Amos v Walter
[2021] QCATA 105
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- Amos v Walter[2021] QCATA 105
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Amos v Walter[2021] QCATA 105
Amos v Walter[2021] QCATA 105
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Amos v Walter [2021] QCATA 105 |
PARTIES: | EDWARD AMOS (applicant) v glenn walter (respondent) |
APPLICATION NO: | APL323-20 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 23 August 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Small Claims Act 1973 (repealed) – where action between consumer and alleged trader – where transactions between solicitor and costs assessor – whether claim a liquidated claim – whether costs assessor a trader within meaning of legislation cited – whether costs assessment excepted from category of trade as an occupation not ordinarily regarded as being within the field of trade or commerce – where costs assessor not engaged in trade Civil Proceedings Act 2011 (Qld) s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 271, 3rd Schedule Small Claims Tribunal Act 1973 (Qld) (repealed) s 4(1), s 4(2) Uniform Civil Procedure Rules 1999 (Qld) rr 678-743S Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Amos v Walter [2020] QCAT 360 Aquilar v Egnalig [2014] QCATA 219 Balabel v Air India [1988] Ch 317 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 Carr v Inland Revenue Commissioners [1944] 2 All ER 163 Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 Edward Amos v Monsour Legal Costs Pty Ltd [2006] QDC 485 Gall & Anor v Lakatoi Pty Ltd (t/a Maritime Solutions Most Thing Nautical [2014] QCAT 557 Grommen v Hawes [2018] QCATA 49 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2011] NSWSC 453 Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Szintseva v Berowra Mansions Periodontal Specialist Centre [2014] QCATA 249 W (an infant), In Re [1971] AC 682 |
APPEARANCES & REPRESENTATION: | 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
Background
- [1]As long ago as May 2009 the applicant solicitor (`Amos’) complained to the former Small Claims Tribunal[1] that the respondent (`Walter’) had grossly overcharged him for services as a legal costs assessor.
- [2]While Walter delivered bills for a total of $3,650. Amos, equipped with affidavits of three other solicitors, claimed a refund of $2,462.50.
- [3]This was not Amos’ first clash of arms with cost assessors. The Adjudicator succinctly describes a chequered history that need not now be retraced.[2]
- [4]
The primary decision
- [5]In December 2009 the matter formally joined the list of cases for trial in the new QCAT tribunal.[5] There it lay dormant for years. Finally, in September 2020, it was closely examined by the learned Adjudicator, who dismissed it on two jurisdictional grounds:
- (i)it is not a claim for a debt or liquidated money claim; and
- (ii)the respondent Walter is not a trader within the meaning of section 4(2) of the Small Claims Tribunal Act 1973.[6]
- (i)
A liquidated claim?
- [6]I respectfully agree that the amount in dispute is not a liquidated claim.[7] As it stands, it is based on opinions of Amos’ expert witnesses. It is not crystallised in a judicial order, or in the form of an agreed price for services. Nor is it ascertainable by a simple mathematical calculation.[8] Until a judicial authority adopts, modifies or rejects the claim it is not liquidated. An action in which the amount to be recovered depends upon a judicial determination so that `no one can say positively beforehand whether the plaintiff will recover a farthing, or forty shillings or a hundred pounds’[9] is an unliquidated claim.[10]
- [7]I reject the submission that Amos’ present claim is liquidated.
A transaction with a `trader’?
- [8]
- [9]In his defence Walter relies on the exception to the definition of `trader’ in section 4(2) of the SCT Act (reproduced in Schedule 3 of the QCAT Act.) In the Adjudicator’s words the application of that subsection is the `gravamen’ or the `pivotal issue’ in this case.[13]
The legislation
- [10]
... trader means a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who regularly holds himself or herself out as ready to supply goods or to provide services of a similar nature ...
- [11]However, section 4(2) excludes from that definition –
... a person who in respect of goods supplied or services provided by the person would be a trader, but for this subsection, shall not be a trader in respect of those goods or services if in supplying those goods or providing those services — (a) the person acts in the exercise of a discipline that is not ordinarily regarded as being within the field of trade or commerce.[15]
An open category
- [12]However, the legislation offers no list – exhaustive or non-exhaustive – of occupations that are `not ordinarily regarded as ... trade or commerce’.
- [13]The Act speaks not of `professions’ but of `disciplines’. Possibly the descriptor `discipline’ was chosen in order to sidestep status-conscious demarcation disputes.[16] And perhaps, too, the draftsman felt that it would be invidious to distinguish the non-trader sheep from the tribe of traders, and so discreetly left that function to the courts. So far, it seems, the discipline/trade dichotomy has escaped hypersensitive disapproval of `elitism’.
- [14]The position, then, is that identification of non-trader disciplines is matter of ordinary language, common experience, comparative cases and contemporary social circumstances.
- [15]Conceivably there are `disciplines’ that are not `professions,’ but that question need not be pursued here. The concept of a profession, in the sense of a collective possessing and offering special knowledge or experience, is not a closed category. As an English judge observed almost 70 years ago: `There are professions today which nobody would have considered to be professions in times past.’[17] Earlier still, a member of the High Court declared:
[Profession] is an expression which I agree is not capable of exact definition ... that depends] on the general understanding of the community. The word ... is not one which is rigid or static ... it is undoubtedly progressive with the general progress of the community.[18]
- [16]With respect, the Adjudicator’s distinction between lawyers and legal cost assessors may be unduly sharp.[19] An assessor’s application of the law of costs, the rules of court and appreciation of legal realities may well overlap the work of lawyers. After all, `legal advice is not confined to telling the client the law; it may include advice as to what should prudently and sensibly be done in the relevant legal context’[20] – such as the implementation or elaboration of judicial orders for costs.
- [17]Be that as it may, the decision emphasises that cost assessment requires `special expertise’[21] and `a high level of knowledge or skill’.[22] It notes that only qualified lawyers may practise the discipline, and that assessors are comprehensively regulated in the code of forensic practice known as the Uniform Civil Procedure Rules.[23] Furthermore, assessors, in the course of their duties, enjoy the protections and immunities of Supreme Court judges.[24]
- [18]The decision helpfully reveals a wide-ranging miscellany of occupations that have been treated as `disciplines’ for the purposes of section 4(2) of the SCT Act (and its QCAT Act equivalent), including accountants,[25] marine surveyors,[26] migration agents[27] and periodontists.[28] If real estate agents are to be included[29] in this list it would be a courageous decision to exclude legally qualified persons acting as cost assessors.
Conclusion
- [19]In the light of the authorities and examples above, it was well within the Adjudicator’s discretion to hold that costs assessors are not traders, but rather practitioners of a discipline not ordinarily regarded as being within the field of trade or commerce. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[30] I respectfully agree that the submission that cost assessors are `traders’ for present purposes should be rejected.
- [20]It follows that the issue of jurisdiction has correctly been resolved.
- [21]Accordingly the application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1]Established by the Small Claims Tribunal Act 1973 (Qld) (repealed) (`the SCT’) and subsequently merged in QCAT.
[2]A curious reader may refer to Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235, Edward Amos v Monsour Legal Costs Pty Ltd [2006] QDC 485 and Amos v Walter [2020] QCAT 360 at [15] – [22].
[3]The SCT was merged in QCAT on 1 December 2009.
[4]Letter SCT to Amos 29 July 2009.
[5]In fact the SCT file was mislaid in Magistrates Court records, and did not reach QCAT until 12 May 2020: Primary decision (`PD’) [45].
[6]Amos v Walter [2020] QCAT 360 at [124].
[7]See PD [120].
[8]Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142 per Knox CJ and Starke J; Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [11].
[9]Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [12], quoting with approval Odgers Pleading and Practice 5th ed, p 41; Alexander v Ajax Insurance Co Ltd [1956] VLR 436.
[10]This point is encapsulated in PD [120].
[11]Definition of `small claim’ SCT s 4(1).
[12]QCAT Act s 271(3)(b).
[13]PD [70] and [93]-[94].
[14]See now QCAT Act Schedule 3, definition of `trader’.
[15]Emphasis added.
[16]Cf the comment of French J in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219, referring to T J Johnson Professions and Power (1972) at page 22.
[17]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.
[18]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J, cited in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.
[19]PD [[65(l) and (m)]. The distinction is counterbalanced by several fulsome tributes to the unique skills of cost assessors.
[20]Balabel v Air India [1988] Ch 317 at 330; Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2011] NSWSC 453 at [26]
[21]PD [104].
[22]PD [105].
[23]PD and [104], [111]; UCPR rr 678-743S.
[24]Civil Proceedings Act 2011 (Qld) s 77.
[25]Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36.
[26]Gall & Anor v Lakatoi Pty Ltd (t/a Maritime Solutions Most Thing Nautical [2014] QCAT 557.
[27]Aquilar v Egnalig [2014] QCATA 219.
[28]Szintseva v Berowra Mansions Periodontal Specialist Centre [2014] QCATA 249.
[29]As they were in Grommen v Hawes [2018] QCATA 49 at [10].
[30] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.