

[4] see [17] below

[5] see Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 cited in Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 11

[6] [1999] VSC 103; [1999] 2 VR 342 at 350-1