Solicitor decides not to get in the way of barristers’ stoush over fees … Ancient defamation case still causing angst … Three musketeers of the defamation bar jousting over a “small amount of money” … Equity rescues the common law … Stephen Murray reports
In an April decision in the NSW Supreme Court, following what he described as wasteful litigation over a “small amount of money”, Justice Stephen Robb decided that Sydney barrister Christopher Dibb should receive nearly $19,000 from $21,000 held in trust by solicitor David Leamey, for his role as third counsel to Clive Evatt and Roger Rasmussen in the Gacic litigation.
For newcomers to the scene, the Gacic litigation was no minor endeavour. Indeed, Robb J calls it “litigious warfare”.
Three Darling Harbour restaurateurs behind the Coco Roco complex on King Street Wharf sued over a 2002 review by the Sydney Morning Herald’s then restaurant critic, Matthew Evans. Evans opined that the best thing about the enterprise was the view, before slamming the menu, the “unpalatable” dishes and the service. He gave it a score of 9 out of 20, tantamount to advice to stay at home.
As Robb J notes, there were two s.7A jury trials, three appeals to the Court of Appeal, two applications for special leave to appeal before the High Court, an appeal to the High Court, and two trials, in addition to numerous interlocutory applications.
Eventually succeeding at trial, the restaurateurs, represented by Evatt, Rasmussen and Dibb, won over $600,000 in damages after interest, and were awarded costs.
With the dust just about settled on the accounts, Leamey was left with $21,000 in his trust account, being a settlement of fees from Fairfax.
Of this, Evatt was claiming $15,000 and Rasmussen $6,000, while Dibb wanted the $21,000 towards the balance of his unpaid invoices.
During proceedings, Dibb amended his claim to $18,638, taking into account payment from the solicitor under the settlement deed, and an earlier payment from costs recovered. Knowing better than to get between three barristers and their fees, in September 2017 Leamey asked the Supreme Court for operative relief to determine how the trust should be paid out.
The matter was allocated to the equity division’s applications list, that halfway house between the general list and the registrar, where smaller matters requiring a judge can be dealt with a “somewhat greater air of informality”.
All three barristers agreed that they had accepted a brief in which they had not made cost disclosures or entered into costs agreements. They initially went in on a “no win, no fee” arrangement, with an entitlement to fees either agreed with Fairfax or payable after a costs assessment. They would only be entitled to the amount actually paid by Fairfax, with no entitlement to any amount from the clients or the solicitor, or the damages.
Evatt and Rasmussen argued that the arrangement entitled them to be paid for the precise amount allowed for in assessment in respect of their invoices. Shut out of the assessment after the assessor ruled that it had not been fair and reasonable to brief a third counsel, Dibb argued that the total amount should be divided on a fair and reasonable basis between the three counsel.
In proceedings, Evatt blamed Leamey for not pushing hard enough to get payment for third counsel, calling Leamey’s efforts “derisory”.
Had this option been pursued, Robb noted that Dibb would have had to undergo his own assessment process to quantify the damages involved and “the waste that that approach would involve would surpass even the waste involved in the present application”.
In his evidence, Dibb had recalled Evatt’s assurance that “there will no trouble getting enough fees for all of us”.
Robb said that he accepted Dibb’s evidence without reservation, noting during cross-examination he recalled thinking Dibb “had given his evidence in an exemplary manner that should be a model for all witnesses”.
Robb declined to reach the conclusion from Evatt and Rasmussen’s submissions that, in the absence of an agreement between the three counsel as to how any fees would be disbursed in the event of a win, the three were actually contemplating that one of their number might receive no fees for their work.
In the absence of a pre-agreed arrangement, Robb thought it appropriate to award Dibb’s adjusted claim of $18,638, awarded pro rata from the $15,000 claimed by Evatt and the $6,000 claimed by Rasmussen, leaving $1,687 for Evatt and $675 for Rasmussen.
Seeming to enjoy the contretemps, Robb J summed up with:
“I can only wonder as to what the claimants in this matter will think about an equity lawyer determining a dispute which apparently is of existential importance to some common lawyers by applying a principle derived from equity’s exclusive jurisdiction.”
Holding that Leamey had acted correctly in bringing the matters to court, Robb had already ordered that Evatt and Rasmussen bear his costs of the application and proceedings. Further orders as to the costs for the proceedings as between the claimants were to be made on the papers.