Kells v Mulligan & Anor [2004] HCATrans 102 (2 April 2004)

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Kells v Mulligan & Anor [2004] HCATrans 102 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S407 of 2003

B e t w e e n -

JOHN JERVIS KELLS

Applicant

and

KEVIN PATRICK MULLIGAN

First Respondent

ANNA LUCIA MULLIGAN

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 2.34 PM

Copyright in the High Court of Australia

MR J.J. KELLS appeared in person.

GUMMOW J: Do you have an opponent, do you know?

MR KELLS: For a start, I do not know where they live now. I did send them the documentation that was required by registered post and in both cases I asked for the Post Office to return a card which was signed. Those are on the Court file.

GUMMOW J: All right, just sit down for a minute, Mr Kells. We had better call this outside as well, Officer.

COURT OFFICER: No response, your Honour.

GUMMOW J: Yes, thank you, Officer. Yes, Mr Kells, proceed. There are two steps involved. One is an extension of time and the second one is the application itself. You address us on both, as you see fit.

MR KELLS: I think most of the stuff is covered in the application book, particularly in my amended summary of argument.

GUMMOW J: Yes.

MR KELLS: I just want to make a few points. I just want to emphasise a passage quoted from House v The King at page 505 at lines 5 to 7, where their Honours Dixon, Evatt and McTiernan JJ said:

if he mistakes the facts, if he does not take into account some material consideration –

et cetera.

GUMMOW J: I am sorry, which page is it from House? Page 507, is it not?

MR KELLS: Page 507. In the applicant’s - - -

GUMMOW J: Yes, I know the passage.

MR KELLS: Just a minute - - -

GUMMOW J: Page 505 it is, Justice Heydon says. Yes, thank you.

MR KELLS: There is a whole passage listed on there. It is written in full in the summary of argument. Master Malpass, when he deliberated on the costs issue in this matter, after finding in my favour in the substantive matter on both issues that were brought up by counsel - - -

GUMMOW J: Now, which branch do you say this case falls into?

MR KELLS: Pardon?

GUMMOW J: That sentence at 505, if the judge:

acts upon a wrong principle, if he allows extraneous or irrelevant matters . . . if he mistakes the facts –

et cetera.

MR KELLS: Not taking into account some material consideration. Material consideration is simple. When the respondents put their objections to my bill of costs to the assessor, they made a statement that I had not been instructed to file a summons in the Supreme Court. The assessor accepted their position over mine. That was the main thing because, as your Honours would know, if a solicitor were to file a document without having been instructed to, that amounts to professional misconduct on my part.

When I put my answers into the costs assessor and served them on their solicitor, Mr Cohen, I pointed out that I had been instructed and I further had an affidavit from one Stephen David McKerrall who was present on the particular night when the clients, in front of him said to me – they were making the point that I had not, at that point of time, filed the document. I said, “Hang on, are you instructing me to go ahead and file it?” They both said, “Yes”, the husband and the wife, Mr and Mrs Mulligan.

The affidavit was there, and I refer the Court to item No 4 in the applicant’s authority. It is a letter from David H. Cohen to Mr Wall, the costs assessor, dated 27 February 2002, and also to No 6, it is in the same list, it is a letter dated 8 April. In the first letter, in the second paragraph, Mr Cohen refers to a copy of transcript that was supplied to the costs assessor which he said was given to – and I say this was given to show:

as indicates the level of assistance or lack of it that is provided to our client by Mr Kells representation.

It is further said in that letter, in that same paragraph, that it was alleged that I protracted the proceedings and again made the point that they said that I had not been instructed to file a summons in the Supreme Court. That letter was written 22 days after the filing of my answers to their objections on the costs assessor and 22 days after I actually served those answers on the Mulligans at the address for service, which was David H. Cohen’s office.

GUMMOW J: Now, appreciating all of that, Mr Kells, the task here though is to establish sufficient appearance of error in the treatment of the matter in the Court of Appeal to warrant our intervention. So I think that is what you have to focus your attention upon.

MR KELLS: The respondents, through their solicitor, not only told untruths to the costs assessor, they told them to Master Malpass and they then, in the costs hearing, seven weeks after the substantive matter, before Master Malpass, they said that the gravamen of my case was bias and they repeated that before the court appeal.

Now, I do not mind admitting I was a lot more nervous then than I am now and I did not get the point across as well as I should, but at the end of the day, both Master Malpass made the judgment and the Court of Appeal upheld that, on the grounds of House v The King. Now, if you go to the other quote in House v The King at 503 at 30 to 33, Mr Justice Starke says that:

he has a discretion to exercise which is very wide –

that is accepted –

but it must be exercised judicially, according to the rules of reason and justice –

et cetera. Now, I put it to this Court, is it reasonable to make an order, having won the substantive matter – and I accepted that there were some changes made by my counsel in the substantive matter - - -

GUMMOW J: Now, how much money is involved in this, to be a bit brutal about it?

MR KELLS: At a guess – I would have to make a guess, but having worked out my costs for running the substantive matter, the costs hearing and the Court of Appeal, it would be something around $20,000 to $25,000. That is what I would figure. That is basing it on what my costs are. Quite honestly, if I do not win today and they pursue the costs, then they will have to make me bankrupt because I have not got it. I have not been paid by the Mulligans.

As I said before, I do not know where they live. That is why I had to send the stuff by registered mail. I know that Mrs Mulligan owned a house and a vacant property in Arncliffe, where I knew them as. I know that she was the owner. She had a different name on the – she was known on the title deeds as Anna Simone Mulligan, and I checked that point because I was concerned that it might be the mother who owned the property – her mother – but I could not work out how she got the name Mulligan. But, anyway, I know that they got some money from the parents to help them buy the property and that is why I have checked it out.

The real estate agent told me very distinctly – I did tell him a bit of a lie. I said the last time I bought a property in New South Wales it took me six months to get rid of the tenant. “No, no, you have got no worries. The owner lives in the property with her family”, and then I knew it was the same person. I have always known her as Anna Lucia Mulligan and in the documents that were filed by Mr Cohen on their behalf she is known as Anne Lucia Mulligan.

Now, I am simply asking this Court to overturn the decision to grant leave to appeal because they have come this far on a litany of lies. Master Malpass found at least half a dozen points that indicated that I have been given instructions. It was a blatant lie which was continued by the solicitor after my objections. After having an affidavit, the costs assessor still persisted in saying that he preferred their position to mine. On the issue of the costs assessor, I have referred the Court to the case of Ryan v Hansen. That is a judgment of Mr Justice Kirby who was then on the Supreme Court.

GUMMOW J: Well, the position of the costs assessor was critical for the Master’s attitude, was it not?

MR KELLS: I think so. That is No 2 on the applicant’s authorities and No 3, the Legal Profession Act. The Legal Profession Act says - - -

GUMMOW J: In other words, they were issues that did not get pressed before the Master.

MR KELLS: Yes. When I first went before the Master, I was going to run this myself because I could not afford it, but I got a counsel to do it for me pro bono – one I knew – and when I went before the court to appeal against the cost assessment and the review panel’s effort in it I asked the court distinctly to deliberate on three issues. One was whether my fee per hour would be $220 an hour, whether it was the $154 because I offered them a 30 per cent discount on the condition that we did not have to go to a higher court and if I won costs then I would charge the higher fee, and then there was the $100 that they told the assessor that I said I would charge and cover costs.

It is all in the summary of argument. That was the first thing I asked the court to do. The second one was to determine whether or not I had, in fact, been instructed to file a summons in the Supreme Court and the third one was conduct. The conduct and the filing of the summons go together because if I had not been filed, as I said before, it would have been professional misconduct.

Now, according to the letter from the costs assessor which is No 5 and 7 on the applicant’s authorities – my authorities there – the first one, 8 March, was the one that came with the original costs certificate. The second one was the one that came with the amended one after Master Malpass remitted it back. On both occasions at paragraph 5 on page 3 of both of those things Mr Wall, the costs assessor, pointed out there had been a number of allegations about my work.

Now, I only know of three, so I refer the Court to section 208P of the Legal Profession Act. Basically, that tells the assessor what he can do if he finds anomalies in the solicitor’s work, and subsection (3) which is the one I have referred to there is where, if he is going to make adverse findings about me, he should first ask me to make some submissions on these allegations. That was never done. To be true, he said he did not think it warranted him taking further action, but I do not think anybody will ever convince me that it was not in the back of his mind when he was doing this assessment, the fact that all these allegations – and, as I say, I only know of three of them. I do not know how many other things they said about me.

The other points I would just like very quickly to touch on, your Honours, is, one, that since I have been to the Court of Appeal I have found out about that case, Ryan v Hansen, and since I have been to the Court of Appeal I have also found out that Mr Cohen is himself a costs assessor and he was acting for the Mulligans and I believe that he has been less than candid with the costs assessor because he has done his best to rubbish me and I honestly feel that I did a very good job for him. If I may say so, there has only been three or two occasions, one in the Children’s Court and one in the Supreme Court, where there has been orders made in that matter up until the time my retainer was terminated and I won both of those.

GUMMOW J: Can I ask how many years you have been in practice, Mr Kells?

MR KELLS: I am sorry?

GUMMOW J: How many years have you been in practice?

MR KELLS: I have been practising since 1990. His Honour the Chief Justice, who was then the Chief Justice of New South Wales, swore me in. I have been on my own since – it would be about nine years I have been practising on my own. The one thing that is true in this is this was my first child protection case, but I do not think that has any relevance to the thing, although that point was made and I just feel - - -

GUMMOW J: Now, do you wish to say anything more about what is for us the critical question which is that which appears at page 18 of the application book?

MR KELLS: I am sorry, I did not - - -

GUMMOW J: Page 18 of the application book.

MR KELLS: Page 18?

GUMMOW J: Yes. Paragraphs 7 and 8 there in President Mason’s judgment where he refers to House v The King. Do you see that?

MR KELLS: Yes.

GUMMOW J: The question for us is whether there is sufficient prospect of demonstrating that the Court of Appeal went wrong, do you follow me, not whether the Master was wrong?

MR KELLS: To be honest with your Honours, I honestly do not think I got a fair hearing there. They kept asking me to get to the point and I was trying to – as I said, I was nervous. This was the first time I have been up – I have been in the Supreme Court but not in the Court of Appeal – and I was as nervous as a chook and I do not mind admitting it, on that occasion, and I really did not get an opportunity.....but I feel that at the end of the day, one, if I do not win here, as I said before, and they press for their costs, then I am looking at bankruptcy and I simply ask the question, should a party to an action be rewarded for telling blatant lies? It is as simple as that. They made blatant lies to the assessor, venting their objections. Those lies were continued on post the answers being filed and served.

Then the second letter in my authorities, No 7, Mr Wall was asking the assessor to amend his certificate to show what they said was $524 which was given to me by the Mulligans for filing fees. That, in fact, was $546, but regardless of whether it is one or the other, after saying to the assessor all the way through that they did not know what that $524 was, in that letter of 8 April, one month exactly after the certificate was given and he was asking for that figure to be deducted off the amount as part of my fees, he admitted in it it is not disputed that the sum of money was given to the solicitor for filing fees. That is No 6.

GUMMOW J: Now, the red light is about to go on, Mr Kells. The red light is about to go on, so perhaps you had better finish up.

MR KELLS: Yes. Well, I really cannot say much more anyway other than to ask the Court to grant leave and overturn the decisions because I honestly feel that they are being rewarded for lying and Master Malpass, as I said, found half a dozen pieces of evidence in the client’s files to indicate that I had been instructed and I won the substantive matter and then ended up being ordered to pay their costs because we did make some small changes.

GUMMOW J: Yes, Mr Kells.

MR KELLS: While we did make some changes, this is true, it did not prejudice the other side. That might be it. Thank you.

GUMMOW J: The applicant relies upon the principles respecting appellate review of discretionary judgments which are set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 503 and 505. In the present matter, in the New South Wales Court of Appeal, the President, Justice Mason, said:

The Master’s order does appear to be a harsh one but the question is whether there is an arguable case of error in the exercise of his discretion. The principles are those set out in House v The King [1936] HCA 40; (1936) 55 CLR 499.

I am not persuaded that there is an arguable case of the appropriate type of error such as to justify a grant of leave to appeal over what is in real terms not a large sum of money, although it is a significant sum to the claimant.

The Court of Appeal then went on to make the orders against which special leave to appeal is now sought.

We appreciate the importance of this case to the applicant, who has practised as a solicitor for some years, and would grant the application for extension of time. However, we are not satisfied that there are sufficient prospects of success in demonstrating appealable error by the New South Wales Court of Appeal in order to warrant a grant of special leave to this Court. Accordingly, special leave is refused with no order as to costs.

The Court will now adjourn.

AT 2.57 PM THE MATTER WAS CONCLUDED