Desanges v Johnson [2004] NSWSC 785

New South Wales Supreme Court

CITATION : Desanges v Johnson [2004] NSWSC 785 HEARING DATE(S) : 27 August 2004 JUDGMENT DATE : 3 September 2004 JURISDICTION: Common Law JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the application for costs to be paid on an indemnity basis is referred to a registrar for determination.

CATCHWORDS : Appeal - denial of procedural fairness - no question of principle. LEGISLATION CITED : Legal Profession Act 1987 PARTIES : Lionel Desanges (Plaintiff) Leigh Johnson (Defendant) FILE NUMBER(S) : SC 11803/03 COUNSEL : Mr C R de Robillard (Plaintiff) Mr D W Elliott (Defendant) SOLICITORS : In person (Plaintiff) Gregory Falk & Associates (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 3029/01 FILE NUMBER(S) : LOWER COURT Madgwick LCM JUDICIAL OFFICER :

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 3 September 2004

11803 of 2003 Lionel Desanges v Leigh Johnson

JUDGMENT 1 Master: The defendant is a solicitor. She provided legal services for the plaintiff. She delivered a bill of costs in respect of those services. The total amount of the bill was not paid (there was part payment of $7,500). 2 She commenced proceedings in the Local Court to recover the costs. The claim was defended. It came on for hearing before Madgwick LCM. Judgment was delivered on 3 April 2003. The defendant recovered judgment in the sum of $37,132.50, together with costs. 3 On 31 July 2003, the plaintiff filed a summons in this court. It failed to provide an address for service as required by the rules. It purports to bring an appeal from the decision of the Local Court. It also failed to provide grounds of appeal as required by the rules. This breach has not been rectified. 4 Initially, the proceedings were given a special fixture before Master Harrison on 17 June 2004. She adjourned the proceedings on the application of the plaintiff because his counsel was unavailable to appear on that day. 5 I should digress to add that because of the pressure of work in the duty list adjournments are not usually granted. The parties are so advised when the special fixture is allocated. 6 The summons was further fixed for hearing for Friday 27 August 2004. After certain diversions, the appeal finally came to hearing and it was concluded on that day. 7 The summons has been brought out of time. Presently, the appeal stands as being incompetent and liable to be dismissed. There is no application for extension of time. 8 The plaintiff is now represented by counsel (Mr de Robillard). Before the Local Court, at times, he was represented (including by Mr de Robillard). 9 The transcript of the judgment of the learned magistrate is before the court. Both the defendant and the plaintiff gave evidence. Many documents were tendered. The defendant made written submissions. The plaintiff did not make any submissions. Her judgment deals at some length with the questions of submissions. 10 In her judgment she said:- As I said, no submissions have been received from or on behalf of the defendant and it appears his line of cross examination was that there had never been a costs agreement and that was the basis of his defence. [p6]