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Ashney v Pippa Colman & Associates Law Practice Pty Ltd[2022] QCAT 281

Ashney v Pippa Colman & Associates Law Practice Pty Ltd[2022] QCAT 281

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ashney v Pippa Colman & Associates Law Practice Pty Ltd [2022] QCAT 281

PARTIES:

Genevieve ashney

(applicant)

v

PIPPA Colman & associates law practice pty ltd

(respondent)

APPLICATION NO/S:

OCL012-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

16 September 2022

HEARING DATE:

16 December 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President

ORDERS:

Application dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – REASONABLENESS – where the applicant was a client at the respondent law firm – where the applicant alleges the cost agreement is not fair or reasonable – where disputes exist as to the scope of work to be performed under the cost agreement and what the costs agreement permits for – where the applicant seeks to have the costs agreement set aside – whether the costs agreement is not fair and/or reasonable

Legal Profession Act 2007 (Qld) s 308, s 308(1), s 315, s 319, s 327(1), s 328(1), s 328(2), s 328(4), s 328(5)(b), s 328(8), s 322, s 381(1)

Athanasiou v Ward Keller (6) Pty Ltd (1998) 8 NTLR 23

Croatian Community Centre (Qld) v Boss Lawyers Pty Ltd [2022] QCAT 94

Djokovic v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (2022) 397 ALR 1

Jovetic v Stoddart & Co (1992) 7 WAR 208

Kasmeridis  &  Anor  v  McNamara  Business  &  Property  Law (2006) 245 LSJS 31

Maddock v IALPG Pty Ltd trading as International Aerospace Law and Policy Group [2020] QCAT 475

McLaren v Wiltshire Lawyers Pty Ltd (2019) 3 QR 158

McNamara  Business  &  Property  Law  v  Kasmeridis  &  Anor (2007) 97 SASR 129

Passey v Chanaka Bandarage [2002] ACTSC 105

R v Connell (1944) 69 CLR 407

Re Stuart; Ex parte Cathcart  [1893] 2 QB 201

Ryan v Vizovitis [2017] ACTCA 3

Simons v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT 134

Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5

Vizovitis v Ryan [2014] ACTSC 243

Winn v Lynch Morgan Lawyers & Anor [2018] QCAT 234

Winn v Boss Lawyers Pty Ltd [2018] QCAT 233

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

P Colman of Pippa Colman & Associates

REASONS FOR DECISION

Background

  1. [1]
    This is an application by Ms Ashney pursuant to s 328(1) of the Legal Profession Act 2007 (Qld) (“LPA”) filed in the Tribunal on 19 February 2021, seeking to have a costs agreement set aside.[1]
  2. [2]
    Ms Ashney (the Applicant) is a former client of Pippa Colman & Associates Law Practice Pty Ltd (the Respondent) with respect to family law and related matters, for a period of time in 2020. There is dispute between the parties about the exact date of attendances, what transpired on each occasion, and how long the engagement was for. The respective versions of the parties are summarised below under the headings, “The Applicant’s evidence” and “The Respondent’s evidence”, and discussed under the heading, “Contentions of the parties”.
  3. [3]
    Prior to the parties entering into a costs agreement in early 2020, there was an initial attendance between the parties and correspondence exchanged. The Respondent did not charge any fees or costs to the Applicant in relation to these dealings prior to the Costs Agreement being entered into.
  4. [4]
    On 30 April 2020, the Respondent sent an email to the Applicant attaching the following documents:[2]
    1. (a)
      Letter of offer[3] dated 30 April 2020 headed “Legal Services Agreement – Family Law Matters”.[4] The letter contained a paragraph headed “Acceptance of Legal Services Agreement”, which the Applicant was requested, in the accompanying email, to sign.[5] The wording of this paragraph was:

Acknowledgement and Signature

I, Genevieve Elle Ashney, acknowledge that I have read and understood the contents of this Legal Services Agreement”.[6]

  1. (b)
    Legal Services Agreement, which is referred to in that document and the letter of offer as both “Legal Services Agreement” and “Costs Agreement” (I will refer to these documents collectively as “the Costs Agreement”).[7] The Costs Agreement contained a s 308 LPA “Disclosure Notice” on the final page.[8] The accompanying email requested that the Applicant “please initial each page”,[9] and the “Acceptance of Legal Services Agreement” paragraph stated: “Please also initial the bottom right hand corner of each page that is attached”.[10]
  2. (c)
    Trust Account Authority,[11] which stated:

RE: FAMILY LAW MATTER – Genevieve Ellen Ashney

I, the undersigned, hereby authorise Pippa Colman & Associates Law Practice to use monies held in their trust account for the following general purposes:

  • Settlement of the above matter;
  • Payment of outlays in connection therewith;
  • Payment of professional fees and costs.

Pippa Colman & Associates are authorised to deduct all costs and disbursements / outlays due to them from monies held in their trust account on my behalf.

The accompanying email requested that the Applicant “please sign” this document.[12]

  1. (d)
    Costs in court proceedings – this included a “Schedule of Fees and Costs (effective from 1 February 2020)”[13] and “Court Fees (Family Law)”.[14]
  2. (e)
    Brochure – Legal Costs – Your Right to Know.
  3. (f)
    Brochure – Marriages, families and separation.
  1. [5]
    On 30 April 2020, the Applicant initialled each page of the letter of offer, signed the “Acceptance of Legal Services Agreement”, and returned a copy to the Respondent.[15] The Applicant also deposited $10,000 into the Respondent’s trust account as requested in the Costs Agreement.[16]
  2. [6]
    The Costs Agreement specified, amongst other things:
    1. (a)
      An estimate of the Respondent’s anticipated fees and costs,[17] of between $5,000 and $10,000 (inclusive of GST) up to 8 May 2020;[18]
    2. (b)
      That the Respondent would charge legal fees on a “blended scale”, including  government set fees and a time basis for meetings in accordance with the hourly rates in the enclosed “Schedule of Fees and Costs”;[19]
    3. (c)
      The scope of work “so far” included representing the Applicant in court proceedings, up to the first interim hearing and representing the Applicant in negotiations with the other parent and their lawyer up to and prior to the directions hearing on 8 May 2020.[20] A short summary was then provided as the anticipated work after the directions hearing, depending on the outcome of negotiations, which is discussed in further detail below;[21]
    4. (d)
      The basis upon which the Agreement could be terminated, including that the Applicant would be required to pay the Respondent’s professional fees and costs up to the date of termination.[22]
  3. [7]
    The Applicant transferred a further $805.33 to the Respondent on 20 May 2020.
  4. [8]
    Services were provided pursuant to the Costs Agreement, and the Respondent issued an initial invoice on 12 May 2020 in the amount of $10,805.33 for the period of 30 April 2020 to 8 May 2020.[23] The fees for this were paid from the trust account deposits that the Applicant made into the Respondent’s trust account on 30 April 2020 and 20 May 2020.[24]
  5. [9]
    The Respondent issued a further three invoices.  They were disputed by the Applicant.  The invoices were:
    1. (a)
      For the period of 15 May 2020 to 4 June 2020, totalling $12,359.66, issued on 10 June 2020;[25] 
    2. (b)
      Totalling $14,824.66 (which included the previous balance of $12,359.66 plus a further $2,465 for the period of 12 June 2020 to 23 July 2020) issued on 31 July 2020;[26]
    3. (c)
      Totalling $15,510.16 (which included the previous balance of $14,824.66 plus a further $685.50 for the period of 24 July 2020 to 29 July 2020) issued on 10 August 2020.[27]
  6. [10]
    There is dispute as to:
    1. (a)
      The scope of work to be conducted for the Applicant by the Respondent;[28]
    2. (b)
      Whether the Costs Agreement signed 30 April 2020 extended to the revised fees and costs in the second document titled “Legal Services Agreement – revised estimate of fees and costs and request for additional funds in trust”, dated 18 May 2020.[29] Alternatively, whether this second document was a separate costs agreement which the Applicant did not agree to;[30]
    3. (c)
      Whether the Costs Agreement signed 30 April 2020 extended to a third document, titled “Legal Services Agreement – revised estimate of fees and costs” dated 25/26 June 2020.[31] Alternatively, whether this third document was a separate costs agreement which the Applicant did not agree to;[32]
    4. (d)
      Whether the Respondent was entitled to charge the Applicant further fees following the initial invoice issued on 12 May 2020,[33] in accordance with the revised estimates of fees and costs.

The law – statutory provisions

Setting aside costs agreements

  1. [11]
    The application before QCAT is brought under s 328(1) of the LPA, which provides that on application by a client, the Supreme Court or Tribunal “may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable”.
  2. [12]
    Section 328(2) provides that in deciding whether or not a costs agreement is fair or reasonable, the Tribunal may have regard to the following non-exhaustive list of matters:

(a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;

(b) whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;

(c) whether the law practice failed to make any of the disclosures required under division 3;

(d) the circumstances and conduct of the parties before and when the agreement was made;

(e) the circumstances and the conduct of the parties in the matters after the agreement was made;

(f) whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;

(g) whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.

  1. [13]
    This is not a matter where a legal practitioner acting on behalf of the respondent has been found guilty of unsatisfactory professional conduct or professional misconduct, in relation to the provision of legal services to which the agreement relates, and thus s 328(2)(b) is not relevant.

Other relevant provisions

  1. [14]
    Section 308(1) of the LPA provides that in relation to disclosure of costs, a law practice “must” disclose a number of matters to their client, including:

(a) the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and

(b) the client’s right to—

(i) negotiate a costs agreement with the law practice; and

(ii) receive a bill from the law practice;[34] and

(iii) request an itemised bill after receipt of a lump sum bill; and

(iv) be notified under section 315 of any substantial change to the matters disclosed under this section; and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and

(d) details of the intervals, if any, at which the client will be billed; and

(e) the rate of interest, if any, that the law practice charges on overdue legal costs, whether that rate is a stated rate of interest or is a benchmark rate of interest…[35]

  1. [15]
    Section 315 of the LPA provides for the ongoing obligation to disclose.  A law practice must, in writing, disclose to a client any substantial change to anything included in a costs disclosure already made, as soon as is reasonably practicable after the law practice becomes aware of that change.
  2. [16]
    Section 319 provides that, subject to Division 2, legal costs are recoverable:

(a) under a costs agreement made under division 5 or the corresponding provisions of a corresponding law; or

(b) if paragraph (a) does not apply—under the applicable scale of costs; or

(c) if neither paragraph (a) nor (b) applies—according to the fair and reasonable value of the legal services provided.

  1. [17]
    Section 322 (within Division 5) provides that, in summary (emphases added):
    1. (a)
      A costs agreement may be made between a client and a law practice retained by the client;[36]
    2. (b)
      It must be written or evidenced in writing;[37]
    3. (c)
      It may consist of a written offer under subsection (4) that is accepted in writing or by other conduct;[38]
    4. (d)
      An offer must clearly state that it is an offer to enter into a costs agreement and that the offer can be accepted in writing or by other conduct and the type of conduct that will constitute acceptance.[39]
  2. [18]
    Section 327(1) provides that a costs agreement that contravenes or is entered into in contravention of any provision of Division 5,[40] is void.

Meaning of “fair or reasonable”

  1. [19]
    In McLaren v Wiltshire Lawyers Pty Ltd[41] (“McLaren”) Martin J noted that Chapter 3 of the LPA is consistent with other jurisdictions in Australia concerning the charging of and payment for costs, and that the term “fair or reasonable” reflects the common law test described by Lord Esher MR in Re Stuart; Ex parte Cathcart:[42]

… the Court may enforce an agreement if it appears that it is in all respects fair and reasonable. With regard to the fairness of such an agreement, it appears to me that this refers to the mode of obtaining the agreement, and that if a solicitor makes an agreement with a client who fully understands and appreciates that agreement that satisfies the requirement as to fairness. But the agreement must also be reasonable, and in determining whether it is so the matters covered by the expression ‘fair’ cannot be reintroduced. As to this part of the requirements of the statute, I am of opinion that the meaning is that when an agreement is challenged the solicitor must not only satisfy the Court that the agreement was absolutely fair with regard to the way in which it was obtained, but must also satisfy the Court that the terms of that agreement are reasonable. If in the opinion of the Court they are not reasonable, having regard to the kind of work which the solicitor has to do under the agreement, the Court are bound to say that the solicitor, as an officer of the Court, has no right to an unreasonable payment for the work which he has done, and ought not to have made an agreement for remuneration in such a manner. (emphasis added).

  1. [20]
    Recent Tribunal decisions of Simons v Dowd Lawyers Pty Ltd (No 4)[43] and Maddock v IALPG Pty Ltd trading as International Aerospace Law and Policy Group[44] cited the discussion of Martin J in McLaren as to the meaning of the expression “fair and reasonable” with approval.
  2. [21]
    In Simons,[45] Judicial Member Lyons summarised the discussion by Martin J, and referred to the following propositions as “established law”[46] as to the meaning of “fair or reasonable” in s 328 LPA:
    1. (a)
      fairness  of  the  agreement  refers  to  the  mode  of  obtaining  the  agreement,  and whether the client fully understands and appreciates the agreement;[47]
    2. (b)
      the terms of the agreement must be reasonable;[48]
    3. (c)
      the  factors  to  be  taken  into  account  when  deciding  whether  an  agreement  is fair and reasonable will depend on the circumstances of the case, but may vary according to the scope of the retainer, the terms of the agreement, the kind of legal work undertaken, and the client’s knowledge and circumstances;[49]
    4. (d)
      an agreement is unreasonable if it can be shown objectively that the agreement came into  being  in  circumstances  which  were  unreasonable  to  the  client;  or that  its  terms  are  unreasonable  to  the  client;  or  that  its  effect  on  the  client is unreasonable, though these tests are not exhaustive;[50] and
    5. (e)
      the broad position is that a lawyer is not, in his or her relations with the client, to make a gain at the expense of that client, beyond an amount that is just and fair for professional remuneration that the lawyer is entitled to receive for the work done.
  3. [22]
    Judicial Member Lyons noted that other authorities have found that the question of whether the costs agreement is fair and reasonable is to be determined at the time the agreement was struck.[51] However, Judicial Member Lyons found that post-agreement circumstances are potentially relevant when deciding whether a costs agreement was not fair or reasonable, having regard to the matters in s 328 such as the circumstances and conduct of the parties after the agreement was made, and a failure to make post-agreement disclosure required by s 315 LPA.[52]
  4. [23]
    In McLaren, Martin J considered the meaning of “estimate” in the costs disclosures which are required under ss 308 and 315 LPA.[53] His Honour stated:[54]

For these purposes, an estimate is a judgment as to the sum which is likely to be incurred for the matter or for a particular step in the matter. It is not a quotation. It is an approximation which is based upon a number of matters which will change according to the type of legal issue involved but will usually include:

  1. the general nature of the matter;
  2. the practitioner’s knowledge of the client’s circumstances; and
  3. the practitioner’s reasonable expectation (informed by experience and knowledge of the law and the practical problems associated with the area) of what might be required to undertake the work which the client instructs be undertaken.

Persuasive onus under s 328(1) of the LPA

  1. [24]
    Justice Carmody in Turner v Macrossan & Amiet Pty Ltd[55]said that the starting point is that “he (or she) who asserts must prove”, a principle which is not absolute and possesses many exceptions, especially in the civil jurisdiction.[56]
  2. [25]
    His Honour then discussed the approach of various interstate authorities as to the party who bears the persuasive onus of proof in a s 328 application, including:
    1. (a)
      In the Supreme Court of the Northern Territory decision of Athanasiou v Ward Keller (6) Pty Ltd[57] (“Athanasiou”), Mildren J held that the burden of proof rests upon the solicitor in respect of both fairness and reasonableness.[58]
    2. (b)
      In the Supreme Court of the Australian Capital Territory decision of Passey v Chanaka Bandarage (t/as City First Solicitors),[59] Higgins J followed Athanasiou in holding that the onus of proof resided with the solicitor to establish that the costs agreement was fair and reasonable.[60]
    3. (c)
      The position that the respondent bears the onus of proof is also the position in New South Wales,[61] but the Supreme Court of Western Australia has held that the onus rests with the applicant”.[62]
  3. [26]
    Justice Carmody noted that “the balance of authority appears to weigh strongly in favour of the respondent bearing the onus to establish that the costs agreement is fair and reasonable”[63] and went on to refer to the rationale for this:[64]

The primary rationale for imposing the persuasive burden on the respondent is that the legal practitioner is in a position of superiority relative to the client, and therefore the relationship is inherently susceptible to undue influence.

A secondary rationale is that the legal practitioner is often familiar with general practice relating to legal costs agreements. The legal practitioner is, therefore, in the best position to protect his or her own interests through the preparation and maintenance of robust records relating to client instructions, agreements and professional services rendered. Furthermore, the client is often unsophisticated and inexperienced regarding legal professional services, and would not be familiar with industry charging standards. Thus, or so the proponents of the English position argue, it is more efficient for the practitioner to bear the persuasive onus.

  1. [27]
    His Honour, having observed that he did not have the benefit of full argument on the issue, and after his own examination of the various cases, stated that:  [65]

Ultimately, the Tribunal must accept that it is a court of summary jurisdiction.  The Tribunal should follow precedent despite its unsatisfactory foundations, especially where the parties failed to provide comprehensive submission on the subject.

Therefore, the Tribunal finds – with some trepidation – that the applicant bears an evidential onus to show that the costs agreement may not be fair and reasonable. If the evidential onus is discharged, the persuasive onus rests with the respondent to establish that the costs agreement is fair and reasonable. If the respondent fails to discharge the persuasive onus, the Tribunal may set aside the costs agreement under s 328(1) of the LP Act.

  1. [28]
    In Winn v Lynch Morgan Lawyers & Anor,[66] Carmody J reiterated the view that the respondent “has the ultimate onus of demonstrating the certainty, fairness and reasonableness of the CA (costs agreement) in issue.”
  2. [29]
    If the approach espoused by Carmody J in Turner v Macrossan & Amiet, (as set out in paragraph 27 above) albeit with trepidation is correct, then the result in this case that I would have come to would have been the same, to dismiss the application.     On my analysis of the evidence before me, the applicant has not discharged even an  evidential onus to show the costs agreement may not be fair and reasonable.    I find to the contrary, that is that the costs agreement is fair and reasonable.    I did not find the allegations and evidence of the Applicant compelling, whereas I found that the evidence of Ms Colman to be coherent, clear, logical and consistent, in various respects with contemporaneous notes or other documentation. My analysis in respect of the allegations by the applicant and why I have rejected them (even on an evidential onus basis) is discussed at length later in this judgment.  
  3. [30]
    I am drawn, however, to the conclusion that given what section 328(1) requires in order for the discretion to set aside the costs agreement to arise, is satisfaction of a negative – that is, that the costs agreement is not fair and/or reasonable, that the approach I should (and do) take is to ask whether or not there was evidence upon which I could be satisfied that the costs agreement was not fair and/or not reasonable.[67]  
  4. [31]
    In this regard, I have had regard to the recent discussion of the Full Court of the Federal Court in Djokovic v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs[68] as to what it means to be satisfied.  In that case, Allsop CJ, Besanko and O'Callaghan JJ said:[69]

[22] The expression of the requirements of lawful satisfaction have been set out in a number of High Court cases beyond which it is unnecessary to go: Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403; 26 ALR 49; Boucaut Bay Co Ltd v Commonwealth (1927) 40 CLR 98 at 101; [1927] ALR 415 (Boucaut Bay); R v Connell (1944) 69 CLR 407 at 430 (R v Connell); AvonDowns Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360; [1949] ALR 792; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57 (Brian Hatch Timber); Buck v Bavone (1976) 135 CLR 110 at 118–19; 9 ALR 481 at 487–8 (Buck v Bavone); Eshetu at [130]–[136]; and Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; 327 ALR 28; 148 ALD 226; [2015] HCA 51 at [33].

[23] Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.

[24] Chief Justice Latham in R v Connell approached the matter as presenting the question: “whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous”.

[25] Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must “act in good faith; [he or she] cannot act merely arbitrarily or capriciously” and “where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that … [the] decision could not reasonably have been reached”.

[26] Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker “must not act dishonestly, capriciously or arbitrarily … So long, however, as the Minister acts upon circumstances … giving him a rational ground for the belief entertained, then … the Courts of law cannot and ought not interfere”.

[27] Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at [137]:

…. where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

  1. [32]
    In my view, the approach I have taken also meets the requirements of s 19(1) of the LPA which provides that the Tribunal must have reasonable grounds for being satisfied:

If, under this Act, a person is required to be satisfied… of… a particular matter before the person may do or refrain from doing an act… the person must be satisfied… on grounds that are reasonable in the circumstances.

Powers of the Tribunal

  1. [33]
    Section 328(4) LPA provides that if the Tribunal orders a costs agreement be set aside, it may make an order as it considers appropriate in relation to the payment of legal costs as subject of the agreement.
  2. [34]
    In making an order under that subsection, the Tribunal may:
    1. (a)
      apply the applicable scale of costs, if any; or
    2. (b)
      decide the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account –
      1. the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and
      2. whether or not it was reasonable to carry out the work; and
      3. whether or not the work was carried out in a reasonable manner.
  3. [35]
    In making a decision under s 328(5)(b) LPA, that is, in deciding the fair and reasonable legal costs, the Tribunal may have regard to any or all of the following matters:
    1. (a)
      whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;

…

  1. (j)
    any other relevant matter.
  1. [36]
    The Tribunal is also empowered to decide whether or not a costs agreement exists, pursuant to s 328(8) LPA.
  2. [37]
    I will now turn to the parties’ respective arguments, before further consideration of the legal principles and making my findings, including whether I am satisfied that the costs agreement is not fair or reasonable.

Process at hearing

  1. [38]
    The oral hearing proceeded on 16 December 2021.
  2. [39]
    Some time was spent at the outset ensuring that the Tribunal had before it each of the documents both parties sought to rely upon at hearing. Ultimately, the matter was stood down and the Applicant provided my associate with a USB of the material she sought to rely on. The USB was marked “Exhibit 1” and the documents on it were printed and a hard copy provided to the parties and a copy was placed on the Tribunal file (“Exhibit 2”). [70]
  3. [40]
    The Applicant sought to rely on the following material:[71]
    1. (a)
      Application to the Tribunal, recorded on USB as 17 February 2021 at 8.29pm (“Exhibit 2”, being the folder of the USB material, document 3);[72]
    2. (b)
      Affidavit of the Applicant, filed on or about 27 February 2021 and signed 17 February 2021 (“Exhibit 5”);[73]
    3. (c)
      “Reply”[74] (entitled “Affidavit”) of the Applicant, unsigned, dated 6 August 2021 (“Exhibit 2”, document 5 in the USB list);
    4. (d)
      Affidavit of the Applicant, recorded on USB as 9 August 2021 at 3.05 pm (“Exhibit 2”, document 1 in the USB list);[75];
    5. (e)
      Affidavit of the Applicant, date-stamped 31 August 2021 (“Exhibit 2”, document 6 in the USB list);[76]
    6. (f)
      Email to QCAT headed QCAT lodgement, with a screenshot of page 1 of  affidavit date stamped 10  December 2021 ((“Exhibit 2”, document 2 in the USB list);[77]
    7. (g)
      “Submissions” (entitled “Affidavit”) of the Applicant, date-stamped 10 December 2021 (“Exhibit 2”, document 2A).[78]
  4. [41]
    The Respondent sought to rely on the following material:
    1. (a)
      Affidavit of Ms Alexandra Colman, signed 6 August 2021 and date-stamped 9 August 2021 (“Exhibit 3”);
    2. (b)
      Respondent’s submissions date-stamped 13 December 2021 (“Exhibit 4”);
    3. (c)
      The Respondent also relied, in making submissions, upon a letter of 18 May 2020, which was attached to the Response as annexure C.
  5. [42]
    Ms Colman stated at the hearing that there were five invoices issued in total to the Applicant, two that were paid by the Applicant.[79] The Respondent’s three invoices which were disputed by the Applicant were made exhibits:
    1. (a)
      Exhibit 6 – invoice for fees in the amount of $12,359.66 dated 10 June 2020;
    2. (b)
      Exhibit 7 – invoice for fees in the amount of $14,824.66 (which included the subsequent balance of $12,359.66 plus a further $2,465 for this invoice) dated 31 July 2020;
    3. (c)
      Exhibit 8 -  invoice for fees dated 10 August 2020 in the amount of $15,510.16 (which included the subsequent balance of $14,824.66 plus a further $685.50 for this invoice).
  6. [43]
    Both the Applicant, and Ms Colman, who was appearing for the Respondent, and who had provided an affidavit in the matter, stated that they did not seek to cross-examine the other.[80]

Orders sought by the Applicant & submissions

  1. [44]
    The orders the Applicant sought at the hearing[81] were set out in paragraph 3 of her submissions,[82] namely:
    1. (a)
      That all Cost Agreements with Pippa Colman and Associates are set aside and the dispute of fees is ruled as settled by the $10,805.33 payment already paid to Pippa Colman & Assoc by me;
    2. (b)
      That the right to disclosure in accordance to “Disclosure notice (s 308) Legal Profession Act 2007 (Qld) 1. Legal fees – your rights’ is upheld as necessary and a waiver of privilege is applied.

Costs agreement set aside and dispute of fees settled

  1. [45]
    Regarding the first order sought, the applicant disputed invoices issued by the Respondent which were above the $10,805.33 which she paid into the respondent’s trust account, by way of initial deposit of $10,000 on 30 April 2020, and a further $805.33 on 18 May 2020.[83]
  2. [46]
    The Respondent issued an initial invoice on 12 May 2020 in the amount of $10,805.33,[84] and this was paid to the Respondent from the two deposits that the Applicant made into the Respondent’s trust account on 30 April and 20 May 2020. (There was some dispute in the evidence as to the reason for the $805.33 payment.[85] The Applicant initially was seeking a refund of the full invoice amount from the Respondent.[86] However, at the hearing the Applicant made it clear she was not disputing that invoice including its payment to the Respondent.)[87]
  3. [47]
    During the hearing, the Applicant confirmed she disputed the Respondent’s invoice for $15,510.16,[88] and that she was seeking that the costs agreement insofar as it relates to this amount be set aside.[89]
  4. [48]
    She submitted that she did not agree to, or receive, a further $15,000 worth of services.[90]
  5. [49]
    In her written submissions, the Applicant requested that the amount of $15,510.16 be refunded from the Respondent’s trust account to the Applicant.[91] The basis of this submission appears to be that following an Order of the Family Court of Australia on 15 October 2021, relating to the partial property settlement, that sum of money was “deducted” from the Applicant’s share and placed into the Respondent’s trust account. The Applicant stated that due to this action, she had been “forced to pay the fees” to the Respondent, despite disputing the fees with the Tribunal.[92]
  6. [50]
    At the hearing, the Applicant referred to her written submissions as to the basis for the first order:[93]
    1. (a)
      She did not sign or agree to the second costs agreement issued in May 2020;
    2. (b)
      Although requested numerous times, an itemised bill was not received until February 2021, in relation to which she has disputed the majority of the charges;
    3. (c)
      She was of the understanding that her new lawyers,[94] on her behalf, had resolved the fee dispute with the Respondent in August 2020;
    4. (d)
      She alleged that the Respondent holding the file “in lien” was a form of extortion;
    5. (e)
      She felt misrepresented and bullied, mistreated and disrespected by the Respondent and that the Respondent was not acting in her best interests but those of the other party;
    6. (f)
      She had paid over $90,000 in legal fees (to various lawyers, not only the Respondent[95]) despite being self-represented since September 2020. She referred to the “human costs” of losing her role as a mother, her home, community and livelihood due to the family law process, and submitted that she had paid more than enough;
    7. (g)
      She had entertained an offer of settlement from the Respondent of release of file for refund of half the Respondent’s claimed fees,[96] however found she could not agree in good faith. She was dubious of a similar offer made in December 2020 due to its timing and she perceived that the Respondent was continuing to deflect her requests for information.[97]
  7. [51]
    The Applicant also submitted that the fees should be reduced to $10,805.33. This seems to indicate the Applicant disputes part of the first invoice, as the total amount of the invoice was higher than this,[98] However during the hearing the Applicant appeared to indicate that the amount in respect of which she sought the intervention of the Tribunal was the amount of $15 510.16.
  8. [52]
    At other times, she indicated that the Applicant disputes the second[99] and third invoices.[100] 
  9. [53]
    In any event, as will be seen from the conclusion, I am not satisfied that the costs agreement should be set aside, at all. 

Second order sought

  1. [54]
    During the hearing I sought clarification from the Applicant as to what she meant by the second order sought.[101]
  2. [55]
    The Applicant referred to a later part of her submissions which stated “…materialising as the release of a file held in lien by Pippa Colman & Associates”, and then explained that she was wanting her file in order to resolve her matter.
  3. [56]
    She submitted that the Respondent’s legal costs had escalated because of the file held in lien, that there was a pattern of her previous lawyers including the Respondent withholding her file because of this lien, and she was waiving privilege to ensure she had the full file released to her.
  4. [57]
    The applicant submitted that her file, including the trust account ledger, was being held back by the Respondent as extortion.[102] The Applicant submitted that this was because the Respondent had denied her access to the file and ledger until she paid the approximately $15,000 invoice.[103]
  5. [58]
    I understood from the Applicant’s submissions that she is seeking an order that her file be released to her, including all information held by the Respondent and/or Ms Colman, and others,[104] that has to do with her matter.
  6. [59]
    I explained that I did not have power to make orders about “others”, that is, other lawyers,[105] and that the extent of my powers is set out in s 328 of the LPA.[106]

The Applicant’s evidence

Application, unsigned and undated (Exhibit 2, document 3)

  1. [60]
    The timeline set out by the Applicant in the Application is as follows:
    1. (a)
      The Applicant initially met with Ms Colman on 25 February 2020, but Ms Colman turned her away. In the meantime, the Applicant sought other representation and booked a psychiatric assessment which was to cost $5,000.[107]
    2. (b)
      On 29 April 2020,[108] Ms Colman provided her with “a mountain of paperwork”, a costs agreement requiring $10,000 “to reach consent order”, and requested that the Applicant attend the Respondent’s office on 1 May 2020 instead of the psychiatric assessment.
    3. (c)
      On 30 April 2020, the Applicant alleged she was “induced” to enter the costs agreement and pay $10,000.[109] The Applicant stated the meeting was “to negotiate consent order and a plan to avoid the $5,000 fee for Psychiatrist Assessment I had been quoted which induced me to sign and pay the $10,000 cost agreement. . .”.[110].
    4. (d)
      On 18 May 2020, the Applicant made a further payment of $805.33 as requested, in anticipation of a face-to-face meeting with Ms Colman, and requested an itemised bill but did not receive it.[111]
    5. (e)
      On 28 May 2020, the Applicant was issued with a “second costs agreement”. The Applicant said she did not sign or agree to this document “as I had not received requested itemised bill, had not received information requested through (the Respondent and a third party) . . .”.[112]
    6. (f)
      On 23 July 2020, the applicant terminated her involvement with the Respondent as “in retrospect it became apparent they had not been acting toward initial agreement, been disparaging in her attitude toward me and not forwarding information to me”.[113]
    7. (g)
      On 10 August 2020, via other legal representation, the Applicant received the Respondent’s further “claim in excess of $15,000 of property settlement and holding my file ‘in lien’. . .”.[114]
    8. (h)
      On 22 September 2020, the Applicant received a repeat of the Respondent’s claim to which she “sent a thorough reply, requested an itemised bill and forwarded to the Legal Services Commission” dated 24 September 2020.[115]
    9. (i)
      On 18 December 2020, the Applicant sent a further reply in relation to the Respondent’s “repeated claim”,[116] sent on 17 December 2020. The Applicant noted that despite numerous requests, she had not received an itemised bill, had not received “all relevant and pertinent information” for her matter, and disputed the Respondent’s further claim of $15,000.[117]
    10. (j)
      On 15 February 2021 the Applicant received a Costs Assessment from the Respondent which was “erroneously titled”.[118] The Applicant had earlier stated the Respondent represented her from 30 April 2020 to 23 July 2020. The Applicant states she signed, agreed and paid for the costs agreement of 30 April 2020,[119] but at no stage did she sign, agree or pay for the “second costs agreement” issued 28 May 2020 although dated 18 May 2020.[120]
  2. [61]
    The Applicant referred to four “indications” from the Respondent, over the period of the engagement, that consent orders would be met in relation to the costs agreement and payment made on 30 April 2020.[121] The Applicant stated that she did not receive disclosure or adequate explanation from Ms Colman as to changed circumstances affecting the extent and nature of legal services provided in the second costs agreement which she did not agree to.[122]
  3. [62]
    The Applicant stated she requested an itemised bill in May, June, September and December 2020, but despite these requests, never issued with one.[123]

Affidavit signed 17 February 2021, filed on or about 19 February 2021 (“Exhibit 5”)

  1. [63]
    The Applicant gave the following additional evidence.
  2. [64]
    When she first met with Ms Colman on 25 February 2020, Ms Colman “offered some legal advice” but was “not willing” to represent her.[124]
  3. [65]
    The Applicant deposed that after reaching out to other legal firms, on 28 April 2020 Ms Colman said she would represent her “if I strictly followed her instructions”.[125]
  4. [66]
    The Applicant “signed and entered into a costs agreement” with the Respondent on 30 May 2020, “mainly ‘to have Consent Orders made by an appropriate Court”.[126]
  5. [67]
    The Applicant made the deposit of $10,000 and then a further $805.33 on 18 May 2020, which she deposed was in anticipation of the teleconference taking place between Ms Colman and the other party’s legal representative on 26 May 2020.[127]
  6. [68]
    In relation to the second costs agreement issued on 26 May 2020, this was “in reply to instructions I had offered after reading the other parties Financial Affidavit and DV Affidavit”.[128]
  7. [69]
    The Applicant deposed that on 15 February 2021 she finally received an itemised bill from the Respondent for the period of 14 May 2020 to 24 July 2020 totalling $13,651.50,[129] however:
    1. (a)
      It was “dubiously titled for a Client Agreement” from “15 February to 29 July 2020”;[130] and
    2. (b)
      She had still not received an itemised bill for the time period prior to 15 May 2020.
  8. [70]
    The Applicant noted her queries as to the itemised bill on Annexure “GA-06”, citing her main concerns as:
    1. (a)
      Its “very late disclosure . . . as though it was constructed in reprisal to the written feedback provided by me”;[131]
    2. (b)
      The non-disclosure of financial information to her made by the Respondent to the other party,[132] and departure from her instructions of 24 May 2020;[133]
    3. (c)
      An issue in relation to an omission / change in QPS subpoena records produced on 25 May 2020;[134]
    4. (d)
      “The negative attitude of Ms Colman toward me even though engaged as my Legal Rep. . .constantly disparaging me . . .despite my efforts toward a pleasant working relationship . .”.[135]

Affidavit (“Reply”) of the Applicant, unsigned & dated 6 August 2021 (“Exhibit 2”, document 5)

  1. [71]
    This “Reply” Affidavit refers to it being a response to the Respondent’s submissions.[136]
  2. [72]
    It contains, inter alia, the following additional evidence.
  3. [73]
    The Applicant made the payment of $805.33 ahead of a teleconference between the Respondent and the other party’s lawyers, which she understood was for the purpose of “negotiating financial matters toward agreement.”[137] The Applicant deposed that “in hindsight, it seemed following that phone conference, Ms Colman’s ‘representation changed.’”[138]
  4. [74]
    In relation to the second costs agreement of the 25 May 2020, the Applicant stated she did not agree or sign it as it was not communicated or explained to her and she had not received an itemised bill for the previous $10,805.33 paid to the Respondent. The Applicant stated that Ms Colman’s actions seemed to be “obstructing and protracting the matter, rather than progressing towards resolution.”[139]
  5. [75]
    The Applicant stated that on 24 July 2020, prior to the next court date of 28 July 2020, she terminated the Respondent’s engagement as she was dissatisfied with Ms Colman’s representation of her, which she had raised with Ms Colman including by phone call on that date. There was no mention of further payment required.[140]
  6. [76]
    The Applicant said she was shocked when notified that the Respondent was holding her file “in lien” unless they received payment in excess of $15,000, which she described as “extortion”.[141]
  7. [77]
    The Applicant’s evidence[142] was that this was the first time she had seen the Respondent’s letters,[143] dated 2 June,[144] 10 June,[145] 26 June,[146] 31 July[147] and 10 August 2020.[148] She submitted that her non-receipt was confirmed by the four unsigned and undated “acknowledgement of debts” statements[149] and the “contrasting expediency the Applicant covered the invoice of the further $805.33 of May 20, 2020 and the information given to Pullos Lawyers by the Applicant”.[150]
  8. [78]
    The Applicant’s view was that the Respondent only altered the scope of work, costs agreement and requested the lien, after discussions with the other party’s legal representative about the joint property pool, information which had not been disclosed to her.[151]
  9. [79]
    The Applicant referred to the Respondent’s correspondence dated 12 August 2020 to Pullos Lawyers[152] in which the Respondent stated that the Applicant “has the money to pay us”.[153] The Applicant deposed this was inaccurate, as she has no money left after expending in excess of $70,000 on legal costs.[154]

Affidavit of the Applicant, 9 August 2021 at 3.05 pm, unsigned (Exhibit 2, document 1)

  1. [80]
    This Affidavit responds to paragraphs within Ms Colman’s Affidavit (Exhibit 3). The majority of the Affidavit refers to the Applicant’s dissatisfaction with the Respondent’s representation of her, and disagreement with the evidence produced by the Respondent.
  2. [81]
    The Applicant disputed some of the contents of the Respondent’s file note of the parties’ meeting  in February 2020,[155] including:
    1. (a)
      The Applicant alleged the file note had been recently constructed by Ms Colman;[156]
    2. (b)
      The Applicant said that when she requested advice about appealing the protection orders, Ms Colman “responded as though I was a guilty criminal and that I must not appeal them as it would demonstrate further disregard of orders”;[157]
    3. (c)
      The Applicant said that she did want legal advice, which was why she was there, but she did not want to be represented by someone who was negative towards her, treated her as though she was a criminal and did not believe in her, which is why she did not pursue engagement of the Respondent at that stage. On this basis she does not accept that the Respondent represented her until 28 April 2020.[158]
  3. [82]
    The Applicant referred to the meeting of 28 April 2020[159] and said that “as [Ms Colman] handed me Consent parenting orders reflective of those I had been seeking since November 2019 (please see GA-03), offered a way to avoid the $5,000 for the court-ordered medico-legal report and had emailed me at 3.00am the previous morning to set up the meeting – I engaged her representation as I thought she had found heart, but I was wrong.”[160]
  4. [83]
    The Applicant stated that in May 2020, she was informed by solicitors Fox & Co, who had held joint sale proceeds in trust since 2018, that information about the trust was to be disclosed only through her family lawyer. The Applicant said this information had not been received.[161]
  5. [84]
    The Applicant stated that 25 May 2020 was the date that Ms Colman teleconferenced with the other party’s legal representative about financial matters and also the date that the Respondent issued the second costs agreement, however at “no stage was it discussed or explained to me and I did not agree to or sign it”.[162]
  6. [85]
    The Applicant stated that when perusing financial records of the other party in December 2020, she found some “unusual deposits totalling $88,000 into the Farm Management account” by an unknown entity in May 2019. The Applicant said these deposits held significance,[163] and queried them to the other side’s legal representation on 17 December 2020. The Applicant stated that she did not receive a response from the other side, however on the same date she received a letter from Ms Colman “offering to reduce the ransom on the file held in lien by 50%, which I regarded as extortion so did not pay.”[164]
  7. [86]
    The Applicant further stated that it was “clear to her” that she had “paid more than enough and do not owe any further money” to the Respondent, and that she requested her file be closed and they not contact her again.[165]
  8. [87]
    The Applicant then raised the following points, which I do not find relevant to the determination of the application:
    1. (a)
      The Applicant’s family and children, but mainly her, “have been used and abused to untangle historic Government tenor from multi-generational farming succession”, and that from December 2020 to February 2021, she “uncovered decades-old, wide-ranging government ‘errors’, which she submitted to the CCC and the Queensland Ombudsman.
    2. (b)
      The Applicant sought for her and her children to have “fair resolution for our matter now”. [166]
    3. (c)
      The Applicant sought for her role as Mother to the children to be respected and reinstated.[167]
  9. [88]
    There is no doubt that the Applicant is extremely upset at her family situation, and distressed about not being able to undertake her previous role as parent, and no doubt feels a genuine sense of entitlement that her asserted assistance in respect of the multi-general farming issue noted above should be taken into account in this application.  However, I do not find these issues, or the emotional impact on the Applicant, to be relevant in determining whether the costs agreement should be set aside.

Affidavit of the Applicant, date-stamped 31 August 2021, unsigned (Exhibit 2, document 6)

  1. [89]
    This Affidavit referred to excerpts from the Applicant’s previous affidavits and annexures of her evidence.
  2. [90]
    The Applicant stated that Ms Colman had “erroneously” claimed that she was able to arrange for the Applicant to see her children regularly, was able to secure accommodation options for her, and was able to arrange an assessment by a psychiatrist. Instead, the Applicant’s submission was that Ms Colman had hindered and protracted these matters.[168]
  3. [91]
    The Applicant expanded on the point raised in her Affidavit dated 9 August 2021[169] that due to the “short-falls of service” of the Respondent from 28 April 2020 to 24 July 2020 “and those exemplified in previous affidavits and the overall cruel protraction and trickery and negativity, it is clear that I have paid more than enough and do not owe any further money to [the Respondent]. I request my file be closed and that they do not contact me again.”[170]

The Respondent’s evidence

Affidavit date-stamped 9 August 2021

  1. [92]
    Ms Colman is a solicitor, admitted to practice in 1979. She has been accredited as a Family Specialist by the Queensland Law Society since 1997. She is a Director of the Respondent.[171]
  2. [93]
    She deposed that from 20 February 2020 to 24 July 2020, she had carriage of the file in relation to family law matters for the Applicant. [172]
  3. [94]
    She deposed that during the period from 30 April 2020 to 24 July 2020 the Applicant made no complaint in relation to the legal fees rendered by the Respondent or the professional work performed on the Applicant’s behalf.[173]
  4. [95]
    She deposed that the only complaints made by the Applicant about the professional work performed were made after Ms Colman suggested that the Applicant terminate her services and sought payment of fees rendered. She stated that the Applicant was never happy about the advice she gave to her in relation her legal matters.[174]

Initial engagement

  1. [96]
    Ms Colman disagreed with the Applicant’s timeline of events.[175] Ms Colman’s chronology is “Annexure 1” to her Submissions,[176] and also expanded on in her Affidavit.[177]
  2. [97]
    Ms Colman deposed that:
    1. (a)
      On 13 February 2020, at 9.57 pm, she received an email from the Applicant, advising that she had been referred to the firm, and amongst other things, sought legal assistance with her family law matters.
    2. (b)
      Ms Colman replied to that email on 14 February 2020 at 3.04 pm asking her to phone the office about an appointment. Later that day, an appointment was made for the Applicant to attend the office on Monday 17 February 2022 at 10 am. That appointment was rescheduled to Thursday 20
      February 2020 at 3.30 pm.
    3. (c)
      On 18 February 2020, at 6.38 pm, the Applicant returned the new client form completed by her and confirmed the appointment. She again confirmed the appointment on 19 February 2020 at 2.14 pm.
  3. [98]
    On 20 February 2020, Ms Colman, and Ms Santoso, another solicitor at the Respondent firm, had an initial consultation with the Applicant in relation to:
    1. (a)
      The Applicant’s family law matter in which an Interim Order had been made on 28 June 2020, which provided for her to spend alternate weekends with her children, and which stated that she was not to attend at the matrimonial home;
    2. (b)
      A domestic violence matter, in particular in relation to an order which was made on 15 October 2019, with the applicant as the Respondent; and in relation to her breach of that order on the day it was made; and her undertaking to the Court; and
    3. (c)
      Her wish to appeal both orders.
  4. [99]
    The file note by Ms Santoso[178] records, amongst other things, that the Applicant stated she wanted to appeal the Federal Circuit Order, in order to allow her to remain in the matrimonial home, or the small cottage which was on the same property. She also advised that an issue with the Order and Undertaking was that she works at the children’s school.[179]
  5. [100]
    The file note records that Ms Colman advised the Applicant that she would not be successful in either appeal and that the Respondent “will not be able to assist her in making such an appeal as she will not succeed” and that the Applicant should “take her advice with respect to preparing for the next Court date for the family law proceedings, especially so given the father is still prepared to enter into a shared care arrangement” as the preferable course of action (rather than appeals of the two orders). The file note recorded that Ms Colman advised her that appeals take time, and that she would encounter difficulties, for example, that she would need to have the domestic violence order set aside. The file note records that the Applicant stated that she had time, and wanted to represent herself in the appeal, and that she had been forced into giving the Undertaking and wanted to appeal the Magistrates Court outcome.[180]
  6. [101]
    The file note records that Ms Colman asked the Applicant why she would do things they were telling her would not work. The file note then records:

…..Genevieve said she had parenting and property matters sorted. All she cared about was being allowed to attend at the property as it was not in the children’s best interests for her not to be allowed at the property.[181]

  1. [102]
    The file note stated that the Respondent firm could not assist with such an appeal, and that the Applicant said she was happy to self-represent. It was noted that Ms Colman stated she would not be charging her for her advice that day, however they could help her with her Court appearance on 19 March 2020 “if she wants to come back to take Pippa’s advice. Genevieve acknowledged that”.[182]
  2. [103]
    Ms Colman deposed to email correspondence between herself and the Applicant on 20 and 21 February 2020 in which the Applicant thanked her for her information and time.[183]

Further engagement

  1. [104]
    Ms Colman deposed that the Applicant wrote to her three times on 27 April 2020 seeking assistance with her matter.[184] On 28 April 2020, after the Applicant had contacted her by email a further four times, Ms Colman sent a letter (by email) to the Applicant, which noted that at the last appointment the firm did not charge her as she was not prepared to take their advice. The letter confirmed that the Applicant had a further appointment later that day, and that this would be charged at Ms Colman’s charge out rate of $460 per hour. Receipt of this correspondence was confirmed by the Applicant and that she was “open to anything” and wanted Ms Colman’s advice.[185]
  2. [105]
    Ms Colman then deposed to the meeting with the Applicant on 28 April 2020, in particular noting that for her to act for the Applicant:
    1. (a)
      She would need to take Ms Colman’s advice;
    2. (b)
      She must enter into a Legal Services Agreement;
    3. (c)
      She must pay $10,000 into her trust account before their first appointment; and
    4. (d)
      She must give Ms Colman all her documents in order.[186]
  3. [106]
    During the meeting, the Applicant told Ms Colman she had $80,000 available for legal fees and Ms Colman told the Applicant there was no charge for that appointment. They also made arrangements to meet on 1 May 2020.[187]
  4. [107]
    On 29 April 2020, the Applicant sent the Family Report to Ms Colman and asked four questions.[188] On 30 April 2020, Ms Colman deposed:
    1. (a)
      That she read through parts of the Family Report;
    2. (b)
      That the Applicant telephoned and left a message, and her secretary told the Applicant how to put documents together;
    3. (c)
      Ms Colman replied to the Applicant’s email of the day before and answered her questions;
    4. (d)
      The Applicant responded to that email.[189]

The Costs Agreement

  1. [108]
    Ms Colman denied that the Applicant was induced into signing the costs agreement. She deposed that before she first accepted instructions from the Applicant, she sent her a letter of offer and Costs Agreement, in accordance with the usual practice when a new client gives instructions to the Respondent.[190] The documents that she sent to the Applicant on 30 April 2020, were:
    1. (a)
      Legal Services Agreement (referred to throughout this decision as the “costs agreement”);
    2. (b)
      Letter of Offer;
    3. (c)
      Trust Account Details Form;
    4. (d)
      Brochures – costs in Court proceedings, Legal Costs – your right to know and Marriage, Families and Separation.[191]
  2. [109]
    On 30 April 2020, Ms Colman deposed that she received an email from the Applicant attaching the signed Legal Services Agreement, letter of offer and trust account details and advising she had deposited $10,000 into the respondent’s trust account.[192]  This is common ground between the parties.
  3. [110]
    Ms Colman disputed the Applicant’s evidence that the scope of works was “mainly to have consent orders made by an appropriate court”.[193] Instead, Ms Colman deposed that the agreed scope of work and fee estimate was “clear and specific”[194] as detailed in the Respondent’s letter of offer dated 30 April 2020,[195] which included:
    1. (a)
      Representing the Applicant in court proceedings, up to the first interim hearing, in parenting proceedings brought by the other parent in relation to the parties’ children;
    2. (b)
      Representing the Applicant in negotiations with the other parent and their lawyer, regarding parenting arrangements in relation to the parties’ children up to and prior to the directions hearing on 8 May 2020.
  4. [111]
    Following the reference to the directions hearing on 8 May 2020, it was then noted:

Thereafter, we will reassess our engagement and agree on further work to be done including, if negotiations are successful, we will undertake all work necessary on your part to have Consent Orders made by an appropriate court. If negotiations are unsuccessful, we will, if instructed by you, represent you in further court appearances aimed at having appropriate parenting orders made under the Family Law Act.[196]

  1. [112]
    In her Affidavit, Ms Colman detailed her observations of the matter based on her discussions with the Applicant on 13 February 2020 and 28 April 2020 and on the documents provided, and deposed that the Applicant had “unrealistic expectations” about arrangements being made by consent.[197]
  2. [113]
    The letter accompanying the Costs Agreement provided that the Respondent would charge for legal fees on a “blended scale”, stated to be based on government set fees, and also on a “time basis” for any meetings attended regarding the Applicant’s matter. An enclosed “Schedule of Fees and Costs” was referred to, which set out the rates for how the Respondent charged legal fees.[198]
  3. [114]
    In relation to fees, it was also stated that:
    1. (a)
      The charges on the Applicant’s file would be reviewed and assessed by an independent third party, Queensland Independent Cost Assessors (“QICS”);
    2. (b)
      Based on QICS assessment, the Respondent would then determine what costs would be charged to the Applicant and send a tax invoice to the Applicant;
    3. (c)
      QICS charge a fee for assessing files, and 50% of those fees would be borne by the Respondent, and the remaining 50% would be passed on to the Applicant and included in her invoice;
    4. (d)
      For an item for which a fee is not provided in the Schedule of Fees and Cost, the amount to be allowed is the amount “considered reasonable by the Independent Cost Assessor”;
    5. (e)
      The  Schedule of Fees and Costs may change from time to time and should this occur during the course of the Applicant’s matter, the Respondent would apply the amended Schedule from its effective date, and they would advise the Applicant of any changes in writing;
    6. (f)
      The Respondent does not charge for:
      1. Internal correspondence;
      2. Courtesy correspondence;
      3. Correspondence regarding fees and accounts;
      4. Multiple drafts of the same documents regardless of how many times they redraft;
      5. Sending the same letter by email and fax (only one method would be charged for).
  4. [115]
    Ms Colman deposed that the estimate of legal fees, disbursements and outlays was set out in the letter of offer, including that:
    1. (a)
      They were in the range of “between $5,000 and $10,000 (inclusive of GST) up to 8 May 2020”;
    2. (b)
      Based on “10 to 20 hours work”;
    3. (c)
      They were noted to be “only an estimate and should not be seen to be a quote” and that their fees and costs “may be affected by a number of factors which are detailed in our attached Costs Agreement”;
    4. (d)
      The estimate “is not binding on us as the work required to be done may change”
    5. (e)
      “If this estimate or the scope of the work changes, we will provide you with a revised estimate”.[199]
  5. [116]
    Ms Colman then referred to the estimate of costs provided in the Costs Agreement, and the list of examples of “facts which may have a bearing on the amount of legal costs incurred”. It was noted “It is therefore not possible for us to furnish an accurate quotation of how much it will cost for us to represent you in your matter”.[200]
  6. [117]
    Ms Colman noted that the Applicant initialled the letter of offer and Costs Agreement on 30 April 2020, the same day it was sent to her.[201]
  7. [118]
    Ms Colman also noted that the Costs Agreement provided the circumstances upon which the agreement could be terminated by the Applicant, and that she would be liable for costs up until notice of termination. The Applicant terminated the engagement on 24 July 2020.[202]
  8. [119]
    Referring to the deposit of $805.33 made by the Applicant on 20 May 2020, Ms Colman deposed:[203]
    1. (a)
      She denied that this was in anticipation of a teleconference taking place between her and the other party’s legal representative on 26 May 2020, although she did accept there was a teleconference to that effect on that date.[204]
    2. (b)
      The Applicant’s payment was for the outstanding amount on the Respondent’s invoice for services rendered to the Applicant, in the amount of $10,805.33, sent to the Applicant on 12 May 2020.[205]
    3. (c)
      The invoice of 12 May 2020 had been assessed by QICS costs assessors for the period from the date of the Applicant’s instructions on 30 April 2020 to 8 May 2020, and included an “acknowledgement of debt” statement to be signed by the Applicant in the amount of $805.33.[206]
    4. (d)
      The Applicant sent no query or complaint in relation to this invoice.[207]
    5. (e)
      The Respondent sent a reminder notice to the Applicant with respect to the $805.33 on 20 May 2022,[208] which was the same date the Applicant paid this balance.[209]

Revisions to the cost agreement

  1. [120]
    Ms Colman denied that there was a “second costs agreement” as referred to by the Applicant.[210] She deposed that on 18 May 2020 she wrote to the Applicant revising the Respondent’s previous estimate of costs and fees, advising that their estimate to the next court date of 28 July 2020 was a further $10,000, requesting this be paid into their trust account, and inviting the Applicant to contact them with any questions.[211] Ms Colman’s submission is that the Respondent’s Costs Agreement, letter of offer and revised fee estimates sufficiently address s 328(2)(f) and (g) of the LPA.[212]
  2. [121]
    On 2 June 2020, Ms Colman deposed that she wrote to the Applicant as to an explanation of legal fees and costs. She stated that she received no response from the Applicant.[213]
  3. [122]
    On 10 June 2020, Ms Colman deposed that the Respondent sent a further tax invoice for work done between 15 May 2020 and 4 June 2020, which had been assessed by QICS and discounted by Ms Colman, totalling $12,359.66.[214]
  4. [123]
    On 26 June 2020, by email, Ms Colman sent the Applicant a letter which provided:
    1. (a)
      A revised fee estimate detailing an increase in their estimate of fees from 10 June 2002 to a further $10,000 to $20,000 for a number of reasons cited including ongoing correspondence with the other side’s solicitor, providing advice on the psychiatric assessment, that the parties were not close in their negotiations, and preparing affidavit or amended response documentation in preparation for the interim hearing on 28 July 2020;
    2. (b)
      That their outstanding fees were $12,359.66, and requested a further $15,000 to be deposited into the trust account.[215]
  5. [124]
    Ms Colman deposed that on 9 July 2020, the Respondent sent a reminder notice to the Applicant, and on 10 July 2020, the Respondent sent a trust account statement to the Applicant.[216] Further reminders of the outstanding invoice were sent to the Applicant on 23 July and 30 July 2020.[217]

Applicant’s complaints during the engagement & termination of engagement

  1. [125]
    Ms Colman deposed that she received no correspondence from the Applicant indicating that she did not agree to the initial $10,805.33 invoice, or that she had an issue with any of the other invoices during the time that Ms Colman had carriage of the matter.[218] Ms Colman was of the view that at the time of the first and second invoice being issued, the Applicant seemed satisfied with the work performed.[219]
  2. [126]
    Ms Colman deposed that on 23 July 2020, following her sending some advice to the Applicant about some options in relation to the upcoming interim hearing, that she and the Applicant spoke by telephone. The Applicant told Ms Colman that their [the Respondent’s] representation of her “had been bad since [the Applicant] started with [the Respondent] in May 2020”. Ms Colman suggested the Applicant contact another solicitor because she felt the Applicant had lost confidence in her (Ms Colman).[220]
  3. [127]
    Also on 23 July 2020, the Applicant emailed to confirm she would find alternate representation or self-represent, and on 24 July 2020, the Applicant advised the Respondent via email that she no longer sought representation by the Respondent.[221]

Dispute over invoices, work performed and release of file

  1. [128]
    On 31 July 2020, Ms Colman deposed that the Respondent sent their final account for the period of 12 June 2020 to 23 July 2020 in the amount of $14,824.66.[222]
  2. [129]
    The Applicant’s new solicitors, Pullos Lawyers, wrote to the Respondent on 24 July 2020 requesting release of the file.[223] On 3 August 2020, Ms Colman deposed that she caused a letter to be sent to Pullos Lawyers, advising that the Respondent was exercising a “fruits of litigation lien over proceeds of property settlement they might receive for the Applicant on account of the Respondent’s outstanding fees at the time”.[224]
  3. [130]
    On 11 August 2020, Ms Colman deposed that she caused a letter to be sent to Pullos Lawyers attaching the final invoice, which brought the outstanding fees to a total of $15,510.06, and indicating that the fruits of litigation lien was extended to the new outstanding balance.[225]
  4. [131]
    On the same date, Pullos Lawyers wrote to Ms Colman disputing the Respondent’s right to claim a lien where no account had been rendered and asking for documents concerning the costs agreement and accounts. Ms Colman deposed that the assertion, that the Respondent had never rendered an account to the Applicant, was incorrect.[226] Ms Colman wrote to Pullos Lawyers to that effect on 12 August 2020, and attached the requested documents, to which the Respondent received no reply.[227]
  5. [132]
    Ms Colman sent a follow-up email to Pullos Lawyers on 16 September 2020 to the effect that the invoice remained unpaid, and that she had received no explanation from the Applicant as to why the fees were unpaid.[228]
  6. [133]
    Ms Colman deposed that the Applicant emailed Ms Colman on 23 September 2020, with a cc to Pullos Lawyers, in which the Applicant noted that she had been requested to directly respond to Ms Colman and should be able to reply by the next day, to which Ms Colman replied to the effect that she looked forward to receiving payment (and denied that she was seeking “another claim for $15,570.16” as alleged by the Applicant).[229] The Applicant then sent further emails to Ms Colman on 23 September 2020 and 28 September 2020 advising of a delay in responding.[230]
  7. [134]
    On 1 October 2020, the Applicant emailed Ms Colman setting out a complaint in relation to the Respondent’s representation of her, and concluding “I have felt disparaged, ‘bossed about’ and now you are threatening to penalise a further $15,000. It is unacceptable.” Ms Colman deposed that this was the first time she had received any indication that the Applicant disputed the Respondent’s fees.[231]
  8. [135]
    Ms Colman denied that she had acted in a way that was not in the best interests of the Applicant. Ms Colman referred to examples of the assistance she had given the Applicant over the course of the engagement,[232] and noted the difficulties and objections that the Applicant had to Ms Colman’s advice.
  9. [136]
    Ms Colman then directly responded to the Applicant’s timeline in her email of 1 October 2020,[233] explaining the events from Ms Colman’s perspective, denying the criticisms of the Applicant and providing copies of additional correspondence and file notes over the period of the engagement.[234] In particular, Ms Colman deposed that on 8 May 2020 she did not “berate” the Applicant, that it was “her duty, as the Applicant’s lawyer, to give her this advice” and as a result of the advice, the Applicant became upset and she (Ms Colman) terminated the phone call because the Applicant “kept arguing with me and speaking over me”.[235]
  10. [137]
    Ms Colman deposed that on 17 December 2020, the Respondent contacted Pullos Lawyers to advise they were writing directly to the Applicant, to which the other firm had no objection as they no longer acted for the Applicant and had not for some time.[236]
  11. [138]
    On 17 December 2020, Ms Colman wrote to the Applicant in relation to the outstanding fees and in response to the 1 October 2020 email, and noting that prior to this the Applicant had made no complaint about the fees or work, and offered the Applicant a 50% reduction in fees if she paid within 7 days.[237] It also noted:

We have charged you fairly. Under our Legal Services Agreement with you, we are entitled to charge an additional 20% uplift because you did not pay our fees as they were rendered. Out of compassion for your circumstances, we chose not to apply that charge to your account.

We acknowledge that the work involved with your matter may have cost more than you anticipated, however, we have always charged you in accordance with your Legal Services Agreement with our office and have kept you updated with regular fee estimates. The high fees were due to the work undertaken by us on your behalf.[238]

  1. [139]
    Ms Colman deposed that on 18 December 2020, the Applicant emailed making further complaints including that she had requested an itemised bill on a “number of occasions” which had been “ignored” by the Respondent.[239]
  2. [140]
    Ms Colman noted in summary, amongst other things, that:
    1. (a)
      It was her role to provide the Applicant advice and that she did not always accept it;
    2. (b)
      She denied any allegations of inappropriate conduct;
    3. (c)
      All her actions and advice to the Applicant were appropriate and in her best interests.[240]

Applicant’s complaint re itemised bills

  1. [141]
    Ms Colman initially deposed that she did not receive any requests for an itemised bill from the Applicant until 1 October 2020.[241]
  2. [142]
    Ms Colman later noted, in relation to the email of 1 October 2020 referred to above, that there was no request for an itemised bill.[242] In the email itself, the relevant wording is “Please see below grounds by way time-line for disputing $15570.16 and indeed to claim refund on part of $10805 payment. I have not received an itemised bill from your firm”.[243]
  3. [143]
    Ms Colman deposed that the Applicant’s 18 December 2020 email was the first occasion on which the Applicant requested an itemised account, and Ms Colman immediately requested preparation of an itemised account from QICS.[244]
  4. [144]
    Ms Colman agreed with the Applicant’s evidence that on 15 February 2021, the Applicant was forwarded the itemised account for the period of 15 May 2020 until when the Applicant ceased instructing the Respondent.[245] Ms Colman deposed that the itemised account was provided to the Applicant when it was received, and denied that it was “constructed in reprisal” as alleged by the Applicant.[246]
  5. [145]
    Ms Colman referred to the Applicant’s complaint in the Tribunal proceedings that she had not received an itemised bill for the period prior to 15 May 2020, and deposed that the Applicant had not requested an itemised account for that period.[247]
  6. [146]
    Ms Colman noted the Applicant had stated that the dispute should be settled by the $10,805.33 payment already paid, which was for fees from the date of instructions to 8 May 2020.[248] In relation to the Applicant’s comments on the QICS itemisation annexed to her Affidavit, Ms Colman stated the work was performed and the Applicant should pay the fees.[249] She had not claimed interest on the outstanding fees as allowed for in the Costs Agreement.[250]
  7. [147]
    Ms Colman opposed the setting aside of the Costs Agreement.[251] She was not prepared to forego all fees for work done by her for the Applicant after 8 May 2020, however in a “spirit of compromise” she was prepared to accept one half if it was paid within the next 7 days.[252]

Orders sought by the Respondent

  1. [148]
    The Respondent seeks for the application to be dismissed, on the basis that the requirements for setting aside a costs agreement under s 328 LPA have not been met. The Respondent maintains the work was performed and the Applicant should pay for the Respondent’s outstanding fees.[253]

Contentions of the parties

  1. [149]
    In summary , the Applicant’s grounds for the application, by reference to the particular sub-sections in s 328(2) LPA appear to be:
    1. (a)
      The Applicant was “induced”[254] to enter into the Costs Agreement by the “trickery” of the Respondent[255] –ss 328(2)(a) and (2)(d);
    2. (b)
      The Respondent had engaged in “unsatisfactory conduct” towards her during the course of their engagement[256] - s 328(2)(b);
    3. (c)
      The Respondent failed to make adequate costs disclosures to the Applicant including with respect to the scope of work and factors relating to changes in circumstances – s 328(2)(c);
    4. (d)
      The Respondent gave her a “second costs agreement” which she did not agree to, did not send her other documents relating to costs disclosure,[257] and invoiced her for costs that she had not agreed to – s 328(2)(e), (f) and (g).
  2. [150]
    The Respondent denied the Applicant’s contentions,[258] and the specific denials with respect to s 328(2) matters are addressed below. The Respondent submitted that the Applicant’s allegations were “spurious” and that the Applicant had selectively chose parts of documents in an attempt to discredit the Respondent.[259]

Fraud or misrepresentation: s 328(2)(a), (d) LPA

  1. [151]
    It was common ground between the parties that on 30 April 2020, the Applicant initialled each page of the letter of offer, signed the “Acceptance of Legal Services Agreement”, and returned a copy to the Respondent.[260] The Applicant also deposited $10,000 into the Respondent’s trust account as requested in the Costs Agreement.[261]
  2. [152]
    Although the Applicant did not use the words “fraud” or “misrepresentation”, it appears, from the Applicant’s case as a whole,  and her contentions  of “trickery” and being “induced”, this is what she is alleging.
  3. [153]
    In this regard, the Applicant said that fraud was not a word she had used, however she alleged that the Respondent had engaged in “constant trickery” and her being “set up”.[262] When asked further about this, the Applicant referred to a letter she had written to Ms Colman during the course of their engagement, in which she stated she chose the Respondent’s representation with the understanding that consent orders would be sought, but “this was not delivered” and the direction was departed from contrary to her requests.[263] She concluded the letter: “I have felt disparaged and further tricked and now you are threatening to penalise $15,000, holding information to ransom, robbing resources from my children’s future.”[264]
  4. [154]
    The Applicant also contended that she had been “induced” into entering into the costs agreement by the Respondent.[265] The basis of this submission appears to be with respect to the circumstances the Applicant deposed led to the signing of the Costs Agreement. It appears the Applicant’s contention is that the Respondent had misrepresented the scope of the agreement, which induced her into entering the Costs Agreement.   In this regard, the Applicant’s case is that:
    1. (a)
      She initially met with Ms Colman on 25 February 2020, but Ms Colman turned her away. In the meantime, the Applicant sought other representation and booked a psychiatric assessment which was to cost $5,000.[266]
    2. (b)
      The Applicant deposed to Ms Colman providing her with “a mountain of paperwork” and a costs agreement requiring $10,000 “to reach consent order” on 29 April 2020. [267]
    3. (c)
      Ms Colman requested the Applicant to attend a meeting with her on 1 May 2020, rather than a booked psychiatric assessment. The Applicant understood this meeting was “to negotiate consent order and a plan to avoid the $5,000 fee for Psychiatrist Assessment I had been quoted which induced me to sign and pay the $10,000 cost agreement. . .”.[268]
    4. (d)
      In further evidence, the Applicant referred to the meeting of 28 April 2020[269] and said that “as [Ms Colman] handed me Consent parenting orders reflective of those I had been seeking since November 2019 (please see GA-03), offered a way to avoid the $5,000 for the court-ordered medico-legal report and had emailed me at 3.00am the previous morning to set up the meeting – I engaged her representation as I thought she had found heart, but I was wrong.”[270]
  5. [155]
    The Applicant deposed in further evidence that she signed, agreed and paid for the costs agreement of 30 April 2020, “mainly to have Consent Orders made by an appropriate Court”.[271]
  6. [156]
    The Respondent’s evidence was that no mention of inducement was ever made by the Applicant during the time she was the client of the Respondent, or after.[272]
  7. [157]
    The Respondent denied that it misrepresented information or fraudulently induced the Applicant into using their services, citing the basis of their initial engagement by the Applicant including her signed Legal Services Agreement which was signed and returned by the Applicant on the same day it was sent.[273]

Findings – s 328(2)(a) matter

  1. [158]
    The Applicant’s assertion that she was “induced” to enter into the Costs Agreement on 30 April 2020 on the basis of particular representations by the Respondent as to the scope of the agreement, is inconsistent with other evidence.
  2. [159]
    It is clear that from the initial meeting and correspondence between Ms Colman and the Applicant that Ms Colman provided particular advice to the Applicant which the Applicant did not agree with. This led to the Applicant choosing not to engage the Respondent at that time, and instead she sought advice from other solicitors. The Applicant then returned to the Respondent firm, and following further discussion and correspondence on or about 28 May 2020, entered into a Costs Agreement with them.
  3. [160]
    The documentary evidence, including the email sent by the Respondent to the Applicant on 28 April 2020, as well as the letter and Costs Agreement sent on 30 April 2020 do not support that the Applicant was induced to enter into the Costs Agreement.   They rather indicate to the contrary.
  4. [161]
    The email of 28 October 2020 supports Ms Colman’s evidence that she told the Applicant, prior to the meeting with her, that in order for Ms Colman to act for the Applicant, she would need to take her advice, as well as enter into a Costs Agreement and pay $10,000 into trust. I do not find that those matters amount to an inducement to the Applicant, or coerced her into the agreement.
  5. [162]
    On 30 October 2020, as part of the Costs Agreement and accompany correspondence, the Respondent provided detailed information to the Applicant about the anticipated costs and the Applicant’s rights, requested that the Applicant read the documents, and gave the Applicant the opportunity to ask questions about the scope of the agreement and costs. The Applicant chose not to do so, even though in the past she had not agreed with Ms Colman’s approach, and knowing that she had other avenues for legal advice and representation.
  6. [163]
    The detailed scope of the work stated in the Costs Agreement was inconsistent with the Applicant’s evidence that the agreement was “mainly” to obtain consent orders.
  7. [164]
    Further, the Costs Agreement was initialled on each page and signed by the Applicant on the same day it was received.
  8. [165]
    I have carefully assessed the evidence. I am not satisfied to the requisite standard that the Applicant was induced to enter into the Costs Agreement by misrepresentation by the Respondent. In particular, I am not satisfied that the Respondent induced the Applicant into the agreement only “to negotiate a consent order” and avoid the psychiatric assessment fee.

Unsatisfactory professional conduct or professional misconduct: s 328(2)(b) of the LPA

  1. [166]
    The Applicant contended that the Respondent had engaged in “unsatisfactory conduct” towards her during the course of their engagement.[274]
  2. [167]
    The Respondent submitted that this subsection is not applicable, as the relevant practitioner, Ms Colman, has not been found guilty of engaging in unsatisfactory professional conduct or misconduct to relation to the provision of legal services to which the agreement relates.[275]   .

Findings - s 328(2)(b) of the LPA

  1. [168]
    There is no evidence of the relevant practitioner, Ms Colman, having been found guilty of unsatisfactory professional conduct or professional misconduct.
  2. [169]
    As such, this sub-section is not applicable. 
  3. [170]
    This sub-section requires consideration of whether the relevant legal practitioner has been found guilty of engaging in unsatisfactory professional conduct or misconduct to relation to the provision of legal services to which the agreement relates. As there is no evidence of such a conviction before me, this is not a matter which I can take into consideration in determining whether the Costs Agreement was not fair or reasonable.
  4. [171]
    I will treat, however, the Applicant’s contention of “unsatisfactory conduct” as being directed to the other allegations she has made.  As will be apparent from these reasons, I find that that no unsatisfactory conduct by Ms Colman or the Respondent has been shown.  

Failure to make disclosure: s 328(2)(c) LPA

  1. [172]
    As referred to above, it was not in issue that on 30 April 2020, the Applicant initialled each page of the letter of offer, signed the “Acceptance of Legal Services Agreement”, and returned a copy to the Respondent,[276] and deposited $10,000 into the Respondent’s trust account as requested in the Costs Agreement.[277]
  2. [173]
    The Applicant’s evidence appears to raise s 328(2)(c) as a matter in issue, including:
    1. (a)
      The scope of work that the Applicant understood was the basis of the initial Costs Agreement, was not the work that was performed. The Applicant gave evidence that she engaged the Respondent “mainly” to enter into consent orders,[278] however the Respondent altered the scope of work without her agreement.[279]
    2. (b)
      After the initial Costs Agreement, her legal costs escalated. She did not agree to the “second costs agreement” and the second costs agreement was not discussed between the parties.[280]
    3. (c)
      She did not receive disclosure or adequate explanation from Ms Colman as to changed circumstances affecting the extent and nature of legal services provided in the second costs agreement which she did not agree to.[281]
    4. (d)
      She did not receive the further document dated 25 June 2020,[282] setting out further revised fees and costs, until it was received as part of the Respondent’s submissions in these proceedings.[283]
  3. [174]
    The Respondent’s submissions on this issue, were that:
    1. (a)
      They complied with the requirements of Division 3 of the LPA for costs disclosure, referring to the attachments sent with the Letter of Offer dated 30 April 2020 including the Legal Services Agreement;[284]
    2. (b)
      The Costs Agreement clearly set out the nature of the representation and the scope of the work it related to, and made it clear that the initial amount paid into the trust account was for representation and advice up to 8 May 2020 and it was an estimate only.[285]
    3. (c)
      As the Applicant had signed and returned the required documents, the Applicant accepted that disclosure had occurred under the LPA.[286]
    4. (d)
      They continued to comply with the Division 3 requirements throughout the engagement, evidenced by the invoice dated 12 May 2020 and the revised fee estimates dated 18 May 2020[287] and 26 June 2020.[288]
    5. (e)
      In relation to the issue raised by the Applicant of non-receipt of the third document, setting out the revised fees and costs, Ms Colman deposed this letter[289] was sent to the Applicant on 26 June 2020.[290]
    6. (f)
      The Applicant recognised (in her Application) the receipt of the 18 May and 26 June 2020 “revised estimate” letters,[291] sent no response regarding them, and continued to instruct the Respondent after receipt of those estimates. The Respondent submitted that the Applicant accepted the revised estimates of the Costs Agreement by her conduct.[292]

Findings – s 328(2)(c)

  1. [175]
    Section 308 of the LPA requires that certain disclosures concerning costs are made to the client as part of the Costs Agreement.
  2. [176]
    The documentary evidence in this respect is the Costs Agreement and associated correspondence dated 30 April 2020[293] as well as the further two letters setting out the “revision of fees and costs” dated 18 May 2020[294] and 26 June 2020[295].[296] I accept that the latter document was dated on its face as 25 June 2020, but was sent by the Respondent on 26 June 2020. The Respondent’s evidence that the document was sent on 26 June 2020 was supported by an email addressed to the Respondent on the same date.   I accept the evidence of the Respondent. 
  3. [177]
    With respect to the requirements for disclosure of costs under s 308 LPA, I am satisfied that the Respondent has complied with its disclosure obligations in the correspondence which they sent to the Applicant, including the Costs Agreement and revised estimates of fees and costs dated 18 May 2020 and 26 June 2020.
  4. [178]
    The Costs Agreement provided that the fees and costs were an “estimate” only and stipulated that revisions to the fees and costs would be provided as the matter progressed. It was open to the Applicant at any stage to terminate the engagement, in accordance with the Costs Agreement, including upon revision of fees and costs.
  5. [179]
    While the Applicant’s evidence was that she did not agree to the “second costs agreement” (dated 18 May 2020) received on 25 May 2020, I find that this was a revision to the fees and costs set out in the initial Costs Agreement, and not a second costs agreement that required positive acceptance by the Applicant.
  6. [180]
    Having been provided this revision to the fees and costs, the Applicant could have notified the Respondent that the further fees and costs were not agreed to. That did not occur, and the Applicant continued to provide instructions to the Applicant, thus incurring further fees.
  7. [181]
    The Applicant deposed that she did not receive the 26 June 2020 document.  This is so despite the email having been sent to her on that date. It may be that the Applicant did not see the email at the relevant time, or it may be that she did not open it, or did not recall it.
  8. [182]
    Even if any of these three possibilities were in fact what happened, the reality is that the Respondent provided the necessary disclosure under s 308 of the LPA, I do not find that the Respondent has failed to make any of the required disclosures to the Applicant.

Circumstances & conduct before & when the agreement was made: s 328(2)(d) LPA

  1. [183]
    The Applicant’s contentions as to the circumstances and conduct before and when the agreement was made, have been summarised under the heading for s 328(2)(a) above – namely, her contention that she was induced into entering into the Costs Agreement on the basis of the Respondent’s representations as to the scope of work to be performed.
  2. [184]
    The Respondent submitted that that this matter was not made out, because:
    1. (a)
      Its conduct was appropriate and consistent prior to its engagement and during the period of engagement.
    2. (b)
      The Respondent provided the Applicant with sound advice notwithstanding that at times such advice upset the Applicant.
    3. (c)
      The Respondent made it clear that it would only act for the Applicant if she took their advice.[297]

Findings – s 328(2)(d)

  1. [185]
    I find that the Respondent’s conduct before and when the agreement was made was not such as to render the costs agreement not fair or reasonable to the Applicant.

Circumstances and conduct after the agreement was made: s 328(2)(e) LPA

  1. [186]
    As referred to above, the Applicant contended that the Respondent altered the scope of work during the course of the engagement, without the Applicant’s agreement.[298]
  2. [187]
    The Applicant deposed to a teleconference between the Respondent and the other party’s lawyers, which she understood was for the purpose of “negotiating financial matters toward agreement,”[299] and that “in hindsight, it seemed following that phone conference, Ms Colman’s ‘representation changed’.”[300]
  3. [188]
    The Respondent submitted that this allegation that her representation “changed” was not made out, as the Respondent’s conduct was consistent both before and after the agreement was made, and the Respondent acted in the best interests of the Applicant.[301]  I accept Ms Colman’s evidence.   I do not find that the Respondent engaged in conduct which would lead me to be satisfied that the costs agreement should be set aside. 

Whether & how the agreement addresses the effect on costs of matters and changed circumstances: s 328(2)(f) LPA

  1. [189]
    The Applicant did not specifically address how the Costs Agreement did or did not address the effect of costs of matters and changed circumstances.
  2. [190]
    With respect to the “second costs agreement”, which she “did not agree to”, the Applicant contended that she did not receive disclosure or adequate explanation from Ms Colman as to changed circumstances affecting the extent and nature of legal services.[302]
  3. [191]
    The Respondent submitted that this should not accepted,  as the Agreement, including in the Letter of Offer, clearly stated the scope of the work with an estimate of fees and expected number of hours work.
  4. [192]
    The Respondent noted that the Applicant was advised this was an estimate only and that this could change as the scope of representation changed.
  5. [193]
    The Respondent denied that a second costs agreement was issued to the Applicant on 28 May 2020.[303] The Respondent asserted that the “revised estimate” letter sent on 18 May 2020 revised the “previous estimate of costs and fees”,[304] referring to the estimate provided in the Costs Agreement dated 30 April 2020.
  6. [194]
    The Respondent revised the fees estimate, and advised the Applicant of the revision, on 18 May 2020 and 26 June 2020. Throughout this period the Applicant continued to instruct the Respondent and did not raise any objections or questions regarding the revisions.[305]
  7. [195]
    The agreement, together with the subsequent disclosures, properly address (a) that the costs assessment may change; and (b) revised estimates, together with appropriate riders as to the inability to precisely estimate costs.    

Whether & how billing under the agreement addresses changed circumstances: s 328(2)(g) LPA

  1. [196]
    The Applicant did not specifically address this matter in her submissions. However, from the Applicant’s evidence, it appears she contended that she did not receive adequate information from the Respondent about how a change in circumstances effects billing and the Respondent’s billing practices.
  2. [197]
    The Respondent submitted this matter was not made out. The Respondent had provided the Applicant with a letter dated 2 June 2020,[306] and other information in the Costs Agreement,[307] which addressed how a change in circumstances effects billing and the practice of the Respondent in sending invoices.
  3. [198]
    The Applicant’s evidence was that the letter of 2 June 2020 was first received by her as part of the Respondent’s submissions.[308]
  4. [199]
    The Applicant further contended that she asked for itemised bills on numerous occasions, however did not receive one until February 2021, in relation to which she has disputed the majority of the charges.[309]
  5. [200]
    The Respondent deposed that the Applicant’s 18 December 2020 email was the first occasion on which the Applicant requested an itemised account, and Ms Colman immediately requested preparation of an itemised account from QICS.[310]
  6. [201]
    Ms Colman agreed with the Applicant’s evidence that on 15 February 2021, the Applicant was forwarded the itemised account for the period of 15 May 2020 until when the Applicant ceased instructing the Respondent.[311] Ms Colman deposed that the itemised account was provided to the Applicant when it was received, and denied that it was “constructed in reprisal” as alleged by the Applicant.[312]
  7. [202]
    The Respondent referred to the Applicant’s “marked up evidence” in the bill of fees and costs[313] and submitted that it was based on personal grievances and had little to no evidentiary value.[314]

Findings – ss 328(2)(e), (f) and (g)

  1. [203]
    I find that the communications from the Respondent adequately address changes in circumstances.
  2. [204]
    In my view, the Costs Agreement and “revised estimate” letters, provided detailed information consistent with the Respondent’s obligations under the LPA provisions for costs disclosure including ss 308, 315 and 322.
  3. [205]
    With respect to the itemised bill requests, the Applicant has not provided evidence in support of her contention that she requested these on occasions other than 18 December 2020.
  4. [206]
    The approach of the Respondent in advising in the Costs Agreement of the process of engaging a costs assessor, and then following that course prior to provision of the itemised bill, was appropriate..

Other matters: s 328(2) - The “fruits of litigation” lien

  1. [207]
    The Applicant further contended that certain material has not been disclosed to her, namely her full file which has been withheld as the subject of a “fruits of litigation” lien.
  2. [208]
    The Applicant asked for $15,510.16 to be “refunded” from the Respondent’s trust account to the Applicant.[315] She deposed that following an Order of the Family Court of Australia on 15 October 2021, relating to the partial property settlement, that particular sum of money was “deducted” from the Applicant’s share and placed into the Respondent’s trust account. The Applicant deposed that due to this, she had been “forced to pay the fees” to the Respondent, despite having disputed them.[316]
  3. [209]
    Ms Colman confirmed the Respondent claimed a “fruits of litigation” lien from Pullos Lawyers, the Applicant’s then-solicitors, on 11 August 2020 over proceeds of property settlement they might receive for the Applicant, in the amount of $15,510.16 being the total of the Respondent’s outstanding final invoice.[317]
  4. [210]
    Ms Colman noted the lien was disputed by Pullos Lawyers, and when she attempted to further discuss the lien and outstanding invoice with Pullos Lawyers, they did not respond. On 17 December 2020, Pullos Lawyers advised they did not object to the Respondent contacting the Applicant directly, as they had not been acting for the Applicant for some time.[318]
  5. [211]
    Ultimately, I am not satisfied that the Applicant’s contention is such that it, either alone, or together with anything else, would give rise to me being satisfied that the costs agreement was not fair and/or not reasonable.

Overall Findings

  1. [212]
    To reiterate the primary issue for determination, the Tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable.[319]
  2. [213]
    I have considered the evidence in this matter as relevant to all of the matters in s 328(2) of the LPA.  The evidence does not support a finding in respect of any of those matters which would tend to the Tribunal being satisfied that the costs agreement should be set aside as not fair or reasonable.  
  3. [214]
    Applying Judicial Member Lyon’s approach in Simons[320] as to the meaning of “fair or reasonable” in s 328(1) LPA, I have also considered the following matters. 

Mode of obtaining the agreement[321]

  1. [215]
    The mode of obtaining the Costs Agreement was fair to the Applicant. Thorough documentation was sent to the Applicant setting out the terms of the Costs Agreement, and there were opportunities for the Applicant to raise questions or concerns with the Respondent as to the terms of the Costs Agreement, prior to entering into it or depositing money into the trust account. The Applicant’s initialling of the document on each page and signing the agreement, as well as the history of her engagement with the Respondent, support that she understood and appreciated the nature of the Agreement;

The terms of the agreement must be reasonable[322]

  1. [216]
    The terms of the Costs Agreement were reasonable. In particular, it is common practice for initial Costs Agreements to provide estimate and ranges of fees, as occurred here, and I find that this and the “revision of fees and costs” complied with s 308 of the LPA and were reasonable in all the circumstances;

Specific factors depending on the circumstances[323]

  1. [217]
    Having regard to specific factors in this case of the scope of the retainer, the terms of the Costs Agreement, the kind of legal work undertaken being complex family law litigation, and all of the evidence, the circumstances as such that I am not satisfied that the Costs Agreement was not fair and/or reasonable.

Objective assessment of unreasonableness[324]

  1. [218]
    Having regard to the “tests” of unreasonableness referred to by Judicial Member Lyons, the evidence does not objectively show unreasonableness.   I am not satisfied the costs agreement was not reasonable.

Not making a gain at the expense of the client, beyond a just & fair amount

  1. [219]
    The evidence does not support that the Respondent sought to make a gain at the expense of the client, the Applicant, beyond an amount that was just and fair for professional renumeration that the Respondent is entitled to receive for the work done.
  2. [220]
    The Respondent had their fees and costs independently assessed by a costs assessor, at no extra cost to the client, and also reduced their fees and costs as set out in the evidence of Ms Colman.

Consideration of other LPA provisions

  1. [221]
    I am not satisfied, pursuant to s 327 LPA, that the Costs Agreement contravened or was entered into in contravention of any provision of Division 5.[325] Therefore, the Costs Agreement is not void under that provision.

Conclusion

  1. [222]
    I am not satisfied the Costs Agreement, as supplemented by the revised fee estimate letters, was not fair and/or reasonable to the Applicant.
  2. [223]
    The Application is dismissed.

Footnotes

[1]  Exhibit 2, at Document 3.

[2]  Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[3]  As referred to in Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[4]  Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[5]  Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[6]  Exhibit 3, APC-3 at pg 12 of the Exhibits bundle.

[7]  Applicant - Exhibit 5 at GA-01; Respondent - Exhibit 3, APC-3 at pg 14-21 of the Exhibits bundle.

[8]  Exhibit 3, APC-3 at pg 21 of the Exhibits bundle.

[9]  Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[10]  Exhibit 3, APC-3 at pg 12 of the Exhibits bundle – the attachments included the Legal Services Agreement, Trust Account Authority which were requested in the accompanying email to be initialled or signed.

[11]  Exhibit 3, APC-3 at pg 13 of the Exhibits bundle.

[12]  Exhibit 3, APC-3 at pg 7 of the Exhibits bundle.

[13]  Exhibit 3, APC-3 at pg 22 of the Exhibits bundle.

[14]  Exhibit 3, APC-3 at pg 23-24 of the Exhibits bundle.

[15]  Application pg 1 - referring to Exhibit 5, GA-01.

[16]  Exhibit 5, GA-01, pg 4.

[17]  Which is a requirement of s 308 of the LPA

[18]  Exhibit 3 - APC-3, pg 10

[19]  Exhibit 3 - APC-3, pg 22-24.

[20]  Exhibit 5, GA-01, pg 1.

[21]  Exhibit 5, GA-01, pg 1.

[22]  Exhibit 3, APC-3 at pg 19 of the Exhibits bundle.

[23]  Exhibit 3 at [62]-[64] and APC-5.

[24]  Exhibit 3 at [62]-[64] and APC-5.

[25]  Exhibit 6.

[26]  Exhibit 7.

[27]  Exhibit 8.

[28]  Applicant - Exhibit 5 at [3]. Respondent - Exhibit 3 at [54] and APC-3, pg 9-12.

[29]  Respondent - Exhibit 3 at [67]-[68].

[30]  Applicant - Exhibit 5 at Annexure GA-03 the typed date of 18 May 2020 is amended by hand to 28 May 2020 with the words: “received by email – did not sign/agree”. Application pg 3 (Exhibit 2, Document 3). Exhibit 2, Document 1 at [13].

[31]  The third document is dated 25 June 2020 (Exhibit 3 at APC-6) which Ms Colman deposed was sent to the Applicant on 26 June 2020 (Exhibit 3 at [72].

[32]  The Applicant’s evidence was that she did not receive this letter until it was recently received as part of the Respondent’s submissions - Exhibit 2, Document 5 at [8].

[33]  Exhibit 3 at [62]-[64] and APC-5.

[34]  Subsection (5) further clarifies the details required for adequate disclosure of subsection (1)(b)(i), (ii) and (iii).

[35] The above reflects s 308(1)(a) to (e), which are relevant to consideration of the legal issues in this matter. Note that there are further subsections (1) (f) to (l) which have not been summarised here.

[36]  LPA s 322(1).

[37]  LPA s 322(2).

[38]  LPA s 322(3).

[39]  LPA s 322(4).

[40]  Comprised by sections 322 – 328.

[41]  (2019) 3 QR 158.

[42]  [1893] 2 QB 201 at 204-205.

[43]  [2021] QCAT 134 per Judicial Member Lyons at [27].

[44]  [2020] QCAT 475 per Daubney J at [4]-[6].

[45] Simons v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT A 134

[46]  Summarising Martin J’s discussion in McLaren v Wiltshire Lawyers Pty Ltd (2019) 3 QR 158, [18]-[25].

[47] Re Stuart; Ex parte Cathcart [1893] 2 QB 201, 204-205, cited by Martin J in McLaren at [18].

[48]  Ibid.

[49] McNamara  Business  &  Property  Law  v  Kasmeridis  &  Anor  (2007) 97 SASR 129,  138  (Doyle CJ, Gray and David JJ agreeing), cited by Martin J in McLaren at [19] who noted “… a basic consideration is whether the client’s decision to agree to the terms of the costs agreement was a free and informed choice . . .”.

[50]  Jovetic v Stoddart & Co (1992) 7 WAR 208 (Seaman J), cited by Martin J in McLaren at [20].

[51]  Per Lyons J in Simons at [29], citing Carmody J in Winn v Boss Lawyers Pty Ltd [2018] QCAT 233, [24] referring to Lunn J  in Kasmeridis  &  Anor  v  McNamara  Business  &  Property  Law (2006) 245 LSJS 31, [4] which was brought under s 42(7) Legal Practitioners Act 1981 (SA).

[52] Simons per Lyons J at [29] – Lyons J noted that in Kasmeridis, there was no suggestion that the SA legislation contained similar provisions to s 328 LPA.

[53]  Referred to above

[54]  At [50].

[55]  [2016] QCAT 5.

[56] Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5 (“Turner”) at [36].

[57]  (1998) 8 NTLR 23.

[58] Turner at [47].

[59]  [2002] ACTSC 105, [28]-[35]. See also Vizovitis v Ryan [2014] ACTSC 243, which was confirmed by the ACT Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [124].

[60] Turner per Carmody J at [48].

[61] Turner per Carmody J at [48] referring to Nicholson v Behan and Speed Pty Ltd [2000] VLPT 28.

[62] Turner per Carmody J at [49] referring to Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd (No 2) [2015] WASC 54; Moleirinho v Talbot Olivier Lawyers Pty Ltd [2014] WASCA 65; Jovetic v Stoddart & Co (1992) 7 WAR 208.

[63] Turner at [50].

[64]Turner at [55]-[56].

[65]  At [67]-[68].

[66]  [2018] QCAT 234.

[67]  Using words analogous to those in R v Connell (1944) 69 CLR 407 at 430 as cited in the extract from Djokovic set out in paragraph [31] of my decision.   I come to this view mindful of the decision of McMeekin J at [40] of Croatian Community Centre (Qld) v Boss Lawyers Pty Ltd [2022] QCAT 94.  The observation there that it was at least arguable that the onus lies on the solicitor to demonstrate that the requisite advice was given to the client before entering into a costs agreement was in the context of sentence two of that paragraph, which states “A solicitor seeking to have a client enter into a costs agreement that may be disadvantageous to the client but advantageous to the solicitor must tread very warily.”

[68]  (2022) 397 ALR 1.

[69] Djokovic v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (2022) 397 ALR 1 at 5-6.

[70]  T1-19.25

[71]  Listed below in chronological order

[72]  T1-14.15

[73]  T1-30.7

[74]  This Reply refers to paragraph numbers in the Response filed 10 June 2021.

[75]  T1-13.30, T1-19.34

[76]  T1-14.45

[77]  T1-13.45, T1-14.7

[78]  T1-15.35-40, T1-19.42

[79]  T1-45.10

[80]  T1-21.19-23; T1-21.26; and T1-21.43.

[81]  T1-16.14

[82]  Exhibit 2, document 2A at [3]

[83]  Exhibit 5 at [4].

[84]  Exhibit 3 at [62]-[64] and APC-5.

[85]  The Applicant deposed it was paid in anticipation of a teleconference (Exhibit 5 at [4]) however did accept that she paid $805 in relation to an invoice (Exhibit 3, APC-12). The Respondent deposed that $805.33 was the balance payable on the initial invoice (Exhibit 3 at [62]-[64] and APC-5).

[86]  Exhibit 3 at APC-12.

[87]  T1-35.30-35.

[88]  Exhibit 8; T1-16.19.

[89]  T1-16.25-7

[90]  T1-3.38; T1-7.8. She later stated that she did not even receive even $10,000 worth of services, however “that’s gone and gone” (T1-.18.18).

[91]  Exhibit 2, Document 2A at [10].

[92]  Exhibit 2, Document 2A at [6].

[93]  T1-23.

[94]  Pullos Lawyers.

[95]  T1-23.45.

[96]  This appears to be a reference to the Respondent’s settlement offer to reduce their fees by half if they were paid within 7 days of 6 August 2021 (Exhibit 3 at [113]).

[97]  Exhibit 2, Document 2A at [8], [9] and GA-01.

[98]  Exhibit 6 – the fees in this invoice were $1,554.33 more than the amount the Applicant agrees to.

[99]  Exhibit 7.

[100]  Exhibit 8 (which includes the previous balances).

[101]  T1-16.35; T1-19.1-10.

[102]  T1-6.38.

[103]  T1-19.1-10

[104]  T1-17.24.

[105]  T1-17.45. This was in response to the Applicant’s statement that there was a ledger in a stakeholder trust held by Fox & Co: T1-17.33.

[106]  T1-18.

[107]  Exhibit 5 at [1].

[108]   Application pg 1 – the Applicant refers to 29/01/2020, however on pg 2 refers to this date being 29/04/2020 which accords with the balance of the evidence (Exhibit 2, Document 3).

[109]  Exhibit 2, Document 3, pg 1.

[110]  Application pg 2 (Exhibit 2, Document 3).

[111]  Application pg 3 (Exhibit 2, Document 3).

[112]  Application pg 3 (Exhibit 2, Document 3).

[113]  Application pg 3 (Exhibit 2, Document 3).

[114]  Application pg 3 (Exhibit 2, Document 3).

[115]  Application pg 3 (Exhibit 2, Document 3) – referring to GA-04 of Exhibit 5

[116]  GA-05 of Exhibit 5.

[117]  Application pg 3 (Exhibit 2, Document 3) – referring to GA-05 of Exhibit 5.

[118]  Referring to the period 15/02/2020-29/7/2020.

[119]  Application pg 1 - referring to GA-01 of Exhibit 5.

[120]  Application pg 1 - referring to GA-02 of Exhibit 5.

[121]  Application pg 2 (Exhibit 2, Document 3).

[122]  Application pg 2 (Exhibit 2, Document 3).

[123]  Application pg 2 (Exhibit 2, Document 3).

[124]  Exhibit 5 at [1].

[125]  Exhibit 5 at [2].

[126]  Exhibit 5 at [3], referring to GA-01.

[127]  Exhibit 5 at [4], referring to GA-02, which are the bank transfer receipts.

[128]  Exhibit 5 at [5], referring to GA-03, which is the letter dated 18 May 2020.

[129]  Exhibit 5 at [10, referring to GA-06, which is the itemised invoice received 15/2/21]

[130]  Given that she does not accept that she engaged the Respondent over that period

[131]  Exhibit 5 at [11A] referring to GA-04.

[132]  Exhibit 5 at [11B] referring to GA-07. 

[133]  Exhibit 5 at [11B] referring to GA-03.

[134]  Exhibit 5 at [11C]. This point was not expanded on in the Applicant’s written submissions or at the hearing, and

[135]  Exhibit 5 at [11D].

[136]  However, the paragraph numbers referred to in the Respondent’s submissions do not accord with the content of Exhibit 4 (Respondent’s submissions), or Exhibit 3 (Affidavit of Ms Colman).

[137]  Exhibit 2, Document 5 at [4].

[138]  Exhibit 2, Document 5 at [4]. The Applicant did not explain how the representation “changed”.

[139]  Exhibit 2, Document 5 at [5].

[140]  Exhibit 2, Document 5 at [6].

[141]  Exhibit 2, Document 5 at [7].

[142]  Exhibit 2, Document 5 at [8].

[143]  As part of the Respondent’s Response filed 10 June 2021, and served on the Applicant.

[144]  Exhibit 3, APC-4, pg 26-29 of Exhibit bundle.

[145]  Exhibit 3 at [70] – the Respondent stated that this was the tax invoice sent 10 June 2020, for work done between 15 May 2020 and 4 June 2020. That tax invoice and accompanying email to the Applicant of the same date is Exhibit 6.

[146]  Exhibit 3, APC-6)

[147]  Exhibit 3 at [85] – the Respondent stated that this was the final account sent on 31 July 2020 for the period of 12 June 2020 to 23 July 2020. That tax invoice and accompanying email to the Applicant of the same date is Exhibit 7.

[148]  Exhibit 3 at [88] – The tax invoice dated 10 August 2020, for the period of 24 July 2020 to 29 July 2020, and accompanying email to the Applicant on 10 August 2020 is Exhibit 8.

[149]  Exhibit 2, Document 5 at [8].

[150]  Exhibit 2, Document 5 at [8].

[151]  Exhibit 2, Document 5 at [9].

[152]  The Applicant’s solicitors at that time.

[153]. Exhibit 2, Document 5 at [9].

[154]  Exhibit 2, Document 5 at [9]-[10]. At the hearing, the Applicant said she had paid over $90,000 to various lawyers, including the Respondent: T1-23.45

[155]  Exhibit 3 at APC-1

[156]  Exhibit 2, Document 1 at [7].

[157]  Exhibit 2, Document 1 at [7B].

[158]  Exhibit 2, Document 1 at [7F], responding to the Respondent’s affidavit – Exhibit 3 at [20].

[159]  Which she had previously, in the earlier evidence, referred to as occurring on 1 May 2020.

[160]  Exhibit 2, Document 1 at [8], referring to GA-03 – draft consent orders.

[161]  Exhibit 2, Document 1 at [11].

[162]  Exhibit 2, Document 1 at [13].

[163]  Exhibit 2, Document 1 at [14].  It is not entirely clear which document the Applicant is referring to given there is no marked GA-04 to Exhibit 2, but in any event, I did not accept the Applicant’s insinuation that there was some connection between the asserted deposits and the offer by the Respondent to settle. 

[164]  Exhibit 2, Document 1 at [14].

[165]  Exhibit 2, Document 1 at [17].

[166]  Exhibit 2, Document 1 at [18]. The same wording is used in later affidavit date-stamped 31 August 2021, which is located at Exhibit 2, Document 6 at [7].

[167]  Exhibit 2, Document 1 at [19].

[168]  Exhibit 2, Document 6 at [5].

[169]  Exhibit 2, Document 1 at [17].

[170]  Exhibit 2, Document 6 at [6].

[171]  Exhibit 3 at [1]-[2].

[172]  Exhibit 3 at [4].

[173]  Exhibit 3 at [5].

[174]  Exhibit 3 at [6].

[175]  In the Application - Exhibit 2, document 3.

[176]  Exhibit 4 at Annexure 1.

[177]  Exhibit 3.

[178]  Exhibit 3 at APC-1.

[179]  Exhibit 3 at APC-1.

[180]  Exhibit 3 at APC-1.

[181]  Exhibit 3 at APC-1 at pg 3.

[182]  Exhibit 3 at APC-1 at pg 3.

[183]  This does not appear to be disputed by the Applicant, as there is no reference to it in her material. She notes that she “reflected on the advice given and followed it by not pursuing an appeal at that time…” (Exhibit 2, Document 1 at [7G]).

[184]  Exhibit 3.

[185]  Exhibit 3 at [28]-[35] and APC-2.

[186]  Exhibit 3 at [40].

[187]  Exhibit 3 at [41]-[42].

[188]  Exhibit 3 at [45].

[189]  Exhibit 3 at [46].

[190]  Exhibit 3 at [8].

[191]  Exhibit 3 at [50].

[192]  Exhibit 3 at [51]-[53] and APC-3.

[193]  Exhibit 5 at [3], referring to GA-01.

[194]  Exhibit 3 at [103(c)].

[195]  Exhibit 3 at [54] and APC-3, pg 9-12.

[196]  Exhibit 3 at APC-3, pg 9.

[197]  Exhibit 3 at [58].

[198]  Exhibit 3 at APC-3, pg 22-24.

[199]  Exhibit 3 at [55] and APC-3, pg 10.

[200]  Exhibit 3 at [56] and APC-3, pg 17.

[201]  Exhibit 3 at [57].

[202]  Exhibit 3 at [60].

[203]  Exhibit 4 at Annexure 1.

[204]  Exhibit 3 at [62] and [65].

[205]  Exhibit 3 at [62]-[64] and APC-5.

[206]  Exhibit 3, APC-5 – the acknowledgment of debt form is unsigned. The Applicant submitted that this supported that she was not aware of it at the time it was sent – Exhibit 2, Document 5 at [8].

[207]  Exhibit 3 at [64].

[208]  Exhibit 3 at [71].

[209]  In Exhibit 3, APC-12, which was the email of the Applicant dated 1 October 2020, the Applicant said “I was issued a further invoice of $805 which I paid that day”.

[210]  Exhibit 3 at [66].

[211]  Exhibit 3 at [68] and [69].

[212]  Exhibit 3 at [67].

[213]  Exhibit 3 at [61] and APC-4. The Applicant said she did not receive this letter until it was received as part of the Respondent’s submissions - Exhibit 2, Document 5 at [8].

[214]  Exhibit 3 at [70] and Exhibit 6.

[215]  Exhibit 3 at [72] and APC-6. The Applicant said she did not receive this letter until it was received as part of the Respondent’s submissions - Exhibit 2, Document 5 at [8].

[216]  Exhibit 3 at [74]-[75]

[217]  Exhibit 3 at [76]-[77]

[218]  Exhibit 3 at [79]

[219]  Exhibit 3 at [80]

[220]  Exhibit 3 at [81]-[82]

[221]  Exhibit 3 at [83]-[84]

[222]  Exhibit 3 at [85]. The Applicant said she did not receive this letter until it was received as part of the Respondent’s submissions - Exhibit 2, Document 5 at [8].

[223]  Exhibit 3 at [86].

[224]  Exhibit 3 at [87] at APC-7.

[225]  Exhibit 3 at [88] and APC-8.

[226]  Exhibit 3 at [89]-[90] and APC-9.

[227]  Exhibit 3 at [91]-[92] and APC-10.

[228]  Exhibit 3 at [94] and APC-11.

[229]  Exhibit 3 at [93], [95]-[96].

[230]  Exhibit 3 at [97] and APC-12.

[231]  Exhibit 3 at [101].

[232]  Exhibit 3 at [102]. The Applicant disputed this - Exhibit 2, Document 6 at [5].

[233]  Exhibit 3, APC-12.

[234]  Exhibit 3 at [103], APC-13, APC-14 and APC-15.

[235]  Exhibit 3 at [103(e)] – item 5 in the Applicant’s 1 October 2020 email “timeline”.

[236]  Exhibit 3 at [104].

[237]  Exhibit 3 at [105] and APC-16.

[238]  Exhibit 3 at APC-16, pg 61.

[239]  Exhibit 3 at [106]; GA-05 of Exhibit 5.

[240]  Exhibit 3 at [114]-[117].

[241]  Exhibit 3 at [78].

[242]  Exhibit 3 at [100]

[243]  Exhibit 3 at APC-12, pg 51.

[244]  Exhibit 3 at [106].

[245]  Exhibit 3 at [107]. Ms Colman believed the reference to “15 February 2020” was a typographical error.

[246]  Exhibit 3 at [109].

[247]  Exhibit 3 at [108].

[248]  Exhibit 3 at [108].

[249]  Exhibit 3 at [111].

[250]  Exhibit 3 at [112].

[251]  Exhibit 3 at [113].

[252]  Exhibit 3 at [113], from 6 August 2021 when the Affidavit was written. The Applicant rejected this offer (Exhibit 2, Document 2A at [8], [9]).

[253]  Exhibit 4 at [8], [20]

[254]  Exhibit 2, Document 3, pg 1.

[255]  T1-31.20-35, 1-53.1-10, T1-38.1-10.

[256]  T1.32-33.

[257]  In particular, she said she did not receive the revised fees and costs estimate dated 26 June 2020 until it was received in these proceedings.

[258]  Exhibit 4 at [18].

[259]  Exhibit 4 at [18]. The Respondent did not make specific reference to which parts of documents the Applicant “selectively chose”, in an attempt to “discredit” the Respondent.

[260]  Application pg 1 - referring to Exhibit 5, GA-01.

[261]  Exhibit 5, GA-01, pg 4.

[262]  T1-31.20-35, 1-53.1-10, T1-38.1-10.

[263]  T138.25-45 and T1-39.1-5 referring to Exhibit 2, Document 5 at Attachment A.

[264]  Exhibit 2, Document 5 at Attachment A.

[265]  Exhibit 2, Document 3, pg 1.

[266]  Exhibit 5 at [1].

[267]  Application pg 1 – the Applicant refers to “29/01/2020”, however on pg 2 refers to this date being 29/04/2020. The former date appears to be a typographical error (Exhibit 2, Document 3)

[268]  Application pg 2 (Exhibit 2, Document 3).

[269]  Which she had previously, in the earlier evidence, referred to as “inducing” her to agree to the costs agreement.

[270]  Exhibit 2, Document 1 at [8].

[271]  Exhibit 5 at [3], pg 1 referring to GA-01.

[272]  Exhibit 4 at [14].

[273]  Exhibit 4 at [11A-F] on pg 4; Exhibit 3 at [8].

[274]  T1.32-33.

[275]  Exhibit 4 at [A-B on pg 5] referring to s 328(2)(b) of the LPA.

[276]  Application pg 1 - referring to Exhibit 5, GA-01.

[277]  Exhibit 5, GA-01, pg 4.

[278]  Exhibit 5 at [3], referring to GA-01.

[279]  Exhibit 2, Document 5 at [9].

[280]  T1-33.35-40, T1-34.5-10.

[281]  Application pg 2 (Exhibit 2, Document 3).

[282]  Exhibit 3 at APC-6. Referred to as the “third document” above.

[283]  Exhibit 2, Document 5 at [8].

[284]  Exhibit 4 at [A] to [F] on pg 5-6, referring to s 328(2)(c) of the LPA. Dated 25 June 2020 - Exhibit 3, APC-6.

[285]  Exhibit 4 at [15].

[286]  Exhibit 4 at [A-F on pg 5-6] referring to s 328(2)(c) of the LPA. Dated 25 June 2020 - Exhibit 3, “APC-6”.

[287]  Document dated and sent 18 May 2020 is contained in the respondent’s Response application and annexure at annexure C, filed 10 June 2021. The respondent’s affidavit (Exhibit 3) mistakenly refers to APC-6 as the 18 May 2020 document, but that is actually the 25 June 2020 document. Regardless, it is clear the respondent intended to rely upon it. The document is dated and sent 18 May 2020, although the Applicant deposed she did not receive it until 25 May 2020.

[288]  Exhibit 3 at APC-6 on pages 39-40 of Exhibit 4 bundle. The letter is dated 25 June 2020 but Ms Colman deposed it was sent to the Applicant on 26 June 2020.

[289]  Dated 25 June 2020 – Exhibit 3, APC-6.

[290]  Exhibit 3 at [72].

[291]  Application at [3] – note that the Applicant refers only to the 18 May 2020 letter, but does not refer to the 26 June 2020 letter.

[292]  Exhibit 4 at [13].

[293]  Exhibit 4 at APC-3 on pages 7-25 of Exhibit 4 bundle.

[294]  Letter dated and sent 18 May 2020 contained in respondent’s Response filed 10 June 2021 but Ms Ashney deposed she did not receive it until 25 May 2020.

[295]  Exhibit 3  at APC-6 on pages 39-40 of Exhibit Bundle. The letter is dated 25 June 2020 but Ms Colmon deposed it was sent to the Applicant on 26 June 2020.

[296]  Exhibit 4 at [A]-[F] on pg 5-6, referring to s 328(2)(c) of the LPA.

[297]  Exhibit 4 at [A]-[D] on pg 6, referring to s 328(2)(d) of the LPA.

[298]  Exhibit 2, Document 5 at [9].

[299]  Exhibit 2, Document 5 at [4].

[300]  Exhibit 2, Document 5 at [4]. The Applicant did not explain how the representation “changed”.

[301]  Exhibit 4 at [A-B on pg 6] referring to s 328(2)(e) of the LPA.

[302]  Exhibit 2, Document 3 - Application pg 2.

[303]  Exhibit 3 a [66].

[304]  Exhibit 3 at [68].

[305]  Exhibit 4 at [A-E on pg 6-7] referring to s 328(2)(f) of the LPA.

[306]  Exhibit 3 at Annexure APC-4.

[307]  Exhibit 4 at APC-3, pg 17

[308]  Exhibit 2, Document 5 at [8].

[309]  T1-23.

[310]  Exhibit 3 at [106].

[311]  Exhibit 3 at [107]. Ms Colman believed the reference to “15 February 2020” was a typographical error.

[312]  Exhibit 3 at [109].

[313]  Exhibit 5 at GA-06.

[314]  Exhibit 4 at [18]-[19].

[315]  Exhibit 2, Document 2A at [10].

[316]  Exhibit 2, Document 2A at [6].

[317]  Exhibit 3 at [87] at APC-7.

[318]  Exhibit 3 at [104].

[319]  Pursuant to s 328(1) of the LPA.

[320] Simons v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT A 134, Summarising Martin J’s discussion in McLaren v Wiltshire Lawyers Pty Ltd  (2019) 3 QR 158 at 164-166, [18]-[25].

[321] Re Stuart; Ex parte Cathcart [1893] 2 QB 201, 204-205, cited by Martin J in McLaren at [18].

[322]  Ibid.

[323] McNamara  Business  &  Property  Law  v  Kasmeridis  &  Anor  (2007) 97 SASR 129,  138  (Doyle CJ, Gray and David JJ agreeing), cited by Martin J in McLaren at [19] who noted “… a basic consideration is whether the client’s decision to agree to the terms of the costs agreement was a free and informed choice . . .”.

[324] Jovetic v Stoddart & Co (1992) 7 WAR 208 (Seaman J), cited by Martin J in McLaren at [20].

[325]  Comprised by sections 322 – 328.

Close

Editorial Notes

  • Published Case Name:

    Ashney v Pippa Colman & Associates Law Practice Pty Ltd

  • Shortened Case Name:

    Ashney v Pippa Colman & Associates Law Practice Pty Ltd

  • MNC:

    [2022] QCAT 281

  • Court:

    QCAT

  • Judge(s):

    Justice Mellifont, President

  • Date:

    16 Sep 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Athanasiou v Ward Keller (6) Pty Ltd (1998) 8 NTLR 23
2 citations
Jump To
Cite 1 - (1998) 8 NTLR 23
Cite 2 - (1998) 8 NTLR 23
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
1 citation
Jump To
Cite 1 - (1949) 78 CLR 353
AvonDowns Pty Ltd v Commissioner of Taxation (Cth) [1949] ALR 792
1 citation
Jump To
Cite 1 - [1949] ALR 792
Bankstown Municipal Council v Fripp (1919) 26 CLR 385
1 citation
Jump To
Cite 1 - (1919) 26 CLR 385
Boucaut Bay Co Ltd (In Liquidation) v Commonwealth (1927) 40 CLR 98
1 citation
Jump To
Cite 1 - (1927) 40 CLR 98
Boucaut Bay Co Ltd v Commonwealth [1927] ALR 415
1 citation
Jump To
Cite 1 - [1927] ALR 415
Buck v Bavone (1976) 135 CLR 110
1 citation
Jump To
Cite 1 - (1976) 135 CLR 110
Buck v Bavone (1976) 9 ALR 481
1 citation
Jump To
Cite 1 - (1976) 9 ALR 481
Croatian Community Centre (Qld) Ltd v Boss Lawyers Pty Ltd [2022] QCAT 94
2 citations
Jump To
Cite 1 - [2022] QCAT 94
Cite 2 - [2022] QCAT 94
Djokovic v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (2022) 397 ALR 1
3 citations
Jump To
Cite 1 - (2022) 397 ALR 1
Cite 2 - (2022) 397 ALR 1
Cite 3 - (2022) 397 ALR 1
Federal Commissioner of Taxation v Brian Hatch Timber Co. (1972) 128 CLR 28
1 citation
Jump To
Cite 1 - (1972) 128 CLR 28
Jorg v Queensland Building and Construction Commission [2021] QCATA 134
4 citations
Jump To
Cite 1 - [2021] QCATA 134
Cite 2 - [2021] QCATA 134
Cite 3 - [2021] QCATA 134
Cite 4 - [2021] QCATA 134
Jovetic v Stoddart & Co (1992) 7 WAR 208
4 citations
Jump To
Cite 1 - (1992) 7 WAR 208
Cite 2 - (1992) 7 WAR 208
Cite 3 - (1992) 7 WAR 208
Cite 4 - (1992) 7 WAR 208
Kasmeridis v McNamara Business & Property Law (2006) 245 LSJS 31
2 citations
Jump To
Cite 1 - (2006) 245 LSJS 31
Cite 2 - (2006) 245 LSJS 31
Maddock v IALPG Pty Ltd [2020] QCAT 475
2 citations
Jump To
Cite 1 - [2020] QCAT 475
Cite 2 - [2020] QCAT 475
McLaren v Wiltshire Lawyers Pty Ltd(2019) 3 QR 158; [2019] QSC 305
9 citations
Jump To
Cite 1 - (2019) 3 QR 158
Cite 2 - (2019) 3 QR 158
Cite 3 - (2019) 3 QR 158
Cite 4 - (2019) 3 QR 158
Cite 5 - (2019) 3 QR 158
Cite 6 - (2019) 3 QR 158
Cite 7 - (2019) 3 QR 158
Cite 8 - (2019) 3 QR 158
Cite 9 - (2019) 3 QR 158
McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129
3 citations
Jump To
Cite 1 - (2007) 97 SASR 129
Cite 2 - (2007) 97 SASR 129
Cite 3 - (2007) 97 SASR 129
Moleirinho v Talbot Olivier Lawyers Pty Ltd [2014] WASCA 65
1 citation
Jump To
Cite 1 - [2014] WASCA 65
Nicholson v Behan and Speed Pty Ltd [2000] VLPT 28
1 citation
Jump To
Cite 1 - [2000] VLPT 28
Passey v Chanaka Bandarage (t/as City First Solicitors) [2002] ACTSC 105
2 citations
Jump To
Cite 1 - [2002] ACTSC 105
Cite 2 - [2002] ACTSC 105
R. v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407
3 citations
Jump To
Cite 1 - (1944) 69 CLR 407
Cite 2 - (1944) 69 CLR 407
Cite 3 - (1944) 69 CLR 407
Re Stuart; Ex parte Cathcart [1893] 2 QB 201
4 citations
Jump To
Cite 1 - [1893] 2 QB 201
Cite 2 - [1893] 2 QB 201
Cite 3 - [1893] 2 QB 201
Cite 4 - [1893] 2 QB 201
Ryan v Vizovitis [2017] ACTCA 3
2 citations
Jump To
Cite 1 - [2017] ACTCA 3
Cite 2 - [2017] ACTCA 3
Simons v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT 134
2 citations
Jump To
Cite 1 - [2021] QCAT 134
Cite 2 - [2021] QCAT 134
Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5
9 citations
Jump To
Cite 1 - [2016] QCAT 5
Cite 2 - [2016] QCAT 5
Cite 3 - [2016] QCAT 5
Cite 4 - [2016] QCAT 5
Cite 5 - [2016] QCAT 5
Cite 6 - [2016] QCAT 5
Cite 7 - [2016] QCAT 5
Cite 8 - [2016] QCAT 5
Cite 9 - [2016] QCAT 5
Vizovitis v Ryan [2014] ACTSC 243
2 citations
Jump To
Cite 1 - [2014] ACTSC 243
Cite 2 - [2014] ACTSC 243
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
1 citation
Jump To
Cite 1 - (2015) 257 CLR 22
Wei v Minister for Immigration and Border Protection [2015] HCA 51
1 citation
Jump To
Cite 1 - [2015] HCA 51
Welfare Centre v Talbot Olivier Pty Ltd (No 2) [2015] WASC 54
1 citation
Jump To
Cite 1 - [2015] WASC 54
Winn v Boss Lawyers Pty Ltd [2018] QCAT 233
2 citations
Jump To
Cite 1 - [2018] QCAT 233
Cite 2 - [2018] QCAT 233
Winn v Lynch Morgan Lawyers [2018] QCAT 234
2 citations
Jump To
Cite 1 - [2018] QCAT 234
Cite 2 - [2018] QCAT 234

Cases Citing

Case NameFull CitationFrequency
Waller Family Lawyers Pty Ltd v AB [2022] QCAT 3622 citations
Waller Family Lawyers Pty Ltd v McAuley [2024] QCATA 583 citations
1

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