Pay v Williamson[2021] QCA 32

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The appellant, Mr Laws, is a barrister admitted to practice in the Supreme Court of Queensland.  Australian Unity Trustees Ltd, the principal respondent in the appeal and applicant on the present application, is the administrator of a deceased estate in respect of which Mr Laws was involved in a professional capacity, instructed by the second respondent, Mr Thompson (a solicitor).
2. [2]
   On 27 October 2020 Williams J delivered reasons dismissing an application by Mr Laws for an order that his professional costs be declared the subject of a lien, and that the estate bear the substantial burden of those costs.^[1]  The essence of the dispute in the primary proceedings can be gleaned from the following drawn from the learned primary judge’s reasons:

   1. (a)
      an order was made on 26 September 2020, that the costs of those who sought probate for the estate be paid from the estate, on the indemnity basis;
   2. (b)
      those costs had been assessed (pursuant to a court order sought by the administrator of the estate) at $230,787.74;
   3. (c)
      Mr Laws had acted in a professional capacity for the applicants for probate, instructed by Mr Thompson;
   4. (d)
      Mr Laws had not been paid his fees for that work; he contended his fees were $206,606.94;
   5. (e)
      the dispute between Mr Laws and Mr Thompson had escalated to the point where Mr Laws obtained default judgment against Mr Thompson in the Magistrates’ Court; and
   6. (f)
      Mr Laws sought that the lien be declared in his favour over the costs order made on 26 September 2020, and that it be ordered that he be paid directly from the estate.
3. [3]
   Williams J held^[2] that Mr Laws was not entitled to the claimed lien.  He had enforcement rights against Mr Thompson and there was no basis in equity to grant such a lien because there was no evidence of a significant or an appreciable risk that Mr Laws’ clients (Kara and Leah Williamson) would deprive Mr Laws of his costs.  In fact, the administrator of the estate had obtained orders that would facilitate the payment of those costs directly to Mr Laws.
4. [4]
   Mr Laws has appealed the order of Williams J.  The administrator of the estate seeks to have his appeal dismissed for want of prosecution.  As will become apparent, the administrators and Mr Laws have reached agreement on the disposition of the entire appeal, resulting in consent orders being made today, to which I will refer shortly.
5. [5]
   The relevant steps in the proceedings below, and on the appeal, have been as follows:

   1. (a)
      27 October 2020: judgment and reasons delivered by Williams J;
   2. (b)
      24 November 2020: a notice of appeal was filed;
   3. (c)
      30 November 2020: the applicant’s solicitors became aware of the appeal when they received a timetable set by the registry, though there had been no service of the notice of appeal;
   4. (d)
      30 November 2020: the applicant’s solicitors requested a copy of the notice of appeal;
   5. (e)
      2 December 2020: the applicant’s solicitors asked when they would be served; there was no response to the letter;
   6. (f)
      2 December 2020:  the applicant’s solicitors received a copy of the notice of appeal from the court registry;
   7. (g)
      8 December 2020: the applicant was served with the notice of appeal;
   8. (h)
      16 December 2020: costs orders were made in the primary proceedings;
   9. (i)
      8 January 2021: under the original timetable the appellant’s outline, list of authorities, and a draft index for the record book were due; none were provided;
   10. (j)
       11 January 2021: the applicant’s solicitors emailed, asking for the materials; there was no response to the email;
   11. (k)
       12 January 2021: the applicant’s solicitors inquired of the appellant’s solicitors and the court registry about the appellant’s overdue materials;
   12. (l)
       14 January 2021: the applicant’s solicitors contacted the court registry about the overdue materials, and were advised that the registry would contact the parties “within the next day or so” regarding material to be filed;
   13. (m)
       14 January 2021: the appellant’s solicitors advised the registry that there was to be a challenge to the costs orders made on 16 December 2020, and requesting an adjusted timetable;
   14. (n)
       14 January 2021: the registry were advised that the only active parties to the appeal were Mr Laws, Mr Thompson and the administrator (the applicant);
   15. (o)
       14 January 2021: the court registrar issued an amended timetable, and advised that “he was not inclined to grant further extensions”;
   16. (p)
       late January 2021: the appellant asked his solicitor to seek a further extension of the timetable;
   17. (q)
       4 February 2021: under the amended timetable the appellant’s outline, list of authorities, and a draft index for the record book were due; the appellant’s solicitors were advised by the applicant’s solicitors that the deadlines were to be enforced; none of the materials were provided; there was no response to the letter;
   18. (r)
       8 February 2021: the appellant sought the revised timetable from his solicitor;
   19. (s)
       8 February 2021: the applicant’s solicitors wrote to the appellant’s solicitors advising that they held instructions to file an application to dismiss for want of prosecution, and to seek indemnity costs; there was no response to the letter;
   20. (t)
       11 February 2021; the applicant served the material;
   21. (u)
       13 February 2021: the appellant’s solicitor advised she had been served with the strike out material, saying “no surprises there”; the solicitor said she would “send the material separately”;
   22. (v)
       14 February 2021: the appellant responded to his solicitor saying that the strike-out material “can (will have to) wait”;
   23. (w)
       25 February 2021: the appellant’s solicitor wrote to the appellant saying “The strike out is listed for 1 March as advised.  What do you want me to do?  ...  Application and affidavit material attached”; in fact the strike out material was not attached;
   24. (x)
       26 February 2021: the appellant emailed his solicitor seeking the material urgently;
   25. (y)
       26 February 2021: the appellant’s solicitor emailed copies of the material, including affidavits received from the respondent’s solicitor “yesterday afternoon” (those latter affidavits were affidavits of service of the application and the main affidavit, and an unsworn affidavit of Mr Thompson).
6. [6]
   In Mathiesen v Lawson & Ors^[3] this Court adopted what was said in Tyler v Custom Credit Corporation Ltd^[4] as to the twelve factors relevant to the question of dismissing a proceeding for want of prosecution.
7. [7]
   However, those factors are not the only relevant ones and, as was said in Tyler v Custom Credit:^[5]

“The court’s discretion is, however, not fettered by rigid rules, but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.

Unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result.”

8. [8]
   It does not matter anymore just which factors in Tyler v Custom Credit were relevant to the application to dismiss for want of prosecution, as the entire appeal has now been settled.  However, there was repeated disobedience of the Court’s directions.  The deadlines set by the Court Registrar under both the original timetable and the amended timetable were not met.  No explanation was given as to why the first deadline was missed and the respondent’s questions ignored.  It seems that the appellant asked his solicitor to seek a further extension of the timetable but that did not occur.  The appellant was therefore in the position where he had not been told he had the benefit of an extension, yet did not comply with the existing (amended) date.
9. [9]
   Then, when the strike out material was served the appellant’s solicitor advised the appellant on 13 February 2021, saying “no surprises there”.  I infer from that statement that the appellant had been made aware of the threat or expectation that such an application would be filed.  It must have been obvious that day that no extension had been granted; if it had the solicitor would hardly have said “no surprises there”.
10. [10]
    The Appellant’s response the next day (a Sunday) was that the strike out material could, and would have to, wait.  I infer that the appellant was told the hearing date was 1 March 2021.^[6]  That was still some days away so his reaction was understandable, but not if it was understood as meaning that he could not respond to the application itself.
11. [11]
    However, it seems that he left his solicitor without instructions as to how to respond to the application.  She reminded him on Thursday 25 February 2021 that the hearing date was 1 March 2021 “as advised”, and asked “What do you want me to do?”  He then sought copies of the material which he received at 6.54 pm on Friday 26 February 2021.  Earlier that day he sought and obtained a medical certificate addressed to this Court.  Nothing was done over the weekend to prepare material in response, and on Monday 1 March 2021 the appellant sought an adjournment of the application.
12. [12]
    That application was granted on the basis that Mr Laws needed time to assemble material and he was given until 3 March 2021 at 10 am to do so.  That timetable was met and an outline was filed.
13. [13]
    However, that meant that the costs of the adjournment were incurred by Mr Thompson and those costs were sought on an indemnity basis.  In addition, with the matter having been resolved and there being no point in pursuing any part of the application to dismiss for want of prosecution, Mr Thompson also seeks the costs thrown away of the hearing of the application.  In my view, the appropriate orders in respect of Mr Thompson are that the costs thrown away by the adjournment on 1 March 2021 be paid by Mr Laws, but not on the indemnity basis.  Mr Thompson is not the administrator of the estate, which would normally attract the full protection of an indemnity basis for a costs order.  Further, he was simply a supporter to the application and not the moving party.  Nonetheless, he incurred costs thrown away by the adjournment.
14. [14]
    As for the costs of the hearing of the application, the settlement reached between the administrator and Mr Laws might have been reached late the previous night, but Mr Thompson’s lawyers were not aware of it until they were at Court.  In that sense, the costs of the hearing have been thrown away by the settlement achieved between the major parties.
15. [15]
    By consent it is ordered that:

1. The appeal, as it relates to the second respondent, is dismissed.
2. The third appellant pay the costs (including reserved costs) of the second respondent of the appeal, fixed in the sum of $23,000.

16. [16]
    I order that the third appellant pay the third respondent’s costs of the adjournment on 1 March 2021, and of the hearing on 4 March 2021, fixed in the sum of $12,000.