O'Doherty v Birrell [2001] VSCA 44

O'Doherty v Birrell [2001] VSCA 44 - VSCA 2001 case summary — Zoe

[58]

Mr. Uren submitted that, timetable or no timetable, the work which was undertaken by Mr. O'Doherty after 24 December 1996, would have been done anyway, and whether or not the times fixed by the judge had already passed. The assumption underlying the plaintiff's case is that once the time fixed had passed for the doing of any act requiring work on the part of those advising the defendants in the South Australian proceeding, there was no point in the doing of that work, or indeed of any part of it. We agree with Mr. Uren that that is simply not so. If a party is directed by the Court to file an affidavit or to notify an objection, to do so late is better than not to do it at all, if an indulgence is then to be sought. So too, if work is required of that party's legal advisers, the case for an indulgence is stronger if the work has been undertaken, even if not completed, by the time of the application. As Mr. Uren said, better late than never. On that footing, the mere expiry of the times fixed by the judge on 10 October did not per se render altogether futile the work which Mr. Birrell requested of Mr. O'Doherty. If, as Mr. O'Doherty said, he would not have undertaken the work had he known that the times fixed by the judge on 10 October had already passed, Mr. O'Doherty would, we think, have misunderstood his position and in particular would have misunderstood the significance of the work to any application on 13 January that the hearing be adjourned. The judge accepted Mr. O'Doherty as a witness of truth and we do not suggest that Mr. O'Doherty was not unaware, until 11 January, of the detail of the timetable fixed on 10 October. But it does not follow that the work which the plaintiff did should not then have been asked of him or that, once done, that work must have been of no value at all to the defendants in the South Australian proceeding. Nor does it follow that, had the plaintiff known of the timetable, he would have been justified in refusing to undertake the work which he performed - and in undertaking that work Mr. O'Doherty would obviously have been at risk of not gaining his fees.

[59]

The timetable apart, it is important to observe that in doing the work he did Mr. O'Doherty was, at least in part, acting of his own motion. The problem that would have confronted him, once he learnt of Mr. Birrell's default in preparing properly the defendants' opposition to the application for summary judgment, was no more and no less than that confronting any barrister who has deal with an unexpected emergency which is not of his own making. The costs of any work done after the expiry of a time limit are commonly liable to disallowance, particularly when, as Mr. Birrell himself made plain to Lander, J., the lateness cannot be ascribed to any fault of the client. The plaintiff well knew that that was so in this instance: he was clear that Mr. Birrell was the one, and the only one, to blame for the failure to prepare adequately for the hearing on 13 January, the responsibility for which was his according to their distribution of the work between them. Had Mr. O'Doherty known of the timetable, he might have pressed Mr. Birrell sooner to prepare more fully; but if Mr. Birrell had remained in default, then Mr. O'Doherty might well have undertaken the work for himself - as he did - and if that happened after the times fixed by the judge had expired O'Doherty must have been at risk for his fees. Yet his duty to his client would surely have demanded as much, as witness the work which Mr. O'Doherty did of his own motion on the three affidavits. Discovering late in the piece that there were no affidavits in opposition, he set to and prepared them himself, which betokens his recognition of the obligation he had undertaken to the clients in accepting a retainer and which was to be discharged, irrespective of whether it was at the risk of personal loss. The possible conflict for him between duty and interest is clear. Mr. O'Doherty did the work on the affidavits not because of any request from Mr. Birrell; indeed, as between the two barristers, it was not even the former's province to prepare the defendants' case on the application for summary judgment. O'Doherty did that work because, as he saw it, he might thereby bail the clients out of a difficulty which Birrell had created by failing to act. Very properly he gave no thought then, we have no doubt, to the recovery of his fees.

[64]

Of course the immediate cause of the plaintiff's loss of fees for work done after 24 December 1996, whether at the request of Mr. Birrell in relation to admissibility or of his own motion when he sought to save the day for the defendants on 13 January by the filing of late affidavits, was the undertaking exacted by Lander, J. from the three legal practitioners who appeared for the defendants on 13 January, that none of them seek to recover fees for work done on the application for summary judgment to date. In seeking an adjournment as he did on that day, Mr. O'Doherty was no doubt acting in the best interests of the clients if, as he considered, their opposition to the application was hopelessly under-prepared. But in applying for the adjournment he was seeking an indulgence and accordingly he or his clients were properly put on terms as to the payment of the plaintiff's costs. So much might reasonably have been foreseen when it was decided to make the application for the adjournment. On 13 January, Lander, J. exacted an undertaking in respect of the payment of those costs, and it was not that undertaking (or indeed the subsequent order against Mr. Birrell) that occasioned any loss to Mr. O'Doherty. What occasioned Mr. O'Doherty's loss was the undertaking by the three practitioners not to seek costs for themselves. That undertaking was given only after the judge had given all three practitioners the opportunity of being heard: the transcript of 13 January shows that each of them spoke at some stage. In requiring the undertaking (which was in terms not to claim fees from the defendants), the judge was doing little more than acceding to a submission to that effect from counsel for the plaintiffs, who, from the transcript, was obviously concerned about any further dissipation of the defendants' assets except for good cause, given that the proceeding had been brought to recover those assets for the plaintiffs. The judge's irritation at the costs so far incurred with little result was plain: it may be said that his Honour, too, was concerned that the defendants' assets not be dissipated without good reason. And the judge saw little reason for the defendants' paying costs to date to the three practitioners then appearing, given his current assessment of the state of their case.

At a glance

Court

Decision date

Before

Source

Judgment (111 paragraphs)

Parties

Cases Cited (2)