Oliveri Legal Pty Ltd v Danis - [2024] NSWSC 1063 - NSWSC 2024 case summary — Zoe

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Oliveri Legal Pty Ltd v Danis

[2024] NSWSC 1063

Supreme Court of NSW|2024-06-21|Before: Chen J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-06-21

Before

Chen J

Catchwords

[2022] NSWCA 118 Danis v Oliveri Legal Pty Ltd [2023] NSWSC 89 Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155
[2019] NSWCA 172 Fox v Percy (2003) 214 CLR 118

Source

Original judgment source is linked above.

Catchwords

[2022] NSWCA 118 Danis v Oliveri Legal Pty Ltd [2023] NSWSC 89 Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155[2019] NSWCA 172 Fox v Percy (2003) 214 CLR 118

Judgment (20 paragraphs)

[1]

Introduction

These reasons deal with an appeal from the Local Court by an unsuccessful defendant in a debt claim.
The claim in the Court below was brought by Emil Danis ('the defendant'). He alleged that, on or about 20 December 2018, he had entered into an agreement with a firm of solicitors, Oliveri Legal Pty Ltd (specifically, through the principal of that firm, Emanueli Oliveri) which he subsequently performed, entitling him to $43,340.00 - but that the firm had wrongfully, and in breach of that agreement, failed to pay him that amount.
A Local Court Magistrate accepted that an agreement had been made in the manner alleged by Mr Danis, and that Oliveri Legal Pty Ltd had failed to perform it. Having so concluded, the Magistrate entered judgment for the amount claimed in Mr Danis' favour against Oliveri Legal Pty Ltd ('the plaintiff'). The claim against Mr Oliveri personally was dismissed. No appeal has been brought against the dismissal of the claim against him.
The plaintiff, by summons filed 12 January 2024, appeals to this Court relying upon six grounds - the most substantive of which involves a complaint that the trial miscarried because, so it was argued, the Magistrate made a damaging credibility finding against Mr Oliveri in circumstances where, contrary to the rule in Browne v Dunn, the matter that underpinned the unfavourable finding had not been put to him either sufficiently, or indeed at all.

[2]

The nature of the appeal to this Court

Section 39(1) of the Local Court Act 2007 (NSW) ('the LCA') provides that a party to proceedings before the Local Court "who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law". Section 40(1) of the LCA permits a party to proceedings before the Local Court "who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact [to] appeal to the Supreme Court but only by leave of the Supreme Court".
The summons filed by the plaintiff did not clearly identify the basis for the appeal to this Court - it merely identified that "[t]o the extent necessary, leave to appeal on the question of mixed law and fact be granted" (summons, order 1). The grounds of appeal provided little further illumination - for example, ground 1 merely asserted that the Magistrate "erred in deciding" a particular issue and ground 2, by way of further example, asserted that the Magistrate "erred in law".
These shortcomings in the summons were drawn to the attention of the plaintiff at the commencement of the hearing. The plaintiff submitted that all grounds, with the exception of ground 5, were advanced through s 39(1) of the LCA and thus involved an appeal against the judgment "but only on a question of law" (Tcpt, 21 June 2024, p 3(31)-(34)). Nevertheless, no attempt was made to identify a question of law in connection with any of those grounds.
In Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382, I had occasion to address the requirements and background principles that relate to ss 52(1) and 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) - provisions that, relevantly, limit an appeal as of right against a conviction or sentence (or, in the case of s 53(3)(b), by leave against an interlocutory order) of the Local Court "but only on a ground that involves a question of law alone". There I said the following (at [88]-[90]): 88 In relation to a question of law alone, as that phrase appears in the above sections, the following five matters warrant emphasis. First, a mixed question of fact and law does not fall within the description of "question of law alone" (Attorney-General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; R v XHR [2012] NSWCCA 247 at [23] ('XHR')), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue (NSW) (2014) 96 ATR 875; [2014] NSWCA 378 at [6] ('Ferella'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('Schwartz'). Thus, if, upon proper analysis, the question is not one of law, "linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law": Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97 at [53]; see also Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527. Thirdly, "the formulation 'a question of law alone' is more restrictive than the formulation 'a question of law'. Furthermore, the terminology 'question of law' is not equivalent to 'error of law'": R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 at [74] ('JS'); XHR at [21]. Fourthly, the grounds of appeal are required to explicitly identify - or as it is sometimes said identify "with precision" - the question of law raised: Part 51B, r 8 of the Supreme Court Rules 1970 (NSW) ('SCR'); JS at [75]; Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Fifthly, the appeal against the conviction is confined to a ground that involves a question of law alone. 89 As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v The Queen (1986) 161 CLR 278, 287: … there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case. 90 The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction "on a ground that involves a question of law alone". That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome "in the sense that it could have affected the outcome": Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41]; Styles v Rowley [2023] NSWSC 1053 at [50]-[51]; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction "involves" the question of law alone.
These remarks, with some slight adjustments to reflect the different statutory context, apply with equal force to the present situation. The importance of clear identification of the question or questions of law was recently restated by the Court of Appeal in an analogous context: Medical Council of New South Wales v Mooney [2024] NSWCA 180 (the appeal in that matter was "as of right on any question of law": at [3]). There it was confirmed (if confirmation was required) of the need, where the appeal is constrained to one involving a question of law, for the notice of appeal to identify precisely the particular question or questions: it is the existence of that question or questions of law "which founds an appellant's entitlement to appeal as of right", and the court "will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law": at [95]-[97]. Here, as I have said, the summons did not, in terms, identify any question of law in relation to any of the grounds ultimately pressed. The plaintiff, although accepting that the summons in this respect was less than clear, made no attempt during submissions to frame any question of law for any of the grounds ultimately pressed. Nor, assuming any particular ground of appeal involved a question of mixed law and fact, did the plaintiff advance any arguments to support a grant of leave.

[5]

The plaintiff's pleaded claim and the defence to it

By amended statement of claim filed 13 July 2021 ('ASOC'), the defendant commenced proceedings in the Local Court against the plaintiff and its principal, Mr Emanueli Oliveri, alleging that they owed him money for work he had done pursuant to an alleged contract between them.
The defendant brought a claim for breach of contract, as well as a cause of action under Schedule 2 of the Competition and Consumer Act 2010 (Cth) ('the Australian Consumer Law'), but the essential facts relied upon to support each cause of action were the same. Thus, it is only necessary, on the appeal to this Court, to focus - as the parties did - upon the cause of action in contract.
The key allegations made by the defendant in the ASOC were as follows: 1. On or around 20 December 2018, the defendant and Mr Oliveri met at Mr Oliveri's office and entered into an agreement ('the agreement') in connection with the client that had been introduced to Mr Oliveri by the defendant ('the client'), wherein the defendant would assist with work in connection with the client's Supreme Court proceedings (ASOC, par 5). 2. The agreement contained both express and implied terms and the express terms were that the defendant "would be paid half of the legal fees paid by the client" to the plaintiff in relation to the Supreme Court proceedings (ASOC, par 6(a)) and, in consideration for that payment, the defendant "would perform work for the purpose of the advancement and progress" of the Supreme Court proceedings including undertaking "financial analyses, marshalling and summarising and transcribing lay and expert evidence, organising files, drafting documents, administrative tasks and liaising with the client" (ASOC, par 6(b)). 3. The defendant performed his obligations under the agreement "over the course of the period from 20 December 2018 to 4 August 2020" (ASOC, par 8). 4. In partial compliance with the agreement, the defendant was paid $50,000.00 on 7 July 2021 by the plaintiff (ASOC, par 9). 5. By 2 July 2020, the plaintiff had been paid $186,680.00 "excluding counsel fees, expenses and disbursements" by the client, such that the defendant was entitled, pursuant to the terms of the agreement, to $43,340.00 (ASOC, par 10). (This amount took into account the payment of $50,000.00 that had been made). 6. The defendant made unsuccessful demands upon the plaintiff for the outstanding amount (ASOC, pars 11 and 12).
The plaintiff and its principal filed an amended defence to the ASOC on 18 July 2023 (the 'amended defence'). That defence makes bare denials of and to the allegations made by the defendant about the existence of the agreement and its terms (amended defence, pars 3-6 inclusive).
The plaintiff not only denied that there was any such oral agreement between the parties, but alleged that the $50,000.00 paid to the defendant on 7 July 2021 was, in fact, "a loan repayable on demand" (amended defence, par 8(b)). The plaintiff also did not admit that "an amount of $186,680.00 had been paid" to it by the client in connection with the proceedings by 2 July 2020 (amended defence, par 9(b)). These allegations were also repeated in a cross-claim filed by the plaintiff on 14 October 2021. By that cross-claim, the plaintiff sought the repayment of the $50,000.00. (As discussed below, that cross-claim was dismissed at the first hearing before Greenwood LCM by reasons delivered, and orders made, on 8 September 2022).

[6]

The evidence of the parties

In the Local Court, the parties served affidavits that contained the evidence in chief of the key witnesses. For the defendant, he relied upon his affidavits affirmed 19 May 2023 and 28 July 2023. For the plaintiff, it relied upon an affidavit of Emanueli Oliveri sworn 16 May 2022.
It will be necessary, when dealing with some of the grounds of appeal, to return to particular parts of this evidence. For present purposes, however, it is sufficient to note that the evidence of each party specifically addressed whether, as the defendant alleged, there was an agreement reached on or around 20 December 2018 containing the terms identified: see [18], above.
Thus, to illustrate, the defendant's evidence covered the meeting that the defendant alleged occurred on or around 20 December 2018, and the terms of the discussion held between the defendant and Mr Oliveri that gave rise to the agreement: see, by way of example, the defendant's affidavit affirmed 19 May 2023, par 14 and the defendant's affidavit affirmed 28 July 2023, par 11. That evidence aligned with the defendant's pleaded claim about the formation of that agreement, and the terms of it. The defendant's evidence also went to proving performance of that agreement.
The plaintiff relied upon evidence from Mr Oliveri. His version of events may be contrasted to the plaintiff's. In his affidavit sworn 16 May 2022, Mr Oliveri denied that an "agreement of any kind was entered into between the [defendant] and either of [the plaintiff or Mr Oliveri] on or about 17 December 2018" and he further denied that there had been any discussions or agreement between the defendant and the plaintiff "regarding payment to the [defendant] for services of any kind": pars 22 and 23. The evidence from Mr Oliveri was, in effect, that although the defendant apparently frequently attended his office after December 2018 - often without prior notice or an appointment - and undertook work in relation to the Supreme Court proceedings, he "was acting as an agent" for Mr Wilcox and his brother: pars 25, 29 and 31.
Given the issues that arise on this appeal, the following evidence from Mr Oliveri should also be noted from his affidavit at par 33: I deny the conversation alleged by [the defendant] in paragraphs 5 to 7 of the Amended Statement of Claim were discussed. I say that the [defendant] never entered into the alleged agreement with either the [plaintiff] or [Mr Oliveri].
As I noted in the brief summary of the respective "cases" of the parties in the Local Court, the plaintiff sought to characterise the "payment" of $50,000.00 to the defendant as a loan (a characterisation that the defendant contested). Mr Oliveri's evidence was that on or around 7 July 2020, there was a conversation between himself and the defendant wherein it was agreed that Mr Oliveri would loan, from the bank account of the plaintiff, that amount: affidavit of Emanueli Oliveri sworn 16 May 2022, pars 36-44.
The defendant in his evidence addressed the payment to him of $50,000.00: see, for example, the defendant's affidavit affirmed 19 May 2023, pars 15-18 and 24; and the defendant's affidavit affirmed 28 July 2023, pars 21ff.
As is evident from this brief summary of the evidence, the issue between the parties about whether an agreement had been formed in the way alleged by the defendant was well and truly joined. So too was the issue about the proper characterisation of the payment to the defendant of $50,000.00.

[8]

The reasons of the Magistrate

The reasons of the Magistrate do not have a medium neutral citation. The references to the paragraphs in that judgment will be referred to as J1 etc.
The reasons of the Magistrate commenced with a summary of the dispute, correctly describing the defendant's claim as relating "to an alleged oral agreement that the [defendant] would be paid half the legal fees paid to the [plaintiff] by the Client in relation to a particular Supreme Court matter involving the Client" (J1). The Magistrate, having noted that the cross-claim by the plaintiff and Mr Oliveri for repayment of the $50,000.00 had been dismissed, nevertheless concluded that the plaintiff and Mr Oliveri could succeed in defending the defendant's claim if he was not satisfied "that the agreement was entered or breached, and or if I found that the $50,000 was a loan. If I found the latter, there would be no ability to order a repayment" (J6). The Magistrate also noted that the evidence included affidavits of the defendant affirmed 19 May 2023 and 28 July 2023 (and an exhibit to that affidavit) and an affidavit from Mr Oliveri sworn 16 May 2022 (J7).
The Magistrate, having summarised the substance of the dispute, identified that the "case turns on a disputed conversation" between the defendant and Mr Oliveri that, according to the defendant, occurred in December 2018 that was contested by the plaintiff (J8).
I will, when dealing with the particular grounds of appeal, return to some of the detail of the Magistrate's reasons, however it is presently only necessary to refer to the following key findings and conclusions: 1. The Magistrate rejected "the evidence that there was a loan", finding that there was "nothing to support it other than the belated assertions in the letter of demand [sent] after action by the [defendant]…" (J25). 2. The Magistrate accepted the defendant's "evidence of the agreement" and rejected "the attacks on his credibility in circumstances where I cannot rely on the alternative version" (J26). Later, the Magistrate indicated that "on the essential facts I accept his evidence" (J30). 3. The Magistrate concluded that the "agreement was simple. The [defendant] would get half the fees received, i.e., paid" and that what was said were "words…to the effect that he would like him to assist with the Client's case, and they would go halves in the legal fees paid excluding counsels fees and disbursements" (J33). 4. The Magistrate held that as there was "money outstanding on that agreement", the defendant was entitled to succeed in his contractual claim and that it was "unnecessary to consider the [Australian Consumer Law] claim" (J34).

[12]

Introduction

By this ground of appeal, the plaintiff complains that it was denied procedural fairness by the Magistrate making an adverse credibility finding against its principal witness, Mr Oliveri, contrary to the rule in Browne v Dunn.
The ground of appeal is directed to a specific part of the Magistrate's reasons - what the plaintiff argued was his Honour's assessment and consideration of a tax invoice that the plaintiff rendered to the client for work done which the Magistrate "found had not been done" (summons, ground 1).
The finding made by the Magistrate was (J20-J21): [20] The bill to the Client dated December 2020 contains many items identical to the [defendant's] itemised schedule which he says he sent to the [plaintiff]. There is no denial of the receipt of the document. It must have been received as it is impossible for the [plaintiff's] bill to the Client to have so many similarities. I cannot see how the bill could possibly be an accurate record of time spent by the [plaintiff or Mr Oliveri] personally when it appears the [defendant] was the person who attended to so many of the tasks. A few examples of verbatim (or very close) copies of items from one to the other (selected from dozens of examples) illustrates this point:… [21] This is very troubling as the bill is a claim by a solicitor for time based charges by a partner or senior solicitor which appear not to have all occurred. It makes me approach [Mr Oliveri's] evidence with caution. It is relevant to credit.
The plaintiff argued that the critical finding was the one made by the Magistrate at J20 ("the tax invoice finding"). In particular, it was argued that the Magistrate found that the tax invoice the plaintiff sent to the client dated 18 December 2020 involved the plaintiff copying "certain particulars" from the defendant's document that contained an itemisation of the tasks performed and hours worked by him in relation to the client's matter ('the defendant's summary document') (plaintiff's submissions at [13]). It was this finding that was said to have involved a contravention of the rule in Browne v Dunn.

[13]

The rule in Browne v Dunn

In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16 ('Allied Pastoral'), Hunt J explained the rule in Browne v Dunn in these terms: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.
Two matters should be emphasised in connection with the rule. First, there is an exception to it - viz., the rule does not apply where the witness is on notice that their version is in contest. That is apparent from the first sentence of the extract from Allied Pastoral, and the decision in Browne v Dunn (1893) 6 R 67 itself, where Lord Herschell LC said there was no obligation to raise such a matter in cross-examination where it is "perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he [or she] is telling" (at 71): see also Allied Pastoral at 17; Nu v NSW Secretary of Family and Community Services (2017) 95 NSWLR 577; [2017] NSWCA 221 at [58]. Secondly, the rule is flexible: what is required depends upon the circumstances of the case.

[14]

Discussion and consideration

The plaintiff's essential argument was that the tax invoice finding cannot be sustained due to the failure of the defendant to cross-examine Mr Oliveri in connection with this issue. It was submitted that there was a "serious" breach of the rule in Browne v Dunn - that is, to put specifically to him that, in effect, the tax invoice that was sent by the plaintiff to the client dated 18 December 2020 involved the plaintiff copying entries from the defendant's summary document and, necessarily, the receipt of that document by the plaintiff or Mr Oliveri (plaintiff's submissions at [5] and [15]). In furtherance of that ultimate submission, the plaintiff also submitted that not only was this issue not put to Mr Oliveri, the issue was not "expressly referred to in evidence or the pleadings" (plaintiff's submissions at [19]). This particular submission, which was repeated during oral submissions, was presumably directed to that part of the ground of appeal to the effect that the issue was "not put in evidence". The plaintiff also had a related submission to the effect that there was an erroneous finding of fact - what was described in oral submissions as a "fundamental error of fact" (Tcpt, 21 June 2024, p 7(17)-(18)) - being that the Magistrate, so it was argued, found that there was no denial by Mr Oliveri of the receipt of the defendant's summary document, when in fact there was (plaintiff's submissions at [16]).
I will deal briefly with the complaint about the factual error alleged to have been made. That complaint is, in my view, immaterial in the present context. That is because there is no right of appeal - or any right to seek leave to appeal - from the Local Court to this Court in connection with a factual finding of this kind; any appeal to this Court is constrained by ss 39(1) and 40(1) of the LCA. The plaintiff did not submit, or advance any argument, that any alleged error was of the kind that would be within one or other section and, to be clear, there is no ground of appeal contained within the summons suggesting as much.
Otherwise, I do not accept the plaintiff's submissions that there was a breach of the rule in Browne v Dunn in connection with the tax invoice finding. In my view, the defendant sufficiently cross-examined Mr Oliveri in connection with the above matters and the issue surrounding the creation of the tax invoice dated 18 December 2020, and no further cross-examination was required in the circumstances. Further, and separately, I do not accept that the issue was "not put in evidence" or the variant to this, that the issue was not "expressly referred to in evidence". It was, as I later explain. In my view, the plaintiff (including Mr Oliveri) was clearly on notice from the pleadings and the evidence served by the defendant that Mr Oliveri's evidence in connection with the formation of the agreement and its subsequent performance, his suggestion that the payment of $50,000.00 was a loan and the circumstances surrounding these key events (including the tax invoice issue), together with his credibility and reliability more generally, was the subject of significant challenge, and he had the opportunity to respond to these matters before, and during the course of, the hearing. My reasons for so concluding are as follows.

[15]

The plaintiff was on notice about the tax invoice issue by the pleadings and evidence served and had an opportunity to address it

It is, I consider, important to give context, both procedural and forensic, to the plaintiff's complaint.
The principal issue raised by the defendant's claim - whether an oral agreement was made - essentially turned upon a disputed conversation that was alleged to have occurred on 20 December 2018: see the summary of the issues raised in the pleadings at [16]-[20], above. As there noted, the issue between the parties about whether an agreement had been formed in the way alleged by the defendant was well and truly joined on the pleadings, as was the issue about the proper characterisation of the payment to the defendant of $50,000.00. To the extent that the plaintiff submitted that the issue was "not expressly referred to in…the pleadings", that submission is, in my view, misplaced and misunderstands the nature and function of pleadings: relevantly here, the function of pleadings is to contain a summary of the material facts upon which a party relies, and not the evidence by which those facts are to be proved.
In relation to the disputed agreement, it was not suggested that there were any contemporaneous documents that served to confirm, or undercut, the occurrence and terms of the conversation that was alleged to have occurred on 20 December 2018. The Magistrate, correctly, identified that the defendant's claim turned upon that conversation (J8). Given the plaintiff (and Mr Oliveri) strongly contested the existence of that agreement, and propounded that the payment of $50,000.00 was a loan to the defendant rather than a partial payment under any agreement, it is hardly surprising that issues of credit loomed large. During the course of the hearing, the credibility and reliability of the defendant and Mr Oliveri was significantly challenged and each was extensively cross-examined: the defendant robustly cross-examined Mr Oliveri to the effect that he had lied and fabricated evidence, particularly in connection with the alleged "$50,000.00 loan". It is, I consider, unexceptional and unremarkable, in the context of the key issue in the present case, that both parties attempted to demonstrate that the principal witnesses lacked credibility or reliability (or both), but also for each party to rely upon surrounding circumstances and conduct in order to assist in proving (or rebutting) the existence of the agreement. In my view, the creation of the tax invoice dated 18 December 2020 was a surrounding circumstance, and involved conduct of the parties, that was (at least) relevant to whether any agreement between the plaintiff and the defendant had been formed, as well as the performance of that agreement, as I next explain.
The case proceeded by way of pre-trial service of affidavits. As I have earlier noted, each side served affidavits in support of their respective cases: see [21]-[28], above. The defendant's evidence asserted that Mr Oliveri engaged in copying of entries from the defendant's summary document and included those entries in the tax invoice the plaintiff sent to the client dated 18 December 2020. That was clear from par 37 of the defendant's affidavit affirmed 28 July 2023, which said the following: A copy of Oliveri Lawyers itemised tax invoice to the client dated 18 December 2020 is on pages 176-188 of exhibit ED5. Most of the dates, descriptions and hours showing in this itemised tax invoice are identical to those in my document titled "Hours spent by Emil Danis on Ben's claim" because they were copied from my document (see pages 21-25 of exhibit ED5).
The document contained at pages 21-25 of exhibit ED5 is titled: 'Hours spent by Emil Danis on Ben's claim' (what has been described as the 'defendant's summary document'). This evidence, which underpinned the tax invoice finding, was not referred to by the plaintiff in the written submissions filed on the appeal nor during the course of oral submissions. Given the content of this paragraph of the defendant's affidavit, it is not correct to say, as the plaintiff did, that the issue was "not put in evidence" or that the issue was not "expressly referred to in evidence". Nor is it correct to say, as the plaintiff did during the course of oral submissions, that there was no reference at all to this issue "in the affidavit evidence" (Tcpt, 21 June 2024, p 15(38)). There clearly was. In my view, the service of this evidence put the plaintiff, and Mr Oliveri in particular, on notice of the tax invoice issue and that his contrary account would be challenged.
It should be noted that, by that paragraph, the defendant in substance was alleging that his version of events - viz., that the agreement was reached in the terms alleged by him, and was subsequently performed by him according to its terms - was more likely to reflect the probabilities because he had provided Mr Oliveri with the defendant's summary document and the plaintiff had, when preparing their tax invoice dated 18 December 2020, more or less copied in identical terms the work that was performed by the defendant when sending that invoice to the client. At a minimum, these events tended to confirm the performance of the agreement by the defendant and the plaintiff accepting such performance by the rendering of that account to the client for payment. Additionally, that evidence tended to undercut Mr Oliveri's insistence that there was no agreement of the kind alleged, or at all, with the defendant.
In relation to this evidence, the following matters should also be noted. First, although the plaintiff was served with this affidavit and had the opportunity to respond to it (as the Magistrate observed, at the end of the hearing on the first day: see [64], below), no affidavit from Mr Oliveri that directly responded to this issue was served - albeit that his (earlier) affidavit contained evidence that squarely contested that any agreement of any kind had been entered into. The decision not to serve a (directly) responsive affidavit was, of course, a forensic choice for the plaintiff to make. Secondly, at the hearing before the Magistrate, extensive objections were made by counsel appearing for the plaintiff and Mr Oliveri to the defendant's affidavit affirmed 28 July 2023, but there was no objection (of any kind) to par 37. Thirdly, at the hearing, the plaintiff did not seek to call any further evidence from Mr Oliveri directed to this issue. Nor, as I later explain, following Mr Oliveri's cross-examination on this issue was any attempt made to re-examine Mr Oliveri or to seek leave to call further evidence. The decision of the plaintiff not to call any oral evidence from Mr Oliveri on this issue was a forensic choice for the plaintiff to make.
In my view, the plaintiff (and Mr Oliveri) must have known that all aspects of Mr Oliveri's version about the agreement were in contest, including across the issues that I have described in [52]-[56] above (and had an opportunity to deal with it) - with the consequence that the "rule [in Browne v Dunn] does not apply where the witness is on notice that the witness's version is in contest": Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 at [117], citing J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) at [17445]; see also West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [97].

[16]

Mr Oliveri was sufficiently cross-examined about the tax invoice issue

The plaintiff also argued that the defendant failed to cross-examine Mr Oliveri - entirely - about or in connection with the tax invoice issue. I disagree. Contrary to what was submitted by the plaintiff, this issue was, in my view, directly and sufficiently raised by the cross-examination of Mr Oliveri.
The cross-examination about, or in connection with the tax invoice issue, most relevantly commenced with Mr Oliveri denying that he received the defendant's summary document. The cross-examination then developed when the defendant put to Mr Oliveri that the descriptions and number of hours contained in the tax invoice to the client dated 18 December 2020 was similar to what was contained in the defendant's summary document because Mr Oliveri had copied it. These matters are apparent from the following cross-examination (Tcpt, 12 September 2023, p 127(16)-128(7)): Q. So, the printout of my schedule where the total I have spent on Ben's plan, which is on pages 21 to 25 of exhibit [ED5], shows that on 20 December, you and I had a conference regarding Ben's case. Then 18 December 2020, Oliveri Lawyers Tax Invoice provided to them, starts on page 176 of the exhibit [ED5]. The fifth entry in your tax invoice dated 20 December 2018, I suggest that the entry is dated 20 December 2018 in my schedule and your tax invoice supports the oral agreement, the date we made the oral agreement? A. I deny that. Q. I suggest that one week after the probate of Ben's late father, which was granted on 15 May 2020 and is on page 84 of exhibit [ED5], you asked me to give you a printout of my schedule of hours I worked on Ben's case? A. I deny that. Q. You deny that. Do you accept that this text message I sent you on 6 August 2020, which is on pages 122 and 123, includes the following statement: "I gave you a printout of the hours I spent on Ben's case and the value of that work, as we agreed at half the rate you charge Ben. I expect you to eventually pay the full amount, showing on the last page of that printout." Do you accept that in the second half of May 2020, I handed you a printout of the schedule of my schedule of hours I worked on Ben's case? A. I reject that. I deny that. Q. I suggest that after we reviewed my schedule of hours that I worked on Ben's case, you asked me to hand it to Jamie, your part-time office assistant. I'm told that they used it to prepare Ben's itemised tax invoice? A. I deny that. Q. I put to you that the reason most of those descriptions and number of hours from 17 December 2018 to 5 August 2020 and Ben's tax invoice dated 18 December 2020, are similar to those in my schedules because you copied it from my schedule? A. I deny that. Q. I suggest that in efforts to attack my credibility and divert attention away from the real issues in dispute, you fabricated and included false statements in your affidavits? A. I deny that.
As it happens, this evidence was not referred to in the written submissions of the plaintiff and although it was referred to during the course of oral submissions, this was in the context of (and only in the context of) pointing out what was argued to be a factual error made by the Magistrate. The defendant did, however, rely upon it, submitting that the subject matter of the tax invoice finding was raised by him in his cross-examination of Mr Oliveri. I agree.
Some context should also be given to this cross-examination because it was not undertaken in isolation. Earlier, the defendant had cross-examined Mr Oliveri across the following topics: 1. The defendant suggested to Mr Oliveri that the emails and documents that had been exchanged in the period 17 December 2018 to 4 August 2020 showed that he had performed work on the client's case "[pursuant] to your ongoing express or implied requests", which Mr Oliveri denied (Tcpt, 11 September 2023, p 106(42)-(46)); 2. The defendant suggested to Mr Oliveri that he had "blind copied" him into emails he had sent the client (and others) so as to conceal that the defendant was assisting Mr Oliveri with the client's case, which Mr Oliveri denied (Tcpt, 11 September 2023, p 106(48)-107(1)); and 3. The defendant suggested to Mr Oliveri that Mr Oliveri had asked the defendant not to disclose their agreement to the client's brother in order to avoid having to explain to the client "why you were charging me $550 an hour when I was doing some of the work", which Mr Oliveri denied (Tcpt, 11 September 2023, p 107(3)-(6)).
These were all matters that were closely related to the tax invoice issue (and finding) and provide further detail about the forensic setting, and that the credibility of Mr Oliveri was being significantly challenged.
It is also relevant to observe the following about the challenge that had been made to Mr Oliveri's credibility and reliability. On the first day of the hearing, the defendant undertook a lengthy cross-examination of Mr Oliveri where he challenged - possibly "line by line" - Mr Oliveri's evidence. At the end of the hearing of the first day, the Magistrate indicated, in effect, that he did not consider that the rule in Browne v Dunn required such an approach, given Mr Oliveri has "had an opportunity to meet your affidavit. He's already met it. He's denied most of the things in it, I think" (Tcpt, 11 September 2023, p 110(29)-(35)). Put simply, the Magistrate, having read the affidavits and seen and heard the evidence and the cross-examination of the principal witnesses, considered the issues had been well and truly joined. That is a matter of some significance. The Magistrate was well placed to make that assessment and determine whether, given the cross-examination to that point and what had been identified by the parties as issues, more was required. It is also important for another reason. Counsel for the plaintiff and Mr Oliveri did not suggest that a contrary course should be taken or that fairness required something more.
Further, on the second day of the hearing, after the defendant continued with his cross-examination for some time, the Magistrate indicated, consistent with the position he had adopted the previous day, that he proposed to "waive the rule in Browne v Dunn" (Tcpt, 12 September 2023, p 123(24)). The Magistrate was, as he was on the first day of hearing, well placed to make the assessment of whether the issues in the proceedings had been adequately joined. He was also well placed to make an assessment about whether, given Mr Oliveri had strongly denied the existence of any agreement with the defendant and any of the other propositions that the defendant had put to him during his cross-examination, further cross-examination was required in the circumstances. Again, counsel for the plaintiff and Mr Oliveri did not demur to the course proposed by the Magistrate. In any event, the cross-examination continued and extended across the matters referred to in [60], above.
To sum up. In my view, the circumstances of the case, including the nature of the claim made as well as the evidence served, clearly indicated that the credibility and reliability of the principal witnesses (Mr Oliveri for the plaintiff and the defendant himself) was front and centre of what needed to be resolved. That arose because there were competing cases about whether any conversation occurred in December 2018 giving rise to the agreement, as the defendant alleged. Further, the evidence served by the defendant covered (in direct terms) the matters that underpinned the tax invoice finding. The plaintiff was on notice of that evidence and had an opportunity to respond to it. Further, the cross-examination of Mr Oliveri by the defendant squarely challenged the credibility and reliability of Mr Oliveri, including cross-examination that covered the matters that underpinned the tax invoice finding. There was no failure to comply with the rule in Browne v Dunn.
Thus, even assuming (favourably to the plaintiff) a question of law arose, the answer to that question, and any consequential questions that follow from its resolution, must all be resolved adversely to the plaintiff. Given the finding that I have made, if leave were required, I would refuse it. I would also refuse it because (no submissions being advanced as to why this ground should be the subject of a grant of leave) any question that arises does not involve an issue of principle or question of general public importance: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]-[16]; Namoi Sustainable Energy Pty Limited v Buhren [2022] NSWSC 175 at [34]-[39]. The amount in issue, and the procedural history of the matter also tell against a grant of leave.
This ground of appeal should be dismissed.

[17]

Ground 2: the sufficiency of the Magistrate's reasons

By this ground of appeal, the plaintiff complains that Brender LCM "erred in law" in that the reasons given by him for rejecting Mr Oliveri's version based on credit and accepting Mr Danis' version were "illogical and unreasonable" (summons, ground 2).
The written submissions (and those made during the course of the hearing) argued this ground with ground 3 - a ground directed to challenging the inferences drawn by the Magistrate on the basis that they were "illogical or unreasonable and inconsistent". There are difficulties with this approach. First, the submissions did not differentiate, or at least clearly, what submissions were directed to what ground and whether, in fact, they were independent. Secondly, the submissions, to the extent that they were directed to a challenge to the reasons of the Magistrate, sought to assail the reasons based on a series of cases concerning illogicality as a potential ground for judicial review rather than, consistent with the ground, an assessment of their sufficiency. Further, despite an invitation to address the premise of that approach and the transposition of that ground for judicial review to an appeal in the present statutory context, particularly given the decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ('Azzopardi'), the plaintiff did not do so. And, thirdly, there was no clear identification of the question of law involved in either ground, again despite an invitation during the course of submissions to address that specific statutory requirement.
The plaintiff did not refer to any authorities dealing with the nature and standard of reasons required in the present situation. The basic requirement was explained in Strbak v Newton [1989] NSWCA 202 at p 3: … the giving of reasons is an incident of the judicial process, apart altogether from the requirement that those reasons should be given which are necessary to provide a technical basis for an appeal. They are an indication that the judge has considered the material and the arguments of the parties. It is [an] aspect of the requirement for procedural fairness, but it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his [or her] conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.
It is important to emphasise two further matters in connection with the reasons required. One matter is that the nature and content of the reasons required in a given case turns upon the particular circumstances and the matters in issue. Although made in a different statutory context, the remarks of Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [48] remain apposite: "[n]o mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important that a complaint that they are inadequate be assessed against the circumstances of the particular case". The circumstances here include the fact that the critical issue in the case turned upon a disputed conversation that allegedly occurred in December 2018. A second matter relates to the standard required. As was explained in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], it is not the function of an appellate court to set the standards as to the level of detail required for there to be legally sufficient reasons; rather "it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power".
As I have said, the central issue for resolution by the Magistrate was whether, as the defendant alleged, an agreement was formed during a conversation between the defendant and Mr Oliveri on 20 December 2018. This issue was identified by the Magistrate at J1, where it was also noted that the plaintiff denied the agreement and alleged that an amount of $50,000.00 paid to the defendant was not a payment under the agreement, but a loan.
The Magistrate noted that the defendant's case turned upon the disputed conversation: J8. The Magistrate, in recognition of this, directed himself to give particular consideration, when assessing the probabilities of what occurred, to the documents and the credibility of Mr Oliveri and the defendant, citing in that respect the decisions in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Watson v Foxman (1995) 49 NSWLR 315 (J10-J13). The Magistrate made reference to a number of documents, and events, and to the submissions made by the defendant about Mr Oliveri's credibility: J13-J14. The Magistrate also referred to the submissions made by the plaintiff that "attacked the credit of the [defendant]": J16. The Magistrate then proceeded to make findings about, and resolve, some of the contested issues: J17ff. The reasons included the finding by the Magistrate about the tax invoice (the subject of ground 1) and a consideration of "the question whether the alleged agreement makes commercial sense", with the Magistrate reasoning, in effect, that as the defendant was undertaking work that was necessary for the litigation, there was some commercial sense in an agreement being entered into, as the defendant alleged: J20-J22.
The Magistrate rejected the plaintiff's argument, and evidence, that the payment of $50,000.00 was a loan, giving reasons for doing so including that there was "nothing to support it other than the belated assertions" in a letter of demand and that it was unlikely that a solicitor would not have "recorded…somewhere" that the payment had been a loan: J23-J25.
The Magistrate indicated his acceptance of the defendant's "evidence of the agreement", and rejected the "attacks on his credibility in circumstances where I cannot rely on the alternative version": J26. The Magistrate also rejected the other "credit arguments" directed to why the evidence of the defendant should not be accepted: J30.
The Magistrate considered that the "agreement was simple", involving the defendant receiving, for assisting with the client's case, half the fees received (that is, paid) excluding counsel's fees and disbursements: J33.
In my view, the reasons of the Magistrate complied with the minimum acceptable level required. They provide a clear, and legally sufficient, explanation of the fundamental reasons leading to his Honour's conclusion, as I have explained.
To the extent that the plaintiff's complaint was that it was "irrational or illogical" to find "that the invoice given by [the defendant] to Mr Oliveri did itself make commercial common sense" (plaintiff's submissions at [29]), that argument is addressed under ground 3.
As with ground 1, even assuming a question of law arose, the answer to that question, and any consequential questions that follow from its resolution, must all be resolved adversely to the plaintiff. To the extent that leave is required, I would refuse it for those reasons. I would also refuse it because (no submissions being advanced as to why this ground should be the subject of a grant of leave) any question that arises does not involve an issue of principle or question of general public importance and by reason of the amount in issue, and the procedural history of the matter: see the authorities cited at [67], above.
This ground of appeal should be dismissed.

[18]

Ground 3: the inferences drawn by the Magistrate were illogical, unreasonable and inconsistent

By this ground, the plaintiff complained that the Magistrate "erred in law" in that inferences were drawn that were "illogical or unreasonable and inconsistent with the agreement that the parties agreed to a profit-sharing arrangement as opposed to payment for time-based consulting services or any agreement at all" (summons, ground 3).
This ground, as formulated, is less than clear. The plaintiff's written argument appeared to be that even if, as the Magistrate found, Mr Oliveri's credit was "significantly diminished" in connection with the tax invoice issue, it was nevertheless "irrational or illogical" to find that "the invoice given by [the defendant] to Mr Oliveri did itself make commercial common sense, or that it was in keeping with the alleged oral agreement, when in fact it contradicts it (and ought rationally to have been applied in Mr Oliveri's favour on the question of the alleged agreement)" (plaintiff's submissions at [29]). The plaintiff went on to submit that, contrary to what the defendant had argued (and the Magistrate had found), the "alleged agreement between the parties was a profit sharing arrangement" (plaintiff's submissions at [32]). The plaintiff made a similar submission during the hearing, to the effect that the acceptance of the defendant's summary document goes against "a profit sharing agreement. [His Honour's finding] had nothing to do with work done on a time-basis charging. So that document is a thorn in the side which needs to be overcome" (Tcpt, 21 June 2024, p 19(24)-(29)). In short, the argument appeared to be that that document "discredit[ed] the [defendant's] own case" (Tcpt, 21 June 2024, p 19(49)-(50)).
The plaintiff did not identify how a question of law, as opposed to a question of fact (or, possibly, a mixed question of law and fact), arose based on the suggested errors made by the Magistrate when drawing inferences. Any "question" raised by the plaintiff's complaint is not transformed into a question of law merely because the plaintiff employed the emphatic language that it did to describe the alleged error - viz., the finding was "illogical or unreasonable and inconsistent". A complaint that a particular finding is marred by "patent error, illogicality or perversity", or unreasonable or not reasonably open, is not ordinarily a question of law: Azzopardi at 156-157; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [53]; Styles v Rowley [2023] NSWSC 1053 at [53].
In any event, in my view, there is no substance to the premise of the complaint, and the ground itself, for the following reasons.
First, the finding by the Magistrate was not, as the plaintiff argued, that the defendant providing "the invoice" to Mr Oliveri "did itself make commercial common sense"; rather, the finding was that the agreement itself "made commercial sense" (J22). That reasoning (the substance of which is set out in [73], above) is, in my view, unexceptional. The finding by the Magistrate was no more or less than, given the defendant was undertaking work that was necessary for the litigation, there was some commercial sense in an agreement being entered for the defendant to undertake that work. Further, even if the Magistrate's assessment and finding was contestable, that does not make it erroneous, less still "irrational or illogical".
Secondly, the premise of the argument, that the finding of the Magistrate was "irrational or illogical", appeared to be that the agreement between the parties was a profit-sharing agreement, and "not time-based" (plaintiff's submissions at [32]) - with the consequence that the defendant's summary document more generally was inconsistent with there being a profit-sharing agreement. The immediate difficulty with this submission is that the agreement was not found to be a profit sharing one (see J8, J22 and J26) and any challenge to its characterisation (notably through ground 6) was abandoned by the plaintiff in the course of the hearing. Further, the submissions of the plaintiff did not explain precisely why the use of the defendant's summary document by the Magistrate was irrational and illogical: from the written submissions, the argument appears to be that because the arrangement was a profit sharing one, the defendant was entitled to share in the profits "irrespective of any work done" by him (plaintiff's submissions at [35]). But this argument ignores the Magistrate's finding that the payment to which the defendant would be entitled required the defendant to undertake work (J33). That finding was entirely consistent with the defendant's pleaded case, as I have earlier set out (see [18], above).
As with grounds 1 and 2, even assuming a question of law arose, the answer to that question, and any consequential questions that follow from its resolution, must all be resolved adversely to the plaintiff. To the extent that leave is required, I would refuse it, for the reasons given when refusing leave in connection with grounds 1 and 2 (see [67], above).
This ground of appeal should be dismissed.

Oliveri Legal Pty Ltd v Danis

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (34)