SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Stubberfield v Lippiatt & Anor [2007] QCA 90 PARTIES: JOHN RICHARD STUBBERFIELD (plaintiff/appellant) v FREDERICK WALTON LIPPIATT (first defendant/first respondent) v LIPPIATT & LIPPIATT & CO (a firm) (second defendant/second respondent) FILE NO/S: Appeal No 9320 of 2006 SC No 8540 of 2004 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal Supreme Court at Brisbane DELIVERED ON: 23 March 2007 DELIVERED AT: Brisbane HEARING DATE: 12 March 2007 JUDGES: ORDER: CATCHWORDS: Jerrard JA, Philip McMurdo and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made Appeal dismissed with costs ESTOPPEL FORMER ADJUDICATION JUDGMENT INTER PARTES RES JUDICATA where claim of fraud previously litigated where other claims based on breaches of duty previously litigated whether further proceedings on those grounds barred ESTOPPEL FORMER ADJUDICATION JUDGMENT INTER PARTES ISSUE ESTOPPEL MATTERS AVAILABLE TO PARTIES where imprecision in selfrepresented litigant s pleadings where claims based on breaches of duty where claims based on breach of duty previously litigated where new claims not based on fresh evidence whether new claims on those ground barred PROCEDURE JUDGMENTS AND ORDERS ACTIONS TO REVIEW OR SET ASIDE JUDGMENT WHERE FRAUD, MISREPRENTATION OR SUPPRESSION OF MATERIAL FACTS where appellant alleges respondent gave fraudulent evidence at original trial where evidence not essential to outcome whether ground for overturning judgment

2 2 COUNSEL: SOLICITORS: Bankruptcy Act 1966 (Cth), s 40(1)(g) Baker v Wadsworth (1898) 67 L.J.Q.B. 301, followed D Orta-Ekenaike v Victorian Legal Aid Inc [2005] HCA 12; (2005) 223 CLR 1, followed Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied Re: Lippiatt & Co s Bill of Costs [1998] 1 Qd R 69, considered Ronald v Harper [1913] VLR 311, followed Stubberfield v Lippiatt & Co [2002] QCA 447; Appeal No 6653 of 2002, 25 October 2002, considered The appellant appeared on his own behalf A P J Collins for the respondents The appellant appeared on his own behalf Minter Ellison for the respondents [1] JERRARD JA: In this matter I have had the advantage of reading the reasons and orders of Philip McMurdo J and respectfully agree with his Honour. [2] PHILIP MCMURDO J: This is an appeal against an order staying the appellant s proceedings against his former solicitors, in which he claims damages and other relief for alleged breaches of duty, fraud and defamation. [3] In 1994 the appellant Mr Stubberfield was a client of the first respondent s firm Lippiatt & Co. They had a falling out in December 1994 and Lippiatt & Co sued Mr Stubberfield in the Magistrates Court, claiming fees and expenses amounting in all to $11, Mr Stubberfield defended and counter-claimed on many grounds. He pleaded that there had been total non-performance by the solicitors, that in several respects they had mishandled the litigation for which he had retained them and that (alternatively) for various reasons their claim should be limited to $3,300. After a trial the Magistrate upheld the solicitors claim and dismissed the counterclaim entirely. That judgment, dated 9 October 1998, inclusive of interest and costs was for the sum of $21, [4] Mr Stubberfield did not then appeal against that judgment. But nor did he pay the judgment sum. Lippiatt & Co petitioned for his bankruptcy and he was made bankrupt in July His bankruptcy was annulled in November 2001 after his debts had been paid in full. [5] But in June 2002 he sought to appeal the judgment. He made an application to the District Court seeking an extension of time in which to appeal. His application was refused because he provided no adequate explanation for his delay. He appealed that decision of the District Court to this court, which unanimously dismissed his appeal on 25 October [6] He commenced the present proceedings in October He makes many allegations against Mr Lippiatt but they fall into two categories. The first are complaints of breaches of Mr Lippiatt s duties to him. They seem to involve no 1 Stubberfield v Lippiatt & Co [2002] QCA 447

3 3 allegation which was not either within his pleaded case before the Magistrate or which should have been raised as a defence to the solicitors claim. The second category involves allegations of fraud against Mr Lippiatt. They seem to be no more than the allegations of fraud which Mr Stubberfield raised in his appeal to this Court in 2002, and which Cullinane J (with whom McMurdo P and McPherson JA agreed) said were groundless. [7] In the judgment the subject of this appeal, Philippides J stayed the present proceedings as an abuse of process with one qualification. That related to the $3,300 which in 1994 Mr Stubberfield had paid to Lippiatt & Co on account of anticipated fees and outlays. Unfortunately this was not credited in his favour when the solicitors sought and obtained judgment in the Magistrates Court. And nor did Mr Stubberfield raise it in 2002 as a ground of appeal. That amount may be put on one side, because the respondents seek no variation of her Honour s order that Mr Stubberfield have leave to re-plead his claim for that sum. The question is whether Mr Stubberfield should be allowed to progress any other part of these proceedings. [8] In my view he has failed to demonstrate why any part of his claim is not precluded by a res judicata, an Anshun estoppel or simply the absence of any arguable case. Before discussing those matters it is necessary to say something more about the history of this unfortunate dispute. [9] In the early 1990s, Mr Stubberfield was litigating against a company called Paradise Grove Pty Ltd which was proposing to develop land adjacent to his land in the Redland Shire. He was unsuccessful in the Planning and Environment Court and then in his appeal to this Court, which in June 1993 dismissed his appeal with costs. Paradise Grove had those costs taxed and in December 1993 a certificate of taxation issued in the sum of $6, Paradise Grove then served on Mr Stubberfield a bankruptcy notice in that amount on 2 February It required compliance by 2 March On 4 February 1994, Thomas J (as he then was) made orders extending time and otherwise to allow Mr Stubberfield to belatedly challenge that bill of costs. There were further applications which he made to judges or the Taxing Officer in relation to the certificate of taxation which it is unnecessary to discuss here. But only from 4 February 1994 was the certificate of taxation the subject of any pending review. That review was, it would seem, never pressed by Mr Stubberfield to a determination. [10] Paradise Grove then petitioned for his bankruptcy, for non-compliance with the bankruptcy notice. The petition was to be heard on 5 December Mr Lippiatt was retained by Mr Stubberfield to act for him. On Mr Stubberfield s instructions, he briefed counsel to appear and Mr Lippiatt advised that the petition could be opposed upon the basis that the certificate of taxation was not a final judgment or order on which to issue a bankruptcy notice under of s 40(1)(g) of the Bankruptcy Act 1966 (Cth). The argument was that this was not a final judgment because the certificate of taxation was subject to a pending review in the Supreme Court. [11] Just prior to the hearing date of the petition, counsel originally briefed became unavailable. Mr Lippiatt briefed other counsel, who advised that this argument was not so strong. Mr Stubberfield was unhappy with that advice. On the morning of the hearing, he arrived at Mr Lippiatt s office and terminated the retainer.

4 4 Mr Stubberfield then went to the Federal Court and successfully applied for an adjournment. [12] On 16 December 1994, Mr Stubberfield represented himself on the adjourned hearing of the petition. After reserving his decision, Drummond J dismissed the petition, not because Mr Stubberfield had not committed an act of bankruptcy through non-compliance with the bankruptcy notice, but because he was demonstrably solvent. Drummond J extensively discussed the argument that the certificate of taxation was not a final judgment for the purposes of s 40(1)(g) and rejected it ultimately because the certificate had not been the subject of a pending review upon the issue or service of the notice 2. [13] So as it happened Mr Stubberfield was successful in Paradise Grove s bankruptcy proceedings, and what Mr Stubberfield says was Mr Lippiatt s mishandling of those proceedings had no consequence. [14] Mr Stubberfield had paid to Mr Lippiatt $3,300 on account. Mr Stubberfield demanded its repayment and his file. Mr Lippiatt refused and issued a bill in the amount of $3,300, saying that he would limit his charges to that amount but that if Mr Stubberfield wanted a bill in taxable form, he would feel free to increase it. Undeterred Mr Stubberfield demanded a bill in taxable form which Mr Lippiatt provided on 22 December This was the bill for $11, for which Mr Stubberfield was sued. [15] The determination of those proceedings in the Magistrates Court was then delayed by Mr Stubberfield s steps to challenge the bill in taxable form. One of those unsuccessful attempts is reported as Re: Lippiatt & Co s Bill of Costs [1998] 1 Qd R 69. In another application, he sought an order from the Supreme Court that the Magistrates Court proceedings were invalid and he sought to have the whole dispute heard in the Supreme Court and tried by a jury. In November 1997, Moynihan SJA dismissed these applications and restrained him from taking any proceedings in the Supreme Court relating to issues raised in the Magistrates Court proceedings without leave. There was no appeal from those orders. [16] Some of the matters pleaded by Mr Stubberfield in the Magistrates Court were as follows: the solicitors, upon various suggested legal grounds, were estopped or otherwise precluded from claiming more than the amount originally claimed, $3,300; the solicitors had repudiated the retainer, rather than it being determined by Mr Stubberfield; Mr Lippiatt had wrongly refused to brief a third counsel, after advice from the second counsel as to the proposed argument; there had been total non-performance by Lippiatt & Co of the services required and requested and for which [it] was specifically retained. 2 Re: Stubberfield ex-parte Paradise Grove Pty Ltd (1995) 134 ALR 169, 177

5 5 [17] The trial in the Magistrates Court took several days. Mr Stubberfield represented himself. Lippiatt & Co were their own solicitors but they were represented by counsel. Evidence was given for each side by affidavit. The Magistrate reasoned that any conflict in the evidence was immaterial. In particular, he reasoned that upon Mr Stubberfield s own evidence, it was Mr Stubberfield who had terminated the retainer. He found that the solicitors case had been established and said that he was unable to discern from the counter-claim as alleged any cause of action or for that matter any damage alleged to have been sustained. As to that last point Mr Stubberfield had not pleaded any loss. After all, he was successful in resisting the petition by Paradise Grove. On the hearing of the present appeal, he was unable to articulate any basis upon which he is worse off for the ways in which he says Mr Lippiatt breached his duties to him. Instead, he seems to say that he is simply worse off because he was subsequently made bankrupt upon the Magistrates Court judgment. [18] The judgment in the Magistrates Court was $21,689.37, which included interest and costs. Now Mr Stubberfield says that the Magistrate was wrong to have allowed any costs to Lippiatt & Co, because they were their own solicitors in those proceedings. But he failed to challenge that or indeed any other part of the judgment before [19] In his appeal to this Court in 2002, he provided a written outline of argument which the court treated as including an application under UCPR Rule 667(2)(b) to set aside an order obtained by fraud, the order being the judgment of the Magistrates Court. The nature of those allegations and the absence of a basis for them were discussed by Cullinane J and it is unnecessary to repeat that here 3. But as there appears, in essence one allegation was that Mr Lippiatt had committed perjury by the affidavit he swore for his firm s proceedings against Mr Stubberfield. This Court has already considered then whether the judgment in the Magistrates Court should be set aside on the basis that it was procured by fraud, and in particular fraudulent evidence. That determination precludes any further proceeding to set aside the Magistrates Court judgment on the same ground. But in any case, as the Magistrate made clear in his reasons for judgment, the evidence of Mr Lippiatt was not essential to the outcome, and to be set aside upon this ground, the judgment must have been based on the perjured evidence 4. [20] Insofar as Mr Stubberfield would seek in the present proceedings to obtain damages from Mr Lippiatt for this alleged fraud, the claim would fail for at least two reasons. The first is that a disappointed litigant cannot sue a witness 5. The second is that, as just mentioned, there was no consequence from the giving of this evidence and therefore no loss to be compensated. [21] Accordingly Mr Stubberfield s allegations of fraud, which he seems determined to pursue despite this Court having already ruled that they are groundless, should not be allowed to go forward in these or any other proceedings. I return then to the remainder of the matters which he has pleaded in the present proceedings Stubberfield v Lippiatt & Co [2002] QCA 447 at [16]-[26] Baker v Wadsworth (1898) 67 L.J.Q.B. 301, Ronald v Harper [1913] VLR 311 D Orta-Ekenaike v Victorian Legal Aid Inc (2005) 223 CLR 1 at [39], [99]

6 6 [22] As Philippides J observed, the incoherency of the pleading makes it difficult to distil the claims made 6. But with one exception, those other claims all involve some complaint of negligence or other breach of duty owed by the respondents as Mr Stubberfield s then solicitors or some other suggested basis for disputing the solicitors bill. Because of the imprecision both in this pleading and in Mr Stubberfield s pleading in the Magistrates Court, it might be that that there is something now claimed, which had not been pleaded in the Magistrates Court and which is therefore not precluded as res judicata. But if there is anything which is not res judicata, it is not said to be based upon any evidence which has arisen since the judgment in the Magistrates Court. And there could be no reasonable explanation for why it was not there raised (apart from its lack of merit). The complaints pleaded in the present case are matters which, putting on one side their merit or lack of it, were immediately relevant to the defence of the solicitors claim for fees and which Mr Stubberfield would be expected to have raised in order to enable the relevant issues to be determined in the one proceeding 7. Accordingly these various allegations are precluded either as res judicata or upon the basis of an estoppel according to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The exception is that Mr Stubberfield also says that Lippiatt & Co should not have acted for themselves in the Magistrates Court because that involved, he says, a conflict of their own interest and a duty to him. The point is plainly without merit. [23] Upon this appeal the respondents did not cross-appeal for an order to strike out the proceedings. They were content to have the proceedings stayed as Philippides J ordered. Nor do they challenge her Honour s grant of leave to re-plead a claim for the repayment of $3,300, an order which they apparently conceded that her Honour could make. [24] The appeal should be dismissed with costs. [25] DOUGLAS J: I agree with the reasons published by Philip McMurdo J and with the orders proposed by his Honour. 6 7 [2006] QCS 281 at [18] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602