Maddocks v Brown & Anor [2002] NSWSC 111

New South Wales Supreme Court

CITATION : Maddocks v Brown & Anor [2002] NSWSC 111 revised - 19/03/2002 FILE NUMBER(S) : SC 10181/02 HEARING DATE(S) : 25/02/02 JUDGMENT DATE : 1 March 2002

PARTIES : John David Maddocks v David Alexander Brown & Anor JUDGMENT OF : Howie J at 1

In person (Plaintiff) COUNSEL : In person (First Defendant) Mr D. Fagan SC (Second Defendant) In person (Plaintiff) SOLICITORS : In person (First Defendant) Henry Davis York, Lawyers (Second Defendant) LEGISLATION CITED : Supreme Court Rules - Part 13 rule 5, Part 15 rule 26, Part 55 rule 11 CASES CITED : Killen v Lane [1983] 1 NSWLR 171 Capaan v Joss (NSWCA, 6 June 1994) DECISION : The summons is dismissed. The plaintiff is to pay the defendants' costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 1 MARCH 2002

10181/02

John David MADDOCKS v David Alexander BROWN & Anor

JUDGMENT 1 HOWIE J: The plaintiff by summons seeks the following orders: 1. An order that the Registrar be directed to commence proceeding for punishment of contempt arising out of the proceeding No. 1227 of 1986 in the Industrial Commission from 15th September 1989 and continuing on the grounds set out in the affidavit of John David Maddocks dated 18th January 2002 and filed herein. 2. An order that the within contempt be purged by the defendants by payment of such sums as are owing together with interest forthwith. 3. Such further order as to this Honourable Court might seem fit. 2 The defendants by notice of motion seek an order either dismissing the summons pursuant to Supreme Court Rules (the Rules) Part 13 rule 5 or striking out the summons pursuant to Part 15 rule 26. The basis of this application is that the Summons is misconceived in the relief it claims from this Court. In support of this application the defendants rely upon Killen v Lane [1983] 1 NSWLR 171 and Capaan v Joss (NSWCA, 6 June 1994). 3 It is unnecessary for the resolution of the present application to detail the allegations made by the plaintiff against the defendants that are said by the plaintiff to amount to contempt of the Industrial Commission of NSW. In brief the plaintiff, who in September 1987 was appearing as counsel before the Industrial Commission, asserts that the defendants, who were both solicitors at the relevant time and acting for the plaintiff's client, misled the Commission in respect of the payment of fees to the plaintiff when costs arising from the proceedings in the Commission were being taxed. 4 This allegation is made in the context of a dispute, which arose between the parties, over the payment of fees arising when the first defendant's firm acted for the plaintiff in proceedings in the Court of Appeal. There is some history of litigation between the parties since 1989 involving claims and cross-claims arising from both the proceedings before the Commission and the Court of Appeal and what monies were due to whom. There was also an unsuccessful complaint lodged by the plaintiff to the Law Society arising from this dispute. 5 At the heart of the proceedings, which the plaintiff now seeks to bring, are allegations by him that the defendants committed criminal offences during the course of proceedings before Justice Sweeney. The plaintiff alleges that both defendants have committed a contempt of court in that they wilfully made false statements in respect of the payment of counsel's fees to the plaintiff during the taxation of the costs that were to be paid as a result of the proceedings before the Industrial Commission. 6 The plaintiff relies upon Part 55 rule 11 of the Rules which is relevantly as follows: Motion or proceedings by the registrar