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

Ex parte Hayes (1844) NSW Sel Cas (Dowling) 754; [1844] NSWSupC 2

legal practitioners, appearance for both sides

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 15 April 1844

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 66.

The Court disapproved of the practice of an attorney who acted for at least four different parties to a transaction, each having opposing interests; although this did not amount to unprofessional conduct by the attorney in this case.*

Dowling C.J. At the close of last term, cause was shewn against a rule calling on Mr Fitzhardinge, an attorney of this Court, first to answer the matters of the affidavits and secondly to pay over to Mr Broughton two several sums of money amounting respectively to £93.15 and £100.5.3, received by Mr Fitzhardinge on account of the applicant, for the purpose of being paid in reduction of interest due from the latter to Mr Broughton under a mortgage of premises situate at Blackwattle Swamp.

We have carefully considered the matters of the affidavits filed on both sides, and do not find any sufficient grounds laid to sustain the first part of the application, importing as it does the imputation of such unprofessional conduct as might invoke ulterior proceedings affecting Mr Fitzhardinge's professional prospects. But the Court cannot forbear expressing its disapprobation of a practice which is too frequent, of the same professional gentleman assuming to act for different parties having adverse interests in the matters in which he is employed. To this instance Mr Fitzhardinge appears to have acted for at least four different persons, Hayes, Lyons, Carter and Broughton, each having opposing interests in the subject of his professional employment. There may be no actual injury sustained by parties adverse to each other employing the same attorney in the same transaction, but it is difficult to conceive how, for each, an adequate portion of zeal and vigilance can be exercised in protecting their respective rights and interests. A sense of professional delicacy would prompt a reluctance to act under such circumstances, if not an absolute refusal to be concerned for opposite parties in the same matter. It is unnecessary to indicate the obvious inconvenience likely to result, and it is feared has too often resulted, from the want of such abstinence in professional gentlemen. These observations are made with great reluctance by the Court and would not have been suggested if this were the first instance in which it has had occasion to note in terms of strong depreciation a departure from professional propriety. With this observation the Court dismisses the matter of the first part of the application.

With respect to the second, it appears to us after considering very maturely and anxiously the whole case on the one side and on the other, that we are compelled to find (without going into details): first, that these two sums of money were received by Mr Fitzhardinge to be paid to Mr Broughton, and to be applied in reduction of principal and interest secured by the mortgage; and secondly, that these moneys have not been paid over to Mr Broughton accordingly; and we direct that Mr Fitzhardinge is bound within 14 days to pay them over together with interest at the rate of 8 per cent to be computed from the days on which they were respectively received by him, or to obtain a receipt within that time from Mr Broughton to the amount thereof with like interest to be handed over to Hayes, the applicant, as a voucher for the reduction of so much liability in this transaction as may arise either to him or to other parties concerned.

The only remaining point for our determination is as to the costs of this application. Although we acquit Mr Fitzhardinge of such alleged unprofessional conduct as would subject him to interrogatories in the prothonotary's office, yet there was in our judgment abundant reason for that part of the application which we now affirm. Had he not been previously called upon to pay and apply these moneys and had had no notice of the intended application which has been made, we should not have thought it a case for costs. It is true that the attorney who has been now set in motion by the applicant did not make any such requisition or give such notice but it appears that before the matter came into his hands another attorney had been applied to, and had made a demand of the money at the peril of bringing the matter before the Court if not complied with. In consequence of some explanatory communication between the latter gentleman and Mr Fitzhardinge, he declined further proceeding. It can scarcely be said therefore that Mr Fitzhardinge was ignorant of the position in which he was placed after having previously refused to pay the money. In the very long and somewhat diffuse affidavit of Mr Fitzhardinge which was importing into it matters which had really nothing to do with the points for determination, it is not denied that he had in fact received the moneys, but claims a right to retain them until the mortgage is paid off and the liabilities of other parties connected with the transaction are adjusted and settled.

There is one part of Hayes' affidavit answered by Mr Fitzhardinge in a manner which cannot be commended for its ingenuousness. Hayes swears that having casually heard in December last that no interest had been paid to Mr Broughton on the mortgage, he called upon him and was informed by Mr Broughton that no interest had been ever paid to him on account of the mortgage by Mr Fitzhardinge, or by any other person whomsoever and that he had never authorized Mr Fitzhardinge to receive such interest. That Mr Broughton thereupon wrote to Mr Fitzhardinge to know whether he had received any sum on account of the interest, to which Mr Fitzhardinge sent a letter to Mr Broughton (which deponent has seen) stating that he "had never received any payment or other satisfaction of the interest due, but that the same together with the principal remained still due and unpaid". To this part of Hayes' answer, Mr Fitzhardinge swears in reply, "Deponent believes to be true. Said Broughton wrote to deponent to know whether any and what sums had been paid to deponent on his, said Broughton's, account in respect of said mortgage, to which deponent seeing that the said letter (as the fact was) had been written at the instigation of Hayes, answered to the effect that no sums had been paid to deponent on said Broughton's account." At this time Mr Fitzhardinge was acting as Mr Broughton's attorney, and had in fact received the moneys. And as it appears to us that the moneys were in fact paid in satisfaction of interest due to Broughton on the mortgage, or at least to be applied, to that purpose, it is difficult to infer that it was paid on any other persons account than Mr Broughton's.

Upon the whole we think that in making that part of the rule absolute for paying the moneys to Mr Broughton in the terms already intimated we are bound to make it absolute with costs.

Published by the Division of Law, Macquarie University