Exit Distraction Free Reading Mode
- Unreported Judgment
KBJ Legal Pty Ltd v Pocock QCATA 125
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
KBJ Legal Pty Ltd t/as Cronin James McLaughlin Lawyers v Pocock  QCATA 125
KBJ Legal pty ltd t/as cronin james mclaughlin lawyers
janelle marie pocock
ORIGINATING APPLICATION NO/S:
12 August 2019
On the papers
Leave to appeal against the decision made on 1 August 2018 in MCD50058/18 (Coolangatta) is refused. The appeal therefore fails.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against the tribunal’s decision refusing to make an award on a bill of costs – whether any reasonably arguable grounds of appeal
PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – BILLS OF COSTS – ACTION TO RECOVER COSTS – where the requirements of the Legal Profession Act 2007 had not been complied with –whether the solicitor could recover on the bill of costs
Legal Profession Act 2007 (Qld), s 308, s 310, s 316
Edwards v Edgar & Wood Solicitors  QCATA 154
Morales v Murray Lyons Solicitors (a firm)  QCATA 87
NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd  QCAT 57
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is an appeal from an Adjudicator’s decision dismissing an application by KBJ Legal for an order for the payment of legal fees. KBJ Legal issued a bill on 2 February 2018 for $11,069.35 including GST, and another bill on 22 February 2018 for $3,555.40 including GST, a total of $14,624.75. The bills were not paid and on 18 April 2018 KBJ Legal brought proceedings in the tribunal against Ms Pocock to recover this amount together with interest and such costs as were allowable.
- Amongst other things, in her response to the application, Ms Pocock said that no disclosure statement had been provided to her, she had not had costs explained, she had not signed a costs agreement, she had not been made aware of the work that KBJ Legal was performing or what costs were being incurred, or that she would have to pay for any advice. No work had been done by KBJ Legal to advance her case. She also said that she did not instruct KBJ Legal to brief counsel.
- At the hearing, which was held on 1 August 2018, a solicitor employed by KBJ Legal attended to present its case. Ms Pocock did not attend the hearing for legitimate medical reasons. Instead, she was represented by a solicitor with leave of the tribunal.
- At the beginning of the hearing KBJ Legal submitted to the tribunal a document entitled ‘Applicant’s Reply’, which the Adjudicator marked ‘A1’. This was a document signed by a director of KBJ Legal which set out the facts and exhibited some documents. It was prepared as if it were a pleading. It had the appearance of submissions and not evidence (apart from the documents attached), and this was the status attributed to the document by the Adjudicator at the hearing. In this appeal it is not being said that this was an error.
- In deciding the application the Adjudicator considered the requirements of the law of Queensland contained in the Legal Profession Act 2007 (Qld) (‘the LPA’). The law of Queensland applied because the firm said that its work was done from its office in Surfers Paradise on Gold Coast.
- The LPA has a number of provisions intended to provide transparency to clients about a legal firm’s retainer. One of these provisions is the need to make disclosures to the client under section 308. The required disclosures are various but include the need to inform the client about how the costs are to be calculated, how much they will be in various circumstances, and to notify the client of their right to negotiate a costs agreement and to have the costs assessed in the event of a dispute.
- Under section 310 of the LPA such disclosures ‘must be made in writing before, or as soon as practicable after, the law practice is retained in the matter’.
- If the section 308 disclosures are not made, then there are restrictions in seeking recovery from the client for legal costs until such costs have been assessed by an independent costs assessor under division 7 of the LPA. This way this is put in the LPA is that a client need not pay such legal costs [section 316(1)] and a law practice may not maintain proceedings against the client for recovery of such legal costs [section 316(2)] unless they have been assessed under division 7.
- There has been no costs assessment under division 7 of the LPA in this matter.
- It was accepted by KBJ Legal at the hearing that the first possible date when the section 308 disclosures had been made was 31 January 2018 when KBJ Legal had sent an email to Ms Pocock attaching LPA disclosures and a costs agreement. Despite this, the bill of 2 February 2018 which followed soon after, charged for work done between 9 January and 31 January 2018. The Adjudicator called this period, the ‘first period’.
- The Adjudicator found as a fact that in respect of this first period, there was no agreed retainer, that is to say there was no contractual obligation for KBJ Legal to carry out legal services for Ms Pocock and correspondingly no contractual obligation that she should pay for any such services. The Adjudicator rightly concentrated on the question of the retainer because it went to the tribunal’s jurisdiction to hear the application. If there was a retainer, then the tribunal would have jurisdiction to hear the claim brought by KBJ Legal as claim for a debt or liquidated demand. As the Adjudicator pointed out in his reasons, even without a retainer, KBJ Legal might be able to recover fees from Ms Pocock on a quantum meruit basis, provided the required section 308 disclosures had been made. But he pointed out that such a claim would not be a claim for a debt or liquidated demand, nor a claim arising out of a contract, and therefore it would have to be brought in a different jurisdiction and not in the tribunal.
- The Adjudicator also found in respect of this first period that there had been no disclosures as required by the LPA and that there was no good reason for that omission because KBJ Legal could have provided the disclosures at an earlier stage. Although not stated by the Adjudicator, he must have had the requirements of section 310 of the LPA in mind. In accordance with this finding, the Adjudicator decided that KBJ Legal could not maintain the application against Ms Pocock for payment of the bill relating to the first period.
- The ‘second period’ was after the email of 31 January 2018 and up to the bill of 22 February 2018. This bill charged for work done between 1 February 2018 and 22 February 2018.
- Again in respect of this second period, the Adjudicator found that there was no agreed retainer. And there was nothing to show that the email of 31 January 2018 which sent the disclosures and the cost agreement to Ms Pocock had been received by her, so again there was a difficulty of enforcing the bill relating to the second period.
- In this appeal an order is sought which differs from the order sought in the tribunal below. In the tribunal below, KBJ Legal was seeking an award for the total of the two bills relating both to the first period and the second period plus interest and allowable costs.
- In this appeal KBJ Legal are not seeking an immediate award for the bill relating to the first period. Instead, the firm is seeking judgment on the bill subject to assessment by a costs assessor.
- There are two things to say about this.
- Firstly, in this appeal, it would appear that KBJ Legal are not appealing against the Adjudicator’s finding that the section 308 disclosures were not made as soon as practicable after being retained in the matter. Instead, KBJ Legal seem to accept that section 316 precludes recovery on the first bill until the costs are assessed under Division 7 of the LPA.
- Secondly, if the appeal succeeds, KBJ Legal are asking the Appeal Tribunal to substitute a decision to give judgment on the bill subject to assessment by a costs assessor. Although it is true that the tribunal can impose conditions on a decision or to make an ancillary order to achieve the purpose of a decision, what is being asked is clearly impossible in the light of section 316(2) of the LPA which does not permit an application to be maintained against the client unless the costs have been assessed. The fact is that since the costs have not been assessed the application cannot be maintained, and this includes concluding it by giving judgment (or final decision as the tribunal would call it). The situation is quite different from one where a bill is in dispute but there is no technical difficulty about disclosures. In such a case the tribunal may, if appropriate, adjourn an application with directions for an assessment of the bill.
- In this appeal KBJ Legal are seeking an immediate award for the bill relating to the second period. It would appear therefore the firm is appealing against the Adjudicator’s findings that the section 308 disclosures had not been made as soon as practicable after being retained in the matter in so far as they affect recovery on the second bill. And it would appear that KBJ Legal are appealing against the Adjudicator’s finding that there was no retainer with respect to the second period.
- The grounds of appeal are that:-
- The Adjudicator erred in law by requiring (at 30-35) that:-
- (a)the Applicant must prove that the email dated 16 January 2018 which attached the Client Services Agreement and Disclosure Notice was received by the Respondent; and
- (b)in order to send the Client Services Agreement and Disclosure Notice by email there be a contract nominating an email address for service of documents.
In the appeal it is submitted that the Applicant is not obliged to prove this under the relevant rules. The Applicant forwarded the Client Services Agreement and Disclosure Notice by the same means that all prior correspondence with the Respondent on the matter had been sent. There was no reason to suspect that it would not or had not been received.
- The Adjudicator erred in law by finding that the Applicant was not licensed to practice in NSW.
In the appeal it is submitted that whilst the partners of the Applicant hold practising certificates in Queensland, they own and operate a firm in NSW with the approval of the NSW Law Society and solicitors employed at that firm are admitted to practice in NSW and are not required to hold a NSW practising certificate to practice in NSW.
- The Adjudicator erred by failing to allow the employee appearing on behalf of the Applicant at the hearing to give evidence from the bar table which caused substantial injustice to the Applicant in proving its case.
- When refusing to hear evidence from the employee of the Applicant, the employee sought an adjournment in order to provide the evidence requested by the Adjudicator. The Adjudicator refused to grant the adjournment.
- The above errors in law and in practice, caused substantial injustice to the Applicant as it was, as a consequence of those errors, unfairly prevented from rightfully recovering its debt from the Respondent.
- The Adjudicator accepted evidence from the solicitor for the Respondent in the same circumstances wherein he would not accept evidence from the employee of the Applicant.
Is KBJ Legal seeking to rely on fresh evidence in support of an appeal against a decision on a question of fact?
- In this appeal, on 14 December 2018, KBJ Legal filed in the Appeal Tribunal an affidavit sworn by a solicitor in the firm who was a director of KBJ Legal Pty Ltd. The affidavit exhibited some documents. It contained evidence about the engagement of the firm by Ms Pocock and the oral discussions about fees at that time. It exhibited a letter sent to Ms Pocock on 12 January 2018 and briefly described subsequent work and contact with her. The affidavit said that the Disclosure Notice, Client Agreement and Letter of Engagement were ‘forwarded’ to the email address which the Respondent had provided on 31 January 2018 and that this was ‘the first reasonable opportunity’ to do this. The affidavit stated that the deponent caused this to occur ‘as soon as practical after receiving instructions to act on (her) behalf, considering the urgent nature of the instructions and the large volume of urgent work that required our immediate attention’. The deponent stated that the same email address had previously successfully been used to communicate with Ms Pocock. The affidavit also stated that on 8 February 2018 Ms Pocock telephoned the deponent and discussed the first bill. Significantly, it is not said that Ms Pocock mentioned, discussed or even acknowledged receipt of the disclosures and the costs agreement sent in the email of 31 January 2018.
- The affidavit was accompanied by submissions in the appeal. Those submissions again set out the facts contended for and sought to show that therefore the requirements of the LPA had been complied with. It also addressed each of the grounds of appeal set out above.
- On 20 November 2018 the Appeal Tribunal made the following order:
4 (a) If either party seeks leave to rely upon evidence or a document that was not before the Tribunal below (‘fresh evidence’), they shall file in the Tribunal one (1) copy and serve on the other party one (1) copy of an application for leave to rely upon fresh evidence, together with a copy of the fresh evidence. The application shall include submissions about:
- why the fresh evidence was not available to the Tribunal below;
- why the fresh evidence is important; and
- why the fresh evidence should be accepted.
(b) If an application for leave to rely upon fresh evidence is filed, any other party may file and serve written submissions in response within 21 days of the application for leave to rely upon fresh evidence is filed.
(c) Unless otherwise ordered, any application for leave to rely upon fresh evidence will be heard and determined together with the application for leave to appeal/appeal.
- There was no application to adduce any fresh evidence. This is clear from the fact that the submissions filed on 14 December 2018 did not address items i, ii and iii in the tribunal’s order, nor expressly apply for leave to rely on fresh evidence. Instead the explanation for the affidavit appears from the submissions filed. There it is said that it contained evidence:-
that the Adjudicator refused to hear or take into account at the hearing of the matter, and which the Applicant is entitled to rely on to prove its case
- In other words the affidavit is relied on to show the Appeal Tribunal the evidence which would have been filed if the Adjudicator had granted the adjournment which had been sought at the hearing. It is not filed by KBJ Legal because it seeks to rely on fresh evidence in support of an appeal against a decision on a question of fact.
- There was another document filed with the submissions filed by KBJ Legal. It was a letter sent by KBJ Legal to solicitors instructed by Ms Pocock. It was headed ‘without prejudice’. The explanation in the submissions for sending this letter to the Appeal Tribunal seems to be that it supports an application for costs. The difficulty is that the letter is not admissible at all on the question of costs. It is a without prejudice letter and there is no reservation that the Appeal Tribunal may look at the letter on the question of costs.
Consideration of the grounds of appeal
- Turning to the grounds of appeal, in ground of appeal 1 it is said that the Adjudicator was in error in requiring proof that the email of 16 January 2018 was received by Ms Pocock, and in deciding that email could only be used if there was a contract to that effect. I think the date is in error here. The email referred to was sent on 31 January 2018. That this is the email relied on, appears from the subsequent submissions on appeal.
- The Adjudicator did not decide that, in order to use email, it was necessary for there to be a contract to that effect. Instead, it is clear from his reasons that what the Adjudicator was looking for was some acknowledgement from Ms Pocock to show that she had received the disclosures and the costs agreement.
- The importance of this is shown by the terms of the costs agreement itself. It stated in clause 2(b):-
Acceptance may be by:
- (i)Signing and returning a copy of the document; or
- (ii)Giving us instructions after receiving the document; or
- (iii)Contacting us and advising of your acceptance; AND
- (iv)Paying to us the up-front amount requested in the letter of engagement towards anticipated costs and outlays.
- As the Adjudicator pointed out, it was therefore possible to accept a costs agreement by giving instructions to the firm after receiving a copy of the agreement, being acceptance type (ii), which was what KBJ Legal relied on. Necessarily therefore, both the fact of receiving the document and the giving of instructions had to be proved in order to show that the costs agreement had been accepted, and in particular to give the tribunal jurisdiction (as stated above, the tribunal’s jurisdiction required proof of a contract being in existence).
- In this respect, the Adjudicator pointed out the consistency in Ms Pocock’s case, where even before receiving the second bill, and only 21 days after the disclosures or costs agreement had purportedly been sent to her, her solicitors were denying that she had received them. In the light of that denial, repeated in the response to the application, and which denial did not appear at all to be fanciful, the Adjudicator was right to expect cogent evidence to be adduced by KBJ Legal that she had in fact received it.
- The best evidence to show that she had in fact received the disclosures and the costs agreement would have been her signature on those documents in the space provided. In the absence of that, the next best evidence would have been an acknowledgment of their receipt either by return email or in discussions with KBJ Legal. Such evidence was missing. And it is still missing in the fresh evidence submitted in this appeal.
- In many cases, in the absence of direct evidence to this effect, it will be possible to infer from the sending of an email that it has been received. In this case, further inferences were required to enable KBJ Legal to succeed in the application. That is, that any attachments to the email actually arrived in the inbox of the intended recipient, and that the recipient was able to open and read the attachments.
- But here Ms Pocock consistently denied that she had received these documents. In the circumstances, the Adjudicator could not infer that the three things required above had actually happened. This is because the other possible finding on the evidence was that the documents had in fact not arrived as Ms Pocock said. Bearing in mind that an applicant in the tribunal’s minor civil disputes jurisdiction has to prove its case, the Adjudicator’s decision that the evidence was insufficient to make the necessary finding that there was any actionable retainer justiciable in the tribunal, or that there had been the required section 308 disclosures in the second period cannot be impugned.
- In ground of appeal 2 it is said that the Adjudicator made an error in finding that KBJ Legal was not licensed to practice in NSW. It is true that there was a discussion during the hearing about whether the fee earners involved were admitted to practice in New South Wales, but despite finding that there was no evidence that the partners were licensed to practice in New South Wales, the Adjudicator did not dismiss the application for that reason. This is shown by the fact that he applied Queensland law when considering the statutory requirements, and was satisfied that the tribunal did have jurisdiction to hear the application. Ground of appeal 2 takes the matter no further.
- In ground of appeal 3 it is said that the Adjudicator should have allowed the employee who attended the hearing to give evidence from the bar table. In ground of appeal 6 it is said that the Adjudicator treated the solicitor who attended on behalf of Ms Pocock differently in this respect.
- It is true that there was some discussion as to whether the solicitor representing KBJ Legal at the hearing was to be sworn, but then it became clear that he had no first-hand knowledge of the matter so this was not done. The solicitor did hand up to the Adjudicator the whole KBJ Legal file and the Adjudicator looked through it and asked the solicitor about documents in it. The solicitor also referred to various documents, and these were accepted in evidence. But when the solicitor sought to say that Ms Pocock was aware that costs were being incurred in the first period, the Adjudicator rightly asked where the evidence was for that statement. The solicitor also told the Adjudicator on two occasions that Ms Pocock spoke on the telephone with the fee earner after receiving the costs agreement, and the Adjudicator rightly asked whether there was evidence showing when she had opened the email which had the costs agreement attached, and whether there was evidence of the telephone conversation. Apparently, this conversation was not recorded in an attendance note on the file.
- The Adjudicator approached the question of evidence correctly. The best evidence available at the hearing was contained in the documents on the file. What was said in the telephone call after 31 January 2018 would have been important to resolve the issue about whether Ms Pocock indicated at any time that she had received the disclosures and the costs agreement. But the solicitor attending on behalf of KBJ Legal was unable to give any evidence about that at all.
- In ground of appeal 4 it is said that the Adjudicator should have acceded to the application made by KBJ Legal at the hearing for an adjournment so that better evidence could be adduced. It is true that KBJ Legal did apply for an adjournment for this to be done. The application was made in the light of the fact that the solicitor who attended the hearing on behalf of KBJ Legal was not one of the fee earners who had handled Ms Pocock’s case. In fact he had little or no personal knowledge of the case at all. As mentioned when considering ground of appeal 1 above, one important question was whether Ms Pocock had continued to instruct the firm having received the disclosures and the cost agreement.
- The solicitor at the hearing said that there was a note on the file of a conversation between Ms Pocock and the fee earner about the first bill. It was in the context that this file note was not available at the hearing that the request for an adjournment was made.
- The application for an adjournment was opposed. It was submitted that any further documents produced would have to be examined for authenticity, and there was a costs issue arising which was prejudicial to Ms Pocock.
- The Adjudicator refused the application for an adjournment, pointing out that parties know, and in particular lawyers should know, that they must come prepared to present their case, and that the tribunal had a statutory obligation to deal with matters efficiently.
- In this appeal, this decision cannot be impugned. It was clear that if an adjournment were to be granted it would be because KBJ Legal had not prepared its own case properly. This was despite QCAT’s published decisions making it clear that because of jurisdictional and LPA issues which arise in lawyer’s claims for the recovery of their fees, affidavit evidence will normally be required. The issues which had to be resolved and which required evidence were known to KBJ Legal well in advance of the hearing and appeared in Ms Pocock’s solicitors letter of 21 February 2018 and in her response to the application.
- In addition to that difficulty, the balance of prejudice was very much in favour of not granting an adjournment – Ms Pocock could not attend the hearing for genuine medical reasons and had paid her solicitor to attend on her behalf, yet costs were not recoverable because the matter was a minor civil dispute.
- It needs also to be pointed out that decisions of the tribunal in minor civil disputes do not bind other courts to make the same decision on an issue.
- Ground 4 of the appeal cannot succeed.
- Ground of appeal 5 simply acts as a summary.
- In the circumstances there is nothing in the grounds of appeal which demonstrates an arguable case that the Adjudicator made an error. Leave to appeal (which is required in appeals of this sort) is refused. This means that this appeal fails.
Paragraphs 7 to 15 of the Response document.
Transcript 1-4, line 37.
It set out the facts which were admitted and those which were traversed.
Transcript 1-19, line 40. It is notable that at the hearing the solicitor who attended for KBJ Legal described the document as ‘submissions’ and did not contend that the document had any higher status than that.
Transcript 1-25, line 25 to line 40, 1-26 line 1.
And therefore a ‘minor civil dispute’ as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The alternative basis for a claim within the tribunal’s minor civil dispute jurisdiction – a trader’s claim – was problematical bearing in mind it has been held in Morales v Murray Lyons Solicitors (a firm)  QCATA 87 that solicitors are not ‘traders’ as defined in Schedule 3. See however, Edwards v Edgar & Wood Solicitors  QCATA 154 which, obiter, suggests otherwise.
Transcript 1-26 line 2.
Transcript 1-25, line 45.
Transcript 1-24, line 35 and 1-25 lines 13 to 23.
Transcript 1-25, line 27, 1-26 line 1.
Transcript 1-24, line 41.
Transcript 1-25, lines 39 to 44.
Section 114 of the QCAT Act.
This is one way to deal with such cases referred to in NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd  QCAT 57, .
Transcript 1-24, lines 35 to 46.
Transcript 1-17, lines 37 to 44.
Transcript 1-11, line 31 onwards.
Transcript 1-25, line 10.
Transcript 1-24, line 26.
Transcript 1-5, line 34 to 1-6, line 30.
Transcript 1-6, line 38.
Transcript 1-8, line 22 to 1-15, line 45.
For example, the two bills, the email of 31 January 2018, the disclosure document and the costs agreement.
Transcript 1-13, line 46.
Transcript 1-14, line 39.
Transcript 1-18, line 27.
Transcript 1-5, line 27.
Transcript 1-17, lines 5 to 13, 1-20, line 37 (where he handed up a letter which was in the solicitors file), 1-22, line 33 to 1-23, line 32.
Transcript 1-19, lines 13 and 40.
Transcript 1-18, line 18.
Morales v Murray Lyons Solicitors (a firm)  QCATA 87, , see also Hayes v Mylne Lawyers  QCATA 76 and Willey v Ross Lawyers  QCATA 22.
Costs being limited by Rules 83 and 84 of the Civil and Administrative Tribunal Rules 2009 (Qld).
Section 126(2) of the QCAT Act.
- Published Case Name:
KBJ Legal Pty Ltd t/as Cronin James McLaughlin Lawyers v Pocock
- Shortened Case Name:
KBJ Legal Pty Ltd v Pocock
 QCATA 125
12 Aug 2019