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Decisions of the Superior Courts of New South Wales, 1788-1899

Ex parte Perkins, in re Dillon [1834] NSWSupC 42

attorney, lien on costs - costs, legal - discipline of attorneys

Supreme Court of New South Wales

In banco, 10 April 1834

Source: Sydney Gazette, 15 April 1834

Exparte John Perkins.  - Mr. Wentworth rose to shew cause against the rule Nisi which had been granted in this matter.  The case exhibited two distinct features; one of which was the calling upon a Solicitor of the Court, to give up his lien on the papers of his client, which was all the security he held for the payment of his costs; and the other was, the casting an imputation on his professional character for malpractices.  In the taxation of those costs, which was the subject of this enquiry, Mr. Dillon had been subjected to shat he considered unusual interrogatories from the Master, and after having attended two days at the taxation, he refused to proceed farther in the business without the presence of his professional adviser, Mr. Norton, who was engaged in the Supreme Court.  This had also been made the ground of accusation against Mr. Dillon, inasmuch as Mr. Norton being retained on the opposite side in other suits of the applicant in this case, it was said to be highly improper he should have access to the papers of Mr. Perkins.  It was, however, most unequivocally denied that Mr. Norton had ever done so, although even if he had, the imputation could not be sustained, as that gentleman had seen the documents alluded to, when they were produced in Court on the trials which had already taken place between the parties.  It had been urged against Mr. Dillon, that his costs were enormous - that they amounted to upwards of £1000 - but out of this sum, it should be remembered, that £230 had been paid as counsel's fees.  But Mr. Dillon had devoted, and it was fortunate for the applicant he had been able to do so, his whole and undivided attention to the business of Mr. Perkins for nine months - then the claims of this person were of the most complex nature - and the remainder of the sum he would take upon himself to say, was not too much for the exclusive devotion to a persons interest of a professional adviser who had risen early, and sat late at his business.  The affidavits of the other side exhibited malá fide in every branch, and suppressio veri was apparent throughout them.  The only sum which Mr. Dillon had been allowed by the taxing officer for conduct money for the witnesses alluded to on the other side was the sum of two guineas to Mr. Kinsman; but the affidavit of this gentleman did not reveal the reason why that sum was not paid over to him.  The fact was, that Mr. Kinsman then and still owed Mr. Dillon a considerable sum of money, and would it be said there was anything improper in that!  Most assuredly not. - From the whole case, it was evident that Mr. Dillon had been dragged into Court, and held up as an extortioner and a knave, in order to gratify the bad feeling entertained towards him by a person, to whom he had rendered the most signal services; and the circumstances which had been disclosed in the progress of the case, left the professional adviser of Mr. Perkins in the same predicament.  The learned gentleman concluded an energetic address by calling upon the Court to dismiss the rule, and to mark its sense of the uncandid manner in which the case had been got up, by not suffering any penal visitation of costs to fall upon Mr. Dillon.

The affidavits of Messrs. Dillon, Crozier, W. J. Dowling, and another, denying the statements put forth in the affidavits of the other side were then put in, and read by the Clerk of the Court.

Dr. Wardell replied.  He repudiated the attack which had been made by his learned friend on a brother practitioner.  He meant Mr. Kerr, in whom there was not the slightest cause for the imputation which had been so vituperatively cast on him.  He could only account for it in one manner - that his learned friend had been compelled from the nature of his instructions to adopt a course, which was in unison with the bad spirit breathed throughout the affidavits just read to the Court.  Whatever results might take place from the proceedings now pending, he trusted would not terminate without justice being done to the injured feelings of Mr. Kerr, who had been so wantonly assailed.  The learned gentleman then proceeded to comment upon the merits of the answer just put in, which failed to refute what had been alleged; and in conclusion, he called upon the Court not only to grant the applicant the remedy he prayed for, but to visit the opposite party with the penalty prescribed in the statute of Henry.

The Chief Justice said it had been rightly observed that this case presented two distinct features.  With respect to that part which went to reflect on the professional character of one of the members of the Court, and which was the especial duty of the Judges to guard, both as regards the reputation of the individual reflected on, as well as to protect the interest of his client, it was not their intention to go into at present, from the conflicting nature of affidavits.  The attendance of Mr. Norton, as the professional adviser of Mr. Dillon certainly presented primá facia, an aspect of impropriety but the Court was disposed to accept the explanation given of this part of the case as satisfactory; the more especially, as it regarded a gentleman, one of the most respectable practitioners of the Court.  Then as to the excuse of Mr. Dillon, that he could not proceed before the master without the attendance of the former gentleman, that was not a legitimate ground of excuse, as he was himself present, and should have been prepared to go into the taxation of his own costs.  It was not therefore too much to say at once, that so much of the rule must be made obsolute [sic], as went to place the party in statu quo with respect to his costs, which by the neglect of Mr. Dillon, he had been prevented from having taxed; and the Court would also award costs on the present application.  The Court was unanimously of opinion that there was no reason whatever for the imputations which had been cast upon Mr. Kerr.

 

Forbes C.J., Dowling and Burton JJ, 19 April 1834

Source: Sydney Gazette, 22 April 1834[1 ]

 

Exparte John Perkins. - Mr. Dillon requested leave to put in before the Court a copy of a letter addressed by him to Mr. Norton, as explanatory of that part of the case reflecting on them jointly, as well as a draft of Mr. Perkins's letter, authorising him to make that communication.

The Court observed that Mr. Norton had already been exonerated, and that part of the case disposed of.

Mr. Justice Dowling delivered the judgment of the Court.  The case had been fully considered, and they were now prepared to give a decision in it.  The first part of the case had already been disposed of, and the circumstances upon which they were about to pronounce their judgment, were those implying certain misconduct on the part of Mr. Dillon as an Attorney of the Court.  The bill of costs, which had been submitted for their consideration, amounted to £1169 8s. 10d., and it was pressed upon them, that charges were made therein twice, and indeed thrice for the same services.  Of the sum contained in the account, it appeared also, that £235 had been expended in counsels' fees.  There was a charge likewise made against Mr. Dillon, that he had sworn before the master to the correctness of his account; but this allegation was expressly denied by Mr. Dillon, and two other persons, one of whom, Mr. W. J. Dowling, was also a Solicitor of the Court.  On this part of the case, therefore, the Court thought that Mr. D. was entitled to belief, and they therefore dismissed it.  With respect to the sums charged as paid to Nye and others, they were, with the exception of that to Mr. Kinsman, disallowed by the Master, and therefore not being paid by Mr. Dillon, were not chargeable against his client.  The question naturally to be enquired here, was, why make a disallowed charge!  It had been explained, that the bill between attorney and client, had been submitted in that state it was in when the costs went to be taxed as between party and party; and that Mr. Perkins, and his professional adviser, Mr. Kerr, being aware of the taxation, and having seen all the documents, could not be deceived in consequence of it.  This was stated to be in accordance with the practice sometimes pursued in the Courts of England and Ireland, but the Court was of opinion this explanation was not satisfactory.  The Act which had been pressed upon them in this case, was that of the 3d James 1st, chap. 7th, which enacted, that if an attorney charge in his account any sums as paid by him, which have not been so paid, his client shall have his remedy against him at law, with triple damages and costs, and the attorney shall be dismissed from practising any more in his Majesty's Courts.  The object of this act was that attornies [sic] should be scrupulous in making charges which could not be substantiated.  The Court felt disposed to admit the good intentions of Mr. Dillon, as disclosed in his affidavit, and would therefore acquit him of fraud, although they were of opinion that his conduct had been highly improper.  The same observations would apply with respect to the sums charged as paid to Clerk, and the same explanation had been tendered.  But the Court must repeat, why make a disallowed charge?  Although the party making it, stood acquitted of fraud, yet his conduct was marked with impropriety.  On the whole consideration of the case, the Court would dispose of it without further animadversion.  The Court could not however dismiss the subject, without noticing that statements had been made, to which it was not necessary to allude.  The allusions to Mr. Kerr, as well as to Mr. Perkins's bankruptcy in England, were unnecessary, and uncalled for, but their Honors coincided that enough had been done to satisfy the justice of the case.

 

Forbes C.J., 19 April 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3278, vol. 95

 

[p. 61] Minutes of the Chief Justice's opinions in the following cases:- ...[ 2]

 

[p. 69] Forbes C.J. - The first part of the rule having been disposed of, the only matters, now for concern are, how far the attorney has answered the client's affidavits, imputing to him certain acts of misconduct as attorney.

The applicant complains that for a period of about 9 months retainer as his attorney, the bills of Dillon have amounted to the sum of £1169:8:10, that this amount [p. 70] embraces charges for attendance twice & even thrice for the same thing; -- that diverse sums stated to be paid to witness, & charged against Perkins as having been so paid, have never in fact been paid, -- & that wherever was allowed on taxation by the master & received by Dillon it was not paid over to the witness kinsman, & was charged again to Perkins, -- that the sum of 230£ charged as  fees paid by Dillon, Perkins had good reason to believe had never been so paid. - That not withstanding these facts, Dillon made oath before the master ``that his bills as they were delivered were true & correct, & that he would & did vouch for every item therein" or words to that effect.

This last assertion is directly [p. 71] denied by Dillon, & two other deponents, particularly Mr. Willoughby Dowling, who states himself to have been present, & to have heard what passed.  And he adds that Dillon refused to swear to so long a bill, embracing so many items until he consulted his books.  I think that Dillon  is entitled to belief upon this part of his case, & that he has cleared himself of the unfavourable inferences which must have been drawn from such a loose & discreditable mode of swearing.  I therefore dismiss this part of the charge from further conson.

In the two cases of Perkins v McDonald, & Field v Marr, it appears that the Plf Perkins succeeded in his actions & his costs taxed & allowed by the master.  It further appears that unless Smith, Ryan, Kinsman, Nyer & Dete were subpoenaed as witnesses, -- that besides the ordinary fee of one shilling, the [p. 72] sum of one pound was charged by Dillon, against the defts in the respective actions before mentioned, for the attendance of each of the above witnesses, but that this sum was disallowed by the master, as unlawful, except in the case of Kinsman, he being a professional man.  After the disallowance the master Dillon being called upon to render his bills of costs to the applicant, Perkins, rendered the bills in the original form, in which they were laid before the master, & did not notice the disallowance of the items struck out or reduced by the master in his taxation.  The items for witnesses attendance are set out as sums ``paid" by Dillon to the witnesses - whereas in fact no such sums were paid, & of course [p. 73] were not chargeable agt his client. - Mr. Dillon explains this circumstance as follows:-- he says, as he was unused to the charges allowed for witnesses attendance in this court, with the priority and consent of Perkins himself, he made out bills of costs in the two cases he had succeeded in, with such charges for attendance of witnesses as they thought might be fairly claimed, & that he promised to alter the same, if they were taxed to the witnesses."  None of the witnesses however confirm this statement, as to there being any promise, conditional or otherwise by Dillon to them.  Still if the charges had been merely made in the bills rendered to the adverse parties, they could not have been objected to, as it might be assumed if the witnesses attendance were allowed by the master, it would be paid over to the witnesses, but [p. 74] but being disallowed by the master why was it charged to the client? It was a disallowed charge - it was an improper charge - why make it?  Dillon says that Perkins could not have been deceived by it, as he was present at the taxation of the bills, & knew of the disallowance by the master, & that his solicitor, when acting as counsel, Mr. Kerr, had perused them both before & after taxation.  This was very probably so.  Assuming that it was, why make a disallowed charge against his client, & leave it within the power of chance or oversight to put into his pocket any sum, however small, to which he was not lawfully entitled.  The statute positively prohibits such charges, when it commands [p. 75] that untrue bills shall not be rendered.  Notwithstanding the confident way in which this part of the case has been endeavoured to be justified by precedent in England & Ireland, I cannot acquiesce either in the propriety of the practice, if it be so or in the fact of such being the practice.  When a client places himself in the hands of his attorney, he has a right to expect that the atty will put him to no expenses, which are not necessary, & take care to recover necessary expenses from the adverse party, & not charge him a single item more than he is lawfully & equitably liable to pay.  The confidence necessary to the conduct of business may be supposed to be largely reposed in him, & consequently lays the client open to gross imposition, if the attorney should be disposed [p. 76] to practice it.  The attorney, therefore, should be scrupulous in not making charges which he had never incurred.  It was too much to charge sums as paid; & depend upon the accuracy of the counsel, to counter act their effect.  But why make them?  I acquit the attorney of fraud, or even of any intentions to pocket, what did not rightly belong to him.  But his conduct was improper & I trust will never be pursued again, still less justified on the ground of precedent.

The same observations which apply to the sums said to be paid to witnesses, will apply to the sum charged as paid to Clete for serving processes.  The original [p. 77] charges amounting to 42£ as charged against the adverse party in the action, were reduced by the master to a comparatively inconsiderable amount, & this amount was paid over to Clete.  The original charge was again renewed agt. the client, -- but I cannot think with a view to receive it from him, & to retain it - yet why make the charge?  Dillon was quoad this item, the attorney of Perkins, & bound to protect him from any improper charge, even if the master were inclined to allow it.  Their interests were one:-- they were principal & agent.  Why charge him with what he was not legally bound to pay to a witness?  The retaining guinea allowed to Kinsman was improper.  Kinsman might have recovered it a second time from his client Perkins, & as it appears, did afterwards [p. 78] in fact recover it from him.

I dismiss the case without further animadversion.  I am desirous to hope that nothing unprofessional or unfair was intended.  But I disapprove of the whole spirit & terms of these dealings with a client, who thinks fit to charge his attorney.  A repetition would call for a difference mode of proceeding in this court.  At present I think enough has been done to satisfy the justice of the case.

F. F.

12 April 1834.

 

Notes

[1 ] See also Australian, 21 April 1834.

[2 ] These notes were apparently prepared by Forbes C.J., but not delivered.  Forbes was out of town at the time judgment was delivered.

Published by the Division of Law, Macquarie University