Winn v Boss Lawyers Pty Ltd[2021] QCAT 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In June 2016 the Applicant, Julene Winn, filed in the Tribunal an application to set aside a costs agreement she had entered into with the Respondent, Boss Lawyers.  That application was ultimately dismissed by the Tribunal (Carmody J) on 4 July 2018.
2. [2]
   The Applicant appealed against both an interlocutory decision and the final decision of the Tribunal to the Court of Appeal.  Those appeals were dismissed.^[1]
3. [3]
   The judgment of Henry J, with whom Philippides and McMurdo JJA agreed, set out the lamentably protracted history of the application before the Tribunal.^[2]  I respectfully adopt that recitation without repeating it here at length.  I note only that one of the features of that history was the Applicant’s repeated reliance on a variety of claimed medical conditions and associated medical appointments to avoid compliance with Tribunal directions, resulting in delays in the matter coming on for hearing and final determination.  This feature was also the subject of express observation by Carmody J in several interlocutory decisions in the matter, including the interlocutory decision which was the subject of the unsuccessful appeal.^[3]
4. [4]
   In the Tribunal’s decision of 4 July 2018, provision had been made for the subsequent determination of the costs of the Applicant’s unsuccessful application to set aside the costs agreement.  After the Court of Appeal dismissed the appeals, the matter was brought back on before me for directions to finalise the outstanding issue of costs.
5. [5]
   At a directions hearing on 28 January 2020, I made directions re-setting the timetable for the delivery by the parties of their submissions on costs.  The Applicant’s submissions were to be filed and served by 10 March 2020.  She did not comply with that direction.  In light of her non-compliance, the matter was listed for another directions hearing, and on 25 September 2020 I directed that the Applicant file and serve her submissions by 9 October 2020, with the costs issue then to be determined on the papers after 12 October 2020.
6. [6]
   On 9 October 2020, the Applicant emailed the Tribunal registry advising that “for medical reasons” she had been unable to complete her submissions or instruct a solicitor to assist to do so.  She sought “a filing date of 7 November 2020 to allow for recovery and medical review”.  Despite opposition from the Respondent, the Tribunal acceded to this request, and on 15 October 2020 I made a direction extending the time for the Applicant to file her submissions to 6 November 2020.^[4]
7. [7]
   Again, the Applicant failed to comply with that direction.  On 6 November 2020, the Applicant emailed the Tribunal Registry, stating that “for medical reasons I have been unable to complete and file submissions” and that her GP had assessed that the Applicant needed “until end January to be able to deal with legal matters”.  Accordingly, the matter was listed for a directions hearing on 15 December 2020.  The Applicant did not appear at that directions hearing.  Directions were made to afford the Applicant one last chance to file her submissions.  Having regard to her assertion that she had been assessed as needing until the end of January to deal with legal matters, the time for her to file the submissions was extended to 12 February 2021.
8. [8]
   The Applicant did not file her submissions by 12 February 2021.  Nor did she ask for an extension.  On 12 February 2021 she sent the Tribunal Registry a document which purports to be a medical certificate and which recites a number of medical conditions.  That document states that the Applicant is not presently able to formulate a response or access legal advice, and recommends that the Applicant’s legal matter be postponed until at least 30 April 2021.
9. [9]
   The Tribunal is disinclined to allow the Applicant any further indulgences.  The Tribunal has repeatedly acceded to the Applicant’s requests for extensions.  She has squandered the opportunities she has been given.  And while that has been happening, the Respondent has been held out from pursuing a final resolution of the costs issue.  On 14 December 2020, the principal of the Respondent, Mr Harley, filed an affidavit outlining the ongoing prejudice being suffered by the Respondent as a result of the delay in finalising this matter, including the extra costs run up due to the further directions hearings occasioned by the Applicant’s requests for indulgences.  That affidavit also includes details of other litigation in which the Applicant has been actively engaged in other courts over the last few years, and particularly during times when she claimed to be too sick to attend to this matter.  Notably, the affidavit provides details of proceedings in the Federal Circuit Court by the Applicant against her former trustee in bankruptcy in which, during the period April to November 2020 (that is, the recent period during which the Applicant claimed to be unable to attend to this matter) she filed a significant number of applications, affidavits and outlines of submissions.
10. [10]
    On 15 December 2021, after again extending the time for the Applicant to file her submissions, I further directed that if she failed to file submissions “the Tribunal may proceed to determine the matter forthwith and without any further notice to her”.  I will now proceed with that determination on the question of costs.
11. [11]
    The usual rule for the costs of proceedings in this Tribunal is that each party bears its own costs.^[5]  By s 102(1) of the QCAT Act, however, the Tribunal is empowered to make an order for all or a stated part of the costs “if the tribunal considers the interests of justice require it to make the order”.  Section 102(3) sets out a number of matters to which the Tribunal may have regard when deciding whether to award costs:
12. [12]
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following^[6] —

1. (a)
   whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned insection48(1)(a) to (g);

2. (b)
   the nature and complexity of the dispute the subject of the proceeding;

3. (c)
   the relative strengths of the claims made by each of the parties to the proceeding;

…

5. (e)
   the financial circumstances of the parties to the proceeding;

6. (f)
   anything else the tribunal considers relevant.

13. [13]
    In Kehl v Board of Professional Engineers of Queensland, Deputy President Judge Kingham made the following observations with which I respectfully agree:

The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal. ^[7]

14. [14]
    The Applicant’s case was comprehensively rejected by the learned primary judge in this matter. As was noted by Henry J in the Court of Appeal, the Applicant’s central case was founded on an attempt by her to cast a particular conversation with the lawyers as comprising a concluded oral agreement regarding costs.^[8] Carmody J rejected this notion, and found that the costs agreement consisted of a written offer which had been accepted by conduct.^[9]  His Honour rejected arguments advanced by the Applicant that she had been induced to enter into unfair and unreasonable contracts on the basis of misrepresentations by Mr Harley, finding, inter alia, that the Applicant was not a reliable historian of past events.  His Honour expressly preferred the evidence of Mr Harley, and further found that the costs estimate which had been provided was not uncertain and did not take unfair advantage of the Applicant.  There was no evidence of non-disclosure, as had been claimed by the Applicant, and the amount billed was within the range which had been identified to the Applicant.  Carmody J found that there was no basis for finding that the disclosed information was inadequate or inaccurate to enable the Applicant to decide whether to retain the Respondent, but on the contrary, it fully complied with the regulatory regime.  His Honour also expressly rejected the assertions that the Respondent had breached payment pre-conditions.
15. [15]
    When reviewing Carmody J’s reasons, the Court of Appeal held “on the whole of the evidence the correct and inevitable outcome was the dismissal of Ms Winn’s application.^”[10]
16. [16]
    Any fair reading of the reasons at first instance and in the Court of Appeal would yield a conclusion that the Applicant did not have a strong case.  That is a relevant consideration under s 102(3)(c).  But a party in a QCAT proceeding does not suffer an adverse award of costs merely because their case was not strong and they were not successful in the final outcome.  The consideration under s 102(3)(c) is relevant but not determinative.
17. [17]
    What is also relevant in the present case is the way in which the Applicant conducted the proceeding, and the range of irrelevant issues which the Applicant sought to ventilate and which contributed significantly to the complexity of the hearing.  For example, despite this being an application to set aside a costs agreement, the Applicant sought to complicate matters by introducing an application for an assessment of the costs charged under one of the Respondent’s invoices.  It is clear from Carmody J’s reasons for judgment that a considerable part of the case sought to be advanced by the Applicant concerned allegations of performance breaches and overcharging which were unrelated to the issues to be considered on the application to set aside the costs agreement.  Henry J, in the Court of Appeal, noted:

Despite the length of the transcript, the “evidence” it records mainly consists of argumentative exchanges about issues of no or dubious relevance. Much of the written material before the tribunal was of similarly limited relevance. It is obvious Ms Winn and Mr Harley struggled, when cross-examining and being cross-examined, to let go of many minor or irrelevant issues about which they disagreed. At times they were critical of each other. The learned presiding judge repeatedly tried to return the focus of the parties to the material issues but enjoyed little success. ^[11]

18. [18]
    I am satisfied that the way in which the Applicant conducted the case was such as to unnecessarily disadvantage the Respondent.  That factor, combined with the palpable weakness of the Applicant’s case, is sufficient to persuade me that it is appropriate in this case to find that the interests of justice require that a costs order be made against the Applicant.
19. [19]
    Section 107 of the QCAT Act requires the Tribunal to fix costs, if possible.  Mr Harley filed an affidavit concerning his firm’s costs on 25 July 2018.  The firm’s total costs incurred in relation to this matter exceed $18,000.00.  Mr Harley has provided an estimate of his firm’s recoverable costs in the sum of $8,500.00 and has itemised the calculations leading to that estimate.  The Applicant has not challenged that estimate.  I am satisfied, in the circumstances, that it is appropriate to fix the costs in the sum of $8,500.00.
20. [20]
    Accordingly, there will be an order that the Applicant, Julene Winn, pay the costs of the Respondent, Boss Lawyers Pty Ltd, of and incidental to this proceeding OCL033-16, such costs to be fixed in the amount of $8,500.00.