Carey v Singh [2010] FCA 1518 (18 November 2010)

Last Updated: 8 July 2011

FEDERAL COURT OF AUSTRALIA

Carey v Singh [2010] FCA 1518

Citation:		Carey v Singh [2010] FCA 1518
Parties:		NORMAN PHILLIP CAREY v AVENDRA SINGH, GEOFFREY PAUL STANDEN, PAUL ANTHONY BANNON, BRADLEY PAUL KERMOND, SIMON HUGH FRASER, ANTHONY CHRISTOPHER RUMORE, GREGORY ALLEN SKEHAN, PETER JOHN MORAN, DUNSTAN DE SOUZA, ALEXANDER OSTERMAYER, JOHN LAURENCE BOWMAN, ANTONY PAUL RIORDAN, EDWARD DOMINIC CRENNAN, DAVID SUTHERLAND KENNEDY, GARY DAVID NEWTON, PETER JOHN HARKIN, GAVIN WILLIAM CREIGHTON, ANTHONY FREDERICK PERKINS, STUART WILLIAM HETHERINGTON, SAM ANTHONY INGUI, BRENDAN PAUL MAIER, KRISTEN LOPES, DAVID EDWARD MILLER, LINDA MURPHY, MARTIN JOHN DEUTSCH, MARK ANDREW RADFORD and KEITH BRENDAN BETHLEHEM
File number:		WAD 279 of 2010
Judge:		SIOPIS J
Date of judgment:		18 November 2010
Date of hearing:	18 November 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	30
Counsel for the Applicant:	Mr A Metaxas
Solicitor for the Applicant:	Metaxas & Hager
Counsel for the First, Second, Third and Fourth Respondents:	Mr GD Cobby
Solicitor for the First, Second, Third and Fourth Respondents:	Kott Gunning

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 279 of 2010

BETWEEN:

NORMAN PHILLIP CAREY Applicant

AND:

AVENDRA SINGH First Respondent GEOFFREY PAUL STANDEN, PAUL ANTHONY BANNON, BRADLEY PAUL KERMOND, SIMON HUGH FRASER, ANTHONY CHRISTOPHER RUMORE, GREGORY ALLEN SKEHAN, PETER JOHN MORAN, DUNSTAN DE SOUZA, ALEXANDER OSTERMAYER, JOHN LAURENCE BOWMAN, ANTONY PAUL RIORDAN, EDWARD DOMINIC CRENNAN, DAVID SUTHERLAND KENNEDY, GARY DAVID NEWTON, PETER JOHN HARKIN, GAVIN WILLIAM CREIGHTON, ANTHONY FREDERICK PERKINS, STUART WILLIAM HETHERINGTON, SAM ANTHONY INGUI, BRENDAN PAUL MAIER, KRISTEN LOPES, DAVID EDWARD MILLER, LINDA MURPHY Second Respondent MARTIN JOHN DEUTSCH, MARK ANDREW RADFORD Third Respondent KEITH BRENDAN BETHLEHEM Fourth Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	18 NOVEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. This proceeding is transferred from the Federal Court of Australia to the Supreme Court of New South Wales.
2. Costs are in the cause.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 279 of 2010

BETWEEN:

NORMAN PHILLIP CAREY Applicant

AND:

AVENDRA SINGH First Respondent GEOFFREY PAUL STANDEN, PAUL ANTHONY BANNON, BRADLEY PAUL KERMOND, SIMON HUGH FRASER, ANTHONY CHRISTOPHER RUMORE, GREGORY ALLEN SKEHAN, PETER JOHN MORAN, DUNSTAN DE SOUZA, ALEXANDER OSTERMAYER, JOHN LAURENCE BOWMAN, ANTONY PAUL RIORDAN, EDWARD DOMINIC CRENNAN, DAVID SUTHERLAND KENNEDY, GARY DAVID NEWTON, PETER JOHN HARKIN, GAVIN WILLIAM CREIGHTON, ANTHONY FREDERICK PERKINS, STUART WILLIAM HETHERINGTON, SAM ANTHONY INGUI, BRENDAN PAUL MAIER, KRISTEN LOPES, DAVID EDWARD MILLER, LINDA MURPHY Second Respondent MARTIN JOHN DEUTSCH, MARK ANDREW RADFORD Third Respondent KEITH BRENDAN BETHLEHEM Fourth Respondent

JUDGE:	SIOPIS J
DATE:	18 NOVEMBER 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application by the respondents for the transfer of a proceeding which is pending in this Court to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act). Alternatively, the respondents seek to transfer the proceeding to the New South Wales Registry of the Federal Court pursuant to O 10 r 2 of the Federal Court Rules.
2. The respondents to this proceeding are the partners of the Sydney law firm, Colin Biggers & Paisley. The applicant in the proceeding, Mr Norman Phillip Carey, claims that, in 2006, he engaged the respondents to act for him in relation to a claim which had been brought by QBE Insurance Australia, in the Supreme Court of New South Wales, against himself and the company, Westpoint Realty Pty Ltd (Receivers and Managers Appointed). Mr Carey alleges that the respondents breached their retainer and engaged in misleading or deceptive conduct, and claims damages from the respondents.
3. In his statement of claim, Mr Carey claims that he entered into the retainer agreement with the respondents in reliance on a costs estimate that was provided to him by the respondents for the conduct of the QBE legal proceeding. The retainer agreement which Mr Carey made with the respondents is an agreement which is provided for under the Legal Profession Act 2004 (NSW). The agreement permitted the respondents to obtain monies on account from Mr Carey and for the respondents to cease to act for any reason that they determined to be appropriate, provided that any determination would be reasonable and made in good faith.
4. Mr Carey claims that the costs estimate which was given to him substantially underestimated the actual costs of the action. Mr Carey claims that the costs estimate was made without reasonable grounds and in contravention of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW).
5. Mr Carey goes on to claim that in March 2010 and April 2010, the respondents provided further costs estimates of between $455,155 and $548,155 for the trial and preparation for trial which was to commence in November 2010. In June 2010, the respondents asked Mr Carey to pay them $500,000 on account of these costs. Mr Carey then pleads that he advised the respondents that he was not prepared to pay or secure these further anticipated costs, and that he advised the respondents that they were, in his view, not entitled to cease acting for him. On 14 July 2010, the respondents terminated the retainer agreement and refused to release files relating to the action as the respondents claimed that there were unpaid bills.
6. Mr Carey then claims that he was, as a consequence of the respondents’ conduct, required to enter into a disadvantageous settlement with QBE and so suffered loss and damage.
7. At para 40.1 of his statement of claim, Mr Carey pleads that:

but for the Express Representations the applicant would, in December 2008, have engaged other lawyers to act for the applicant in the Action on terms that their total costs, exclusive of counsel fees, to act until the Action was resolved would have been about $100,000.

8. At para 40.3, Mr Carey pleads:

by reason of the misleading or deceptive conduct of CBP the applicant lost the opportunity to avoid liability to QBE, prosecute his cross claims and recover his costs in the Action.

9. At para 40.4, Mr Carey pleads that in order to mitigate his loss, he executed a deed of settlement and release whereby he agreed to pay $300,000 to QBE and to abandon his rights against other parties that he had wanted to pursue.
10. Mr Carey then goes on to claim, in parts 10, 11, 12, 13, 14 and 15 of the statement of claim that the respondents breached the terms of the retainer agreement by failing to exercise reasonable care and skill. Mr Carey alleges, inter alia, that the respondents failed to exercise reasonable care and skill in the preparation of an affidavit and charged an excessive amount for that work. Mr Carey also alleges that there was a failure to exercise reasonable care and skill in making the costs estimates in March 2010 and April 2010 referred to above. Further, Mr Carey alleges that in demanding in June 2010, the payment on account of the estimated getting up and trial costs, and by, thereafter, ceasing to act for him in the QBE claim, the respondents failed to exercise reasonable care and skill and did not act in good faith. Mr Carey also contends that the respondents breached the retainer agreement by failing to act on his instructions to apply to the Court to vacate the trial dates set for November 2010.
11. The respondents, being the applicants on the motion to cross-vest this proceeding, relied on s 5(4)(b)(ii) and s 5(4)(b)(iii) of the Cross-vesting Act. These sections provide as follows:

Where:

(a) ...

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and

(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(D) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.

12. In support of their application, the respondents relied upon the affidavit of Mr Avendra Singh, the first respondent. At para 31 of his affidavit, Mr Singh deposed that:

The respondents reject the claims of the applicant in the proceedings and propose to defend the claims upon grounds, amongst others, that the conduct of CBP, in ceasing to act for the applicant was proper and in accordance with the Legal Profession Act (NSW) and the Uniform Procedure Rules 2005 (NSW).

13. Mr Singh also deposed at para 32 of his affidavit, that the proceeding related, in part, to legal fees raised by CBP which was the subject of an assessment process in the Supreme Court of New South Wales, which was ongoing. It was accepted by the parties that this statement was not accurate.
14. However, Mr Singh also deposed that the claims against the respondents are, primarily, for breach of the retainer agreement and that the retainer agreement was governed by the laws of New South Wales. Mr Singh also deposed that:

All legal services provided to the applicant were provided in New South Wales, and to the extent that these proceedings involve a review of the reasonableness of the work done, or the reasonableness of the estimates given, the relevant witnesses will be based in New South Wales.

15. As to s 5(4)(b)(ii) of the Cross-vesting Act, Mr Cobby, counsel for the respondents, contended that the subject-matter of this proceeding arose under the law of New South Wales and involved the application of New South Wales law, and, having regard to the interests of justice, it would be more appropriate for the proceeding to be determined by the New South Wales Supreme Court.
16. As to s 5(4)(b)(iii), Mr Cobby contended that, it was in the interests of justice, that the proceeding be determined by the New South Wales Supreme Court.
17. In relation to the question of “the interests of justice”, Mr Cobby referred to the following checklist of relevant factors identified by Mason P in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [95] (James Hardie):
    • application of substantive law;
    • forensic advantage or detriment conferred by procedural law;
    • the choice made by a plaintiff or a forum and the reasons for that choice;
    • substantive connections with the forum;
    • balance of convenience to parties and witnesses; and
    • convenience to the court system.
18. Mr Cobby did not, in light of High Court authority subsequent to James Hardie, rely on the third dot point as being a relevant consideration, namely, the plaintiff’s choice of forum and the reasons for that choice. Mr Cobby, however, contended that the considerations identified in the other dot points remained relevant considerations; and that the application of those considerations favoured the transfer of the proceeding to the New South Wales Supreme Court.
19. Mr Metaxas, counsel for Mr Carey, contended that the evidence of Mr Singh did not sufficiently deal with “the nuts and bolts” issues in relation to the appropriateness of each of the respective possible forums, to demonstrate that the proceeding should be transferred to the New South Wales Supreme Court.
20. Mr Metaxas said that the issues to be determined in the proceeding could readily be determined by this Court. This was because the proceeding involved a simple claim for breach of contract and a claim in respect of misleading or deceptive conduct in respect of the making of a costs estimate which, said Mr Metaxas, was in an order of magnitude of four times less than what the costs actually were. Mr Metaxas said that the New South Wales Supreme Court was no more appropriate than this Court to try and determine the issues in the proceeding, nor was it otherwise in the interests of justice for the New South Wales Supreme Court to determine the proceeding.
21. I accept Mr Cobby’s contention that it is appropriate to have regard to the remaining five considerations referred to by Mason P in James Hardie.
22. As to the application of the substantive law, it is common cause that the retainer agreement was an agreement made pursuant to the Legal Profession Act 2004 (NSW) and governed by New South Wales law. Further, because the proceeding involves allegations of breach of duty by New South Wales legal practitioners, whose conduct is regulated by a New South Wales statute, there is in my view, an overlap between this consideration and the “substantive connections with the forum” consideration.
23. There was no contention by the parties that there is any forensic advantage or detriment conferred by procedural law in either forum.
24. The substantive connections with the Western Australia District Registry of this Court, are that Mr Metaxas represents Mr Carey and he is a solicitor who practises in Western Australia and Mr Carey is resident in Western Australia. This is also relevant to the question of the balance of convenience to the parties and witnesses.
25. As mentioned, the substantive connections with New South Wales are that the impugned services provided under the relevant retainer agreement were provided in New South Wales by legal practitioners in that State in respect of a legal proceeding being conducted in the New South Wales Supreme Court. As already mentioned, the practice of law in New South Wales is regulated by a New South Wales statute.
26. Further, as Mr Singh has deposed, the witnesses that would be required to give evidence in relation to the issues are likely to be New South Wales based lawyers. I presume that there will be at least one expert witness in this category for each of the parties. This factor is also relevant to the consideration of the balance of convenience to the parties and the witnesses – with the balance tilting in favour of New South Wales.
27. A further consideration, on which I place considerable weight, is that the New South Wales Supreme Court has the supervisory jurisdiction in respect of the conduct of New South Wales legal practitioners. That Court would be in a much better position than this Court to adjudicate upon what constituted reasonable conduct by a legal practitioner in the course of conducting litigation in that Court. This fact is also relevant to the last of Mason P’s dot points in James Hardie, namely, the convenience to the court system.
28. In my view, therefore, this proceeding has a much closer substantive connection with the New South Wales Supreme Court than this Court.
29. A weighing up of the considerations referred to above, shows that it is in the interests of justice that this proceeding, which in essence complains about the conduct of New South Wales solicitors in relation to the conduct of a piece of litigation in the New South Wales Supreme Court, be heard and determined by that Court. In my view, the same result pertains under each of s 5(4)(b)(ii) and s 5(4)(b)(iii) of the Cross-vesting Act.
30. I, therefore, grant the respondents’ application to transfer the proceeding under the Cross-vesting Act to the Supreme Court of New South Wales.
    

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 7 July 2011