Norfeld v Jones [2014] NSWSC 54

Supreme Court New South Wales

Medium Neutral Citation: Norfeld v Jones [2014] NSWSC 54 Hearing dates: 7 February 2014 Decision date: 07 February 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1) The hearing of the appeal is adjourned upon the following conditions: (a) The grounds stated in the Further Amended Summons filed in Court on 24 October 2013 are to stand without further amendment; (b) The plaintiff is to pay the defendant's costs thrown away by the adjournment on an indemnity basis forthwith, after they have been agreed or assessed, with liberty to apply in respect of any lump sum assessment; (2) The appeal is fixed for directions before me on Wednesday, 12 February 2014 at 9.30 am with a view to fixing the matter for hearing. Catchwords: PROCEDURE - civil - interlocutory issues - directions - application for adjournment Category: Interlocutory applications Parties: Norfeld Pty Ltd (plaintiff) Amanda Lee Jones trading as Watermark Patent & Trademark Attorneys (defendant) Representation: S. Ahmed (defendant) J. Preston (plaintiff in person) Solicitors: Lewis Holdway (defendant) File Number(s): 2013/00071259 Decision under appeal Date of Decision: 2013-02-12 00:00:00 Before: Barko LCM and others File Number(s): 2011/325041

Ex tempore judgment 1This matter is listed before me for hearing. It is to be adjourned for reasons I will give succinctly, as the matter has been fully ventilated in argument. This is a Local Court appeal from a decision of his Honour Magistrate Barko. It concerns the recovery of professional fees by the defendant from the plaintiff. The defendant is a firm of Patent Attorneys. 2The matter was listed before me yesterday when I was informed that the solicitors who formerly acted for the plaintiff, and the counsel retained by them, were no longer acting, and that the solicitors retainer had terminated. In those circumstances, for reasons I discussed in my judgment of yesterday, counsel also withdrew. 3When I refused Mr Preston's application for an adjournment yesterday, I had hoped that, with some energy, a solicitor and barrister could be retained who would be able to get on top of the matter quickly, given that appeal books in the form of folders, and written submissions, had been fully prepared and exchanged. I indicated, informally, that if solicitors could be engaged, I would be well disposed perhaps to granting a short adjournment until Monday or Tuesday of next week to enable the new legal team to have the weekend to prepare the matter. 4When the matter was called on for hearing today, Mr Preston, who is still unrepresented, appeared, and renewed his application for an adjournment. This time his application was supported by an affidavit of 7 February 2014 and by two additional printouts of e-mails between him and his former solicitors which I marked as Exhibit A. 5One of the concerns of the Court in a case such as this, which involves the recovery of professional fees of around $80,000 and interest, is that legal costs must necessarily commence to greatly outweigh the amount in question. To some extent, Mr Preston, with respect to him, has identified what might be called two separate issues, one is the entitlement of the defendant to be paid for professional services, and the other is his dissatisfaction with those services, and his assertion that he suffered losses because of the manner in which the work was performed. No such claim was advanced, as I understand it, at any time in the Local Court, even though a cross claim, which was devoid of any pleading had been filed, and was dismissed by the magistrate, who also entered judgment for the defendant on it. 6In any event, it is, with respect, a misconception to believe that matter, or any such complaint, has any relevance to the proceedings in this Court, which are a point of law appeal from a decision of the Local Court. In such a matter a ground that was not taken below cannot be advanced on the appeal. 7The affidavit of Mr Preston provides additional information, that I did not have in a satisfactory form yesterday, as to the circumstances in which the solicitors ceased to act. In particular, Exhibit A evinces a dissatisfaction, on the part of Mr Preston, with the stance adopted by his lawyers in relation to the grounds of appeal, and the grounds that were likely to enjoy some prospects of success on appeal. 8Mr Preston also had some complaints about the diligence applied to the preparation of the matter, feeling that orders could have been dealt with more promptly than they had been. In response, the solicitor said: Your failure to provide timely instructions and your refusal to accept advice are each grounds for termination of the retainer. In addition, your assertion that we have not raised arguments available to Norfeld is a serious matter. It is clear that you have lost confidence in us and [counsel] and in these circumstances we regard this as a termination of our retainer. We are no longer able to act on behalf of Norfeld. Please urgently retain alternate lawyers and seek their opinion and request that they appear on behalf of Norfeld at the hearing. 9That e-mail was written at 4.17 pm on Tuesday 4 February 2014, and did not come to Mr Preston's attention until it was printed out by his administrative staff at work on the morning of 5 February. Whatever the reasonableness of the position of each of Mr Preston and the lawyers between themselves, my understanding of what happened is that the lawyers terminated the retainer without notice, and Mr Preston, who was desirous of being represented on this appeal, is left in a situation where he is unrepresented. He did appear in the Local Court but, as I said in my reasons yesterday, appeals are technical, and a layperson who may be competent to defend a debt recovery matter, could be expected to experience difficulty in the appellate jurisdiction. 10In any event, Mr Preston from the outset, has always been desirous of having legal representation in this Court, and he is not in the position of a self-represented person who, at the last minute, decided he needed legal advice. 11Yesterday, as I have said, I had hoped that something could be salvaged, but from his affidavit, Mr Preston tells me he has tried eight different firms of solicitors unsuccessfully, whilst at the same time preparing for this adjournment application upon the contingency that he would be unsuccessful. He has not given the details of all the solicitors he approached, but he has approached Turner Freeman, Craddock Murray Neumann and Dibbs Barker, amongst others, and none of the three firms mentioned, or any of the other firms, were prepared to accept instructions at short notice. 12Notwithstanding what I described as the chequered history of this matter yesterday, I think the interests of justice, and the administration of justice, favour the grant of an adjournment, to enable Mr Preston to arrange legal representation. But given that this is an appeal and that the matter is substantially ready for hearing, I am not prepared to accede to his application that the matter should be listed before the registrar in eight weeks time. It is in the interests of justice that appeals be disposed of quickly, wherever possible. This matter has been delayed in coming to hearing today, and I am well aware, as Mr Ahmed of Counsel drew to my attention yesterday, that a number of adjournments and amendments have been allowed the plaintiff, over and above what might ordinarily have been expected in the prosecution of an appeal from the Local Court. 13Whilst Mr Ahmed strongly opposes the adjournment, he helpfully has suggested to me that if I am against him in that regard, that there are some conditions which ought to be imposed in relation to the grant of what effectively is an indulgence by the Court. Given the chequered history, which I will not go through, Mr. Ahmed argues that the grounds of appeal stated in the Further Amended Summons filed in Court on 24 October 2013 should stand without further amendment, and that the plaintiff should pay the costs thrown away on an indemnity basis forthwith. 14As I understand Mr Preston's position, he accepted the inevitability of the second of those conditions, and has foreshadowed that he will be seeking indemnity from his previous solicitors in regard to that order, and I expect that once he obtains legal advice, he will file some separate summons or motion seeking indemnity. But he disputes the first condition proposed by Mr Ahmed, because he says that the new solicitors, when they review the matter, might share his view, not shared by his previous lawyers, that the abandoned grounds have some merit. 15I think I should accede to Mr Ahmed's application. It is not just a matter of what might be arguable, because at this stage there has been a long history which has resulted in the grounds being refined, and grounds two and three that formerly appeared in the summons, have been abandoned. The written submissions have been prepared on that basis, and doubtless the defendant has adopted a position which reflects the plaintiff's choice to bring forward limited grounds of appeal. Issues of estoppel may arise in deciding whether to permit the plaintiff to change his position at this late stage. I think it's inappropriate that I should leave that position open, given the exceptional grant of an adjournment today. 16I am still hopeful that the matter can be resolved quickly, as it ought to be, but I think, given the efforts that Mr Preston has made, unsuccessfully, to obtain representation, it would be pre-emptive for the Court to fix the matter for hearing next week, unless I can be satisfied that solicitors and counsel are available, and willing to do the necessary work to put themselves in a position to present the argument next week. I record that I still hope that can be achieved. 17I think the best I can do, to do justice between both parties, is to fix the matter before me for directions on Wednesday. I will make the following orders: (1)The hearing of the appeal is adjourned upon the following conditions: (a)The grounds stated in the Further Amended Summons filed in Court on 24 October 2013 are to stand without further amendment; (b)The plaintiff is to pay the defendant's costs thrown away by the adjournment on an indemnity basis forthwith, after they have been agreed or assessed, with liberty to apply in respect of any lump sum assessment; (2)The appeal is fixed for directions before me on Wednesday, 12 February 2014 at 9.30 am with a view to fixing the matter for hearing.