Hollier v Sutcliffe [2011] NSWCA 24 (14 February 2011)

Last Updated: 25 May 2011

Court of Appeal New South Wales

Case Title:	Hollier v Sutcliffe
Medium Neutral Citation:	[2011] NSWCA 24
Hearing Date(s):	14 February 2011
Decision Date:	14 February 2011
Jurisdiction:
Before:	Allsop P at 1
Decision:	1. Pursuant to Pt 12 r 12.7 of the Uniform Civil Procedure Rules dismiss the appeal with costs. 2. Refuse orders sought in paras 2(b) and 3 of the Further Amended Notice of Motion filed in court on 14 February 2011. 3. As to the costs of the Further Amended Notice of Motion as between the applicant on the motion (respondent to the appeal) and CMC Lawyers: (a) the applicant on the motion pay CMC Lawyers' costs of briefing Counsel to appear on 14 February 2011; (b) otherwise no order as to costs. 4. The applicant on the motion provide to the appellant a copy of the orders made on the motion together with a copy of my reasons within 7 days of receipt of the settled form of orders and reasons. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - civil - application to dismiss - whether appeal should be dismissed for want of despatch COSTS - against non parties - whether legal practitioners liable for unnecessary costs - whether serious neglect, serious incompetence or serious misconduct
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 99(1)
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Samantha Hollier (Appellant) Dr Rachael Sutcliffe (Respondent)
Representation
- Counsel:	Counsel: No appearance (Appellant) Mr G Gregg (Respondent) Ms Dulhunty (CMC Lawyers)
- Solicitors:	Solicitors: CMC Lawyers (Appellant) Sparke Helmore Lawyers (Respondent)
File number(s):	2010/104240
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	R A Hulme J
- Date of Decision:	23 April 2010
- Citation:	Hollier v Sutcliffe [2010] NSWSC 279
- Court File Number(s)	20002/08
Publication Restriction:

Judgment

1. ALLSOP P: This is a Further Amended Notice of Motion filed in court today seeking orders against the appellant and the appellant's former solicitors. The amendment in court today affects only the appellant's former solicitors. The appeal was filed on 22 July 2010 against orders made by the Supreme Court on 23 April 2010 and 10 May 2010 in which there was judgment for the defendant in a professional negligence suit.
   
2. On 28 April 2010, the appellant filed a notice of intention to appeal giving the appellant the time under the Uniform Civil Procedure Rules 2005 (NSW) until July for the filing of a notice of appeal. By 2 September 2010, being a time six weeks since the notice of appeal was filed, there was a failure to comply with the Rules to file written submissions and a red appeal book. Thereafter the matter proceeded in accordance with the lamentable state of affairs disclosed by the evidence and set out in the chronology handed to me by Mr Gregg, which I will also have marked as exhibit G reflecting the evidence that was read.
   
3. The long and the short of the matter is that until early December, apart from the filing of a black book of transcript, the Rules had not been complied with and various directions of the Registrar had not been complied with. On 1 December 2010, the solicitors for the respondent to the appeal filed and served on the appellant's lawyers a notice of motion to have the appeal dismissed for, in effect, want of prosecution under Pt 12 r 12.7 of the Uniform Civil Procedure Rules . On that day, the appellant caused a facsimile to be sent to the Court of Appeal advising the Registrar that CMC Lawyers, that is her lawyers, had emailed her the previous day to say that they would be withdrawing from representing her. A notice of ceasing to act was later filed.
   
4. On 6 December 2010, the respondent served on CMC Lawyers and the appellant an amended notice of motion seeking orders not only that the appeal be dismissed but also that the appellant's former solicitors or solicitors at that point pay the respondent's costs of the appeal. Evidence in support of that was filed on 10 December.
   
5. The matter came before the Registrar on 13 December 2010. Mr Hickey of counsel appeared for CMC Lawyers, not appearing for the appellant. There was no appearance via the appellant. Mr Hickey, amongst other things, said to the Registrar on the evidence that CMC Lawyers no longer had instructions to act on behalf of the appellant; that the appellant should be permitted additional time to obtain alternative legal representation and prepare any evidence she would like the Court to consider in relation to the motion; and that CMC Lawyers should be permitted additional time to prepare their own evidence in relation to the motion.
   
6. The substance of the 13 December directions hearing was sent to the appellant by letter under registered post dated 15 December 2010 from Sparke Helmore. I should add at this point that the evidence, being the affidavits of Mr Pike of 1 December and 3 December and Ms Moore of 10 December, together with exhibits A through G, satisfactorily demonstrate that the appellant has been informed of today and the nature of today's proceedings. No further step has been taken in the appeal since December. One of the aspects of the default of the appellant was the failure to give any reply to reasonable requests for particulars of the general paragraphs in the notice of appeal. That matter, together with the serious breaches of the Uniform Civil Procedure Rules and the directions made by the Registrar, persuade me that it is an appropriate matter in which to conclude that the plaintiff, here the appellant, has not prosecuted the proceedings with due despatch permitting the dismissal of the appeal by way of interlocutory order.
   
7. This is not dealing with the appeal on the merits, nevertheless the appeal should be dismissed. If Ms Hollier wishes to maintain an appeal she will have to seek leave out of time for the filing of further documentation. I order the appellant to pay the costs of the respondent to the appeal.
   
8. As to the solicitors, CMC Lawyers, the application is put on the basis of s 99 of the Civil Procedure Act 2005 (NSW), subs (1) of which reads as follows:

"(1) This section applies if it appears to the court that costs have been incurred:

(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible."

9. On the material I am not able to come to the conclusion that there has been serious neglect, serious incompetence or serious misconduct of the legal practitioners, nor am I able to conclude that costs have been incurred improperly or without reasonable cause in circumstances for which the legal practitioners are responsible. It is undoubted in my view that there have been wasted costs in the lamentable preparation and presentation of this appeal on behalf of the appellant. Whether that is the solicitors' fault or the appellant's fault I am not able to identify from the evidence.
   
10. Ms Hollier has not waived legal professional privilege. The solicitors are in a position of not being able to place any evidence before me explaining their position. Given those matters I am not prepared to make an order that the solicitors pay the costs of the appeal, therefore I would refuse an order under 2(b) and 3 of the Further Amended Notice of Motion.
    
11. That leads to the question of the proper costs of the motion. Ordinarily costs follow the event, however, I agree with the submissions of Mr Gregg that if CMC Lawyers was to rely upon the submissions of the character put today by Ms Dulhunty, these matters should properly have been discussed in correspondence between the solicitors. Parties were left with the view that CMC Lawyers was to put on evidence after December. Nothing further was said by CMC Lawyers until today where Ms Dulhunty perfectly properly and accurately identified CMC Lawyers' position with the absence of privilege being waived.
    
12. It might well have been the case that the need to agitate the position between the solicitors and the respondent could have been avoided with some sensible discussion between practitioners and in my view CMC Lawyers should have had the wisdom to communicate with Sparke Helmore in that respect. CMC Lawyers has, however, briefed Ms Dulhunty to appear today and in my view it is appropriate that the applicant on the motion, the respondent to the appeal, pay the costs of counsel appearing today but not otherwise.
    
13. Therefore the orders that I make in relation to the solicitors are, refusing relief under paras 2(b) and 3 of the Further Amended Notice of Motion and I order the applicant on the motion, the respondent to the appeal, to pay CMC Lawyers' costs of retaining counsel today but otherwise the parties are to pay their own costs of the notice of motion. That is the parties, CMC Lawyers and the respondent party. I order that the applicant on the motion provide a copy of the orders that I have made, together with my reasons when settled, to the appellant by letter sent within seven days after receiving the settled form of the orders and my reasons for judgment.
    

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