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  • Unreported Judgment

Jones Leach Lawyers Pty Ltd ACN 164 332 647 v Crosby (No. 1)

 

[2020] QMC 14

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Jones Leach Lawyers Pty Ltd ACN 164 332 647 v Crosby (No. 1) [2020] QMC 14

PARTIES:

JONES LEACH LAWYERS PTY LTD

ACN 164 332 647

(Plaintiff)

v

MICHAEL LEE CROSBY

(Defendant)

FILE NO/S:

M3899 of 2019

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2020 and 7 October 2020

MAGISTRATE:

Magistrate Hay

ORDER:

  1. The defendant’s review application is dismissed.
  2. I will hear the parties on the issue of costs.

CATCHWORDS:

LEGAL PROFESSIONAL COSTS – ASSESSMENT OF COSTS UNDER THE LEGAL PROFESSION ACT 2007 -APPLICATION FOR REVIEW – LIMITATION PERIOD - Whether the application for review has been brought within time – If not, whether the court has power to abridge or extend time – If so, what are the relevant considerations for an abridgement of time.

LEGISLATION:

Legal Profession Act 2007

Uniform Civil Procedures Rules 1999, rr 7, 367, 371, 737, 738, 742, 743H, 967, 969A, 975E

CASES:

Allen v Ruddy Tomlins & Baxter (2019) 1 QR 225; [2019] QCA 103

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621; (1953) 30 ALJR 311;

Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31

O’Connell v Crouch & Lyndon (No2) [2014] QDC 259

Radich v Kenway & Anor [2014] QDC 60

Southwell v Jackson [2012] QDC 65

COUNSEL:

R B Dickson for the Plaintiff

N P Hiscox for the Defendant

SOLICITORS:

Jones Leach Lawyers for the Plaintiff

  1. [1]
    The plaintiff claims for payment of outstanding legal fees incurred by its former client, the defendant. Those legal fees have been assessed and were certified by the costs assessor on 29 May 2020:[1] r. 737 of the Uniform Civil Procedure Rules 1999 (UCPR) The costs assessor has delivered written reasons following the defendant’s request under r. 738 of the UCPR.
  1. [2]
    The defendant now applies for a review of the costs assessment (Review Application).
  1. [3]
    By oral application on 18 September 2020, the plaintiff cross-applied for judgment on the costs assessor’s certificate under r. 743H(4) of the UCPR.
  1. [4]
    The Review Application and Judgment Application are yet to be heard and determined. A preliminary issue has arisen, namely:
  1. whether the Review Application has been brought within time; and if not
  1. whether the court has power to extend abridge the time; and if so
  1. what are the relevant considerations under the defendant’s application for an abridgement or extension of time?

Background

  1. [5]
    On 29 May 2020 the costs assessor’s certificate was filed.[2]
  1. [6]
    On 26 June 2020 the defendant requested written reasons for the costs assessor’s decision pursuant to r. 738 of the UCPR.[3]
  1. [7]
    On 17 July 2020 the costs assessor's reasons were emailed to the defendant.[4]
  1. [8]
    On 23 July 2020 the costs assessor’s reasons were filed.[5]
  1. [9]
    On 24 July 2020 at 8.05am the defendant was provided with a password to unlock the electronic version of the costs assessor’s reasons.[6]
  1. [10]
    On 31 July 2020:
  1. at 11.35am the defendant emailed the costs assessor advising “… the document will not open using this password can you urgently reply to this email…”;[7]
  1. at 11.42am the costs assessor emailed an unlocked version of the cost assessor’s reasons to the defendant;[8]
  1. after 4pm the defendant drove to the Gatton Customer Service Centre, which incorporates the Gatton Magistrates Court registry. Upon arrival his affidavit in support of the Review Application was sworn and signed in the presence of Ms D Pillar, a Justice of the Peace employed as a customer service advisor at the Gatton Customer Service Centre;[9]
  1. at 4.41pm Ms D Pillar emailed the Review Application and supporting affidavit to the Brisbane Magistrates Court.[10]
  1. [11]
    On 3 August 2020 at 5.18pm the defendant caused unsealed copies of the Review Application and supporting affidavit to be served upon the plaintiff.The unsealed documents did not have a return date allocated for the Review Application. [11]
  1. [12]
    On 5 August 2020 the defendant’s application for review was sealed and filed by a registrar in the Brisbane Magistrate’s Court and a return date was allocated.[12]
  1. [13]
    On 27 August 2020 the plaintiff put the defendant on notice that it intended to apply for dismissal of the defendant’s Review Application.[13]
  1. [14]
    On 18 September 2020 the Review Application was returnable. It was adjourned, part-heard, to 7 October 2020.
  1. [15]
    On 25 September 2020 the defendant filed an amended Review Application[14] together with a further affidavit in support.[15]
  1. [16]
    On 6 October 2020 the defendant filed ‘Annexure A’ to his amended Review Application.[16]

The Law

  1. [17]
    The defendant’s Review Application “must be filed within… 14 days after the party receives those reasons”.[17]
  1. [18]
    Chapter 22, Pt 1, Divisions 1 to 4 of the UCPR deal with filing documents in court registries and relevantly provide that
  1. a document may be filed electronically if the electronic filing of the document, or that class of documents, has been approved[18] by the principal registrar.[19]
  1. a document is taken to be electronically filed when the registrar records the date of filing on the document and applies the seal of the court to it;[20]
  1. if the document is accepted by the registrar, the day on which the document is taken to have been filed is:
  1. (a)
    if the whole of the document is received by the registry before 4.30p.m. on a day the registry is open for business - that day; or
  1. (b)
    otherwise - the next day the registry is open for business.[21]
  1. [19]
    Rule 7 of the UCPR provides that the court may, at any time, extend a time set under these rules or by order.
  1. [20]
    Rule 367 of the UCPR relevantly provides that:
  1. (1)The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.
  2. (2)In deciding whether to make an order or direction, the interests of justice are paramount.
  1. [21]
    Rule 371 of the UCPR relevantly provides that:
  1. (1)A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
  1. [22]
    The assessment of costs under the Legal Profession Act 2007 and the UCPR is an administrative, rather than a judicial, function. The provisions under Chapter 17A Pt 4 of the UCPR provide a “procedural mechanism” to resolve the issue of quantum and enforce a right to recover legal fees once the dispute is resolved.[22]

Decision

  1. [23]
    Despite having lodged the Review Application at the Gatton Magistrates Court’s registry on 31 July 2020, given that it was neither sealed nor recorded as filed by a registrar on that day, it is deemed to have been filed on 5 August 2020: r. 969A(4) of the UCPR. The fact that it is filed out of time renders the Review Application irregular, but not a nullity: r. 371 of the UCPR.
  1. [24]
    The defendant argues that rr. 7 and 367 of the UCPR empower the court to extend or abridge the 14 day timeframe within which he had to file the Review Application. I accept that submission, particularly given the administrative nature of the Review Application.
  1. [25]
    The defendant has explained the reason for his delay in filing the Review Application out of time, namely that he believed that by lodging it at the Gatton Magistrates Court on 31 July 2020 it would be deemed filed on that day and, therefore, within time. I accept that explanation.
  1. [26]
    It was imprudent of the defendant to have left it to the very last day to attempt to use the password provided to him to open and review the costs assessor’s reasons. It was imprudent of the defendant to leave it to the very last hour to file the Review Application and to do so in the wrong courthouse. However, the delay is very short and the plaintiff has not established any prejudice arising from it. Therefore, I find that the defendant’s delay is insufficient to satisfy me that I should refuse his application to extend or abridge the time for filing the Review Application.
  1. [27]
    The plaintiff contends that, to be successful on his application to extend or abridge time, the defendant must establish a prima facie basis for seeking a review of the costs assessor’s reasons. I accept that submission, noting that the interests of justice are paramount on an application such as this: r 367(2) of the UCPR.
  1. [28]
    I find that the defendant has failed to do so. The relevant principles were helpfully summarised as follows in O’Connell v Crouch & Lyndon (No2):[23]

[24] In Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31 the plaintiff sought a review of specific items in a Cost Assessor’s Certificate. Jones J reviewed the discretion conferred by Rule 742(6) of the UCPR, and wrote:

“[4] The discretion conferred by the sub-rule is a wide one. But it is to be exercised with a consciousness that it is effectively an appeal against the exercise by the Cost Assessor of a discretion. In general, the Court will interfere only where the discretion appears not to have been exercised at all or to have been exercised in a manner which is manifestly wrong.”

[25] The plaintiff in Nashvying had sought the review of a specific item (the cost of perusing the reasons for judgment after trial), but had not raised that matter in her objections about the Cost Assessor’s Certificate. His Honour wrote:

“[15] … of course, not having raised it in her objections, the defendant would be precluded by R. 742(5) for doing so now.

[16] As it appears the Cost Assessor disallowed the claim on his own motion. It is necessary to determine whether he was justified in so doing …

[17] I reject this justification for the refusal of this item.”

[26] His Honour referred to the manner that a court on a review will deal with the exercise of that discretion and referred to Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 629. In that case Kitto J was required to consider, inter alia, whether a taxing officer had exceeded his powers in dealing with matters beyond the specific objections made by the plaintiff about a bill of costs. His Honour wrote:

“Where no principle is involved, and the question is whether the Taxing Officer has correctly exercised the discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances: Western Australian Bank v Royal Insurance Co (1908) 7 CLR, at p 388; Clark, Tait & Co v Federal Commissioner of Taxation (1931) 47 CLR 142, at pp 145-146, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an 7 extreme case: (1934) 34 SR (NSW), at pp 183, 184; 51 WN at p 73”.

[27] In Radich v Kenway & Anor [2014] QDC 60 Judge McGuinness heard an appeal against a decision of a magistrate to affirm the decision of a Cost Assessor. Hence her Honour was dealing with an appeal of a magistrate’s decision “made on review” pursuant to r 742(6) UCPR.

[28] The specific and relevant ground of appeal in Radich, so far as is relevant here, appears to be that which asserted that “the assessment was not in accordance with the rules of natural justice, specifically the Cost Assessor failed to notify the parties that he intended to review the entire file.”

[29] Her Honour referred to a judgment of Judge McGill SC in Southwell v Jackson [2012] QDC 65 where his Honour rejected an argument that the process of assessment was to be limited to grounds specifically raised in an affidavit.

[30] In Southwell his Honour wrote:

“(28) There is nothing in the [Legal Profession Act] which requires the assessment process to be limited to matters specifically raised in a Notice of Objection, and r 722 does not apply to an assessment under Part 4: r 743I. Traditionally a taxing officer taxing a bill examined the whole bill and considered every item, although no doubt in practice the fact that there was no particular objection to an item would ordinarily have some practical effect on the extent of that consideration. It was always open to the taxing officer to disallow or reduce an item if it were thought to be unjustified. I think that the fact that there is no limitation on the scope of the assessment in the Act is of particular importance when considering an assessment under the Act, and in my view the obligation of a Cost Assessor under the Act is to have some regard to all matters in the bill, at least to the extent of picking up an error of this nature.

(29) I do not consider that there is anything confining the process of assessment to items the subject of specific objection, or indeed, to considering the items which are objected to only by reference to the grounds raised in the Notice of Objection, though this does give rise to an issue about the rules of natural justice. It does not appear that submissions were invited from the respondent in relation to these particular items, no doubt because, as proved to be the case when I asked her about the matter during the hearing, there was no submission she could advance in support of this part of the bill as drawn.”

  1. [29]
    Despite being afforded an opportunity to set out the grounds upon which the Review Application is made, the defendant has restated his original objections to the plaintiff’s bill. He has failed to point to any error in the costs assessor’s reasons. Neither the submissions made on the defendant’s behalf in support of this application nor the document marked ‘Annexure A’[24] address either:
  1. whether the exercise of the costs assessor’s discretion has miscarried and, if so how; nor
  1. that the written reasons are erroneous, and if so why.
  1. [30]
    For these reasons, I refuse the defendant’s application to extend or abridge time on the basis that the Review Application does not establish a prima facie basis for the review sought. As such the Review Application, including the amended Review Application, is hopeless and doomed to fail.

ORDERS

  1. [31]
    The Review Application is dismissed.
  1. [32]
    I will hear the parties as to costs.

Footnotes

[1]Costs Assessor’s Certificate filed 10 June 2020, Court doc no. 22.

[2]Costs Assessor’s Certificate filed 10 June 2020, Court doc no. 22.

[3]Affidavit of the defendant filed 5 August 2020, Court doc no. 24 at [4].

[4]Affidavit of the defendant filed 5 August 2020, Court doc no. 24 at [5].

[5]Costs Assessor’s Reasons filed 23 July 2020.

[6]Affidavit of defendant filed 25 September 2020; Court doc no. 31 at Exhibit MLC-3.

[7]Affidavit of defendant filed 25 September 2020; Court doc no. 31 at Exhibit MLC-4.

[8]Affidavit of defendant filed 25 September 2020; Court doc no. 31 at Exhibit MLC-5.

[9]Affidavit of D Pillar filed 25 September 2020. See also Affidavit of defendant filed 25 September 2020; Court doc no. 31 at [14]-[15].

[10]Affidavit of D Pillar filed 25 September 2020 at [3]. See also Affidavit of defendant filed 25 September 2020; Court doc no. 31 at [14]-[15].

[11]Affidavit of J Billimoria filed 15 September 2019 at [13].

[12]Review Application filed 5 August 2020; Court doc no. 23.

[13]Affidavit of J Billimoria filed 15 September 2019 at [15] – [16].

[14]Amended Review Application filed 25 September 2020; Court doc no. 30.

[15]Affidavit of defendant filed 25 September 2020; Court doc no. 31.

[16]Court doc no. 37.

[17]r. 742(2)(a) of the UCPR.

[18]i.e. an approval under r. 975E of the UCPR.

[19]r.967 of the UCPR.

[20]r. 969A(4) of the UCPR.

[21] r. 969A(5) of the UCPR.

[22]Unreported, Allen v Ruddy Tomlins & Baxter (2019) 1 QR 225; [2019] QCA 103, Philippides JA at [46] and Henry J at [103]-[104] (McMurdo JA dissenting at [77]).

[23][2014] QDC 259 Durward SC DCJ at [24] – [31].

[24] Filed 6 October 2020; Court doc no. 37.

Close

Editorial Notes

  • Published Case Name:

    Jones Leach Lawyers Pty Ltd ACN 164 332 647 v Crosby (No. 1)

  • Shortened Case Name:

    Jones Leach Lawyers Pty Ltd ACN 164 332 647 v Crosby (No. 1)

  • MNC:

    [2020] QMC 14

  • Court:

    QMC

  • Judge(s):

    Magistrate Hay

  • Date:

    29 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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