[2013] NSWCA 26
The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCA 26
The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
EX Tempore Judgment
LEEMING JA: The applicant firm of solicitors, Gells, seeks leave to appeal from the judgment ordered against it in favour of the barrister, Mr Richard Jefferis, who was found by the primary judge to have been retained by it and whose fees have not been paid. The judgment is very long, some 174 paragraphs over 95 pages, following five days of hearing: Jefferis v Gells Pty Ltd trading as Gells Lawyers [2018] NSWDC 288. The judgment sum is $71,790.90. Leave is required by reason of s 127(2)(c) of the District Court Act 1973 (NSW).
The application is unusual in certain respects. The draft notice of appeal contains no fewer than 27 grounds. However, the summary of argument occupies a mere two and a half double-spaced pages and six numbered paragraphs. It does not comply with many of the requirements in the rules including as to whether there should be a concurrent hearing. It does not mention any particular ground of appeal.
Two of the six paragraphs in the summary of argument deal with jurisdiction. This is also the subject of proposed grounds 10, 11 and (the second) numbered ground 25. Mr Raphael, who appeared in this Court but not below, commenced his oral submissions with the topic of jurisdiction. The primary judge considered that there was jurisdiction notwithstanding that it was agreed that the matter was a commercial matter and notwithstanding a series of first instance Supreme Court decisions to the contrary including The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194; (2017) 324 FLR 261.
His Honour proceeded on that basis because his Honour was of the view that he was bound by earlier decisions of the Court of Appeal in Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 and New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338.
Even if, as Mr Raphael contends, his Honour's views on jurisdiction were supported by reasons that were wrong, his Honour's conclusion is unquestionably correct, following the enactment with retrospective or retroactive force of the Justice Legislation Amendment Act (No 3) 2018 (NSW), see sch 1 item 1.16, cll 1 and 3. This caused Mr Raphael to submit in writing that at the very least the costs of the jurisdiction argument "must be reduced with respect to all the argument about jurisdiction" and indeed it was said that "this is yet another reason for the ordering of a new trial." In oral submissions Mr Raphael placed emphasis on what he styled "the obdurateness" of the primary judge's refusal to follow a series of first instance decisions of the Supreme Court of New South Wales.
There is no substance to the applicant's submissions in relation to jurisdiction. There is no reason to grant leave to appeal when there is no prospect of challenging the conclusion of the primary judge that the District Court had jurisdiction.
The law firm's remaining written submissions focus upon the fact that Mr Jefferis did not give evidence while Mr Coffey, a solicitor of the firm, did give evidence. This is put in a variety of ways. It is said that there was error in rejecting the case advanced by Mr Coffey, who was found to be a witness of truth, in circumstances where Mr Jefferis did not give evidence (ground 1). It is said that the verdict and findings are contrary to the evidence (ground 2), that the findings could not be reasonably supported by the evidence (ground 3), that there was insufficient evidence to find in favour of Mr Jefferis when he gave no evidence (ground 4), that the findings on the documents were inconsistent with the finding that Mr Coffey was a witness of truth (ground 5), that the truthfulness of Mr Coffey's evidence was not challenged (ground 6), and so on.
Ultimately it was said that his Honour ought to have accepted Mr Coffey's account that there had been an oral variation to the terms of the barrister's retainer. It was accepted that the written documents insofar as they reflected a retainer were of a retainer that was unconditional. Gells' case was that in some fashion the written terms of the firm's retainer of Mr Jefferis had been qualified.
The difficulties with this submission emerge from the interlocutory history of the litigation. The proceedings were adjourned to permit an assessment of the barrister's costs to take place and the pleadings were then amended to reflect the outcome of that amendment: see Jefferis v Gells Pty Ltd [2018] NSWDC 73.
The barrister sued on a written costs agreement in an amount as determined by an assessor. It was not necessary for Mr Jefferis, in order to make out any part of his case, to give testimonial evidence. The firm by its defence and cross-claim maintained that Mr Jefferis had waived his rights under the costs agreements or was estopped from asserting them or had engaged in misleading or deceptive conduct. The primary judge rejected those claims. The primary judge also rejected the submission that the written terms of the costs agreement were varied orally, finding that any such variation would not comply with the statute. Nothing was said in writing to cast any serious doubt on the findings of the primary judge in these respects. Indeed, in fairness, Mr Raphael when he was confronted with the force of these points during submissions, came close to accepting as much.
In his oral submissions Mr Raphael drew particular attention to proposed grounds of appeal 15, 17, 18, 19 and 21. Those grounds reiterate the points that Mr Coffey was not the subject of cross-examination, that there were no adverse findings made of Mr Coffey and that there was error in failing to take into account Mr Coffey's evidence in the adjudication of the case and in reaching the orders that his Honour ultimately reached. Once again, those matters do not give rise to any reasonable basis for appellate review of his Honour's orders.
In order to warrant a grant of leave this Court generally requires the applicant to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46], Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38], The Age Company Limited v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
There is no issue of principle or question of public importance. Nothing has been put in writing or orally to demonstrate a reasonably clear injustice going beyond the merely arguable. I propose that leave be refused with costs.
EMMETT AJA: I agree but would like to add some brief comments in relation to the defence of estoppel or misleading conduct, based on statements alleged to have been made by or in the presence of the barrister. The solicitor relied on a file note apparently made by his employee, Mr Noss, that the barrister said that he would conduct the case "on spec". However, as the primary judge indicated, no evidence was called from Mr Noss and accordingly there was simply no admissible evidence that the barrister ever made such a statement. The solicitor also relied on a statement made in conference by the ultimate client that "the judge better grant my application for money or I cannot pay you" coupled with the lack of any reply from the barrister as an acknowledgment of the barrister's understanding that he was doing work on spec.
The primary judge rejected those matters as evidence of any representation or conduct on the part of the barrister that might give rise to an estoppel or to a claim for misleading or deceptive conduct. I am not persuaded that there is any prospect of a different result being achieved on appeal. I agree with everything that was said by Leeming JA and I agree that the application for leave should be refused with costs.
LEEMING JA: The order of the Court therefore is application for leave to appeal refused with costs.
[3]
Amendments
28 March 2019 - Coversheet and [9] - [2018] NSWDC 288 changed to [2018] NSWDC 73
Coversheet and [1] - unreported decision changed to [2018] NSWDC 288
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 March 2019