Neale v Mahony

HIS HONOUR: By his statement of claim filed on 22 March 2017, James Woodward Neale claims damages from John Francis Mahony alleging negligence in the performance of his retainer as Mr Neale’s solicitor. Mr Neale alleges that Mr Mahony was retained to prepare a class action for him and others against the Commonwealth Bank for selling property at an undervalue. The statement of claim suffers from some obvious formal and substantial difficulties and appears to have been prepared without the benefit of legal assistance.

Be that as it may, at 12.43pm on 18 May 2017, Mr Neale’s then solicitor, Trevor Hall, filed a notice of discontinuance of the proceedings. Mr Mahony was served with a copy of that notice at 1.10pm the same day. Mr Mahony maintains that the notice operated according to its terms and that the proceedings have come to an end. Mr Neale either contends that it did not do so or that the proceedings should in some unexplained fashion be revived or reinstated.

Some insight into Mr Mahony’s understanding of the position following the filing of the notice can be gleaned from his letter to the Registrar dated 14 August 2017. That letter is in the following terms:

As far as I can determine from the Court file, the Registrar did not specifically reply to Mr Mahony’s letter. However, immediately following the filing of the disputed notice of discontinuance on 18 May 2017, the Registrar did write to Trevor Hall, the solicitor who filed the document in the first place. The Registrar’s letter said this:

Between 18 May 2017 and 14 August 2017, Mr Hall and Mr Mahony engaged in a somewhat curious series of email correspondence about the proceedings. This is referred to in an affidavit sworn by Mr Mahony on 10 October 2017. It bears consideration.

Mr Hall wrote to Mr Mahony on 17 May 2017. He said this:

Mr Mahony replied the same day as follows:

As earlier noted, the notice of discontinuance was forwarded to Mr Mahony by Mr Hall at 1.10pm on 18 May 2017.

Mr Hall wrote to Mr Mahony 25 minutes later in the following terms;

Mr Hall next wrote to Mr Mahony on 10 August 2017 in these terms:

Shortly after that on the same day, Mr Mahony wrote to Mr Hall:

Mr Hall replied:

Mr Mahony’s immediate response was in the following terms:

Finally for present purposes, Mr Hall replied:

It can be seen that a few days later Mr Mahony sought clarification of the position from the Registrar.

In his written submissions on behalf of Mr Mahony, Mr Maroya of counsel contends that the notice of discontinuance should take effect according to its terms.

UCPR 12.1 is in the following relevant terms:

The notice of discontinuance filed by Mr Neale’s then solicitor was not filed with Mr Mahony’s consent. Nor was it filed with the leave of the Court. It was ineffective and inoperative for want of compliance with this rule. The Registrar was correct to reject it.

Although it is beside the point, it is apparent that the solicitors at various times both operated upon the basis that the proceedings remained on foot notwithstanding the filing of the notice. Indeed, on 30 June 2017, the Registrar made orders by consent adjourning the proceedings to 11 August 2017. The Registrar made that order following the receipt of short minutes of order bearing the electronic signatures of Mr Hall and Mr Maroya.

The following evidence should, however, be noted. Mr Mahony swore an affidavit on 2 November 2017. Paragraphs 16 and 17 of that affidavit are as follows:

I have not been able entirely to reconcile the matters referred to in paragraph 17 with paragraph 7 in Mr Mahony’s 14 August 2017 letter which, for ease of reference, is repeated here:

Presumably Mr Mahony would in any event have been aware that his consent to the filing of the notice of discontinuance had neither been sought nor provided. Presumably as well Mr Mahony would have been aware that he was never required to attend court on an application by Mr Neale for leave to discontinue the proceedings. The status of the notice of discontinuance must at all times in those circumstances have been questionable and of some concern to Mr Mahony despite the fact that its particular deficiencies had not by his account been drawn to his attention by Mr Hall.

Although I have received detailed submissions from Mr Maroya and a lengthy, largely unhelpful and irrelevant, affidavit from Mr Neale, they are not germane to the issue, which is that the proceedings have never properly been discontinued. They remain on foot. Whether they are later disposed of in some other way, having regard to the form of the statement of claim, is something about which it is unnecessary to comment.

It is in the circumstances unnecessary to make any orders. The proceedings should simply be listed before the Registrar for directions on a date suitable to the parties.