In The Matter of a notice of motion filed on behalf of Colin George Dunstan [2000] ACTSC 33 (2 May 2000)

Last Updated: 16 October 2000

IN THE MATTER of a notice of motion filed on behalf of Colin George Dunstan

[2000] ACTSC 33 (2 May 2000)

CATCHWORDS

COSTS - notice of motion filed as if in criminal jurisdiction of Supreme Court - consequent peremptory listing of motion as directions hearing for pending criminal trial - motion bound to fail - respondent given insufficient notice - Director of Public Prosecutions unnecessarily involved in hearing - whether costs should be paid by barrister advising that notice of motion should be filed.

LEGAL PRACTITIONERS - solicitors refused to hand over file relating to pending criminal trial of former client - whether entitled to rely on lien until costs paid - whether question of legal professional privilege arises - whether solicitors may be ordered to produce documents to former client or be required to produce to court on subpoena.

LEGAL PRACTITIONERS - whether counsel's immunity from action for negligence extends to liability to pay costs personally.

Supreme Court Act 1933, s 23

Legal Practitioners Act 1970 , s 11, s 168

R v Goia (1988) 19 FCR 212

R v Storer (1993) 111 FLR 243

Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1

R v L [1991] HCA 48; (1991) 174 CLR 379

McDonald v FAI (NZ) General Insurance Co Limited [1999] 1 NZLR 583

Boland v Yates Property Corporation Pty Ltd [1999] HCA 64

Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121

Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543

Rondel v Worsley [1969] AC 191

Orchard v South Eastern Electricity Board [1987] QB 565 at 571

De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993)

41 FCR 544

Ridehalgh v Horsefield [1994] Ch 205

Cassidy v Murray (1995) 124 FLR 267

Re Bendeich [1993] FCA 98; (1993) 113 ALR 702

Myers v Elman [1940] AC 282

(No. SCC 104 of 1999)

Judge: Miles CJ

Supreme Court of the ACT

Date: 2 May 2000

IN THE SUPREME COURT OF THE )

) (No. SCC 104 of 1999)

AUSTRALIAN CAPITAL TERRITORY )

(BETWEEN: THE QUEEN

AND: COLIN GEORGE DUNSTAN)

IN THE MATTER of a notice of motion filed on behalf of Colin George Dunstan

ORDER

Judge: Miles CJ

Date: 2 May 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The costs of pappas, j. - attorney occasioned by the filing of the notice of motion of 17 June 1999 be paid by counsel who appeared for Colin George Dunstan on the hearing of the notice of motion.

1. On 17 June 1999 Colin George Dunstan, through his solicitor, the Chief Executive Officer of the Legal Aid Office of the Australian Capital Territory, filed in the Registry a notice of motion seeking an order that he "be granted access to all material held by Pappas, J. - Attorney which is relevant to his defence of the criminal charges before the ACT Supreme Court". The notice of motion was made returnable the following day, 18 June 1999 at 10 am. The notice of motion bore the heading "SCC 104 of 1999 Between the Queen and Colin George Dunstan". It named Mr Grant Brady, c/- Pappas, J. - Attorney as "respondant" (sic). At that stage Colin George Dunstan had been committed for trial, the commencement of which was fixed for 19 July 1999. In fact the trial did not commence until 22 November 1999. Following the verdicts of guilty on 3 December 1999, Colin George Dunstan was sentenced on 26 April 2000.

2. The form of the notice of motion led to the application being treated by the Court as an urgent directions hearing for the purpose of the pending trial. Accordingly the hearing of the motion was listed to commence, not at 10 am because the business of the Court did not permit that, but at 9.30 am. It was no doubt expected by the listing staff that, as in the usual course of such directions hearings, it would be a short matter.

3. When the matter was called on as a directions hearing before me, the Director of Public Prosecutions announced his appearance. A barrister announced his appearance as counsel for "the accused". Contrary to Practice Direction No 2/93 the barrister did not identify his instructing solicitors. The Court was then made aware of the notice of motion filed by the Legal Aid Office. Mr Adams announced his appearance for the respondent, whom he identified as pappas, j. - attorney, that being the name of a firm of solicitors in Canberra. That firm had previously acted for Colin George Dunstan in relation to the committal proceedings.

4. The hearing then proceeded. It was concerned essentially with the notice of motion and the issues it raised. Ultimately the notice of motion was struck out. However, for convenience, a directions hearing, in which the Director of Public Prosecutions participated, followed and leave was given to Colin George Dunstan to fix a date for return of a subpoena in advance of the trial, such subpoena to be addressed to pappas, j. - attorney for the production of all documents relating to the charges brought against him in respect of which he faced trial.

5. Mr Adams sought an order for the costs of the motion and that application was adjourned to 16 July 1999. I expressed a provisional view that those acting for Colin George Dunstan should be prepared to show why an order for the costs of the motion should not be made against them personally.

6. At the adjourned hearing on 16 July 1999 Mr Brewster appeared for Colin George Dunstan, Mr Purnell SC appeared for the barrister who had appeared for Colin George Dunstan on 18 June 1999, and Mr Adams appeared, as before, for pappas, j. - attorney. There was no appearance by or for the Legal Aid Office.

7. As I understand the submissions, it was not really contested that pappas, j. - attorney was entitled to an order in respect of the costs of the abortive notice of motion. Whilst the Court has no power to order costs in a criminal proceeding, the Court was not exercising jurisdiction in a criminal proceeding when entertaining the notice of motion: see s 23 of the Supreme Court Act 1933 and R v Goia (1988) 19 FCR 212.

8. In considering whether the order for costs should be made, not against Colin George Dunstan, but against one or other of his previous legal representatives, I take into account the following considerations:

(1) The notice of motion was wholly misconceived as a matter of procedure. Whilst it may be that the Court's inherent jurisdiction in relation to legal practitioners, or its equitable jurisdiction in relation to liens and associated matters, could have been invoked in order to seek an order of the type set out in the notice of motion, the appropriate procedure would have been to file an originating application, supported by affidavit, in the civil jurisdiction of the court. The order sought could not have been made within or ancillary to the trial. The Director of Public Prosecutions was not a party to the notice of motion, and should not have had to incur the costs of attending court in relation to the notice of motion.

(2) Whilst the Court will not always insist upon strict compliance with procedural regularity, proper minimum standards are expected of legal practitioners. It is well known that, with regard to pending criminal trials, the Court will list directions hearings expeditiously at the request of the accused or the legal representative of the accused, or the Director of Public Prosecutions. It will do so without formality in order to ensure amongst other things that dates not be vacated and that trials proceed smoothly and quickly. The practice is based on an assumption that there is a good reason for holding a directions hearing as requested. The facility for listing directions hearings peremptorily is not to be abused for the purpose of substantive applications that are likely to be contested and require the taking of evidence.

(3) It was entirely unreasonable that pappas, j. - attorney should have been called upon, by the terms of the notice of motion served late in the day, to appear at court the following morning to show cause why an order should not be made in terms of the notice of motion. It requires only the most elementary acquaintance with the principles of natural justice to appreciate that in such circumstances the respondent to the notice of motion would almost certainly be granted an adjournment if it was requested.

(4) The obvious procedure to enable the legal representatives of Colin George Dunstan to obtain access to the file held by pappas, j. - attorney was the issue of a subpoena to produce documents and an application at a directions hearing to obtain an early return date. That procedure was followed in R v Storer (1993) 111 FLR 243, and approved by Gallop J. I note that counsel who appeared for the accused in that case was the barrister who advised that the notice of motion of 17 June 1999 should be filed and who appeared to seek the orders against pappas, j. - attorney.

9. In deciding that an order for costs should be made in favour of pappas, j. - attorney, I do not wish to be seen as endorsing or approving the attitude taken by Mr Grant Brady, a member of that firm, as deposed by Ms Colleen Duffy in an affidavit sworn by her on 17 June 1999 and filed by the Legal Aid Office. According to the affidavit, she rang Mr Brady on 21 May 1999 and informed him that the office was now acting for Mr Dunstan. She asked if Mr Brady would let her have a copy of the prosecution brief that she had been told he was holding. Mr Brady replied, "I won't release the brief until Mr Dunstan has paid the outstanding balance of the account to me. He owes me about $8,000". Subsequently, Ms Duffy obtained a copy of the prosecution brief from the Director of Public Prosecutions. She also obtained, presumably from the maker, a copy of a medical report held by Mr Brady, but it appears that as at 17 June 1999 Mr Brady still had documents which he refused to hand over. Subsequently Ms Duffy was advised by the barrister to file the notice of motion. That advice was ill-conceived.

10. Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients' documents until they get paid. Storer's case is only one example of the principle that, at least when the interests of an accused person in criminal proceedings are concerned, the solicitor's right to rely on a lien might have to give way. Indeed, the existence of a lien over documents held by a solicitor previously acting for an accused person might not be as clear as has been thought. No case was cited in which it has been held, after argument to the contrary, that a solicitor has a lien over documents relating to criminal proceedings of a former client. The assumption that such a lien exists may, on closer analysis, prove to be as illusory as the idea that Australia was terra nullius (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1) or that a husband cannot be guilty of raping his wife (R v L [1991] HCA 48; (1991) 174 CLR 379).

11. The question of reliance on a lien is quite different from the question of withholding documents on the ground of legal professional privilege. It should be noted that some of the authorities referred to in Storer's case on legal professional privilege have been disapproved by the High Court in Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121. In any event it should be obvious enough that a solicitor cannot refuse to produce documents to a client on the ground of the client's legal professional privilege.

12. An initial threshold submission made by Mr Purnell was that there is no power to award costs personally against a barrister. The submission before me was made prior to the decision of the High Court in Boland v Yates Property Corporation Pty Ltd [1999] HCA 64. However, I see nothing in the judgments of the Justices of the High Court in the latter decision which changes the principles. Indeed, Kirby J expressed the view, apparently obiter, in a footnote at [140] that costs may be ordered against an advocate personally, notwithstanding the general immunity from suit for negligence. His Honour referred to McDonald v FAI (NZ) General Insurance Co Limited [1999] 1 NZLR 583. I respectfully agree with the statements of principle in the judgment of Giles J in that case. The position in New Zealand, where there is a "fused" profession, appears to be very similar to that in this Territory. The submission was put by way of analogy with the immunity of a barrister from being sued for negligence in the conduct of the case in court or in work out of court which leads to a decision affecting the conduct of a case in court. It is clear that the immunity exists; it extends to a solicitor appearing as counsel, that is to say, as an advocate in court: Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543.

13. However, in my view, the analogy does not hold. There is authority, not binding on this Court, that there is "no basis in logic or authority for holding that the essential public interest immunity affirmed in Rondel v Worsley [1969] AC 191 protects the bar only in relation to claims by their own lay clients, leaving them unprotected in respect of the far greater risk of claims by disgruntled litigants on the other side": Orchard v South Eastern Electricity Board [1987] QB 565 at 571. Nevertheless, I agree with French J, who said in De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, that one answer to that contention is that the power to award costs against counsel may fall to be exercised in the case of a breach of duty to the court and not simply to counsel's duty to the client or any other party.

14. Moreover, the traditional immunity given to a barrister, or solicitor appearing as counsel, is well grounded in the recognition as a matter of public policy of the unique role of the advocate in court and the peculiar feature attaching that counsel's duty to the client is subject to the over-riding duty to the court: Giannarelli at 560, per Mason CJ.

15. Immunity extends to work out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity further risks taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. The protection exists only where the work or decision in question is so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting that course to be conducted when it comes to a hearing: Giannarelli at 560 per Mason CJ.

16. Since 1997 persons admitted to practise the law in the Australian Capital Territory are admitted as "legal practitioners": Legal Practitioners Act 1970, s 11, s 168 (the Legal Practitioners Act). Even before then they were admitted as both barristers and solicitors. To that extent there is a "fused" profession in the Territory. But it is idle to pretend that the Legal Practitioners Act has abolished all distinctions between barristers and solicitors. Persons wishing to practise as solicitors need a practising certificate under s 22. There is nothing in the Act or the practising certificate to prevent a person practising as a solicitor from also acting, at least from time to time, as a barrister. Moreover, persons admitted to practise who practise only as barristers do not need a practising certificate at all as the Legal Practitioners Act now stands. The Legal Practitioners Act says nothing about the immunity of counsel in relation to conduct in court or work done out of court which leads to a decision affecting conduct in court. The Legal Practitioners Act neither abolishes the immunity nor extends it.

17. Thus, assuming that a barrister, or solicitor appearing as counsel, cannot be the subject of a costs order arising out of conduct in court or conduct out of court leading to a decision affecting such conduct, the question arises whether the conduct or decision in the present case may be so categorised. It is clearly not conduct in court. Nor, in my view, is it conduct leading to a decision affecting the conduct of the case in court. The decision in question in the present case was the advice given to the Legal Aid Office to file the notice of motion returnable the following day when it must have been virtually certain that the respondent would resist the order and obtain an adjournment. The decision involved taking advantage of the Court's practice of listing directions hearings in criminal proceedings informally at very short notice for the convenience of the parties and in the public interest. The notice of motion seeking, as it did, an order against a non-party to the criminal proceedings, should have been filed in the civil jurisdiction where it would have been subject to the ordinary civil Rules of Court, which require notice of at least two clear days: o 54 r 5. The decision did not affect the conduct of any case in court. It led to misuse, if not abuse, of the process of the Court.

18. I accept that the power to make a costs order against a legal practitioner personally must be exercised with care and discretion and only in clear cases. I have also considered the, perhaps special, position of counsel appearing for a person charged with a criminal offence who is under a duty, subject to instructions, to put all that can be fairly put on behalf of the client and to take all steps that might reasonably be taken to that end. Mere negligence or incompetence is not enough, nor is it enough that the decision is to bring or pursue a claim that is bound to fail. In England there is statutory provision for "wasted costs" orders against solicitors and barristers as a result of "improper, unreasonable or negligent" conduct (see Ridehalgh v Horsefield [1994] Ch 205). That is not the position in this country, or at least in this Territory. In Australia, it has been said that there has to be something which amounts to a serious dereliction of duty, although it is not necessary to show serious professional misconduct: Cassidy v Murray (1995) 124 FLR 267. I do not, with respect, agree that it is necessary in all cases to show gross negligence, although that may be a factor in certain cases: see Re Bendeich [1993] FCA 98; (1993) 113 ALR 702; Myers v Elman [1940] AC 282.

19. In my view, there was serious dereliction in the duty owed by counsel to the Court in this case. The dereliction was not simply in failing to recognize the nature of the application being made by the notice of motion and that it was bound to fail, but in seeking further to invoke the procedures of the Court in the criminal jurisdiction whereby the application was listed peremptorily without notice to the respondent, and requiring the attendance of the respondent, if the order was not to be made in the respondent's absence, knowing that it was likely that the respondent would have opposed the order. Counsel further knew, or ought to have known, that an adjournment was virtually inevitable and that the costs of the day would be wasted. The further aspect of the use of the directions hearing procedure is of importance because it required the attendance of the Director of Public Prosecutions at public expense and, inevitably, to no purpose as far as the order sought was concerned. Counsel also knew, or should have known, that in proceedings which had to be determined, ultimately, in the civil jurisdiction, it was unlikely that his lay client, being in receipt of legal aid and of restricted means, would have been in a position to meet any costs order made in favour of the respondent to the notice of motion.

20. Nothing was put by any party to the effect that the Legal Aid Office or any of its officers should bear or contribute to the costs in question.

21. For these reasons I consider that the costs of pappas, j. - attorney occasioned by the filing of the notice of motion of 17 June 1999 should be paid by the barrister who appeared for Colin George Dunstan on the hearing of that notice of motion.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 2 May 2000

Counsel for pappas, j. - attorney: Mr N Adams

Solicitor for pappas, j. - attorney: pappas, j. - attorney

Counsel for Colin George Dunstan: Mr J Brewster

Solicitor for Colin George Dunstan: ACT Legal Aid Office

Counsel for the barrister: Mr F J Purnell SC

Solicitor for the barrister: None

Date of hearing: 16 July 1999

Date of judgment: 2 May 2000