Legal Services Commissioner v Graham
[2017] QCAT 170
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- Unreported Judgment
- Legal Services Commissioner v Graham[2017] QCAT 170
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Legal Services Commissioner v Graham[2017] QCAT 170
Legal Services Commissioner v Graham[2017] QCAT 170
CITATION: | Legal Services Commissioner v Graham [2017] QCAT 170 |
PARTIES: | Legal Services Commissioner (Applicant) v Michael Anthony Graham (Respondent) |
APPLICATION NUMBER: | OCR027-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 24 May 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President Assisted by: Ms Megan Mahon (Legal panel member) Ms Julie Cork (Lay panel member) |
DELIVERED ON: | 29 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | COSTS – ASSESSMENT OF COSTS – where respondent found guilty of unsatisfactory professional conduct – where respondent accepted order paying applicants costs – where respondent submitted costs should be for fixed amount with reference to precedent – where applicant obtained costs assessment – where respondent rejects that costs assessment – whether costs should be fixed – whether costs assessment should be accepted – whether order for further costs assessment should be made Legal Profession Act 2007 (Qld) ss 462, 598 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 87 Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368 Legal Services Commissioner v Bussa [2011] QCAT 388 Legal Services Commissioner v Puryer (No 2) [2013] QCAT 407 Legal Services Commissioner v Graham [2016] QCAT 31 Legal Services Commissioner v Stower [2015] QCAT 64 |
APPEARANCES: |
|
APPLICANT: | Mr P Metzdorf for the Legal Services Commissioner |
RESPONDENT: | Mr B Cohen for Mr Graham |
REASONS FOR DECISION
- [1]The Tribunal found that the respondent’s conduct amounted to unsatisfactory professional conduct.[1]
- [2]As is reflected in the Tribunal’s reasons, as to the question of costs;[2]
- a)The Legal Services Commissioner sought an order that its costs, as assessed, be paid;
- b)Whilst accepting as appropriate that he pay the applicant costs, the respondent submitted that those costs should be fixed as is contemplated by section 107 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
- a)
- [3]The respondent submitted that, consistent with the order made in Legal Services Commissioner v Stower,[3] the costs should be fixed in the sum of $1,500. The respondent also referred to the matter of Legal Services Commissioner v Bussa[4] where, in similar circumstances, it was ordered that Mr Bussa pay the Commissioner costs fixed in the sum of $1,500.
- [4]The parties were allowed the opportunity to make further submissions about costs.
- [5]Further submissions made by the applicant were:
- a)There were no exceptional circumstances[5] which would warrant a departure from “the usual rule that the applicant is entitled to his full costs in the matter”.
- b)There is no means by which the Tribunal can properly reduce the amount of costs sought by the Commissioner. The Commissioner has not agreed costs, but rather, has sought costs to be assessed.[6]
- c)An order that the applicant’s costs be assessed would allow the Tribunal to be assured, in accordance with the principles in Taylor Woodrow, that the applicant would “receive the benefit of a costs order in this case on the basis of the actual liability it has incurred by reason of these proceedings, consistently with the ‘costs as indemnity’ principle”.
- d)The applicant accepts that section 107(1) QCAT Act provides that the Tribunal must fix costs if possible.[7]
- e)On that basis, the applicant obtained an assessment of costs on a standard basis which suggested the figure of $10,463.11.[8]
- f)
- g)The applicant sought an order for the full amount of the applicant’s costs as per the assessment, namely for the sum of $10,463.11.[11]
- a)
- [6]The respondent made further submissions as follows:
- a)Successful parties should not profit from litigation and unsuccessful parties should not be punished by it.[12]
- b)For this reason the costs indemnity rule exists. Costs must be awarded for professional legal costs actually incurred in the conduct of litigation.[13] Nothing in the Legal Profession Act 2007 (Qld) (‘LPA’) displaces this rule.
- c)There is no evidence that the applicant actually incurred the costs it claims in the assessment. The only appropriate course is to fix the costs by reference to comparable cases.[14]
- d)The costs awarded to the applicant must be reasonable and just in the circumstances, that is, they must be awarded by way of (partial) indemnity for legal costs actually incurred by the applicant and not be punitive of the respondent.[15]
- e)The “short form” assessment was made on the Supreme Court scale and included GST and outlays as well as a component for care and consideration. The “file” was not identified, much less produced. No reference was made to a portion of the salaries of the applicant’s employees expended on the proceedings or the overhead costs attributed to it.[16]
- f)The applicant makes reference to additional aspects of the “short form” assessment (subparagraphs a to e and paragraph 11).
- e)There is no evidence before the Tribunal that the applicant actually incurred costs in the amount of $10,463.11 or at all. The Tribunal ought not fix the costs in that sum in those circumstances.[17]
- h)The applicant does not seek an alternative order that its costs be assessed if the Tribunal is not minded to fix the costs in the amount sought. The Tribunal should not fix the costs in the sum sought. It should instead – in the absence of the necessary evidence from the applicant – fix them by reference to the costs fixed or agreed by the applicant in other cases, which were like the current case, where the matters proceeded on agreed facts and on the papers.[18]
- i)Therefore, the respondent submits that the applicant’s costs be fixed in the sum of $1,500, consistent with the cases of Stower and Bussa.
- a)
Disposition
- [7]It is not suggested that exceptional circumstances (as that term is used in section 462(1) LPA) exist. The Tribunal must therefore make an order requiring Mr Graham to pay the Commissioner’s costs.
- [8]If the Tribunal makes a costs order, the Tribunal must fix costs if possible.[19]
- [9]Contrary to what is asserted by the respondent, the applicant sought “an order for costs to be assessed”.
- [10]With the opportunity to make further submissions, with a view to assisting the Tribunal to fix costs if possible, the applicant obtained an assessment from Mr Ryan, a costs consultant.
- [11]The respondent objects to that assessment and, in its written further submissions, sets out a number of issues and further observations relating to the short form assessment.
- [12]The respondent submits that for the reasons identified, the Tribunal should not fix the costs at the figure which is set out in the assessment.
- [13]Rather, the respondent submits that the figure for costs should be assessed by reference to the cases to which the respondent refers. In its submissions, the applicant asserts that those orders were based upon agreed costs between the parties and can be relied upon for nothing more than that on those occasions the applicant agreed costs with the respondents.
- [14]No evidence is provided as to the circumstances in which the costs were agreed in the previous cases. No evidence is provided as to the detail of the work which was undertaken in relation to each of those matters as compared with the current matter. In neither of those matters was any assessment undertaken by the Tribunal or an assessor appointed by the Tribunal pursuant to the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’). In those circumstances, it is not possible to fix the costs by reference to the previous two cases mentioned.
- [15]The assessment obtained by the Commissioner is not an assessment of the type contemplated by the QCAT Act and Rules. As is obvious from the submissions by the respondent, the respondent believes that the assessment is unreliable and that the costs should not be fixed by reference to the assessment. From the matters raised by the respondent, the Tribunal concludes that it is not possible to rely upon the assessment in fixing the costs.
- [16]In those circumstances, in terms of the requirement in section 107(1) QCAT Act, it is not possible to fix the costs because of the nature of the proceedings and based upon the information currently before the Tribunal.
- [17]In the circumstances where the order will be for an unstated amount (for costs to be assessed), the Tribunal must state the basis upon which the amount must be decided.[20]
- [18]The Tribunal must be constituted by a Judicial Member who is a Supreme Court Judge or a former Supreme Court Judge nominated by the President to constitute the Tribunal.[21]
- [19]Prior to the matters being heard before the Tribunal, they were heard by the Legal Practice Tribunal, again constituted by a Supreme Court Judge.
- [20]In the circumstances, it is appropriate that the assessment be undertaken on a standard basis as if the matter were conducted in the Supreme Court of Queensland. An order for assessment on that basis does not preclude the respondent making submissions in relation to the issues and further observations raised in addition to his reliance upon the Taylor Woodrow decision.
- [21]The Tribunal may make an order requiring that the costs be assessed under the Rules.[22]
- [22]Rule 87 QCAT Rules provides for how costs are to be assessed under section 107 of the QCAT Act if the Tribunal makes a costs order that requires the costs to be assessed under the Rules.
- [23]In those circumstances, the costs must be assessed by an assessor appointed by the Tribunal.[23]
- [24]It is a matter for the assessor to decide the procedure to be followed on the assessment of the costs. The assessment would necessarily include consideration and determination of matters such as those, which have been raised by the respondent.
- [25]The assessor is given wide powers and may decide to do any or all of the following:
- a)Hear the assessment in private;
- b)Carry out the assessment on the papers without an oral hearing;
- c)Not be bound by the laws of evidence or procedure applying to a proceedings in the Tribunal;
- d)Be informed of the facts in any way the assessor considers appropriate;
- e)Not make a record of the evidence given.
- a)
- [26]As was said by former President Alan Wilson J,[24] “the exercise of costs assessment should be undertaken with a high degree of independence by an experienced and registered costs assessor.”
- [27]Costs assessors are appointed under the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). Assessors appointed under Rule 743L of the UCPR and under Chapter 17A Part 5 of the UCPR, must have satisfied the Principal Registrar that they have the necessary experience and qualifications.
- [28]As the parties have been unable to agree costs and as it is not possible, because of the nature of the matter and the information currently available to the Tribunal, for the Tribunal to fix costs, the Tribunal will appoint an assessor pursuant to Rule 87 of the QCAT Rules.
- [29]Following a procedure similar to that adopted by Wilson J in Puryer, to assist the Tribunal to consider the identity of an appropriate assessor, the Tribunal will order that, the parties endeavour to agree the identity of a costs assessor (who is appointed under the UCPR and who is willing to accept the appointment) and by 9 June 2017, notify the Tribunal of the agreed costs assessor.
- [30]Following receipt of that notification, or if the parties are unable to agree on the name of a costs assessor, the Tribunal will, after 9 June 2017, appoint a costs assessor, pursuant to Rule 87, to assess the costs.
Footnotes
[1] Legal Services Commissioner v Graham [2016] QCAT 31 at [19].
[2] Ibid, at [26]-[30].
[3] [2015] QCAT 64.
[4] [2011] QCAT 388.
[5] As that term is used in section 462 LPA.
[6] Submissions on Costs on behalf of the Applicant, paragraph 4.
[7] Ibid, paragraph 5.
[8] Ibid, paragraph 6.
[9] [2015] QCAT 64.
[10] [2011] QCAT 388.
[11] Submissions on Costs on behalf of the Applicant, paragraph 10.
[12] Outline of Submissions on behalf of the Respondent, paragraph 1.
[13] Ibid, paragraph 2.
[14] Ibid, paragraph 4.
[15] Ibid, paragraph 8.
[16] Ibid, paragraph 10.
[17] Ibid, paragraph 13.
[18] Ibid, paragraph 14.
[19] QCAT Act s 107.
[20] LPA s 462(5)(b).
[21] Ibid s 598(1).
[22] QCAT Act s 107(2).
[23] QCAT Rules r 87(2).
[24] Legal Services Commissioner v Puryer (No 2) [2013] QCAT 407 at [18].