Seymour v Watling Roche Lawyers (A Firm)
[2001] QDC 354
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- Unreported Judgment
- Seymour v Watling Roche Lawyers (A Firm)[2001] QDC 354
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Seymour v Watling Roche Lawyers (A Firm)[2001] QDC 354
Seymour v Watling Roche Lawyers (A Firm)[2001] QDC 354
DISTRICT COURT OF QUEENSLAND
CITATION: | Seymour v. Watling Roche Lawyers (A Firm) [2001] QDC 354 |
PARTIES: | NEVILLE DEREK SEYMOUR (Appellant) v. WATLING ROCHE LAWYERS (a firm) (Respondent) CHRISTINE ROBYN SEYMOUR (Appellant) v. WATLING ROCHE LAWYERS (a firm) (Respondent) |
FILE NO/S: | Appeals 1024, 1025 of 2001 |
DIVISION: |
|
PROCEEDING: | Appeals |
ORIGINATING COURT: | Magistrates Court Caboolture |
DELIVERED ON: | 21 December 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 August 2001 |
JUDGE: | McGill DCJ |
ORDER: | In Appeal 1024 of 2001; appeal allowed, orders made by the magistrate on 17 January 2001 set aside, in lieu therefore order on the defendant’s application that the respondent make disclosure in accordance with the rules of all documents in its possession or power directly related to the matters in issue in the pleadings within six weeks of the date of publication of these reasons. The plaintiff’s application dismissed. Order that the respondent pay the appellant’s costs of the proceeding before the magistrate fixed at $181. Order the respondent to pay the costs of the appeal to be assessed. In Appeal 1025 of 2001: appeal allowed, orders made by the magistrate on 17 January 2001 set aside, in lieu therefore order on the defendant’s application that the respondent make disclosure in accordance with the rules of all documents in its possession or power directly related to the matters in issue in the pleadings within six weeks of the date of publication of these reasons. The plaintiff’s application dismissed. Order that the respondent pay the appellant’s costs of the proceeding before the magistrate fixed at $314. Order the respondent to pay the costs of the appeal to be assessed. |
CATCHWORDS: | PRACTICE – Disclosure – scope of obligation to disclose – action by solicitor on quantum meruit – identification of issues – need for proper disclosure American Express International Inc v. Hewitt [1993] 2 Qd.R. 352 – applied Cheque Exchange (Australia) Pty Ltd v. Llewellyn [2000] QSC 138 – considered Dibb v. Hopgood Ganim [2001] QDC 153 – applied McGowan v. Commissioner of Stamp Duties [2001] QCA 236 – cited Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd [2001] 1 Qd.R. 276 – applied Permanent Finance Corporation Ltd v. EuroPacific (Plant Hire) Pty Ltd (No. 2) [1971] Qd.R. 302 – cited Remote Data System Pty Ltd v. Hoover [2000] QCA 116 – applied |
COUNSEL: | D.A. Reid for the appellants P.B. de Plater for the respondent |
SOLICITORS: | Murphy Schmidt for the appellants Watling Roche for the respondent |
- [1]Mr. and Mrs. Seymour are each appealing from the decision of a Magistrate who on 13 February 2001 ordered that claims against them by the respondent be set down for trial notwithstanding that they had not signed requests for trial dates, and dismissed their applications for orders that the respondent make further and better disclosure. The substantial issue arising in the appeals is as to the extent to which solicitors are liable to make disclosure in circumstances such as the present, although there are a number of complications, including that Mrs. Seymour can appeal as of right from the decision, whereas Mr. Seymour requires leave.
- [2]The respondent firm of solicitors acted for each of the appellants in litigation which was commenced some time ago. The proceedings commenced by the respondent for Mrs. Seymour in this court on 3 October 1997 sought damages in respect of personal injuries alleged to have been caused by the negligence or breach of contract of employment or breach of statutory duty of a particular company which was alleged to have been an employer of Mrs. Seymour from 1992 until 1995. The respondent on 12 March 1998 filed in this court for Mr. Seymour a plaint seeking damages for loss of consortium in respect of the injury alleged to have been so suffered by Mrs. Seymour. There were separate retainer agreements signed by each of them[1].
- [3]The respondent is now suing for its fees, and on 7 January 1999 commenced separate proceedings in the Magistrates Court at Caboolture against each appellant, claiming $11,827.45, together with costs and interest, from Mrs. Seymour, and $4,233.10, together with costs and interest, from Mr. Seymour. Both proceedings were commenced by the filing of a plaint and special summons under r.43 of the Magistrates Court Rules 1960 then in force. The statement of particulars of claim endorsed in the case of Mrs. Seymour read:
“The plaintiff’s claim is for $12,692.95 being costs and outlays incurred by the plaintiff in rendering legal services to the defendant in this district pursuant to a retainer agreement dated 2 July 1997, particulars whereof have already been delivered to the defendant and which, despite demand, have remained unpaid by the defendant for a period of 30 days.”
The statement of particulars in the case of Mr. Seymour was similar except in respect of the amount claimed, and of the date of the retainer agreement, alleged to have been 20 January 1998.
The action against Mrs Seymour
- [4]However, by an amended claim filed on 14 December 2000, the respondent claimed from Mrs. Seymour the same amount on the basis of a quantum meruit, alleging that there was a retainer entered into on 2 July 1997 but that it had validly terminated that retainer because of certain breaches of it by her, and was therefore entitled to be paid for work done on a quantum meruit basis. Such a claim can be made in such circumstances: McGowan v. Commissioner of Stamp Duties [2001] QCA 236.
- [5]Mrs. Seymour had filed an Entry of Appearance and Defence originally on 10 February 1999, and an amended defence and counterclaim was filed on 7 December 1999, but following the filing of the amended claim and statement of claim in December 2000, a further amended defence and counterclaim was filed on 9 February 2001, after the respondent’s application to dispense with the requirement that she sign the request for trial date was filed on 17 January 2001, but before it was returnable on 13 February 2001.
- [6]The further amended defence and counterclaim admitted that the respondent acted for her in relation to her action for damages for personal injury arising out of her employment, and admitted she signed a written retainer agreement on 2 July 1997, but alleged that the agreement was invalid because of conduct in breach of s. 39 of the Fair Trading Act, and because of unconscionability on the part of the plaintiff, or because the retainer was void for uncertainty. She admitted that she had not disclosed to the respondent certain matters referred to in the statement of claim, denied that any non-disclosure was a breach of the retainer agreement on her part, denied a particular conversation with a representative of the respondent alleged in para. 14 and 15 of the amended statement of claim, denied that the respondent was unable to obtain proper instructions from her, and alleged that it was actually the respondent who had wrongly repudiated the retainer agreement by seeking to withdraw as solicitor for her in the action. There was also a counterclaim seeking to recover costs incurred by her as a result of the respondent’s application in her action for leave to withdraw as her solicitor on the record.
- [7]No reply and answer was filed in response to the further amended defence and counterclaim, but there had been a reply and answer filed on 18 January 2000. In the absence of an amended document, that pleading stands as the reply and answer, and in practice appears substantially to respond to the defence and counterclaim in its further amended form. It generally puts the various allegations in the defence and counterclaim in issue, and reiterates the position in the statement of claim, although it does also assert that the court has no jurisdiction to decide certain issues raised by Mrs. Seymour because she had not referred the costs for assessment pursuant to the Queensland Law Society Act. I shall return to the significance of that Act.
- [8]The answer disputed the basis of liability alleged in the counterclaim, and also disputed the proposition that it was unnecessary to serve the other party to the action (that is, the defendant to the other action) with the application for leave to withdraw. It is not clear whether the reason why a costs order was made against Mrs. Seymour in relation to that application was because, as between the plaintiff and the defendant in that action, the judge who made the order thought that it was unnecessary to serve that application on the defendant, although had he thought that I would have expected him to order the respondent (that is, the firm of solicitors) to pay the costs of the other party whose presence was unnecessary.
- [9]One of the issues raised by Mrs. Seymour is that a number of the items of work in the itemised Bill of Costs delivered (in taxable form) by the plaintiff on 11 November 1998 were unnecessary or required only as a result of the defective way in which the respondent conducted her action. The only particular pleaded was the making of the application to withdraw when it was not entitled to do so, and the service of that application on the defendant in the earlier action when it was not necessary to do so. The pleading goes on to say that further particulars would be provided after the completion of disclosure of documents. For present purposes the significance of this pleading is that it shows that Mrs. Seymour is putting in issue that the amount claimed by the respondent is the amount properly payable if she is liable to the respondent for legal work done by it for her.
The action against Mr. Seymour
- [10]The position of Mr. Seymour’s action is that an Entry of Appearance and Defence dated 8 February 1999 was filed in the Magistrates Court at Caboolture but does not appear to have a date stamp on it, and an amended defence and counterclaim was filed on 7 December 1999. A reply and answer was filed on 18 January 2000, but again an amended claim and amended statement of claim were filed on 14 December 2000. That amended statement of claim alleged that there was a written retainer dated 20 January 1998 and alleged that there was a failure on the part of Mr. Seymour to make disclosure of relevant facts in relation to the medical history of his wife, on the basis that he had adopted as his own the instructions provided by his wife insofar as they were relevant to his action against the wife’s employer, so that he was implicated in her failure to disclose relevant facts. The respondent then alleged that as a result of this breach of the retainer, it was entitled to terminate the retainer and entitled to recover on a quantum meruit with respect to work already done for Mr. Seymour prior to the termination of the retainer.
- [11]Mr. Seymour filed a further amended defence and counterclaim on 9 February 2001 which contained similar allegations to those in Mrs. Seymour’s, and is to similar effect, and it also put in issue the allegation that he had adopted the instructions given to the respondent by his wife. Again, the reply filed 18 January 2000 can be read as a response to the pleading in its further amended form, and it raised the same matters. There was also an application by the respondent in Mr. Seymour’s action to dispense with the requirement that he sign the request for trial date.
- [12]In summary therefore, in the present actions there are issues about whether the appellants were actionably misled by the respondent as to the effect of the retainer agreement, particularly as to circumstances when fees would not be payable by the appellants; whether the retainers were otherwise invalid; whether there was a breach of the retainers by the appellants in failing to disclose certain additional facts to the respondent; whether in those circumstances the respondent was entitled to terminate the retainers and sue in respect of work done up until then; whether the respondent wrongfully repudiated the retainers; whether the appellants were exposed to the orders for costs made against them in respect of the applications by the respondent for leave to withdraw as a result of the negligent conduct of the respondent in bringing the applications or in making the other party to that action a party to those applications, and whether in any other respects work done by the respondent was done inappropriately so that the appellants are not liable to pay for it.
- [13]In response to the respondent’s applications, the appellants filed (by leave) applications seeking orders for further and better disclosure. When the applications came on for hearing on 17 January 2001, the Magistrate dispensed with the requests for trial date, dismissed the appellants’ applications, and ordered the appellants to pay the respondent’s costs of the two applications which he fixed. The Magistrate was understandably concerned about the length of time it was taking to bring the matters to trial. The Magistrate was satisfied that the duty of disclosure had been carried out, or was at least not satisfied that it had not been; he concluded that the only documents which had been properly shown to be relevant which were not disclosed were the retainer agreements, and it was unnecessary to order disclosure of them because the appellants already had copies of them. In effect, the Magistrate was not persuaded there had been a failure to make proper disclosure and concluded that therefore the matter was ready for trial, and proceeded to allocate a trial date.
Leave to appeal
- [14]Mrs. Seymour is entitled to appeal as of right, being a party dissatisfied with an order of a Magistrates Court in an action in which the amount involved is more than $5,000: Magistrates Court Act 1921 s. 45(1)(a). In the case of Mr. Seymour however, the claim is for less than $5,000 so an appeal will lie only by leave of the District Court: s. 45(2)(a). That paragraph provides that this court:
“… shall not grant such leave to appeal unless the court or a judge is satisfied that some important principle of law or justice is involved”.
This requires that there be an issue arising going beyond the consequences of the decision to the immediate parties to the action: American Express International Inc v. Hewitt [1993] 2 Qd.R. 352.
- [15]In my opinion, the important principle of law or justice which is involved in relation to this appeal is as to the extent to which a solicitor suing for fees is obliged to make discovery in circumstances where there is a dispute as to the circumstance under which the written retainer came to be signed, where there is an allegation that there was a breach of that retainer in failing to disclose relevant facts, and where there is an allegation that at least some of the work done by the solicitor was not done properly, and in circumstances where the quantum of the solicitor’s fees remains in issue. All the respondent disclosed in the lists of documents filed in March 1999 were the court documents in the earlier actions, one letter between solicitors and various medical reports and records. The respondent has maintained the attitude that nothing else is discoverable, while the appellants have maintained the attitude that the solicitor’s whole file is discoverable. The respondent alleged that in substance the process of seeking to discover the file was a fishing exercise, to assist in the formulation of objections to the bill of costs.
- [16]This is not a case where there is simply a dispute as to how established principles of disclosure are worked out in a different case; rather, it seems to me that what is involved here is a broader dispute as to principle. It raises the question of the extent to which the quantum of the solicitor’s fees is a matter which can be in issue before the court in an action by a solicitor to recover fees. Without at this stage coming to a concluded view as to the merits of the appeal, the proposition that nothing except court documents and medical reports would be discoverable is one which I initially find surprising, so that there appears superficially to be merit in the appeal[2]. In my opinion, this is a matter where there is an important principle of law or justice involved.
- [17]As to whether the discretion then should be exercised, the fact that there is a parallel appeal involving a related appellant raising similar issues is in my opinion, and in the light of the approach adopted by the Court of Appeal in Remote Data System Pty Ltd v. Hoover [2000] QCA 116, a reason favouring the granting of leave rather than opposing it. In that case there were a series of judgments for varying amounts against the appellant in respect of some of which leave to appeal was required, but there had been one action below and there was one appeal, argued on behalf of all appellants by one counsel. Here there were two actions in the Magistrates Court, the applications were argued together by the same people there and before me, and the only issues which distinguish them are the need for leave in respect of the appeal by Mr. Seymour and the absence under the Uniform Civil Procedure Rules of automatic disclosure in his action. In those circumstances I think the discretion should be exercised in favour of granting leave to appeal to Mr. Seymour, and leave is granted accordingly.
How can a client dispute the quantum of solicitor’s fees?
- [18]One matter which arises for consideration is the effect of the provisions of the Queensland Law Society Act 1952 in relation to the respondent’s claims. The appellants did not apply under s.6ZA of that Act for appointment of a cost assessor, but that is not something which bars them from disputing any of the matters raised by them in the further amended defence and counterclaim, including the question of the quantum of fees chargeable for any work found to be properly done by the respondent. I discussed the operation of the relevant provisions of the Queensland Law Society Act in their current form, and contrasted that them some earlier schemes of statutory regulation of the right of a solicitor to remuneration, in Dibb v. Hopgood Ganim [2001] QDC 153.
- [19]I will not repeat at length what I said there; it can be summarised for present purposes sufficiently by saying that, in my opinion, for the reasons I set out there, where a solicitor is suing for costs there is power in the court to appoint a costs assessor to assess the account under s. 48K, but it is better for disputes as to the scope and proper interpretation of the retainer, or whether particular work was properly done, or whether the solicitor has been negligent, or other issues which do not deal directly with the question of quantum, to be resolved at a trial before that step is taken, so that any assessment can be made on the basis of the findings of the trial court on those other issues. In other words, the issues in the trial should be tried and determined by the Magistrate, up to the point where the only issue left is how much is the respondent entitled to recover by way of quantum meruit, if that point is reached, before he should then consider whether to order under s. 48K. .
- [20]At that point the power under s.48K can be exercised and an assessment can be obtained, but as I pointed out in Dibb that assessment is not made conclusive, and it would still be open for the parties to dispute the quantification of the costs, or particular issues, before the Magistrates Court. It follows that the question of the quantum of the costs recoverable by the respondent is a matter in issue on the pleadings in these proceedings. The former separation between what a court did and what a taxing officer did on a taxation of a solicitor and own client bill has in my opinion not been preserved under the current regime. I do not accept that all the respondent has to do in the trial is tender the bill: the respondent has to prove that the retainer was validly terminated, and that the amount claimed in the bill is reasonable remuneration for the work done by it. At some point I would expect the trial to be adjourned while an assessment was obtained under s. 48K, but whether and when that is done will be a matter for the trial magistrate.
- [21]It follows therefore that the quantum of the costs recoverable by the solicitor is a matter in issue on the pleadings, at least once a pleading had been filed which put it in issue, and therefore the respondent had a duty to disclose to the appellants each document directly relevant to the allegation that it is entitled on a quantum meruit to recover the costs as billed. The issue is whether the amounts claimed by the respondent are reasonable remuneration for the work done. The appellants are entitled to litigate that issue in the actions, and have put quantum in issue by their pleadings. Without looking at the whole file it is not possible for me to say definitely whether all of the documents on the respondent’s file would meet that test, but I think it likely that most of them would, and possibly all of them would.
Particulars prior to disclosure
- [22]There was some complaint about the amount of particularisation of the dispute as to quantum of the respondent’s bill. The difficulty here arises from the difficulty in distinguishing between matters properly the subject of determination on an assessment and matters properly the subject of determination at a trial. It would in my opinion be an unnecessary complication for the pleading to include by way of particulars matters which ought properly to be raised only on an assessment. If ultimately the bill is referred to an assessor under s. 48K, it may well be appropriate for the Magistrate then to direct that the appellant provide a list of objections to the bill which deal specifically with the items to which objection is taken. But my own view is that it would be premature to require that degree of particularity in relation to the trial. What ought to be raised at this stage by way of particulars are matters which ought to be determined at a trial prior to any such assessment being made.
- [23]It is in my opinion a proper exercise of pleading to give the best particulars that one can while foreshadowing that following the completion of disclosure additional particulars may well be provided. That is an approach which has been used in pleadings for a long time, and there is nothing in the Uniform Civil Procedure Rules to indicate that it is not now available. In my opinion, that does not turn disclosure into a fishing exercise; as long as the basic allegation is properly pleaded, documents relevant to the allegation are subject to disclosure and the formulation of particulars of the allegation can then be left until after the completion of disclosure[3]. The state of the appellant’s pleading is not a reason for the respondent to fail to make proper disclosure of documents relative to quantum. Therefore I would reject the argument that it is impossible for the respondent to determine what documents ought or ought not to be disclosed on the pleadings as they currently stand. In my opinion the extent of disclosure required can be adequately determined by reference to the matters in issue on the current pleadings. Any difficulty about that is merely a function of the complexity of the current pleadings.
Other matters in issue
- [24]Apart from this however there are a number of matters in issued on the pleadings where one would expect there to be documents directly relevant to those matters in the possession of the respondent. The respondent alleged that there was a breach of the retainer in failing to disclose certain relevant facts, and although it is not disputed that particular facts relied on by the respondent were not disclosed, the significance of them and the question of whether a failure to disclose them amounted to a breach of the retainer justifying termination are issues which can only be properly assessed in the light of all of the facts which were disclosed, and the material placed before the respondent by the appellants in support of their claims. Documents in the form of solicitor’s notes as to instructions received, and statements of the appellants prepared by the respondent, would seem to me to be documents directly relevant to those allegations, and there may well be others.
- [25]Apart from this it was alleged in para. 7(a)(i) of the reply in the case of Mrs. Seymour that the respondent gave Mrs. Seymour certain advice by a letter dated 2 July 1997. That letter has not been disclosed. Further, in para. 7(b)(i) there was an allegation that the respondent gave Mrs. Seymour certain advice prior to entering into the written retainer agreement; although it is not alleged whether that advice was oral or in writing, if it was in writing the writing ought to be disclosed, and if it was oral then any diary note recording the giving of that advice ought to be disclosed. The same applies to the advice which was alleged to have been given in para. 7(b)(ii) of the reply.
- [26]The other matter which stands out as a clear omission from the lists of documents originally filed by the respondent is the written retainer agreement. That is plainly a document directly relevant to an allegation in issue on the pleadings, because there is a dispute on the pleadings as to whether there was a breach by the appellants of the term of that document. There are also other issues in the pleadings as to the correct interpretation of that document, in respect of other matters. If the only significance of disclosure of those documents was to make copies available to the appellants then it would have been appropriate to take the view that the trial should not be held up just because of that failure, as they already had copies. But in my opinion the real significance of the failure to disclose those documents is that it was a clear indication that the duty to disclose had not been properly complied with. When a document so obviously directly relevant to an allegation in issue in the pleadings was not disclosed, that suggests that there may well be other documents (which the appellants do not have copies of) which are also relevant and which have also not been disclosed. It does not appear that the Magistrate sufficiently appreciated the significance of this aspect of the failure to disclose the retainer agreement.
Effect of amendment of pleadings on disclosure
- [27]I have discussed the duty in relation to disclosure by reference only to the provisions of the Uniform Civil Procedure Rules. Discovery was originally given under the Magistrates Court Rules, but the pleadings were substantially amended after the Uniform Civil Procedure Rules came into operation, and the continuing obligation[4] of disclosure which is imposed by those rules could only sensibly operate pursuant to the new rules by reference to the matters currently in issue in the pleadings from time to time. It does not appear that there was any subsequent disclosure offered by the respondent at any time. When pleadings are amended in a way which introduces new issues to a proceeding, an obligation to disclose arises in relation to those new issues In the present matters the pleadings were extensively amended after the commencement of the new rules, so in my opinion it is sufficient for me to consider whether the respondent has satisfied its obligation to make disclosure under the new rules. In my opinion and in the light of the analysis referred to earlier, it has not done so.
Were the appellants seeking orders under r.223?
- [28]There was a submission that it was not appropriate to make an order for further disclosure because it was necessary for Mrs. Seymour to satisfy the court that she was entitled to an order pursuant to r. 223(1) or (2), and she could not satisfy the requirements of r. 223(4). In my opinion, this is a case where it does appear that there is an objective likelihood that the obligation to disclose has not been complied with, in the light of the analysis to which I have referred, so that r. 223(4)(b)(i) has been made out. In my opinion, however, it is not necessary for Mrs. Seymour to satisfy the requirement of that rule. Rule 223 is concerned with a situation where the court is making an order for specific disclosure, that is an order dealing with a specific document or class of documents, either in the position of the other party, or formerly in the possession of the other party, or possibly not in the possession of the other party. Rule 223 is not concerned with the enforcement of the ordinary obligation on a party to make disclosure under the rules, what might be described as general disclosure.
- [29]Under the former rules of the Supreme Court there were separate powers in O. 35 r. 11 to order a party to make discovery on oath, including when a party required under r.10 to make discovery failed to comply with the provisions of that rule, and in O. 35 r. 18 to make what was described there as a special order for discovery in relation to “any specific document”. Rule 223 is concerned with the sort of situation formerly dealt with by O. 35 r. 18 rather than that formerly dealt with by O. 35 r. 11(2). The consequences of a failure to provide disclosure of documents as required by the rules are dealt with to some extent in r. 225, but as well where there has been a failure to comply with the rules the court may make an order under r. 371(2), including under para. (f) an order that the obligations under the rules be complied with. Accordingly, where there has been a failure to make proper disclosure, an order can be made under that rule that proper disclosure be made. An application for such an order could be appropriately described as an application for an order for further and better disclosure. Counsel for the respondent relied on the decision in Cheque Exchange (Australia) Pty Ltd v. Llewellyn [2000] QSC 138. However, as her Honour made clear in her reasons in that matter, the order for further disclosure which was sought in that case was specific, relating to specific categories of documents, so the application was properly assessed in terms of r. 223.
The disclosure was inadequate
- [30]I was referred to the decision of the Court of Appeal in Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd [2001]. 276, where Pincus JA said, at p.203 that:
“Drawing attention … to a chance that a particular category of undisclosed documents may help one side’s case will not necessarily provide a basis for an order for further disclosure”.
Nevertheless, His Honour said on the same page:
“The former inflexible approach to applications for further discovery (see Permanent Finance Corporation Ltd v. EuroPacific (Plant Hire) Pty Ltd (No. 2) [1971] Qd.R. 302 at 315) is no longer necessarily appropriate, under the current disclosure system, and because of the notions expressed in r. 5 of the Uniform Civil Procedure Rules. If it appeared, for example, that an order for further disclosure would be likely to facilitate the just and expeditations resolution of the real issues, that would enable and perhaps require the making of such an order. But there must, at least in the ordinary case, be something more than mere suspicion, to justify granting relief to a party complaining of incomplete disclosure”.
- [31]The authority to which His Honour referred was an example of the former rule that an affidavit of documents could not be contradicted unless it appeared from documents referred to or from an admission in the pleadings or from the affidavit itself that some further documents had been withheld. When that rule was applied strictly, it was insufficient to argue that one would expect logically that there must be further documents. As would be apparent from my analysis earlier, there were at least two documents which the respondent had which were referred to in the respondent’s pleadings but not disclosed, but apart from that the effect of the comments by Pincus JA is that it is no longer necessary to adopt that restrictive approach, and that as long as the court has more than a mere suspicion that there must be additional documents in existence which were not disclosed, it may well be appropriate or indeed necessary to make an order for further disclosure.
- [32]The present case is not one where there is a dispute as to whether there exist further documents which have not been disclosed; the dispute in the present case was as to whether the obligation to make disclosure extended further than the extent of the disclosure already made, and there was at least the tacit admission that there were additional documents which existed which had not been disclosed. In my opinion this is not a case which is appropriately dealt with on the basis of the former rule.
- [33]The real issue in this case was as to the scope of disclosure and in respect of that issue it does appear that there has been a failure to make proper disclosure in Mrs. Seymour’s action. There was an obligation to disclose all documents directly relevant to matters in issue, including the dispute as to quantum, and it is likely that that could cover most if not all documents on the respondent’s file for Mrs. Seymour. In substance the position of the appellant, although not expressed quite as precisely as in my opinion it should have been, was fairly close to the true position. The respondent’s disclosure in this case was quite inadequate.
- [34]Accordingly the respondent at the time when it signed the request for trial date was not entitled to sign that request because it was not a party ready for trial, because it had not complied with its obligation to make disclosure under the rules: r. 469. In my opinion the respondent ought to be ordered to make proper disclosure, and that should be complied with and there should be the opportunity for inspection of the disclosed documents prior to the matter being ready for trial, and hence prior to the request for trial date being signed by the parties, and prior to trial dates being fixed. In my opinion, what occurred on this occasion was that there was a failure on the part of the Magistrate to appreciate the true extent of the obligation to make disclosure on a solicitor in circumstances such as this, possibly because the Magistrate did not appreciate the significance of the changes effected to the Queensland Law Society Act by the Civil Justice Reform Act 1998, which significantly weakened the distinction which previously existed between taxation of costs and the determination at a trial of liability of a client to pay a solicitor. That issue is central to the determination of the matters in issue at the trial, and therefore central to the determination of the scope of proper disclosure.
- [35]In my opinion, therefore, the Magistrate was in error in dismissing Mrs. Seymour’s application; in my opinion he ought to have ordered that the respondent make disclosure in accordance with the rules within some specified time. Ordinarily a conclusion that there had been a failure to make proper disclosure would mean that it would be inappropriate for a matter to be set down for trial, and inappropriate for the request for trial date to be dispensed with. It appears in the present case that the Magistrate has simply proceeded on the basis that the matter had been outstanding for a long time and the complaint about inadequate discovery was without substance, so it ought to be listed for trial. Once one concludes that the complaint about inadequate discovery was not without substance, the foundation for the conclusion that it ought to be listed for trial disappears. In my opinion, the order dispensing with the request for trial date, and listing the matter for trial, was inappropriate, and should also be set aside on appeal.
Mr. Seymour’s action – no right to disclosure
- [36]In relation to Mr. Seymour, there was the further submission made that there was no right to disclosure because the amount involved was less than $5,000 so that the proceeding was a minor debt claim for the purposes of the Uniform Civil Procedure Rules. Although the amount claimed was less than $7,500, it was not a minor debt claim because it was not one where the respondent had elected to have it heard and decided in a Magistrates Court under the simplified procedures in the Uniform Civil Procedure Rules. That is unsurprising, because the proceeding was commenced in the Magistrates Court prior to the commencement of those rules. Nevertheless, it remains outside the definition of a minor debt claim. It was however a minor claim as defined in the new rules, since that means any claim for an amount including interest of not more than $7,500, and that is the situation here. Under r. 519, where there is a minor claim, a party may not require another party to disclose documents in the possession or under the control of the other party and directly relevant to an allegation in issue in the proceeding unless the court otherwise orders[5].
- [37]However, this proceeding was commenced under the Magistrates Court Rules, and under those rules discovery was sought by the appellant. On 17 March 1999, the respondent forwarded to the solicitors for the appellant a list of documents by way of discovery under those rules[6]: the list consisted of the court documents in respect of Mr. Seymour’s action for loss of consortium, various medical records and medical reports, and one letter from the respondent to the new solicitors for Mr. Seymour. There followed a dispute as to the adequacy of this discovery, but no further discovery or disclosure was given by the respondent.
- [38]When the matter came on before the Magistrate on 17 January 2001, leave was granted to file an application for an order for further disclosure against the respondent. If that were treated as an application for an order pursuant to r. 519, the issue would become not whether there had been a breach of the rules as to disclosure on the part of the respondent, but whether disclosure by the respondent should be made in the ordinary way given the nature of the action. It is unnecessary to decide whether, in the light of the pleadings as they stood when the matter was under the Magistrates Court Rules, there had been a failure to comply with any obligation imposed under those rules to make discovery when the list of documents was filed by the respondent. The issue in this case is whether this is a matter where it is appropriate to make disclosure prior to the trial.
- [39]In my opinion it is a matter where proper disclosure ought to be made prior to the trial. This arises because of the nature and complexity of the issues raised on the pleadings, and because the proceeding is closely associated with the claim against Mrs. Seymour, where there is clearly a right to proper disclosure. This association arises not merely because the appellants are husband and wife, and because he was suing for loss of consortium because of her injury, but because the basis of the breach of the retainer alleged against Mr. Seymour is the failure to disclose matters about Mrs. Seymour which are said to have been relevant. The assessment of the relevance of those matters in relation to Mr. Seymour’s action ought to be able to proceed on the same basis as the assessment of the relevance of those matters in Mrs. Seymour’s action, but unless there is disclosure ordered in both matters, Mr. Seymour’s current legal advisors, who are also the advisors to Mrs. Seymour, will be placed in the unfortunate position of being unable to have regard to the documents disclosed in Mrs. Seymour’s action for the purposes of preparation of Mr. Seymour’s action, otherwise they will be guilty of using documents obtained under disclosure for a collateral purpose. To leave them in that situation would, in my opinion, be artificial and quite inappropriate, and that is appropriately dealt with by requiring the relevant documents to be disclosed for the purposes of both actions.
- [40]Therefore, although there was some difference in the background to the two applications for further disclosure, in that one was based on a failure of the other party to comply with an obligation under the rules, and the other was not, the conclusion which ought to have been reached is the same in each case, that there ought to be proper disclosure of all of the documents directly relevant to the matters in issue in the pleadings in both actions. Although that was a matter of discretion, the Magistrate does not appear to have had regard to the considerations I have just mentioned, and appears to have concluded that all relevant documents had already been disclosed. That conclusion was wrong, and it is therefore necessary for me to exercise the discretion afresh.
- [41]In other respects the arguments in relation to the appeal by Mr. Seymour cover the same matters raised in the appeal by Mrs. Seymour; for the same reasons, those arguments lead to the same conclusion in this appeal. In my opinion, the respondent ought to be ordered to make proper discovery in this action as well. In all the circumstances I do not think there is any point in simply adjourning the respondent’s applications, and the preferable course in my opinion is for those applications to be dismissed.
Costs
- [42]The Magistrate appears to have allowed two sets of costs under item 11 in respect of the two separate applications each of the actions. Given that they were heard together and only one issue was involved, it seems to me that this was unduly generous[7]. It was submitted by the appellants to the Magistrate that he should allow in respect of each of the actions only one set of costs rather than two. In substance one matter was argued by the parties before the Magistrate, and in substance the argument was indistinguishable from one application. Allowing two sets of costs for what was in substance one application is being fairly generous, but in my opinion allowing four sets is completely beyond the limits of a proper exercise of discretion. The Magistrate did say in his reasons that he would not normally allow both sets of costs, but did so in this case for reasons that, with respect, do not seem to me to justify the allowance of what were in substance four sets of costs. In my opinion, the matter is close to the point where it would be appropriate to allow only one set of costs, but given that there were some separate issues raised in relation to Mr. Seymour’s application, I think it is appropriate that there be separate costs allowed in respect of Mr. and Mrs. Seymour’s actions, but I will allow only one set of costs for each. In each case this is one set of costs under Item 11, Scales D and F respectively, in force as at the date of the hearing before the Magistrate.
Orders on appeal
- [43]In Mr. Seymour’s appeal the appeal is allowed, the orders made by the Magistrate on 17 January 2001 are set aside, and in lieu therefore it is ordered on the defendant’s application that the respondent make disclosure in accordance with the rules of all documents in its possession or power directly related to the matters in issue in the pleadings within six weeks of the date of publication of these reasons. The plaintiff’s application is dismissed. I order that the respondent pay the appellant’s costs of the proceeding before the Magistrate fixed in the sum of $181. I order the respondent to pay the costs of the appeal to be assessed; no doubt in making the assessment the registrar will take into account the fact that the appeals were heard together, and there was substantial overlap in the issues raised.
- [44]In Mrs. Seymour’s appeal the appeal is allowed, the orders made by the Magistrate on 17 January 2001 are set aside, and in lieu therefore it is ordered on the defendant’s application that the respondent make disclosure in accordance with the rules of all documents in its possession or power directly related to the matters in issue in the pleadings within six weeks of the date of publication of these reasons. The plaintiff’s application is dismissed. I order the respondent to pay the appellant’s costs of the proceeding before the Magistrate fixed in the sum of $314. I order the respondent to pay the appellant’s costs of the appeal to be assessed.
Footnotes
[1] By Mrs Seymour dated 2 July 1997; by Mr. Seymour dated 20 January 1998.
[2] This is a relevant consideration: Lachlan v. Hartley [1978] Qd.R. 1 at 5.
[3] See Ross v. Blakes Motors Ltd [1951] 2 All ER 689; Castlemaine Perkins Ltd v. Queen St Hotels Pty Ltd [1968] Qd.R. 501 at 513; Commission for Racial Equality v. Ealing London Borough Council [1978] 1 WLR 112.
[4] See r. 211(2).
[5] Rule 519(5) which makes applicable r. 514(1)(c) which provides to that effect.
[6] Presumably in accordance with MCR r. 159.
[7] The total costs ordered came to $990.