Perre v Apand [2004] FCA 1220 | Case summary

1 There is currently before the Court two Notices of Motion and an intimation of a third. The first to eleventh respondents ('the Perres') have lodged a Notice of Motion seeking declarations and other orders that Risu Nominees Pty Ltd ('Risu') and Townsend & Reynolds Pty Ltd ('Townsend & Reynolds') are not entitled to claim legal costs for legal work performed for the Perres. In response to that application Mr Whitington QC, who appeared for Risu, advised that he is instructed that the persons who held practising certificates at the relevant time (who I will describe as 'the lawyers') intend to apply to the Court seeking to amend the various Notices and pleadings that have been filed by Risu and the orders that have been made thus far, so as to substitute those persons for Risu and for Townsend & Reynolds. 2 Finally there is a Notice of Motion by the Minister for Primary Industries and State of South Australia ('the State') seeking orders for the issue of a warrant of sale against the Perres and against the twelfth to fourteenth applicants. That Notice of Motion is opposed by the Perres. 3 The Notice of Motion by the Perres is based upon what is now an admitted fact - neither Risu nor Townsend & Reynolds have relevantly held practising certificates under the Legal Practitioners Act, 1981 (SA) ('the Act'). An affidavit by Richard Townsend says that the two companies were service companies and that the persons who held the practising certificates at relevant times were himself and others. Whether or not this can be established does not need to be resolved at this time. For present purposes it is sufficient that the parties are in agreement that the companies are not and, at all relevant times, were not entitled to charge for legal services: see ss 16 and 21 of the Act. 4 The Perres seek various orders in relation to that fact including an order that Townsend & Reynolds be joined as a party; declarations that Risu and Townsend & Reynolds are not entitled to receive any payment for legal services they provided to the Perres and an order that the 'fund' be available to meet other debts of the Perres, including those to the State. 5 Unfortunately the issue is not that simple. The background to the proceedings is discussed in my reasons in Perre v Apand Pty Ltd [2004] FCA 881 (Apand) at [3]-[22]. By way of further background: (a) The original application seeking a lien over the settlement fund was made by Risu (amongst others); (b) The points of claim filed by Risu on 16 April 2003 alleged (in par 1) that Risu was a company that carried on a legal practice and (in par 2) that Townsend & Reynolds carried on a legal practice between July 1996 and September 1998. Those facts were admitted in the Points of Defence filed by the Perres. The pleadings did not raise any issue as to whether Risu and Townsend & Reynolds held practising certificates or were the bodies that provided the relevant legal services. The Perres did raise other issues challenging the entitlement of Risu and Townsend & Reynolds both to their fees and to enforce the claimed lien. (c) On 18 December 2003 the Court ordered by consent that Risu, Townsends & Reynolds and other named legal practitioners had a lien or liens over the fund. (d) On 16 April 2004 the Court ordered by consent that the above liens could be enforced. (e) An order of the Court is 'perfected' when it is formally entered into the record of the Court: see Bailey v Marinoff (1971) 125 CLR 529 (Bailey) at 530. In proceedings in this Court the order is relevantly entered when the seal of the court is affixed to it: see O 36 of the Federal Court Rules. Both of the orders referred to above have been perfected by being sealed. 6 On the face of it the application by the Perres requires, as a first step, the setting aside of the orders made on 18 December 2003 and 16 April 2004. Both the Perres and the lawyers accepted that it was necessary to set those orders aside. Both argued that the orders could be set aside. Both said that the orders were interlocutory orders. They both argued that interlocutory orders could be set aside even if the orders had been perfected. The lawyers also argued that the orders could be set aside even if they were final orders. The Perres didn't go so far, but sought leave for an extension of time to appeal from those orders. 7 I accept that interlocutory orders can be re-opened even if those orders have been sealed: see O 35 r 7(2)(c) of the Federal Court Rules. That rule reflects the position at common law. The issue is whether the orders made on 18 December 2003 and on 16 April 2004 are interlocutory orders. I note that in par 33 of my reasons in Apand I appeared to treat the orders as being interlocutory. Both orders included liberty to apply. Both orders contemplated that there would be further steps in the proceedings for the purpose of determining the final amount payable by the Perres to the lawyers and the payment out of those amounts from the fund. Nevertheless, in light of the orders actually sought by the lawyers in the Notice of Motion and Points of Claim by which they commenced this aspect of the proceedings, it is at least arguable that the two orders, considered together, were final orders finally disposing of the proceedings, or at least of particular issues raised in this part of the proceedings. 8 In my view it is unnecessary finally to resolve this question. In my view, in the particular circumstances of this case, I have power to set aside the order even if it is a sealed final order. Once the order of the Court is perfected then the usual rule is that the order cannot be re-opened. This usual rule is reflected in O 35 r 7 of the Federal Court Rules. At common law there were some limited exceptions to that rule. These include where the matter falls within the 'slip rule' such that the sealed order does not express the intention of the court: (see Bailey at534, 539) or where the order has been procured through fraud (see Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 109 ALR 137) or is an abuse of the process of the Court (see TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) 17 FCR 390 at 398) or (perhaps) where the order has been made as a result of an unfair procedure (see R v Bow Street Magistrate; Ex parte Pinochet (No 2) [2000] 1 AC 119 at 132) or, in instances where the order of the Court only requires the filing of a document and does not involve a judicial order, where the relevant document was filed in error or without instructions (see Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316 at [4]). These limited exceptions would appear to be examples of an inherent jurisdiction to set aside a perfected order of the Court in 'truly exceptional circumstances' where the interests of justice so require: see WATI v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 at 584-586; De L v Director General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 (De L) at 215. 9 Whatever the common law position, O 35 r 7(2) of the Federal Court Rules provides: 7(2) [Discretion to vary judgment] The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. 10 In this case two persons (Risu and Townsend & Reynolds) in whose favour the orders were made, not only consent to the orders being set aside, but ask that they be set aside. Consequently I have the power under O 35 r 7(2)(f) of the Federal Court Rules to set aside the orders already made, at least insofar as those orders relate to Risu and to Townsend & Reynolds. 11 This is subject to at least three qualifications: (a) It may be that the appropriate procedure to set aside a sealed final order pursuant to O 35 r 7(2) is to institute a new proceeding for that purpose. If so, then the relevant Notice of Motion could be treated as a fresh proceeding for this purpose, although in the circumstances of this case that would not seem to be necessary: see Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [13]. (b) Even if the party affected consents to the order being set aside, the order should only be set aside where it is just and appropriate to do so by reason of the 'exceptional circumstances of the case' (see De L at 215). This is the necessary consequence of the public interest in the finality of litigation. In this case those exceptional circumstances include the following: a. The parties would seem to have proceeded on a mutual mistake of fact, namely that Risu and Townsend & Reynolds each held a practicing certificate; b. The parties are agreed as to that mutual mistake; c. If that issue had been raised before the orders were made then the orders would not have been made. Whether other orders would have been made in favour of different parties cannot presently be determined; d. If the orders are not set aside then (assuming the orders to be final orders) the Perres have applied for an extension of time to appeal from the above orders. The basis of the appeal would presumably be the 'fresh evidence' that Risu and Townsend & Reynolds did not hold a practising certificate. In the circumstances of this case there is at least a reasonable possibility that such leave would be granted. Assuming that the evidence was relevantly 'fresh' it is likely that an appeal would be allowed, given the mutual mistake made by the parties. What further steps should then be taken would give rise to various factual issues which may be better dealt with in original rather than appellate jurisdiction. The consequence is that it would be more convenient both to the parties and to the Court to vary the order pursuant to O 35 r 7 rather than leave the parties to pursue an appeal. (c) It would be inappropriate to re-open the orders if doing so would affect the rights and interests of third parties. One possible third party is the State of South Australia. In their Notice of Motion the Perres have sought an order that the State of South Australia be paid out of the fund. For the reasons discussed below it is not appropriate to make that order. Given the orders that I propose to make in relation to the Notice of Motion filed by the State (also discussed below) I am of the view that re-opening the orders would not affect the State's interest. The other parties that could be affected are the other lawyers in whose favour orders were made on 18 December 2003 and 16 April 2004. The only persons who it is agreed did not hold a practising certificate are Risu and Townsend & Reynolds. For this reason it might be thought that the only aspect of those orders that needs to be re-opened is the reference in them to those companies and that they can remain in place in relation to the other lawyers. However, it is clear from the Points of Claim that Risu brought these proceedings on behalf of 'the practice' including the other lawyers. Mr Whitington QC, who appeared for the lawyers and who agreed, on their behalf, to the orders being re-opened, appeared for them all including the two companies. Further, the orders that were made were consent orders. Once those orders are set aside in any significant way, it may be appropriate to reconsider whether or not the agreement upon which the orders were made remains extant. I have not heard any submissions in relation to these issues. Plainly they need to be explored before I can determine to what extent the orders already made should be varied. 12 For these reasons it seems to me that the appropriate course is to exercise the power under O 35 r 7(2) of the Federal Court Rules for the purpose of varying the orders made by me on 18 December, 2003 and on 16 April, 2004. Plainly enough the orders need to be varied so as to exclude Risu and Townsend & Reynolds from them. I will hear from the parties as to what other orders should be made in relation to the other lawyers. 13 The Notice of Motion filed by the Perres seeks declarations and orders as to whether Risu and Townsend & Reynolds are entitled to claim legal fees. It also seeks orders that the fund is available to meet the debts owed by the Perres to the State of South Australia. It is inappropriate to make any of these orders without hearing further from the parties. The issue upon which this Court's jurisdiction is based is the lien claimed over the fund which has been treated as having been incorporated into orders of the Court: see Apand at [5]-[11]. It is not appropriate to make declarations at large and unrelated to that issue. Further, if the orders that have been made are to be wholly set aside the position simply returns to where it was before those orders were made. That situation involves a pleading by the lawyers and an admission by the Perres both of which are now accepted to be untrue. It is inappropriate to make orders which are contrary to those pleadings. Even if the orders are to be wholly set aside it is clear that the parties will need to amend those pleadings. In that regard the lawyers have intimated that they will seek to amend the proceedings to remove all reference to the companies and insert in lieu a reference to those persons who, they now say, did provide the legal services and held practising certificates entitling them to do so. Whether they will be given leave to make such amendments will have to await whatever application they wish to make. Even if they are not given such leave, they may wish to seek leave to amend their current Points of Claim in order to plead a quantum meruit claim or similar. After all, what seems absolutely clear is that the Perres were represented by someone during the protracted litigation before von Doussa J. On the other hand, the Perres may also need to seek leave to amend their Points of Defence in order to respond to any fresh pleading made by the lawyers and, in any event, to plead that any contract with Risu was unlawful. 14 Of course it is for the parties to identify what steps they now wish to make. However, the effect of re-opening the orders already made may well be to put the parties back to where they started more than 18 months ago. Whether or not it will have that effect will need to await further applications by the parties. However, at this stage it is inappropriate to make any final orders as sought by the Perres. As noted above, what orders should be made is a question upon which I will hear the parties. This includes the question of what costs orders should be made, not only on the hearing of the Perres Notice of Motion, but also in relation to the proceedings over the last 18 months. As I have already indicated elsewhere the parties and their legal advisers should be prepared to put argument as to why any costs orders should not be made against them on an indemnity basis. 15 The next issue is the Notice of Motion by the State of South Australia seeking leave to issue of a warrant of sale over the assets of the applicants. 16 The issue of such a warrant is sought pursuant to s 53 of the Federal Court of Australia Act 1976 (Cth). In this case that section has the effect that the same procedures are to be adopted for the enforcement of the orders of this Court as are applicable in the Supreme Court of South Australia. (See also O 37 r 7(1) of the Federal Court Rules.) The enforcement of judgments in the Supreme Court is governed by the Enforcement of Judgments Act 1991 (SA) and by Rule 88 of the Supreme Court Rules. In this case the effect of those provisions is that a warrant of sale is not to be issued more than 6 years after the making of the judgment upon which it is based without first obtaining the leave of the Court. Both parties agree that the decision whether or not to grant such leave involves a broad discretion: see Tonkin v Johnson [1999] 2 Qd R 318. 17 The factual background to the application for leave to issue a warrant of sale is not in dispute: (a) The State of South Australia (the State) was a respondent to the original proceedings heard by von Doussa J. At the end of the trial on liability issues, von Doussa J dismissed the proceedings against the State and the other respondents including Apand Pty Ltd (Apand): see Sparnon v Apand Pty Ltd [1996] FCA 1139. Although the applicants appealed in relation to some of the other respondents, there was no appeal against his Honour's decision and orders in relation to the State. (b) On 25 February 1998 an order was made that the applicants should pay the costs of the State in the proceedings ('the costs order'). By reason of that order the period of 6 years after which leave was required before a warrant could issue expired in February 2004. (c) With the agreement of the State it was a term of the costs order that the enforcement of that order be stayed until 30 June 1998. Also with the agreement of the State it was a term of the subsequent order entered on 27 July 1998 that the enforcement of the costs order be stayed until judgment was delivered by the High Court in the applicants' Appeal to that Court in relation to Apand; or until that Appeal was discontinued or dismissed. (d) Judgment in the applicants' Appeal to the High Court was delivered on 12 August 1999. The appeal was allowed and judgment on liability was entered for the applicants against Apand. The Applicants' action against Apand was remitted to this Court for the assessment of damages. (e) Following the High Court judgment, the State raised with the solicitors for the Perres the prospect of entering into further orders for a new stay pending the finalisation of the applicants' action against Apand. The parties did not reach agreement on the further orders. However, by letter dated 15 September 1999 the Perres' solicitors advised that the Perres agreed that the State would have priority to payment out of any orders for damages subject to any order of the Court. On the basis of this undertaking the State determined to await the finalisation of the damages action before seeking to enforce the costs order. (f) Following the settlement of the applicant's action against Apand, in March 2003 the State forwarded a letter of demand to the Perres' solicitors. That letter demanded payment of the costs and interest payable pursuant to the costs order ('the debt'). (g) Following the issue of a Notice of Motion by the lawyers on 17 March 2003 seeking declarations as to its entitlement to a lien over the fund, the State intervened in those proceedings seeking to claim an entitlement over the fund by reason of the undertakings by the Perres. By consent, the State withdrew from that aspect of the proceedings in December 2003. (h) By letter dated 26 February 2004, the State enquired whether the Perres' then solicitors had instructions to accept service of proceedings for recovery of the debt. Advice was received from the Perres' solicitors that they had no such instructions. Further negotiations regarding payment of the debt then took place between the State and the Perres, but without resolution. (i) The State filed its Notice of Motion on 1 June 2004. 18 The Perres do not argue that the actions of the State in not seeking to enforce the costs order before now was other than reasonable. The Perres accept that the State has been at liberty to enforce the costs order at any time since 12 August 1999. From that date until February this year the State could have enforced the costs order without any need for seeking the leave of the Court. Plainly enough it was to the benefit of the Perres that it did not do so. In forbearing to do so the State relied upon an undertaking by the Perres to give the State a priority in relation to the claim for damages. Plainly enough the Perres are no longer able to offer such a priority, even assuming that they were properly in that position when they last did so. 19 The Perres argue that the State should not be granted leave to issue a warrant of sale at this time. The Perres say that the grant of such leave prior to the finalisation of the issues between the Perres and the lawyers will cause the Perres considerable hardship. The Perres point to the fact that until those proceedings are finalised the Perres do not have access to the fund. The Perres say that they will have access either to the entire fund, or to significant portion of it, once those proceedings are finalised. In that regard the Perres refer to the argument that they have (referred to above), that Risu and Townsend and Reynolds provided some of the legal services even though they were not lawfully entitled to do so. Even if this argument is not accepted the Perres point to various other arguments which, they say, if accepted should have the effect that enough will remain in the fund to meet the debt due to the State. Finally the Perres refer to the cross claim they have made against the lawyers seeking damages for negligence and breach of contract. The Perres say that that cross claim, when finalised, will provide sufficient funds to enable the Perres to pay the debt. 20 The Perres say that if the State seeks to enforce its costs order pursuant to a warrant of execution before the Perres can establish and enforce whatever rights they might have against the fund and the lawyers then the likelihood is that they will have an immediate problem meeting their debts. The Perres say that large amounts are payable to a bank in relation to loans given for the purposes of funding the damages action against Apand. The bank has thus far not sought to recover its debt. Part of the reason for that may be that both the lawyers and the Perres have agreed that some of the interest payments due to the Bank can be paid from the fund, notwithstanding the claim by the lawyers that they have a lien over the fund. Nevertheless the Perres are concerned that the consequence of the issue of a warrant of sale to the State is likely to be that the bank would also then seek to recover all of its debt. 21 I am prepared to accept that the likely consequence of the issue of a warrant of execution to the State is as the Perres have claimed. However, that consequence is the result of the Perre's precarious financial position, given the debts they have incurred as a result of the litigation. The continuation of that litigation is unlikely to resolve their financial problems at least for some time. Apparently the parties have attempted to reach some agreement to finalise the litigation still outstanding, but to no avail. Notwithstanding what would seem to be the obvious benefit to most if not all parties of reaching some accommodation whilst there still remains some prospect that the fund and other assets will be sufficient to meet some of the debts and obligations, the parties (or at least some of them) seem to be intent on pursuing this litigation as far as can be. As I have commented elsewhere, this litigation has been going on too long. The parties have 'lost the plot'. 22 It may be that hardship alone might justify, in an appropriate case, the exercise of a discretion not to make an order for the enforcement of judgment debt. It might do so, for example, where that hardship was an element in establishing that it would be unjust or inequitable for the order to be enforced. Hardship might also be relevant where what was sought was the temporary delay in the enforcement of an order where it was reasonably certain that funds would be available to meet that order in due course. 23 The problem in this case is that the Perres ask that the State be and remain a creditor reliant for its ultimate payment upon the prospects of the Perres being successful in the litigation in which they are engaged. Past history gives no reason for confidence in this regard. For example, the Perres say that the effect of the argument that they wish to pursue in relation to Risu and Townsend & Reynolds not holding practising certificates is that the debt to the State can be met from the fund. However, it is obvious from what has been said above that this is by no means the necessary conclusion. On the information currently before me I could not even be satisfied that it is a likely conclusion. The Perres also say that if the legal costs are properly taxed then there will be sufficient funds available for them to pay all debts. However, notwithstanding that arrangements were made for those costs to be considered by the District Registrar in January of this year that has still not occurred. No information has been put before me to suggest either that the claims by the Perres are correct or that the issue can be resolved in the near future. 24 In all the circumstances I do not think that there is any sufficient basis for declining to grant leave to the State to issue the warrant. For the same reasons I think that it is inappropriate to make any stay order preventing the State from enforcing its costs order. 25 There are two further matters that need to be mentioned. By a separate Notice of Motion the Perres have asked that I disqualify myself from further hearing any steps in these proceedings. I declined to do so (see Perre v Apand Pty Ltd [2004] FCA 1116), but have granted the Perres leave to appeal from that decision, assuming that it gave rise to an appealable order. The Perres sought to adjourn the other Notices of Motion, including that brought by the State, on the basis that if they are successful in that appeal, any orders that I make would be liable to be set aside. I declined to do so. These proceedings are already unduly protracted and even if a Full Court says that I should have disqualified myself it would not necessarily follow that other orders should be set aside. Nevertheless, given the potential impact of any execution of the costs order upon the Perres, it would be undesirable that such an order be executed before a Full Court have the opportunity to consider the matter. If the Perres proceed with proper expedition and can convince a Full Court of the real urgency of their position, then they should be able to bring the matter of perceived bias before a Full Court by the end of November 2004. Mr Bell, who appeared for the State, accepted that the State would not be prejudiced if the warrant was not executed until that time. For that reason I propose to make any leave to issue a warrant conditional upon the warrant being issued on or after 1 December 2004. 26 The second matter relates to the twelfth to fourteenth applicants. The costs order was also made against them. They have not taken any further steps in the proceedings in recent times. Nevertheless it was established by the material put before me at the hearing that the relevant proceedings had been served on the thirteenth and fourteenth respondents, but it was not established that the twelfth respondent had been served. It is appropriate that leave also be given to issue a warrant against the thirteenth and fourteenth respondents on the same conditions as those in relation to the Perres. 27 I will hear the State and the Perres as to the costs of the Notice of Motion by the State. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Honourable Justice Selway.

Perre v Apand

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Judgment (23 paragraphs)

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Cited By (9)