Kenna v Lloyd

1. [1]

   By summons filed 17 November 2020, the plaintiff seeks to appeal from a decision of Magistrate Kennedy in the Local Court of NSW. The decision was to enter summary judgment in favour of the defendant on 5 November 2020. To avoid confusion, I will refer to the plaintiff in this Court (the defendant in the Local Court) as Mr Kenna and the defendant in this Court (the plaintiff in Local Court) as Mr Lloyd.

2. [2]

   Mr Kenna, through a law firm called Hamish Cumming Family Lawyers, engaged Mr Lloyd, a barrister, to appear on his behalf in proceedings in the Family Court of Australia. Mr Lloyd practices under the name “John Lloyd SC” although his given name and the name which appears on his practicing certificate is “David John Lloyd SC”. Mr Lloyd issued a costs agreement and disclosure in the amount of $72,000 (excluding GST) to Mr Kenna. This was based on a five-day hearing and three days preparation. Mr Kenna signed the agreement on 16 September 2019. On 18 October 2019, Mr Lloyd issued a memorandum of fees in the amount of $79,200 (including GST). This was based on four days preparation and four days hearing.

3. [3]

   The fees were not paid and Mr Lloyd sued Mr Kenna in the Local Court. The action was commenced on 17 June 2020.

4. [4]

   On 30 September 2020, Mr Lloyd filed a notice of motion in the Local Court seeking summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW). On 5 November 2020, after receiving written and oral submissions, the Magistrate delivered an ex tempore judgment. Summary judgment in the amount of $84,526.18 (plus interest and costs) was entered in favour of Mr Lloyd. The total amount awarded was $92,626.30.

The grounds of appeal and submissions

1. [5]

   Mr Kenna represented himself in the Local Court and again in this Court. His summons in this Court raised four grounds of appeal in the following terms (with punctuation and spelling reproduced in accordance with the original document):

2. [6]

   Mr Kenna’s case appeared to be that he engaged Mr Lloyd under a “misapprehension” as to his true identity. He said that, if he had known Mr Lloyd’s full name, he would have “googled” that name to discover a Justinian article which published comments from a Family Court Judge about Mr Lloyd’s conduct in another case. That article was included in the Joint Court Book that became exhibit A on the appeal. Based on the evidence before the Local Court, the Magistrate was satisfied that the same article was discoverable whichever of the two names was entered into the search engine.

3. [7]

   Although it was not expressly stated in these terms, Mr Kenna’s oral submissions in relation to ground 3 included an assertion that he was denied procedural fairness as he was not given an opportunity to cross-examine Mr Lloyd in the Local Court.

The nature of the appeal and whether leave should be granted

1. [8]

   An appeal to this Court from a judgment or order of the Local Court sitting in its General Division must be based on “a question of law” unless leave is granted to appeal on a “a question of mixed fact and law”: Local Court Act 2007 (NSW), ss 39 and 40. No appeal lies on a question of fact alone. Mr Kenna’s grounds and submissions in this Court raised questions of law and mixed fact and law. However, Mr Lloyd did not oppose leave being granted. In circumstances where Mr Kenna is self-represented and Mr Lloyd makes that concession, it is appropriate that leave be granted where necessary to argue the appeal.

2. [9]

   It is appropriate to consider the substance and merit of Mr Kenna’s arguments by first reviewing the law relating to summary judgments and the Magistrate’s decision.

The law relating to summary judgments and the decision below

1. [10]

   The application before Magistrate Kennedy in the Local Court was for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW). That section provides:

2. [11]

   The question for Magistrate Kennedy was whether Mr Kenna had “no defence” in respect of Mr Lloyd’s claim, or any part of the claim. The test for summary judgment has been described in various ways and her Honour referred to some of the relevant authorities:

3. [12]

   The Magistrate considered the arguments of both parties. Her Honour did not accept Mr Kenna’s argument that Mr Lloyd changed the name he practices under after the “unfavourable” Justinian article was published to hide his true identity and avoid being connected to the negative press. That was, at least in part, because her Honour was provided with evidence that whether you search for “David John Lloyd SC” or “John Lloyd SC”, the same article comes up in the search results. Further, her Honour found that Mr Lloyd had practiced using only his middle name for many years prior to the article’s publication.

4. [13]

   In determining whether the costs agreement between Mr Kenna and Mr Lloyd was valid, her Honour referred to authorities supporting the proposition that a contract will be valid so long as the parties to the contract can be readily identified, notwithstanding the fact that they do not use their legal name. [2] That proposition dates back to Lord Blackburn’s comments in Rossiter v Miller. [3] Her Honour found that Mr Kenna was under no misapprehension in who he was dealing with, there being only one “John Lloyd SC” at Chalfont Chambers.

5. [14]

   Magistrate Kennedy concluded that she was:

6. [15]

   Her Honour’s ultimate finding was that Mr Kenna’s defence was “so untenable that it could not possibly succeed on the basis of this defence and that it is no more than a fanciful prospect of success”. [5]

Mr Kenna’s written submissions in this Court

1. [16]

   The written submissions filed in support of the appeal were as follows:

2. [17]

   While these submissions did not address the grounds of appeal in an ordered or systematic way, they appear to capture Mr Kenna’s underlying complaint.

The grounds of appeal

1. [18]

   Ground 4 can be disposed of, and rejected, quickly.

2. [19]

   Magistrate Kennedy provided ex tempore reasons and did so orally and in open court. The reasons were recorded and a transcript was available to anybody who applied for it. The reasons explained the basis of her Honour’s decision. [6] There is no legal requirement to provide reasons in written form. It was open to Mr Kenna to request a transcript of the proceedings, which he must have done at some stage because the transcript of the judgment was annexed to his affidavit dated 6 October 2020 that was read on the hearing of the appeal.

3. [20]

   Ground 2 may be also be dealt with briefly. Mr Kenna argued that the Magistrate erred in law by failing to consider the applicant’s “defence” under s 18 of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth). That section creates, or provides for, a cause of action. It does not provide a defence available in an action for debt or breach of contact. Nevertheless, her Honour considered Mr Kenna’s submission that Mr Lloyd had misled him and made findings of fact that are beyond the scope of this kind of appeal.

4. [21]

   Mr Kenna argued that the Magistrate erred in law in finding that there was a valid costs agreement under the Legal Profession Uniform Law 2014 (NSW). He submitted that Mr Lloyd did not comply with disclosure obligations in Div 3 of the Legal Profession Uniform Law. Aside from the argument that Mr Lloyd was operating under a false name, or that there was a requirement that the name on the costs agreement was the same as the name of the practising certificate, Mr Kenna submitted that the obligation to pay Mr Lloyd lies with the Hamish Cumming Family Lawyers.

5. [22]

   Section 180(1)(b) of the Legal Profession Uniform Law provides that a costs agreement may be made “between a client and a law practice retained on behalf of the client by another law practice”. The disclosure obligations for a law practice to a client are found in s 174(1) and (2):

6. [23]

   Where a firm of solicitors retains a barrister to act on behalf of a client, the obligation to disclose the matters in s 174 lies with the solicitor or law firm: Legal Profession Uniform Law, s 175. A failure to comply with disclosure obligations renders any cost agreement between the solicitor and the client void: s 178(1)(a). However, the barrister also has disclosure obligations. Whatever went before, by way of disclosure between the parties, the agreement dated 16 September 2019 complied with the disclosure requirements existing between the parties.

7. [24]

   The costs agreement dated 16 September 2019 was included in the joint court book. That agreement was between Mr Kenna and Mr Lloyd. It referred to the involvement of Mr Lloyd’s instructing solicitors, but the disclosure was made directly to Mr Kenna by Mr Lloyd and the agreement was between the client and the barrister. As a matter of practice in New South Wales, it is often (if not usually) the case that the solicitor has a contract with the barrister and the solicitor assumes the obligation to pay counsel. It is incumbent on the barrister to make appropriate disclosure to the solicitor and for the solicitor to make disclosure to the client. Generally and ideally, the solicitor holds the fees on trust for the barrister. If they do not, the solicitor is, or may be, liable to pay the barrister’s fees even if the client fails to pay the solicitor.

8. [25]

   However, the fact that this is the usual course does not mean that the arrangements that prevailed in the present case were unlawful and void under the relevant provisions of the legislation. A similar situation was dealt with in Victoria in Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8. Keogh J made the following observation (citations omitted) (at [39]):

9. [26]

   Section 180 of the Legal Profession Uniform Law provides:

10. [27]

    As Keogh J found in Petselis v Tartaka, s 180(1)(b) contemplates the kind of agreement reached in the present case between Mr Kenna and Mr Lloyd.

11. [28]

    There was no error of law in the Magistrate’s decision by which she found, at least implicitly, that there was no relevant breach of the legislation. Ground 1 must also be rejected.

12. [29]

    Magistrate Kennedy referred to the relevant authorities concerning the circumstances in which the Local Court might make an order for summary judgment. She did so by reference to what she described as “a limited defence” responding to the statement of claim and the submissions made by Mr Kenna, which largely related to the identity issue arising from the different names on the costs agreement and practicing certificate. She cited a number of relevant authorities on the power to enter summary judgment including the fact that Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 was cited in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71.

13. [30]

    There is nothing in the Magistrates reasons to suggest that she erred in her application of the relevant authorities, including Spencer v The Commonwealth. Mr Kenna is correct insofar as his argument is that where there are factual disputes requiring resolution before the dispute between the parties can be determined, summary judgment is normally not an appropriate remedy: see, for example, Spencer v The Commonwealth at [47]-[48]. However, the Magistrate’s conclusion was this:

14. [31]

    This conclusion was not attended with error. It applied the stringent legal tests referred to in a number of authorities and the language used echoes many authorities concerning the approach to be taken when a party seeks summary judgment. Her Honour had already concluded that there was no tenable defence and no triable factual issue that the person with whom Mr Kenna contracted was the same person who held the relevant practicing certificate.

15. [32]

    Ground 3 may also encompass the assertion that Mr Kenna was denied the opportunity to cross-examine Mr Lloyd and thereby denied procedural fairness. I will deal with that issue below but otherwise ground 3 cannot be sustained.

Procedural fairness

1. [33]

   While it was not specifically pleaded in the grounds of appeal, Mr Kenna suggested at the hearing that there was “a denial of procedural fairness and natural justice”. This submission seemed to be the culmination of, or conclusion to be drawn from the submissions that had preceded it, both orally and in writing:

2. [34]

   In his submissions in reply, Mr Kenna submitted:

3. [35]

   As I have said, there was no ground of appeal specifically asserting a denial of procedural fairness. The record of the Local Court demonstrates that the requirements of natural justice were observed. No particular aspect of those requirements was identified as having been breached.

4. [36]

   Mr Kenna raised the need to cross-examine Mr Lloyd in written submissions in the Local Court filed 28 October 2020:

5. [37]

   In response to a question asked by the Magistrate as to why the matter should proceed to hearing, Mr Kenna alluded to the fact that he sought to cross-examine the Mr Lloyd at final hearing:

6. [38]

   In Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313 the Court said at 319:

7. [39]

   This case was relied on by Mr Lloyd in the Local Court hearing and referred to in passing by Magistrate Kennedy. [10] While her Honour did not reject directly the proposition that Mr Kenna should be permitted to cross-examine on the application for summary judgment, it was implicit in her decision to uphold that application. That decision necessarily encompassed a determination that an examination of the factual and evidentiary basis of the defence was unnecessary because the defence was without substance. Even taking into account the fact that Mr Kenna was not legally represented, the purpose of the cross-examination was not identified apart from the bare assertion that Mr Lloyd’s credibility should be tested.

8. [40]

   It is clear enough that the Magistrate decided it was not necessary to hear cross-examination to determine the application for summary judgment. It is equally clear that her Honour was persuaded that the identity issue raised by Mr Kenna did not turn on the resolution of factual disputes and credibility findings and that it was not a case that required cross-examination at a full hearing.

9. [41]

   The suggestion that Mr Kenna was denied procedural fairness is not made out.

Orders

1. [42]

   For the reasons I have given, the appeal and summons upon which it is brought to this Court must be dismissed with costs. Accordingly, I make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

   3. (3)

      The plaintiff is to pay the defendant’s costs.