UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105

UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105 - VSC 2004 case summary — Zoe

[100]

"The general rule is, not only that the non-party is not bound by findings made in the litigation, but that they may not even be used as evidence of the facts found. To this general rule there are exceptions which enable findings made in litigation to be used against someone who was not a party to that litigation for the purposes of a summary procedure. Specifically, it has been laid down in England by the Court of Appeal that on an application against a non-party seeking an order for the costs of the litigation the applicant may in an appropriate case be permitted to rely on evidence given and facts found in the litigation: Symphony Group Plc v Hodgson [1994] QB 179. In that case Balcombe LJ said at 193: 'The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v F. Hewthorn & Co Ltd [1943] KB 587; Cross on Evidence, 7th ed (1990), pp.100-101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v Spiro [1938] 1 KB 176, 192, cited with approval by this court in Bahai v Rashidian [1985] 1 WLR 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule.' This judgment was concurred in by Staughton LJ and Waite LJ, Staughton LJ observing at 196: '[T]here are cases, as Balcombe LJ has shown where a person may be ordered to pay costs on the basis of evidence given and facts found at a trial to which he was not a party. Before such an order is made, it must be just and fair that the stranger should be bound by that evidence and those findings. In my judgment that is not the case here.' The statement of principle by Balcombe LJ was also endorsed by Batt J in C.E. Heath Underwriting & Insurance (Aust) Pty Ltd v Daraway Constructions Pty Ltd (unreported, 1 September 1995). The decisions cited by Balcombe LJ on applications to have costs visited on a solicitor are Brendon v Spiro and Bahai v Rashidian. In the former, Scott LJ said ([1938] 1 KB 176 at 192): '[T]he case must go back to [the trial judge] to be dealt with in such a manner, and according to such procedure as he thinks proper, providing, of course, that the two solicitors know what the case against them is, and have a sufficient opportunity of meeting it. Whether the learned judge should order affidavits, whether he should direct oral evidence, how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings, will all be matters for him to consider.' In the second of those cases, Bahai v Rashidian, Parker LJ, having cited this passage from Brendon v Spiro continued ([1985] 1 WLR 1337 at 1344): 'There is, here, recognition of the fact that, although it may be possible to dispense with new evidence in respect of matters established at the trial, it may also be necessary to have such matters dealt with afresh. If the issue of Mr Harris's liability is tried by the trial judge, he will certainly have to consider whether, in view of the gravity of the charges and Mr Harris's inability to cross-examine, some of the evidence will, in justice to Mr Harris, have to be given afresh. This, and no doubt many other matters, will have to be considered. Provided that (a) the procedure adopted by the judge gives to Mr Harris a full and fair opportunity to meet the charges and (b) to someone with knowledge of the strictures previously made by the judge a hearing by that judge would not appear to be marred by bias, the trial judge must be the right person to hear the application.' In the same case Balcombe LJ, at 1345, observed: 'The exercise of this summary compensatory jurisdiction is now regulated by the provision of RSC, O. 62, r. 8. Rule 8(2) requires the solicitor to be given a reasonable opportunity to appear before the court and show cause why the order should not be made, but otherwise the procedure to be followed is left to the judge who hears the application: see Brendon v Spiro [1938] 1 KB 176. In particular he will have to consider whether he should direct oral evidence and how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings: per Scott LJ in Brendon v Spiro [1938] 1 KB 176, 192'."[61]

[179]

"As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes LJ in Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431. His Lordship said: 'This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them' ((1892) 1 QB at p.451). The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side."[73]

[205]

"On 19 November 1997, while he [Mr Korman] was still in the witness box, the Terms of Settlement of 14 November 1997 were produced pursuant to a notice that had been issued by the first defendant. He was asked some questions about the circumstances of that 'settlement'. He was then asked whether there were any earlier Terms of Settlement between him and the plaintiffs. The transcript reads as follows. "Is that the first occasion that terms of settlement had been finalised by you?---Yes. There had been no settlement reached prior to then?---There was an agreement that we would both, the plaintiffs and myself, would settle the action. The argument was over the question of costs. Just stop there. When was that agreement reached?---It wasn't a written agreement, it was an understanding that - - - All right. I wasn't asking whether it was in writing or not?---That would have been 22, 23 October. 22 October?---Around that period of time. See, on 22 October, Mr Hayes, at page 4976 of the transcript, informed the court that agreement in principle had been reached between you and the plaintiffs subject to a documentation, which he expected to be signed that day?---Correct. Was there anything documented on 22 October?---No, there was not. And the following morning, I was unavailable, I was at hospital. My father was dying on the 23rd and Mr Hayes couldn't - I was not in a position to finalise the terms of the settlement. What agreement had you reached on the 22nd that meets the description 'agreement in principle'?---That I would be paid legal costs, reasonable legal costs, and we would settle the matter accordingly. Without any figure being fixed for the legal costs?---There was no final figure discussed on the legal costs, no." The first defendant then served on the plaintiffs a further notice to produce the Terms of Settlement of October. In response, the plaintiffs produced a copy of the Terms of Settlement of 23 October signed by Korman and senior counsel for the plaintiffs. These Terms provided for the dismissal of the proceedings against Korman with no orders for costs with agreement that each party would bear their own costs as well as mutual releases. His denial that the agreement of October was not documented, was false."

[215]

"First, we do not consider it fortuitous that there is no case in the books, as far as we know, which supports the extreme view indicated by some of the textbook statements that any interference with a witness is an attempt to pervert the course of justice. That would make a man guilty of this offence if he went privately to a witness who had made a false statement and by reasoned argument supported by material facts and documents tried to dissuade him from committing perjury and to persuade him to retract lies and tell the truth. ... Secondly, ... we think that however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means. Threats and bribery are the means used by offenders in the cases, and any pressure by those means - or by force, as for example by actually assaulting or detaining a witness - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it 'through affection, fear, gain, reward, or the hope or promise thereof' (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope. Perhaps the most extreme illustration of the end not justifying the means is to be found in the sad case of the attorney in Rex v Johnson (1678) 2 Show. 1, who agreed with another to give him £350 to prove that a deed, with which Lady Ivy had obtained a verdict against Dr. Whitchcott's lady and her tenants, was forged. It was argued that any man may agree with another to give him money to do a lawful act, as to prove a deed to be forged. But the Court of King's Bench thought it a great offence, 'for witnesses ought to come unbiassed and not affected with money', and Johnson was heavily fined."[75]

At a glance

Court

Decision date

Before

Source

Judgment (317 paragraphs)

Parties

Cases Cited (12)