Bateman v Evans [2004] NSWSC 626

New South Wales Supreme Court

CITATION : Bateman v Evans [2004] NSWSC 626 HEARING DATE(S) : 15 July 2004 JUDGMENT DATE : 16 July 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed. The plaintiff is to pay the costs of the summons.

CATCHWORDS : Appeal from Local Court on question of costs - extension of time - leave to appeal - lack of merit LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 Bullock v London & General Omnibus Co (1907) 1 KB 264 House v The King (1936) 55 CLR 499 CASES CITED : Ranieri v Nominal Defendant & Ors [2001] NSWSC 125 Sanderson v Blyth Theatre Co (1903) 2 KB 533 Schipp v Cameron & Ors (NSWSC, 12 October 1998, unreported) PARTIES : Michael Bateman Mark Evans FILE NUMBER(S) : SC 11940/03 COUNSEL : Plaintiff: Mr M Bateman (in person) Defendant: Mr A M Gruzman SOLICITORS : Plaintiff: Meyer Pigdon Family Lawyers Defendant: Mark Evans

LOWER COURT Local Court JURISDICTION : LOWER COURT 5/2002 FILE NUMBER(S) : LOWER COURT P M Russell DCM JUDICIAL OFFICER :

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

Master Malpass

16 July 2004

11940/03 Michael Bateman v Mark Evans

JUDGMENT 1 Master: The plaintiff is a barrister. The defendant is a solicitor. A dispute arose concerning unpaid counsel's fees. 2 The plaintiff commenced proceedings in the Local Court. He sued both the defendant (who was the second defendant in the proceedings) and another solicitor (who was the first defendant therein). The amount involved was in the order of $6,000. The proceedings were removed from the Small Claims Division. 3 The issue between the plaintiff and the defendant was whether or not the plaintiff had contracted directly with the client. 4 The other solicitor was sued either as a partner or upon a representation (said to have been made by both defendants) that he was a partner. 5 There was a contested hearing (it lasted five days). The plaintiff was successful in recovering a judgment as against the defendant. His claim against the other solicitor failed. 6 There were also disputes concerning the costs of the proceedings. The plaintiff was unsuccessful in obtaining an order for costs against the other solicitor. He was also unsuccessful in obtaining a Bullock order (Bullock v London & General Omnibus Co (1907) 1 KB 264) against the defendant. He was ordered to pay the costs of the other solicitor. 7 On 25 August 2003, the plaintiff filed a summons in this court. In these proceedings, he seeks to appeal against the refusal to make a Bullock order against the defendant. 8 An appeal is available from the Local Court where it is shown that the decision under challenge is erroneous in point of law. 9 The appeal is presently incompetent. The decision of the Local Court was given on 24 June 2003. The appeal has been brought out of time. It is only maintainable if an extension of time is first granted. 10 The court has a discretionary power to extend time. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The onus rests with the party seeking the extension of time. 11 In addition to requiring an extension of time, the appeal is only maintainable if leave is granted pursuant to s69(2B) of the Local Courts (Civil Claims) Act 1970 (the Act). The policy of the legislature is to make an appeal from an order as to costs not maintainable in the absence of leave. 12 The appeal and the applications for leave and extension of time have been heard together. In a case such as this, there would be no utility in granting either leave or an extension of time if the appeal lacked merit. 13 The power to order costs is discretionary. The discretion is exercised having regard to the provisions of any relevant statute and rules. In this case, the discretion is governed by the provisions of the Act and rules made thereunder. 14 Costs are expected to follow the event (Part 31A r 5). However, the court retains a discretion to make an other order (including a Bullock order). The onus is borne by the party seeking the other order. 15 The question of the making of a Bullock order has been the subject of a considerable body of authority. Orders have been made in cases where the conduct of the unsuccessful defendant has led to the joinder of other parties who were successful in the action. The making of such an order is not restricted to such cases (Ranieri v Nominal Defendant & Ors [2001] NSWSC 125). The question has been considered in further detail in Schipp v Cameron & Ors (NSWSC, 12 October 1998, unreported). 16 The court has before it the transcript of the proceedings. The transcript contains the oral judgments delivered by the learned magistrate in respect of both liability and costs. 17 Following the determination of the question of liability, the plaintiff made submissions as to costs. The application for a costs order made against the other solicitor was founded on Sanderson v Blyth Theatre Co (1903) 2 KB 533. The application for a Bullock order against the defendant was presented as an alternative. 18 Broadly speaking, the argument presented by the plaintiff was that the course he had taken was reasonable and that the representations made by both the defendant and the other solicitor justified an order indemnifying him against the costs payable to the other solicitor. 19 In dealing with the application made against the defendant, the learned magistrate observed as follows:- In my opinion, an order that the plaintiff be entitled to recover those costs from the second defendant is not warranted. It was not unreasonable for the plaintiff to sue the first defendant, but in respect of the particular cause of action pursued against the first defendant and the particular history of the attempts by the second defendant to have the plaintiff pursue only him, it does not appear to me considered in its entirety that the conduct of the second defendant was such as to make it fair to impose on him liability for the costs of the first defendant. 20 In asserting error in point of law, the plaintiff relies on what was said in House v The King (1936) 55 CLR 499. In particular, it was submitted that the learned magistrate had mistaken the facts. 21 A lack of precision may be said to arise from the use of the words "but in respect of the particular cause of action pursued against the first defendant and the particular history of the attempts by the second defendant to have the plaintiff pursue only him …". 22 Whilst it may have been better expressed, the substance of what was intended by the learned magistrate seems to me to be clear. 23 She found in effect that it was not unreasonable for the plaintiff to take the course that he did in suing the other solicitor and that the second defendant had taken steps to have the plaintiff sue him only. 24 There was a finding that the first defendant knowingly allowed himself to be represented as a partner of the second defendant. There was a finding as to the effect this had on the plaintiff. She accepted the second defendant as a credible witness. He had given evidence of a telephone conversation with the plaintiff in which he told the plaintiff that the first defendant had "got nothing to do with this …". There was other evidence (including a letter) which gave support to that stance. 25 In my view, the best that can be said for the plaintiff's argument is that some lack of precision or overstatement may be found in the expression of reasoning process. Leaving that aside, I am not satisfied that she had mistaken the facts or that there was any basis for disturbing her exercise of the discretion as to costs. 26 Further, had a different view been taken and had her decision been disturbed for discretionary error, I am not satisfied that there was any basis for an exercise of discretionary power in the plaintiff's favour. 27 I put aside the question of whether or not her decision threw up a point of law in the relevant sense. 28 Accordingly, I am not satisfied that there was any error in point of law by the learned magistrate. Therefore, the appeal is without merit. In these circumstances, the applications for leave and extension of time are doomed to failure and little further need be said concerning them. 29 However, perhaps I should make some further observations concerning the applications for leave. 30 The plaintiff has not relied on any authority in support for his application for leave. It is merely said that the amount of the costs in dispute substantially exceed the amount involved in the dispute. Little argument was advanced in support of this submission. In the circumstances of this case, I am not satisfied that an entitlement to leave has been demonstrated. 31 The applications for leave and extension of time fail. 32 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned.