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Kashani-Malaki v Di Carlo

 

[2012] QSC 139

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

25 May 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

18 May 2012

JUDGE:

Daubney J

ORDERS:

  1. The application is dismissed.
  2. I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the plaintiff was convicted of drug trafficking following criminal proceedings – where the plaintiff had previously retained the defendant as his barrister in respect of those criminal proceedings – where the plaintiff commenced these civil proceedings against the defendant following his conviction but prior to his sentencing – where the plaintiff successfully appealed his conviction and a re-trial was ordered – where the plaintiff plead guilty to the charges and was sentenced to eleven years imprisonment – where the defendant in these proceedings maintains that the Public Trustee is the only person possessed of lawful authority to give instructions for the further prosecution of this proceeding – whether the consent of the Public Trustee of Queensland is required under the Public Trustee Act 1978 (Qld)

Public Trustee Act 1978 (Qld), Part 7

Limitation of Actions Act 1974 (Qld) s 10

Uniform Civil Procedure Rules 1999 (Qld) s 95

Tyler v Krause [2003] 1 Qd R 453; [2002] QCA 295, cited

Watson v Watson [1919] VLR 384

COUNSEL:

N Jarro for the plaintiff

A J H Morris QC with L Copley for the defendant

W Sofronoff QC with G Del Villar for the Public Trustee of Queensland

SOLICITORS:

Robert Bax and Associates for the plaintiff

Milner Lawyers for the defendant

The Official Solicitor for the Public Trustee of Queensland for the Public Trustee of Queensland

[1] On 2 July 2009, the plaintiff was found guilty of the offence of trafficking drugs, in contravention of the Drugs Misuse Act 1986 (Qld).  The defendant had previously been retained as the plaintiff’s barrister in respect of that criminal proceeding and also in respect of confiscation proceedings which had been brought against the plaintiff by the Commonwealth Director of Public Prosecutions pursuant to the Proceeds of Crime Act 2002 (Cth)

[2] On 6 August 2009, before he was sentenced, the plaintiff instituted the present proceeding against the defendant by filing a claim and statement of claim.  In essence, it was alleged that the defendant compromised the confiscation proceedings contrary to instructions he held from the plaintiff and was negligent in his preparation for the criminal trial.  The plaintiff’s claim against the defendant is for damages for, inter alia, breach of contract and negligence.

[3] On 19 August 2009, the plaintiff was sentenced in the criminal proceeding to a term of imprisonment.  He successfully appealed against that conviction, and the Court of Appeal ordered a retrial.  In October 2011, the plaintiff pleaded guilty to the charges and was sentenced to 11 years imprisonment.

[4] In the meantime, on 3 October 2009 the defendant had filed his notice of intention to defend in this proceeding.  As required by UCPR r 139, the defence was attached.  That defence pleaded that the plaintiff lacked capacity to bring the action. 

[5] The defendant’s present application seeks:

“1.An order that this proceeding be stayed unless and until the Public Trustee of Queensland consents in writing to the plaintiff continuing with this proceeding.

2.Further or alternatively, an injunction restraining the plaintiff from taking a step in this proceeding, or otherwise continuing to prosecute this proceeding, unless and until the Public Trustee of Queensland:

(a)consents in writing to the plaintiff continuing with this proceeding; or

(b)gives a notice in accordance with s 92(1) of the Public Trustee Act 1978.”

[6] It was common ground in the hearing before me that, as at 6 August 2009, there was no statutory prohibition or inhibition on the plaintiff which prevented him from commencing this proceeding.

[7] The defendant argued, however, that the subsequent imposition of the sentence of imprisonment on the plaintiff triggered the operation of Part 7 of the Public Trustee Act 1978 (“PTA”), and that the ongoing prosecution of this civil proceeding is a matter required to be undertaken by the Public Trustee as part of his management of the plaintiff’s estate.

Public Trustee Act, Part 7

[8] Part 7 of the PTA applies, relevantly, to “any prisoner who, after conviction of any indictable offence or offences, is undergoing a sentence of imprisonment for life or for a term of three years or upwards …”.[1]

[9] It was not in issue that Part 7 presently applies to the plaintiff. 

[10] Section 91 of the PTA provides:

“Except as otherwise provided in this part the public trustee shall, without further or other order or authority, be the manager of the estate of every prisoner to whom this part applies.”

[11] Section 94(1) of the PTA sets out the powers of the Public Trustee, including as follows:

“When the public trustee is manager of the estate of a prisoner under this part the public trustee shall have full power to deal with any property of the prisoner and to acquire any property for or on behalf of the prisoner and generally may do all such things in relation to property, on behalf of and in the name of the prisoner, as the prisoner could do if the prisoner were not a prisoner; and in particular - 

(f)The public trustee may, in the public trustee’s corporate name or in the name of the prisoner, institute any proceedings of a property nature or for the recovery of any debt or damage which the prisoner might have instituted but for the provisions of this part, and in like manner defend any proceedings instituted against the prisoner and, in either case, may enter into such compromise or arrangement as the public trustee thinks fit.”

[12] The present case turns particularly on the interpretation of the statutory restrictions on property dealings or proceedings imposed by s 95:

95Restrictions on property dealings or proceedings

(1)During the time when the public trustee is manager of the prisoner’s estate under this part, a prisoner shall be incapable, except with the consent in writing of the public trustee—

(a)of alienating or charging any property or of making any contract; and

(b)of bringing or defending any action of a property nature or for the recovery of any debt or damage.

(2)If the court becomes aware that an action has been brought or defended in contravention of subsection (1)(b), the prisoner can take no further steps in the action without the written consent of the public trustee, in the approved form, filed in the court.

(3)The consent of the public trustee is then taken to have been given when the action was brought or defended.”

Discussion

[13] It is convenient to consider first the express incapacity “of bringing or defending any action of a property nature or for the recovery of any debt or damage” under s 95(1)(b). 

[14] The history of this legislative provision was essayed by McPherson JA in Tyler v Krause.[2]  His Honour (with whom White J and Margaret Wilson J agreed) held that s 95(1)(b) imposes on a prisoner “a disability upon his bringing or instituting … proceedings that is removed only by obtaining the written consent of the Public Trustee”.[3]  McPherson JA then observed:

“It may be asked why, in any event, it would have wished to impose such disability on a prisoner.  It seems a strong step, rather in the nature of a double punishment, to deprive a person of the right to bring an action for compensation for personal injury simply because he has committed an offence for which he is already undergoing the penalty of imprisonment for three years or more.  In the course of the appeal, various reasons of policy were suggested for adopting that course, such as the protection of the creditors or of the family of the convict, or of the convict himself from predatory behaviour by his fellow prisoners.  None of these suggestions explain how those persons could benefit from the prisoner losing his right of action altogether, when, as has happened in this case, the statute of limitations has now run against the plaintiff so as to prevent him from suing at all.  The disability imposed by s. 95(b) may, however, be intended to serve as a measure of prison discipline imposed on longer-term prisoners as part of a regime of managing their affairs; or it may be intended to prevent actions being brought that are an abuse of process, as is evidently the case in New South Wales.  Another, but only partial, response to the question posed is that the incapacity imposed by s. 95(b) is not absolute, but may be removed by obtaining the written consent of the Public Trustee, or by inducing the Public Trustee to bring the action itself, either in its own name or in that of the prisoner, under s. 94(1)(f) of the Act.”

[15] The disability imposed by s 95(1)(b) is, relevantly, on the act of “bringing” or “defending” an action, respectively. 

[16] The term “bringing” an action is, in my view, synonymous with “instituting a proceeding”.  In other words, 95(1)(b) relevantly operates to render a prisoner incapable, without the written consent of the Public Trustee, of instituting, or commencing, a proceeding. 

[17] To regard the word “bringing” as synonymous with “instituting” in the context of s 95(1)(b) is consistent with the use of the word “bring” in common legislative parlance when that term is used in conjunction with court proceedings.  So, for example, s 10 of the Limitation of Actions Act 1974 provides that certain actions “shall not be brought” after the expiry of stated limitation periods.  The prohibition is on commencing proceedings after the expiration of the relevant limitation periods, not on continuing existing proceedings after the limitation periods expire.

[18] There is also longstanding authority to support this construction of s 95(1)(b).  In Watson v Watson[4] Hood J was required to consider the application of s 575 of the Crimes Act 1915 (Vic), which provided:

“No action for the recovery of any property debt or damage shall be brought by any convict against any person during the time he is subject to the operation of this Part.”

[19] Hood J held, in terms, that the words “no action shall be brought” do not refer to the carrying on of an action, saying[5]:

“The action has been brought when the writ is issued.  That action may be continued or discontinued or stayed, but it is already in existence.”

[20] Contextual consideration of s 95 also supports this interpretation.  Section 95(2) refers to consequences which flow when a court becomes aware “that an action has been brought”, and s 95(3) refers to the Public Trustee’s consent having been given “when the action was brought”.  These provisions only make sense if “brought” is regarded as synonymous with “instituted”.

[21] In arguing for a more expansive construction of the term “bringing” in s 95(1)(b), counsel for the defendant pointed to the use of the word “defending” in that subsection, arguing that this connoted a broader concept, ie doing all acts necessary to defend the proceeding, and that, consistently, the word “bringing” ought be construed as “bringing and maintaining”.  I respectfully disagree.  The reference in s 95(1)(b) is to the act of defending a proceeding, which under the Uniform Civil Procedure Rules is achieved by filing and serving a notice of intention to defend with the defence attached.  Maintenance of the defence which is articulated in those documents is a different matter.  Again, the use of the words “has been … defended” in s 95(2) and “the action was … defended” in s 95(3) supports that interpretation.

[22] Accordingly, on a proper construction of s 95(1)(b), there is no restriction on the capacity of the plaintiff to continue to maintain these proceedings which were brought (ie instituted) before he was sentenced to imprisonment.

[23] It was further argued, however, that ongoing prosecution of the case by the plaintiff necessarily involves the alienation of property or the making contracts, and to that extent the plaintiff is rendered incapable by virtue of s 95(1)(a). 

[24] In that regard, counsel for the defendant highlighted the fact that, even if the proceedings were validly instituted, the Public Trustee became manager of the plaintiff’s estate upon the plaintiff’s imprisonment, and argued that, as manager of the plaintiff’s estate, the Public Trustee “is now the only person with the power to conduct this proceeding – at least until the Public Trustee gives notice in accordance with s 92(1) of the Act (which has not occurred)”.  Reference was made to the powers of management conferred by s 94, and it was submitted:

“The Public Trustee seems to be suggesting that, notwithstanding that he is the manager of the plaintiff’s estate, the plaintiff is free to enter into agreement with his lawyers, incur fees with his lawyers, and expose his estate to potential liabilities (including liabilities for costs) because this proceeding was commenced prior to his being sentenced to a term in excess of three years.”

[25] In argument before me, this was extended to a contention that the prohibition on alienation of property and on the making of contracts is breached at every point when instructions are given; it was argued that a client cannot give instructions to a solicitor without the making of a contract in some form or other.  It was also argued that a settlement reached at mediation or after informal settlement discussions would necessarily involve the making of a contract.

[26] It seems to me, however, that these arguments misconstrue the relevant provisions. 

[27] The proper starting point is s 91, which provides that the Public Trustee “shall without further or other order or authority, be the manager of the estate of every prisoner to whom this part applies”, but this mandate is expressly limited by the words “except as otherwise provided in this part”.

[28] Not surprisingly, given the status of the Public Trustee as manager of the prisoner’s estate, the Public Trustee has expressly conferred on him the power to “institute any proceedings of a property nature or for the recovery of any debt or damage which the prisoner might have instituted but for the provisions of this Part”. 

[29] Importantly, however, for the reasons I have given above, the effective prohibition in s 95(1)(b) is, relevantly, on the institution of proceedings by a prisoner.  Section 95(1)(b) does not incapacitate a prisoner from continuing to maintain proceedings which he or she instituted before imprisonment.  Nor is there any bar on such a prisoner maintaining such proceedings by acting for himself or herself.  Similarly, there is no bar on such a prisoner continuing to be represented by legal advisers retained pursuant to a retainer entered into before the proceeding was instituted (as would normally be the case).

[30] Of course it is possible, and indeed probable, that events may arise in the course of maintaining the litigation which would trigger the application of s 95(1)(a), and counsel for the Public Trustee freely conceded that the Public Trustee’s consent would be required at any such juncture.  So, for example:

(a)If the prisoner terminated the pre-existing retainer of his or her solicitors and wished to retain a new solicitor, this would involve the “making of a contract” for which the written consent of the Public Trustee would be required;

(b)If the prisoner wished to settle the proceeding on terms which involved a payment of money by him or her, this would involve an alienation of property for which the written consent of the Public Trustee would be required.

[31] The necessity to address circumstances which arise in the course of the litigation which may require the consent of the Public Trustee pursuant to s 95(1)(a) is, however, quite different from the position advanced by the defendant before me.  That position was submitted to be that the Public Trustee “as the manager of the plaintiff’s estate is the only person who can give instructions to take steps in this proceeding”.  For the reasons I have given, I would reject that proposition.

[32] Accordingly, the application will be dismissed.

[33] I will hear the parties as to costs.

Footnotes

[1] s 90(a).

[2] [2003] 1 Qd R 453, 455-456.

[3] Ibid, 456.

[4] [1919] VLR 384.

[5] Ibid, 385.

Close

Editorial Notes

  • Published Case Name:

    Kashani-Malaki v Di Carlo

  • Shortened Case Name:

    Kashani-Malaki v Di Carlo

  • MNC:

    [2012] QSC 139

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    25 May 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 139 25 May 2012 -
Appeal Determined (QCA) [2012] QCA 320 23 Nov 2012 -

Appeal Status

{solid} Appeal Determined (QCA)