Robertson v Boe Williams Lawyers
[2013] QCA 252
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Robertson v Boe Williams Lawyers[2013] QCA 252
- Add to List
Robertson v Boe Williams Lawyers[2013] QCA 252
Robertson v Boe Williams Lawyers[2013] QCA 252
SUPREME COURT OF QUEENSLAND
CITATION: | |
PARTIES: | |
FILE NO/S: | Appeal No 2874 of 2013 DC No 2657 of 2012 |
Court of Appeal | |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | |
DELIVERED ON: | 6 September 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 August 2013 |
JUDGES: | Gotterson and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal is refused with costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHERE APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where primary judge refused originating application, which sought an assessment of legal costs per a trust account statement, because this is not an appropriate document for this purpose – where Trevor Henry Croll took an assignment of all relevant choses in action from Robertson – where primary judge refused interlocutory application for Mr Croll to be substituted as applicant in proceedings, because the originating application was bound to fail – where primary judge refused interlocutory application for itemised bill, pursuant to s 332 of the Legal Profession Act 2007 (Qld), because it was out of time – where applicant applied, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), for leave to appeal – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118(3) Legal Profession Act 2007 (Qld), s 300, s 330(1), s 332, s 332(1), s 335, s 335(1), s 335(5), s 335(6) Uniform Civil Procedure Rules 1999 (Qld), r 743A(5) Graham & Ors v Welch [2012] QCA 282, cited Hockley v Sowden [2000] QCA 9, cited Horton & Anor v Keeley & Ors [2013] QCA 161, cited Labaj v Brown & Anor [2006] 1 Qd R 416; [2005] QCA 54, cited Pearson v Thuringowa City Council [2005] QCA 310, cited Pickering v McArthur [2005] QCA 294, cited Rigney v Littlehales & Ors [2005] QCA 252, cited |
COUNSEL: | The applicants appeared on their own behalf M J Liddy, with S B Robb, for the respondent |
SOLICITORS: | The applicants appeared on their own behalf Boe Williams Lawyers for the respondent |
- GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
- MORRISON JA: The applicant Trevor Henry Croll, seeks leave to appeal from the decision of the learned primary judge, whereby his Honour refused two applications, namely an originating application filed 4 July 2012 and an interlocutory application filed 15 February 2013.
- The originating application filed on 4 July 2012 was instituted in the name of Geraldine Fooi-Fong Robertson. It sought “an order for the assessment of the following legal costs as per TRUST ACCOUNT STATEMENT dated 8 July 2011”.[1] As will appear, Ms Robertson became a bankrupt and Mr Croll took an assignment of all the relevant choses in action concerned with the proceedings.
- The interlocutory application filed on 15 February 2013 was filed by Mr Croll. This application sought orders that he be substituted as the applicant in the proceedings and that:
“… the Court order the First Respondent to supply an itemised bill as per s 332 of the Legal Profession Act 2007 for all work done on the account of Geraldine Fooi-Fong Robertson”.[2]
- Leave to appeal is necessary by reason of s 118(3) of the District Court of Queensland Act 1967 (Qld). It is well established that leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant,[3] and there is a reasonable argument that there is an error to be corrected.[4]
The proceedings before the primary judge
- The learned primary judge had to deal with the two orders sought in the application filed 15 February 2013, namely that Mr Croll be substituted as the applicant in the originating application filed on 4 July 2012, and that the respondent law firm supply an itemised bill pursuant to s 332 of the Legal Profession Act 2007 (Qld).
- It was apparent on the material that the respondent firm had acted as legal practitioners on behalf of Ms Robertson in respect of prosecutions bought by the RSPCA. The matter had a chequered history with various appearances and adjournments. Ms Robertson became bankrupt on 15 December 2011 and at some point (the precise date is immaterial for present purposes) she was determined to lack the mental capacity to attend to legal matters. A psychiatric assessment made of Ms Robertson was that, as at January 2012, she was unfit on psychiatric grounds to instruct legal representatives.[5] That led to a stay of the RSPCA prosecutions on 29 March 2012, by which time Ms Robertson was self-represented.[6]
- The learned primary judge proceeded upon the basis that Mr Croll was entitled under the assignment, which he had taken from Ms Robertson, to exercise the rights that had previously been those of Ms Robertson.[7]
- His Honour noted a number of difficulties with the applicant’s case, including the following:
- insofar as the originating application, filed 4 July 2012, was concerned, the orders sought an assessment based on a trust account statement, which was not an appropriate document for the purposes of an assessment of costs;
- rule 743A(5) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) requires that an affidavit in support of an application for costs assessment must state whether the applicant disputes or requires assessment of all or what part of the costs; furthermore, if there was a dispute as to all or part of the costs, the affidavit must state the grounds on which the applicant disputes the amount of costs or the liability to pay them; as to these aspects, the learned primary judge found the material was deficient in that it did not challenge that the work charged for in the bills was done, nor did it contend that work was charged otherwise than in accordance with the costs agreement originally signed by Ms Robertson;
- instead the material expressed dissatisfaction with the performance of the firm in their conduct of the RSPCA prosecution; this dissatisfaction was expressed in ways which contended that the firm had no intention of representing Ms Robertson properly, that it was excessively co-operative with the prosecution side, and conspired with the prosecution against Ms Robertson’s interests;
- reliance was placed by the applicant on a letter seeking an itemised bill from the respondent, that letter being issued by a second legal firm on 15 September 2011; there was no evidence that the learned primary judge was prepared to accept as demonstrating that authority had been given by Ms Robertson to write that letter on her behalf; the only such evidence came from an affidavit of Ms Robertson filed 4 July 2012, which was some time after it had been determined that she was unfit on psychiatric grounds to give instructions.
- Ultimately the learned primary judge held that the originating application was defective since it sought only an assessment based on a trust account statement, and not in respect of actual bills. His Honour accepted also that there had not been any serious suggestion that the bills, individually or collectively, represented an over charging for work done.
- The second feature which moved his Honour to dismiss the applications was that the real purpose behind them was to “… get some inquiry underway into their wider concerns that improper motives are being pursued by the firm in collusion with others both within and outside the legal profession at the expense of people like Ms Robertson who find themselves investigated and prosecuted by the RSPCA.”[8]
- Finally, in respect of Mr Croll’s application filed on 15 February 2013, to be substituted for Ms Robertson and for an itemised bill, the learned primary judge took the view that there was no point in substituting Mr Croll to an application which was bound to fail. Insofar as Mr Croll sought an assessment under s 335 of the Legal Profession Act (that being the evident purpose in seeking an itemised bill) that aspect of the application was well out of time, having only been made on 15 February 2013, and there was no basis to exercise the discretion under s 335(6) of that Act to permit an assessment to occur out of time.
The applicant’s argument
- Before this Court Mr Croll’s intended relief, should leave be granted, are orders for the provision of an itemised bill for all the work done on behalf of Ms Robertson, and then for a court assessment of the legal costs, again expressed in these terms:
“… as per Trust Account Statement dated 8 July 2011 …”.
- In that respect Mr Croll’s application for leave continued to seek an assessment of something which is plainly not a bill of costs. Under s 335(1) of the Legal Profession Act a client may apply for an assessment of the whole or any part of legal costs. Assessable legal costs are costs which are contained in a bill, being either an itemised bill or a lump sum bill.[9] What is sought is an “… assessment of the following legal costs as per TRUST ACCOUNT STATEMENT dated 8 July 2011”. As was found by the learned primary judge, a trust account statement is simply a report as to what money went into and what money came out of a trust account.
- Mr Croll provided written submissions, and supplemented them orally, contending that the learned primary judge ought to have granted him an order under s 332 of the Legal Profession Act for an itemised bill. That would require two things: that the bills given were in the form of a lump sum bill; and affidavit evidence, which would satisfy r 743A(5) of the UCPR, identifying whether there is a dispute as to all or part of the costs and stating the grounds on which that dispute was made (either as to the costs or the liability to pay them). It may be accepted that the bills in question are lump sum bills.
- The difficulty confronting Mr Croll’s applications before the learned primary judge, and on the application for leave to this Court, was that the affidavit material did not descend to that sort of detail. Rather, the affidavits proceeded in the same way that Mr Croll did in his oral submissions to this Court, namely to make a series of wild and unsubstantiated allegations as to the lawyers having acted in collusion with the RSPCA to defeat Ms Robertson’s case and ensure she was jailed. Those allegations included that the RSPCA had fabricated evidence, that her lawyers were helping the RSPCA, and that those lawyers were members of a group called BLEATS (Brisbane Lawyers Educating and Advocating for Tougher Sentences), which Ms Robertson believed was “a scam designed to rip off defendants of RSPCA charges”.[10]
- Allegations of that sort, having been made originally by Ms Robertson in an affidavit dated 4 July 2012,[11] were repeated by Mr Croll in his own affidavit dated 28 August 2012.[12] He then went on to assert that Ms Robertson had become concerned that the respondent belonged to the group calling themselves BLEATS
“… as a cover for a scam where RSPCA victims are harvested of all their moneys and wealth by this lawyer cartel and bankrupted so that they can not afford a defence and RSPCA always win”.[13]
He went on:
“I heard Geraldine Robertson being told by her lawyers, Andrew Boe and Tom Pincus, after a meeting with RSPCA lawyers that they had negotiated for Geraldine Robertson to get 20 years in prison.”[14]
No substantiation of those extraordinary allegations was offered.
- Careful scrutiny of all of the relevant affidavits of Ms Robertson and Mr Croll reveal nothing to challenge that the work for which the bills were rendered was actually done, nor anything to suggest that the work was charged for otherwise than in accordance with the costs agreement which had been signed by Ms Robertson. Rather the challenge was wholly based on assertions of impropriety for which there was not the slightest attempt at an evidentiary foundation.
- The proposition was stated in the written submissions in terms that a refusal to provide an itemised bill “… can only be used as a demonstration Boe Williams have acted improperly. Any Court that supports this conduct is saying lawyers have a right to exploit their clients and thus we have legal system which can not be trusted and is otherwise corrupt.”[15] One only need state the proposition to demonstrate its falsity.
- That approach was maintained in oral submissions by Mr Croll, as was the assertion (also made in his written submissions) that the refusal to provide an itemised bill must necessarily lead to the conclusion that the relevant lawyer “… has exploited the client for their own personal gain cheating the client who was so dependant on the lawyer and in this case was not capable of properly representing herself in court”.[16]
- The lack of any evidentiary foundation required to properly enliven a request for an itemised bill, or an order under s 332 of the Legal Profession Act, is further highlighted in the applicant’s approach in written submissions, which included Mr Croll making the following assertions without any accompanying facts:
- that counsel and the solicitors had conspired with the RSPCA to put Ms Robertson in prison for 20 years, and that Mr Croll was told that he had to go to prison with her;
- that there was a “stench of corruption – mates looking after mates - …” because counsel for Ms Robertson had said that “… his mate Phillip [sic] Robin was now … on the District Court bench and that would be handy”;[17]
- that the work done by the lawyers had not, in truth, been done for Ms Robertson but “… done for the prosecutor RSPCA …”;[18]
- that the lawyers “… had no intention of representing her and instead acted in the interests of RSPCA to run her out of money and have her become self represented again while helping RSPCA (at her expense) improve their case against her”;[19]
- that the firm had “… been structured as a business for “double dipping” and defrauding clients …”, because Mr Boe had become a consultant to the firm.[20]
- I mention these assertions, not to give any credence to them, but because there is not the slightest evidence to support them. Yet that was, with one exception, the whole foundation of Mr Croll’s attack on the bills.
- The exception to which I refer is Mr Croll’s allegation that natural justice was denied on the basis that he “… was given little opportunity to put his case to the Court”.[21] Reference to the transcript of the proceedings before the learned primary judge does not bear that out. It reveals that Mr Croll addressed his Honour over the course of 10 pages of the transcript ending with this statement:
“Anyway, I’ll leave it there, your Honour.”[22]
- Subsequently Mr Croll had the opportunity to expand on a point already made, and took the opportunity to extend the allegation of collusion to include the law firm who had been approached in order to request an itemised bill on 15 September 2011.
- An assertion made in the written outline by Mr Croll, and repeated orally, was that the learned primary judge somehow misapprehended that Mr Croll was the assignee (or “owner” as he put it) of the rights formerly held by Ms Robertson. His Honour expressly recorded the fact of the assignment and that notice had been given to the firm, which had “raised no point about it”.[23] Clearly his Honour proceeded on the basis that Mr Croll was entitled under the assignment to whatever rights Ms Robertson had.
Discussion
- The application confronts insurmountable hurdles in terms of establishing that there has been a substantial injustice to the applicant, and that there is a reasonable argument that there is an error to be corrected.
- Insofar as relief was sought to compel the delivery of an itemised bill that is only available to a person “entitled to apply for an assessment of the legal costs to which the bill relates. …”.[24] A costs application must be made within 12 months of the bill.[25] None was made in time. No discernible basis exists to exercise the discretion under s 335(6) of the Legal Profession Act to permit an application out of time.
- The applicant relied on s 333 of that Act to contend that all the bills prior to the last one, which was dated 8 July 2011, were interim bills. Therefore, the submission went, they were all assessable when the last bill was. However, even accepting that to be so, the applicant is still out of time to apply for an assessment of the final bill.
- Insofar as an assessment of costs was sought before the learned primary judge, the material did not indicate any proper grounds upon which the costs or the liability to pay them was disputed. Instead, every bill and every component of the work done was attacked under a wild series of unfounded allegations of improper practice. That pattern continued before this Court when Mr Croll went so far as to assert that this Court would be implicated in the same improper conduct if it refused him relief.
- In any event, the relief sought in terms of assessment was not the assessment of any bill, but rather an assessment of the legal costs “as per TRUST ACCOUNT STATEMENT dated 8 July 2011”. I do not consider that the learned primary judge can be demonstrated to have erred in rejecting that approach.
- In my opinion the learned primary judge was plainly right to dismiss the applications. I do not consider that there is any sustainable basis upon which to conclude that there has been a substantial injustice to the applicant, nor that there is a reasonable argument that there is an error to be corrected. The applicant amply demonstrated, both below and before this Court, that the proceedings were without merit and their purpose was to pursue ends much wider than, and different from, the issues which they presented. There was ample reason for the learned primary judge to be concerned that the true purpose was to follow an enquiry into the assertions of improper activity and collusion.
Conclusion
- In my respectful opinion, the learned primary judge was correct in dismissing the applications. The application for leave to appeal should be refused, with costs. For the avoidance of doubt, those costs are to be paid by the applicant, Trevor Henry Croll.
Order
- The application for leave to appeal is refused with costs.
- BODDICE J: I have read the reasons for judgment of Morrison JA. I agree with those reasons and the proposed order.
Footnotes
[1] AR 317.
[2] AR 321.
[3] Hockley v Sowden [2000] QCA 9; Pickering v McArthur [2005] QCA 294 at [3]; Graham & Ors v Welch [2012] QCA 282 at [9]-[12]; Horton & Anor v Keeley & Ors [2013] QCA 161 at [27].
[4] Labaj v Brown & Anor [2005] QCA 54; Rigney v Littlehales & Ors [2005] QCA 252; Pickering v McArthur [2005] QCA 294; see also Pearson v Thuringowa City Council [2005] QCA 310 at [1] and [14].
[5] AR 254 to 257.
[6] AR 258 to 260.
[7] AR 343 and 349 to 350.
[8] AR 349.
[9] See ss 300 and 330(1) of the Legal Profession Act 2007 (Qld).
[10] See AR 66.
[11] This was sworn sometime after the psychiatric assessment that she lacked the capacity to attend to legal matters.
[12] AR 250 to 251.
[13] AR 251 at [7].
[14] AR 251 at [8].
[15] Applicant’s Outline of Argument, filed 26 July 2013, page 3 at [15].
[16] Applicant’s Outline, page 3 at [14].
[17] Applicant’s Outline, page 6 at [25].
[18] Applicant’s Outline, page 7 at [33].
[19] Applicant’s Outline, page 7 at [36].
[20] Applicant’s Outline, page 8 at [40].
[21] Applicant’s Outline, page 5 at [24].
[22] AR 50.
[23] AR 343.
[24] Legal Profession Act 2007 (Qld), s 332(1).
[25] Legal Profession Act 2007 (Qld), s 335(5).