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- Appeal Determined (QCA)
Winn v Boss Lawyers Pty Ltd QCAT 32
Winn v Boss Lawyers Pty Ltd  QCAT 32
Boss Lawyers Pty Ltd
Occupational regulation matters
18 January 2017
31 January 2017
PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicant applied to the tribunal to set aside a legal costs agreement – where one of the remedies sought by the applicant was not available – where the respondent sought to strike out the application – where the applicant made curative amendments to her application – whether the parties should bear their own costs
Legal Profession Act 2007 (Qld) s 328
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 47, 100, 102
APPEARANCES and REPRESENTATION (if any):
RESPONDENT Mr M Harley for the respondent
REASONS FOR DECISION
- Both parties claim their costs of the respondent’s strike-out application that it concedes it cannot win due to curative amendments to the application to set aside a costs agreement.
- Each party to a QCAT proceeding usually bears their own costs and unless the tribunal considers it is in the interests of justice to order one of them to pay a stated amount of the other’s costs for the proceedings. The factors the tribunal may have regard to in deciding whether to award costs include: any prejudicial litigation conduct, the nature and complexity of the dispute, the relative strengths of the competing claims, the financial circumstances of the parities and other relevant considerations.
- The applicant, a practising barrister, retained the respondent legal practice on 15 March 2016 to prepare for the hearing of contested procedural orders in the Federal Court listed on 23 March 2016.
- She was billed $14,013.20 for legal services provided under costs agreements between 17 and 22 March 2016, which she refused to pay on the grounds that the charges are excessive, unsatisfactory professional conduct and the costs agreements were not fair or reasonable.
- The application to set aside the costs agreement filed on 15 June 2016 included allegations that a condition that a named solicitor would do the work personally was not met, and that the billed costs were nearly treble the agreed costs and the increase or reasons for it were not disclosed consistently with the statutory costs disclosure requirements.
- As a result of the legal practice’s alleged failure to honour the terms of the costs agreement, the applicant says she was ordered to pay costs of the Federal Court proceedings and sought reimbursement.
- The legal practice filed a detailed response on 19 July 2016 denying the allegations. On 23 August 2016, it also lodged a strike-out application on the grounds that the application under s 328 of the Legal Profession Act 2007 (Qld) (LPA) (a) as to its entirety; lacks substance and fails to identify any grounds on which it could be set aside; and (b) insofar as reimbursement of the Federal Court costs; was misconceived.
- On 26 September, the applicant amended the s 328 application, abandoning any claim in relation to the Federal Court costs and making fresh allegations about an oral discussion contradicting the terms of the written costs agreement. The respondent asserts that this was a dishonest and belated attempt to defeat the strike-out application.
- The applicant contends the strike-out application was always bound to fail regardless of any irregularity in claiming indemnity for court costs.
- The tribunal has a discretion to order all or part of proceedings be dismissed or struck out before hearing if satisfied it is misconceived or lacking in substance. The section is regularly used to save a respondent from wasting time and effort on meeting a hopeless, vexatious or frivolous case. The strike-out power is also intended to be used to protect the public from the cost of administering and deciding an application where there is no genuine dispute to be resolved. Conversely, it will not be used to prematurely deny a litigant with a tenable case a full and fair hearing on the merits.
- I have no doubt that the part of the application to set aside the costs agreements relating to the Federal Court costs was wrongly included by the applicant; perhaps because, as she says, she was ill and emotionally strained; or, as is more likely, it was misconceived. At any rate, contrary to her submission, it was ‘part of a proceeding’ that could and probably would have been struck out under s 47(1)(a) QCAT Act.
- However, the Federal Court costs claim aside, the initial application under s 328 LPA adequately raised questions of fact that, if resolved in her favour, were capable of constituting grounds for setting aside the costs agreements for unfairness or unreasonableness. It was, therefore, competent and could not properly be characterised as being so baseless, hopeless or meritless so as to invoke s 47 QCAT Act. It was not a proceeding in jeopardy of being summarily dismissed or struck out as an abuse of process or otherwise. Accordingly, the strike-out application was likely to fail irrespective of the subsequent amendments and later allegations.
- That does not mean, however, that the applicant should have her costs of the strike-out application. Apart, perhaps, from (3)(c), none of the s 102 factors favour it. She (at least, in part) precipitated it by including an untenable claim for court costs and not fully or clearly spelling out the grounds on which she alleges the costs agreements are liable to be set aside for unfairness or unreasonableness.
- A strike-out dispute is not complex in nature. The applicant’s litigation conduct is hardly exemplary and her financial circumstances are unknown. Moreover, the basis of the calculation of the quantum of costs claimed is not disclosed nor vouched for. In my eyes, the interests of justice do not appear to demand a costs order for the costs thrown away by either side in making or opposing the strike-out application.
- The application to strike out a proceeding is refused.
- The parties bear their own costs of the strike-out application.
- The application to set aside a costs agreement is listed for a tribunal hearing in Brisbane at 10.30am on 29 March 2017.
- Published Case Name:
Julene Winn v Boss Lawyers Pty Ltd
- Shortened Case Name:
Winn v Boss Lawyers Pty Ltd
 QCAT 32
31 Jan 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCAT 32||31 Jan 2017||Respondent's application to strike-out applicant's application to set aside legal costs agreement; respondent's application for strike-out refused: Carmody J.|
|Primary Judgment|| QCAT 356||12 Oct 2017||Determination to adjourn applicant's part-heard application to set aside legal costs agreement on the basis of the applicant's default in attendance; applicant ordered to pay respondent's costs thrown away: Carmody J.|
|Primary Judgment|| QCAT 54||21 Feb 2018||Applicant's application to correct the quantum of costs thrown away ordered in  QCAT 356 and to stay operation of those orders; both applications dismissed: Carmody J.|
|Primary Judgment|| QCAT 233||04 Jul 2018||Applicant's application to set aside costs agreement pursuant to s 328 of the Legal Professional Act 2007 (Qld): Carmody J.|
|Notice of Appeal Filed||File Number: Appeal 2903/18||14 Mar 2018||Appeal from  QCAT 54|
|Notice of Appeal Filed||File Number: Appeal 8249/18||01 Aug 2018||Appeal from  QCAT 233.|
|Appeal Determined (QCA)|| QCA 275||29 Nov 2019||Appeals dismissed.|