Pegler v King

The hearing before the assessor 9 At the outset, the defendant's solicitor sought to file eight notices of motion seeking to join the additional parties. Mr Davis, a solicitor who represented the plaintiff submitted: "…the history of this matter is one of total delay on the part of the defendant in every matter. If I can back through the history, the last year at the preliminary conference Mr King failed to appear at all, notwithstanding is on the other side of the street to the Downing Centre and an order for costs made against him. When the matter came on later in the year an order was made that amended grounds of defence be filed at 28 days, they have not been filed. No witness statements have been filed. I have not heard from Mr King until today and at 12 o'clock he tells me he wants to file a motion to delay matters that have been listed before you for some months and I totally oppose this last minute application. He could have rung me last week and told me that he had a problem but I have not heard until 12 o'clock today. I was told that one matter would be settled and the other would be vigorously defended. No proper defence has been filed, no witness statements and now at the last minute, two o'clock on Wednesday we get all these notices of motion. I think it's grossly unfair both to you and to me your Worship that this application be put on at this time. A courtesy call last week informing me that he was having difficulties would have been of assistance and I've done a lot of preparation and spent several hours of work preparing witness statements and everything to get this matter dealt with this afternoon and I press that it be dealt with." 10 The Assessor at t 4.16-39 and 51-57 stated: "It is clear from a perusal of the file that each of these matters has a long and detailed history and indeed the issue of the process goes back to 2001. It is my view that it's probably fair comment for the plaintiff to say that the actions of the defendant have been - I suppose best described as inaction in terms of what was required to have these matters come properly before the Court on an efficient and reasonable basis. Notwithstanding the matters contained in the affidavit in support of the notices of motion, it is my view that filing them virtually five minutes before the matter or literally five minutes before the matter came before the Court, given that even on the affidavit the negotiations, if I can use that term, for settlement were back in July 2002. Obviously it is now May 2003 and the filing of these notices of motion at this point in time is such that it is totally unreasonable to the plaintiff. I don't think it's a question of whether it's unreasonable to the Court, although the Court's time is public money I suppose, but it is totally unreasonable to the plaintiff to file these notices of motion and expect that a Court would grant them at this point in time. They are each refused. … This is a small claims division. The rules are and the procedure is that parties exchange and file statements so a Court can read them, so that Court can then listen to submissions and give people a decision. I understand that these matter have been brought forward, the plaintiff's filed all his statements, I am prepared to accept statements filed by you now." 11 Before the Assessor, the solicitor for the plaintiff Mr Davis gave an outline of the matters. Mr Davis stated at t 6.44-56: "Your Worship the evidence in all of these matters is fairly similar. There were a number of legal practices in a joint association under the name JH Hely (sic) and Co so the facts in one are fairly much the same in the others so the statements reflect the position regarding each account. The beginning of the statement refers to the history leading up to Mr Pegler being asked to do accounting work for a whole assortment of legal practices in which there were various different partners. There have been a number of other matters your Worship, all of those have been paid in full and these are just the last residue of the outstanding accounts and we rely on the statements." 12 The defendant had filed a defence. The defendant's solicitor then stated that they were happy to proceed on the plaintiff's statements because the essence of their defence is that the plaintiff's statements and documentation do not mention the defendant's name anywhere. 13 At t 5.30 Mr Davis said "before we do it [continue] I don't quite understand this… (not transcribable)…that the defendant's not named?" It was clarified that Ms Barnes appeared for the defendant Mr King but not for Mr Regalsford who is a bankrupt. The plaintiff intended to proceed only against the defendant, Michael King. 14 To understand the Assessor's approach, it is necessary to step back and examine his reasoning in the matters in relation to the G H Healey & Co - Eastgardens practice because this is central to the reasoning he adopted in relation to the practices G H Healey & Co at Mascot and Rosebery. The plaintiff was successful against Mr King in relation to his claims involving the "Eastgardens" practice. 15 In relation to matter No. 14204/2001 the Assessor at t 9.52-58 & t 10.1-17 stated: "Clearly the accountancy work, if I can use that expression in respect of this plaint, was carried out by the plaintiff. Clearly on the evidence the costs involved are reasonable. The issue to put it bluntly is whether or not Mr King is liable as a partner in the firm at Eastgardens. Those submissions I've just used the term 'Eastgardens' to differentiate the various practices. When you look at the copy of the cheque which Mr Davis has been able to obtain, I accept only today, Mr King signs as a signatory to the trust account of that firm. On the balance of probabilities to conclude that someone would be able to sign in that capacity without being a partner is a nonsense quite frankly. He is a partner in the firm and as a matter of law partners are generally and severally liable on the other evidence, those who were conducting the firm were entitled to and did commit the firm to the services of the plaintiff." 16 Likewise, the Assessor accepted that if Mr King signed a cheque in relation to the practices at Mascot and Rosebery he would have signed the cheque in the capacity of a partner whereas if Mr King had signed a cheque for the amount claimed, judgment was entered in favour of the plaintiff. Conversely, if there was no cheque signed by Mr King, the Assessor held that there was no evidence to establish that Mr King was a partner at that practice at the relevant time and dismissed the plaintiff's claim. 17 The Assessor then referred to matter No. 11496/2001 (appeal proceedings 11384/2003 in this Court) which relates to an invoice issued on 30 November 1999 for the preparation of the 1999 profit and loss statement of G H Healey & Co - Mascot. Mr Davis made a submission that Mr King has ostensible authority of the partnership of the Mascot office and although he did not have a statement that indicated categorically that Mr King was a partner in the Mascot office, he submitted that Mr King was a partner in the whole group. The Assessor determined that the evidence did not establish that the defendant was a partner in the Mascot firm (t 12.13). 18 After the Assessor heard submissions by Mr Davis. He stated "Okay. Those are your submissions" (t 11.20). At the end of those submissions the plaintiff's solicitor stated that he could call Mr Pelger to give evidence. The Assessor replied: "No we've got the evidence you are doing submissions now". Nevertheless, after hearing Ms Barnes' submissions Mr Davis successfully sought to and referred the Magistrate to, a letter. This plaint was dismissed (t 12.12). 19 The following exchange then took place: "ASSESSOR: I accepted your addition evidence in the first matter that I dealt with. I've got to deal with them on the evidence that's before me. You've tendered your evidence. DAVIS: Yes your Worship. Your Worship I cannot today produce cheques signed by Mr King for every branch, that would take me some time. Is your Worship -- ASSESSOR: I've already ruled on that. I can't go back on that. I've already refused the notices of motion the basis that it was not fair to you, and that was your submission to me, to not proceed with the cases today." 20 Matter No. 14199/2001 (Appeal 11387/2003 in this Court) concerned an invoice issued on 31 October 1999 for the preparation of the 1999 Trust Audit for the G H Healey & Co - Rosebery Practice. At t 13.14 the Assessor noted that "it is the same issue" a reference to whether or not the plaintiff could prove that the defendant was a partner of the Rosebery practice at the relevant time. At t 13.29 Mr Davis conceded that he had no evidence of the defendant's involvement in relation to this matter, although he asserted he had trust account statements in relation to other matters on which the defendant's signature appeared. Mr Davis conceded that he did not have trust account statements in relation to this matter. This matter was dismissed. 21 Matter No. 14202/2001 (Appeal 13386/2003) concerns an invoice dated 30 June 1999, being invoice number 1428/6370 in the amount of $1,609.00 (of which $205.50 was admitted to have been paid). There was some confusion as to which practice this invoice related. The invoice itself is addressed to the Rosebery practice, which is what the plaintiff deposed to the account being related to. Mr Davis then obtained instructions to the effect that this work was, despite the matters deposed to in the plaintiff's affidavit, related to work done at the Mascot practice. As there was no evidence to establish that Mr Kin was a partner at the Rosebery practice, this plaint was dismissed with costs. 22 Matter No. 14192/2001 (Appeal 13385/2003) concerned the work performed in relation to a 1998 Trust Account Audit for Mascot. At t 16.20 the plaintiff tendered working papers. The Assessor accepted these as being evidence of the defendant being a partner of the Mascot practice during the relevant period. The defendant submitted that it was not clear from the transcript precisely what it was in the working papers that gave rise to that inference. At t 16.43 the Assessor determined that those working papers did not support the inference that the defendant was a partner of the Mascot practice in respect of the 1998 reporting period, and accordingly the claim was dismissed (t 16.43). 23 At the outset, the plaintiff was keen to have the matters proceed on the day they were listed for hearing. The Magistrate acceded to this request. The plaintiff had filed his evidence. The onus was on the plaintiff to prove his case. One matter had been already dealt with. It was only during submissions in the next matter that the plaintiff's solicitor became aware of the deficiencies in the plaintiff's cases and belatedly sought an adjournment. The plaintiff had the benefit of legal representation throughout this litigation. The Magistrate allowed the plaintiff's solicitor to tender further documents during the proceedings. The Magistrate has a discretion as to whether or not to grant an adjournment. The exercise of that discretion did not miscarry. It is my view that in these circumstances there has been no denial of natural justice. The orders of Magistrate Maughan dated 7 May 2003 are affirmed. The appeals are dismissed. The amended summonses are dismissed. 24 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. 25 The Court orders:

(1) The orders of Magistrate Maughan dated 7 May 2003 are affirmed.

(5) Matters stood over to 2 September 2004 at 10.00am for argument on costs. **********

Last Modified: 08/03/2004 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.