McGuire v Nikola McWilliam t/as McGrath Legal
[2022] QCATA 64
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- Unreported Judgment
- McGuire v Nikola McWilliam t/as McGrath Legal[2022] QCATA 64
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McGuire v Nikola McWilliam t/as McGrath Legal[2022] QCATA 64
McGuire v Nikola McWilliam t/as McGrath Legal[2022] QCATA 64
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McGuire v Nikola McWilliam t/as McGrath Legal [2022] QCATA 064 |
PARTIES: | SONYA McGUIRE (applicant/appellant) v NIKOLA McWILLIAM t/as McGRATH LEGAL (respondent) |
APPLICATION NO/S: | APL138-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 May 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS – where lawyer recovered part of professional fees under a client agreement – where Tribunal found that both the signatory and the named “client” were contracting parties under the agreement – whether Tribunal erred in finding signatory personally liable – whether leave to appeal should be granted – whether applicant denied natural justice in the course of presenting the case Legal Profession Act 2007 (Qld), s 311, s 329, s 331, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146 400 George Street (Qld) Pty Limited & Ors v BG International Limited [2010] QCA 245 Agricultural And Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Brewster t/a PRD Nationwide v de Abaitua [2010] QCATA 25 Craig v South Australia (1995) 184 CLR 163 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 Ericson v Queensland Building Services Authority [2013] QCA 391 Heydon v NRMA Ltd (2001) 53 NSWLR 600; [2001] NSWCA 445 Leeds v Turner t/as design2BUILD [2021] QCATA 85 McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 275 McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (No 2) [2016] NSWCA 260 McWilliam v Australian College of Information Technology Ltd & Ors [2021] QCATA 38 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 Pead v Chambers & Anor (No.2) [2021] QCATA 3 Ryan v Worthington [2015] QCA 201 Saxer v Hume [2022] QCATA 25 Sutton & Ors v Tomkins [2017] QCATA 44 Tripple A Pty Limited v WIN Television Qld Pty Ltd [2018] QCA 246 Willey v Ross Lawyers [2012] QCATA 22 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented |
REASONS FOR DECISION
Introduction
- [1]By an Application for leave to appeal or appeal filed on 13 May 2021 (the Appeal Application), the Applicant (Ms McGuire) seeks leave to appeal against a decision made by the Tribunal on 6 May 2021 (the Decision).
- [2]The proceeding was commenced by the Respondent to this Appeal Application (Ms McWilliam) by an Application for Minor Civil Dispute – Minor Debt (the MCD Application) filed on 13 December 2019. By the MCD Application, Ms McWilliam sought to recover fees for legal services rendered in an amount of $3,960.00 together with interest and various miscellaneous fees. There were three respondents to the MCD Application, being Australian College of Information Technology Ltd (the Company), Australian Star Enterprises Pty Ltd (Australian Star) and Ms McGuire.
- [3]By the Decision, the Tribunal (constituted by an Adjudicator) made the following orders:
- The claim against [the Company] is dismissed because it has been deregistered.
- The claim against [Australian Star] is dismissed.
- [Ms McGuire] pay [Ms McWilliam] $2,475.00 for claim, $700.00 for interest, $123.50 for filing fee, $86.20 for bailiff’s fee, $18.00 for search fees and $17.09 for CITEC Transaction fee, in total $3,419.49 on or by 13 May 2021.
- [4]The hearing below was the second occasion on which this dispute has been before the Tribunal. The Tribunal had previously ordered that Ms McGuire pay to Ms McWilliam the sum of $900.00 plus GST within 14 days. That decision was set aside by the Appeal Tribunal on the basis that the parties had not been afforded natural justice.[1] The proceeding was remitted to a differently constituted Tribunal for rehearing. The Decision was made upon the rehearing.
The particulars of Ms McWilliam’s claim
- [5]In the MCD Application, the particulars of the claim made by Ms McWilliam included the following:
- The dispute relates to non‑payment of an invoice for legal services provided, at the request of Sonya McGuire, to Australian College of Information Technology Ltd ACN 084 791 686 (ASIC Strike Off Action in Progress) and/or Australian Star Enterprises Pty Ltd ACN 621 802 604 trading under various business names including “Sonya McGuire Enterprises”, “IFTV Studios”, “Sonya McGuire Empowering Women” and “Empowering Women Adventures”.
- Further particulars, including a detailed chronology of events, are set out in Attachment 1 – Statement Nikola McWilliam.
- A Client Agreement containing an estimate to review and amend a Production Agreement (2 hours at $450/hr + GST) was provided to Sonya McGuire on 16/10/19. This Client Agreement was never signed because it was replaced with a revised Client Agreement two days later.
- The revised Client Agreement was sent to Sonya McGuire following correspondence about ongoing work in relation to her production. The revised Client Agreement covered the provision of ongoing legal services at the rate of $450/hr + GST. It was signed by Sonya McGuire on behalf of Australian College of Information Technology Ltd on 18/10/19 (Attachment 2 – Client Agreement (signed)).
- Legal services including reviewing and amending documentation, providing three template agreements and extensive phone and email advice were provided to Sonya McGuire in reliance on signed Client Agreement during the period 18/10/19 – 1/11/19. An itemised invoice detailing the date, description and time spent on each element of the work (8 hours in total, $3600 + GST) was sent to Sonya McGuire on 8/11/19 (Attachment 3 – Invoice 08 Nov19).
…
- [6]There is no dispute that:
- (a)there was a written agreement headed “Client Agreement” purporting to be between McGrath Legal (ABN 34 893 794 192) and the Company and signed by each of Ms McGuire and Ms McWilliam on 18 October 2019 (the Client Agreement);
- (b)Ms McWilliam forwarded, by email, a tax invoice dated 8 November 2019 (the Tax Invoice) to Ms McGuire, which Tax Invoice claimed a total of $3,960.00 for “Professional Legal Services”.
- (a)
The Reasons below
- [7]The Reasons for the Decision were given orally immediately at the conclusion of the hearing.
- [8]The primary issues which were addressed by the Adjudicator were, first, who were the contracting parties to the Client Agreement and, second, what was the quantum of the fees which Ms McWilliam was entitled to recover (which issue also involved the question of whether Ms McWilliam had agreed to limit her fees to an amount of $990.00 (inclusive of GST)).
- [9]In relation to the primary issues, the Adjudicator made findings which were, in summary, that the Company and Ms McGuire were both parties to the Client Agreement (but Australian Star was not) and the amount of legal fees that Ms McGuire was required to pay was the amount of $2,475.00 (and that Ms McWilliam’s entitlement to payment was not limited to the amount of $990.00).
The Grounds of Appeal
- [10]Part C of the Appeal Application refers to Attachment A to that document which attachment is headed “Grounds of appeal and further supporting information”.
- [11]It commences with the following:
Natural justice was not served during the court hearing on 6 May 2021.
The adjudicator has wrongfully ordered Sonya McGuire to be personally liable for the amount that is totalling $3419.49. Sonya McGuire has never intended to create legal relations nor entered into personal agreement with Nikola McWilliam t/a McGrath Legal.
- [12]Under the heading “Error of facts”, 23 separately numbered paragraphs or sections appear. In substance, I consider that the matters raised by Ms McGuire can be summarised as raising three broad grounds of complaint:
- (a)that the Adjudicator erred in finding that Ms McGuire was a contracting party to the Client Agreement (and, consequently, that she was personally liable for the amount found to be owing to Ms McWilliam) (the Contract Issue);[2]
- (b)that Ms McGuire was denied natural justice by the Adjudicator (the Natural Justice Issue);[3]
- (c)that the Adjudicator erred in finding that Ms McWilliam was entitled to any money over and above the originally quoted amount of $990.00 inclusive of GST (which amount was said to have been paid prior to the hearing).[4]
- (a)
- [13]By further submissions filed on 30 August 2021, Ms McGuire identified the following issues identified as “Legal Issues”:
- (1)Is Sonya McGuire personally liable for the money claimed by McGrath Legal?
- (2)Has Sonya McGuire entered into contractual relations with McGrath legal?
- (3)Has Sonya McGuire acted as a representative of Australian College of Information
Technology Ltd? - (4)Has manager of the business been mistaken as the main contracting party, while she was acting as a representative of the firm?
- (5)Has Nikola McWilliam mislead [sic] her client regarding her skills and ability to construct the legal contract in lined with France entertainment industry laws?
- (6)Did Nikola McWilliam provided [sic] a legal service that was incorrect?
- (7)Did Nikola McWilliam has [sic] the necessary experience with French entertainment industry law and to offer a service "to amend and construct production agreement" fit for filming in France?
Leave to appeal
- [14]An appeal against a decision of the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal (s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)).
- [15]As to the approach to be adopted in an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:[5]
… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.
(citation omitted)
Further evidence
- [16]By an Application for miscellaneous matters filed on 7 January 2022, Ms McWilliam seeks leave to rely on fresh evidence comprising Annexures NM-1, NM-2 and NM-3 of the “Respondent’s Submissions in Reply” (Ms McWilliam’s reply submissions).
- [17]The evidence comprising Annexure NM-1 is sought to be adduced in respect of the ground of appeal concerning the alleged denial of natural justice and in response to what Ms McWilliam contends is fresh evidence sought to be relied upon by Ms McGuire.[6]
- [18]Annexures NM-2 and NM-3 comprise documents from the Australian Securities & Investments Commission concerning the reinstatement of the Company (now named ACN 084 791 686 Ltd) and the company details of the Company including the directorship of the Company. Ms McWilliam seeks leave to rely on this evidence “if the Tribunal is inclined to accept Ms McGuire’s argument that she should not be held personally liable for the debt”.[7]
- [19]The exercise of the Appeal Tribunal’s discretion to give leave to adduce further or additional evidence on an appeal will include a consideration of whether significant new evidence has arisen and whether that evidence was not reasonably available when the proceeding was first heard and decided (and the Tribunal’s power to allow fresh evidence (on appeal) is not a mechanism by which parties can repair the holes in their original case).[8]
- [20]I address the application for leave to adduce such evidence below.
The Contract Issue
- [21]The terms of the Client Agreement are central to this issue.
The Client Agreement
- [22]The Client Agreement provided, in part:
Client Agreement
Between
McGrath Legal (ABN 34 893 794 192) of 30 Moana Park Avenue, Broadbeach Waters, Queensland
(‘this law practice/we/us’)
and
Australian College of Information Technology Ltd (ACN 084 791 686) of 2/246 Varsity Parade, Varsity Lakes, Queensland
(‘client/you/your’)
This agreement is comprised of the Disclosure Statement (Part A) and the Costs Agreement (Part B).
Part A: Disclosure Statement
Before providing legal services and entry into any costs agreement, we are required to provide you with the following disclosure of information under the Legal Profession Act 2007 (Qld):
- Legal fees – your rights
1.1 You have the right to:
- Negotiate a costs agreement with us;
- Receive a bill of costs from us;
- Request an itemised bill of costs after you receive a lump sum bill from us;
- Request written reports about the progress of your matter and the costs incurred in your matter;
- Apply for costs to be assessed within 12 months if you are unhappy with our costs (see para 1.4 below);
- Apply for the costs agreement to be set aside (see para 1.4 below);
- Accept or reject any offer we make for an interstate costs law to apply to your matter (see para 1.3 below);
- Notify us that you require an interstate costs law to apply to your matter (see para 1.3 below); and
- Be notified of any substantial change in the matters disclosed in this Notice.
…
- Estimate of your costs
The practitioner carrying out work in relation to your matter(s) will be: Nikola McWilliam.
Nikola McWilliam’s hourly rate is $450 + GST (“Hourly Rate”).
This Costs Agreement covers the provision of ongoing legal services as requested from time to time. Estimates for individual pieces of work can be provided on request. All services will be charged at the Hourly Rate.
…
Part B:Costs Agreement
- Offer
1.1 This document is an offer to enter into a costs agreement with you. If you accept this offer you will be regarded as having entered into a costs agreement. This means you will be bound by the terms and conditions set out in this document, including being billed in accordance with it. Acceptance may be by any one of the following ways:
a. signing and returning a copy of this document; or
b. giving us instructions after receiving this document; or
c. contacting and advising of your acceptance.
1.2 This law practice will provide you with the legal services performed with professional skill and diligence and will keep you informed of progress.
…
- Charges for professional fees, other items, disbursements and outlays
2.1 This law practice’s professional fees charged are in accordance with s.2 of the Disclosure Statement above.
…
- Payment/money on account
6.1 We may ask you for payments in advance. In this event, the money will be held in trust and you will be advised how it is used. You hereby authorise us to draw on the money for expenses, third party payments and professional fees as they become due.
…
- Acceptance
You may accept this agreement by:
a. signing and returning a copy of this document; or
b. giving us instructions after receiving this document; or
c. contacting us and advising of your acceptance.
18/10/19 | 18/10/19 | ||
______________ Signed by or on behalf of the client* | ____________ Date | ____________ Signed by or on behalf of the law practice | ___________ Date |
* Where the person signing on behalf of the client is other than the named client, (s)he warrants they hold authority to sign on behalf of the client.
The Findings
- [23]The Adjudicator’s Reasons for finding that each of Ms McGuire and the Company was a contracting party to the Client Agreement are as follows:[9]
The fundamental issues in this case include between whom the contract for provision of legal services was. I find, on the evidence overall and upon reflecting on the way that the signing clause in the client cost agreement signed by Mrs McGuire on the 18th of October 2019, that the agreement for the provision of services was between the lawyer, Nikola McWilliam, and both Australian College of information Technology Pty Ltd and Mrs McGuire. The whole run of the giving of instruction thereafter was consistent with Mrs McGuire also being a client. The inscription “signed by or on behalf of the client” permits the inference that Mrs McGuire was the client personally of Ms McWilliam and also acting in some capacity on behalf of the Australian College of Information Technology Limited.
The latter presentation was quite false, as Mr McGuire said in evidence. Mrs McGuire was neither a director of Australian College of information Technology Limited, nor was she authorised to bind the company. The difficulty for the company, if it had not been deregistered, in contractual terms, though, was that she was clothed with ostensible authority by Mr McGuire by permitting these things to occur and she would be estopped, if the company still existed, from asserting that she had no authority to bind the company where she should have disclosed that absence of authority, in which event, the company's name would not have appeared in the client agreement at all.
It transpires that, some days after the retaining [sic], processes were initiated, apparently by a director of Australian College of Information Technology Limited, to deregister the company, to cancel its existence. Consistent with the agreement which Ms McWilliam had, she sorted deferment of that process. This deferment was, as I understood, there [sic] granted. However, the short point is this: as appears from the tribunal exhibit, TI, which will be part of the record, this company, Australian College of Information Technology Limited, was deregistered on the 24th of March 2020.
In other words, though I accept that the company together with Mrs McGuire was the contracting party, it is impossibly [sic] for this client- sorry, this tribunal, to make an order that a non-existent client, the now-deregistered company, make a payment to Ms McWilliam either in the amount claimed or any other amount. Therefore, order (1) will be that the claim against Australian College of Information Technology Limited is dismissed because the company has been deregistered.
- [24]With respect to the issue of Ms McGuire’s authority to sign the Client Agreement on behalf of the Company, the Adjudicator appears to have concluded that Ms McGuire did not have actual authority to sign on behalf of the Company but did have ostensible authority to do so (and this was the basis upon which the Adjudicator found that the Company (together with Ms McGuire) was a contracting party).[10] That Ms McGuire had authority to sign the Client Agreement on behalf of the Company is not challenged on the Appeal Application. For completeness, I observe that even if Ms McGuire had not been authorised to bind the Company to the Client Agreement, any claim against Ms McGuire arising out of the absence of authority would properly have been one for breach of warranty of authority[11] and, in my view, such a claim would fall outside the jurisdiction of the Tribunal because it would not involve recovery of a debt or liquidated demand of money[12] (or otherwise within the definition of “minor civil dispute”).
- [25]The starting point for the consideration of whether leave to appeal is granted is whether there is a reasonable argument that the Adjudicator erred in finding that Ms McGuire was a contracting party to the Client Agreement.
Was Ms McGuire a contracting party?
- [26]The Adjudicator raised this issue with Ms McGuire during the course of the hearing. The following exchange occurred between the Adjudicator and Ms McGuire:[13]
ADJUDICATOR WALSH: You understand the point I’ve asked Ms McWilliam about, Mrs McGuire? The signing page of the client agreement which you signed doesn’t say, as I had suggested earlier, that you were signing it. Solely [sic, signing it solely] on behalf of the client it says “signed by or on behalf of the client”, meaning it could be signed by you personally as well as on behalf of the company. Do you understand the point?
MS McGUIRE: Well, what you explained to me is the first I – I heard of it. But when I was signing it ---
ADJUDICATOR WALSH: Well, look at the document please. Look at page 26.
MS McGUIRE: “Signed by or on behalf of the client”. Your Honour, I ---
ADJUDICATOR WALSH: “Signed by or on behalf”.
MS McGUIRE: --- I have only ever signed it on behalf of the business.
ADJUDICATOR WALSH: Well, why were you writing emails where you signed off yourself and not on behalf of the business?
MS McGUIRE: There’s many emails that has gone from my business name, your Honour.
ADJUDICATOR WALSH: All right.
MS McGUIRE: And sometimes when you are travelling you are on iPhone and you reply things without your full signature. Emails come back and forth, back and forth, back and forth.
ADJUDICATOR WALSH: All right. Yes, I understand.
- [27]In reaching his conclusion that Ms McGuire was a contracting party, the Adjudicator referred to two matters in his Reasons. First, that the signing clause inscription “signed by or on behalf of the client” permitted an inference that Ms McGuire was both the client “personally” of Ms McWilliam and also acting in some capacity on behalf of the Company. Second, that the “whole run of the giving of instruction” after the signing of the Client Agreement by Ms McGuire was consistent with her also being a client of Ms McWilliam.
The proper interpretation of the Client Agreement
- [28]For the following reasons, I am of the view that, in signing the Client Agreement, Ms McGuire did not bind herself as a party to the Client Agreement and that the Tribunal erred in so finding.
- [29]First, the only named contracting party (other than “McGrath Legal”) was the Company. In the Client Agreement, the Company was expressly identified as “client/you/your”. No other entity was incorporated by reference (eg by way of definition) as the “client” or “you” or “your”. Clause 1.1 of Part B of the Client Agreement makes clear that the party to be bound by the agreement is “you”; and the ways in which the agreement could be accepted included by “signing and returning a copy of this document” (see clauses 1.1a and 7a).
- [30]Second, on the proper construction of the Client Agreement, it is plain that the word “or” in the phrase “Signed by or on behalf of the client” meant “or” in the disjunctive sense. Not only is this the ordinary grammatical meaning but it is reinforced by the words the subject of the asterix next to “client” in the signing clause. These words provide: “*Where the person signing on behalf of the client is other than the named client, [s]he warrants they hold authority to sign on behalf of the client.” There is no indication in the language of the Client Agreement that the person signing is taken to be signing both on behalf of the named “client” and in the signatory’s personal capacity.
- [31]In my view, where (as here) there is only one named “client”, and the person signing is not the named client, the signatory is taken to be signing (only) on behalf of the client (and not also in the signatory’s personal capacity).
Subsequent instructions
- [32]With respect to the Adjudicator’s reference to the giving of instructions after the execution of the Client Agreement, it is unclear from the Reasons what legal significance the Adjudicator attached to such circumstances.
- [33]In relation to post-contract conduct, the general principle is that “it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made”.[14] However, a distinction is sometimes drawn between proof of a term and the meaning of a term and evidence of subsequent conduct may be admissible on the former question, particularly where the contract is not wholly in writing, but not the latter.[15]
- [34]In the present case:
- (a)Ms McWilliam brought her claim pursuant to the Client Agreement;
- (b)the Client Agreement was wholly in writing;
- (c)the purpose or object of the Client Agreement was to satisfy the mandatory requirements of Part 3.4 of Chapter 3 of the Legal Profession Act 2007 (Qld) (the LPA); and
- (d)the primary finding that Ms McGuire was a contracting party turned on the meaning given by the Adjudicator to the words of the signing clause.
- (a)
- [35]In these circumstances, it is my view that the general principle identified above applies and that evidence of the events occurring after the signing of the Client Agreement could not be legitimately used as an aid in the construction of that agreement.
- [36]For the above reasons, I consider that, on the question of leave, there is a reasonable (indeed cogent) argument that the Decision was attended by error. Whilst the amount in issue ($3,419.49) is not an enormous sum of money, it is far from insignificant. In circumstances where I consider that the Decision was plainly wrong, I am satisfied that an appeal is necessary to correct a substantial injustice caused by that error. Additionally, the signing clause adopts language not uncommonly used in signing clauses. A finding that such a clause could give rise to personal liability on the part of the person signing (purportedly on behalf of a company) is deserving of consideration, even if it may not involve a question of “general importance”. In all the circumstances, I consider that leave to appeal is warranted and grant such leave.
- [37]In my view, the Adjudicator’s finding that Ms McGuire was a contracting party turned, wholly or primarily, on the proper construction of the Client Agreement. The proper construction of a contract is a question of law, not a question of fact.[16] To the extent that the Adjudicator relied upon events occurring subsequent to the execution of the Client Agreement, I consider that this also involved a separate question of law, namely whether the Adjudicator acted on a wrong principle of law. In my view, this ground of the appeal concerns only a question of law and is to be dealt with under s 146 of the QCAT Act.
- [38]For the reasons set out above, pursuant to s 146(b) or s 146(d) of the QCAT Act, I set aside Order number 3 of the Decision and substitute a decision that the claim against Ms McGuire is dismissed.
A further issue
- [39]During the hearing, the Adjudicator raised with Ms McWilliam a “threshold” issue of whether there could be any liability in relation to the Tax Invoice in the absence of an attached warning notice as required under s 331 of the LPA.[17]
- [40]In his Reasons the Adjudicator said the following:
A related issue discussed earlier on in the proceeding was whether a disclosure statement had to be supplied with the account, notably, consistently with the client agreement. The invoice, attachment 3 to the original application of McGrath Legal, was addressed both to Sonya McGuire and Australian College of Information Technology Limited. Mr McGuire said that that company had never been involved in any litigation. It was not legally savvy. The only interaction with lawyers apparently had been at the time of setting the company up and perhaps in respect of some related matters. Whether or not the company was a sophisticated client, such as to require the warning notice to be attached to the account, is irrelevant and academic because the company has been deregistered and no order can be made against it.
What is also relevant is, I accept, on the evidence referred to by Ms McWilliam, in particular and amongst other things in an email which is marked exhibit A2 handed up today, that Mrs McGuire was a sophisticated client, such that in terms of the section to which I referred of the Legal Practice Act, the warning notice did not need to be attached to the invoice. I note also that it was not a component of the defence of Mrs McGuire that the indebtedness could not arise by reason of that fact. It was simply not referred to. The defence of the respondents has proceeded on the basis set out in the response and, that is, that there was no liability beyond the figure of $990. I’ve already found that that is not so.
(emphasis added)
- [41]Although Ms McGuire has not challenged the particular finding that she was a “sophisticated client”, Ms McWilliam’s right to bring the proceeding was predicated on satisfying the relevant provisions of the LPA.
- [42]
[32] As this is a matter involving the payment of legal fees, regard must be had to the Legal Profession Act 2007 (Qld) (“LP Act”), in particular Chapter 3, Part 3.4 “Costs disclosure and assessment”. Section 319(1)(a) provides that legal costs are recoverable under a compliant costs agreement. In this matter, there is a written client agreement, drafted pursuant to s48 of the Queensland Law Society Act 1952 (as it applied at the time).
[33] There are further provisions contained within the LP Act, relating to the recovery of legal costs, which must be complied with before a law practice commences proceedings to recover legal costs. Section 329 of the LP Act provides that:
Legal costs cannot be recovered unless bill has been served
(1) A law practice must not start legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person under sections 330 and 331 or under provisions of a corresponding law that correspond to sections 330 and 331.
(2) A court of competent jurisdiction may make an order authorising a law practice to start legal proceedings against a person sooner if satisfied the person is about to leave this jurisdiction.
(3) A court of competent jurisdiction before which any proceedings are brought in contravention of subsection (1) must stay those proceedings on the application of a party or on its own initiative.
(4) This section applies whether or not the legal costs are the subject of a costs agreement.
[34] It is my view that, if a firm does not properly serve a bill to the client in accordance with s329 of the LP Act, in the form required by Chapter 3, Part 3.4 of the LP Act, that [sic] the firm does not have an entitlement to commence proceedings to recover legal costs as a debt or liquidated demand in QCAT. Any orders made in proceedings that had been commenced without having complied with the LP Act would be irregular, and set aside in accordance with the reasons espoused in City Pacific.
- [43]Section 329(1) of the LPA provides:
A law practice must not start legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person under sections 330 and 331 or under provisions of a corresponding law that correspond to sections 330 and 331.
- [44]Section 331 of the LPA provides:
- (1)A bill must include or be accompanied by a written statement setting out—
- (a)the following avenues that are open under this Act to the client in the event of a dispute in relation to legal costs—
- (i)costs assessment under division 7;
- (ii)the setting aside of a costs agreement under section 328; and
- (b)any time limits that apply to the taking of any action mentioned in paragraph (a).
- (2)Subsection (1) does not apply in relation to a sophisticated client.
- (3)A law practice may provide the written statement mentioned in subsection (1) in or to the effect of a form approved by the chief executive for this subsection, and if it does so the practice is taken to have complied with this section in relation to the statement.
- [45]The Reasons do not disclose the provisions of the LPA by reason of which the Adjudicator concluded that Ms McGuire was a “sophisticated client”.
- [46]“Sophisticated client” is defined in Schedule 2 to the LPA by reference to s 300 of that Act. Section 300 provides definitions for the purposes of Part 3.4 of Chapter 3 of the LPA, including:
sophisticated client means a client to whom, because of section 311(1)(c) or (d), disclosure under section 308 or 309(1) is not or was not required.
- [47]If Ms McGuire had been a contracting party to the Client Agreement, it is not immediately apparent that any of the provisions in subsections 311(1)(c) or (d) of the LPA would have applied to Ms McGuire. Had I not concluded that the appeal should be allowed for the reasons set out above, I would have made a direction inviting the parties to make submissions in relation to this issue. While I express no concluded view, there is plainly a question as to whether Ms McWilliam was entitled to bring the proceeding against Ms McGuire having regard to the content of the Tax Invoice and s 329 of the LPA (the effect of which was addressed in Morales).
The (alternative) order sought by Ms McWilliam
- [48]In paragraph 21 of Ms McWilliam’s reply submissions, Ms McWilliam submits:
Should the Appeal Tribunal find that Ms McGuire is not personally liable for the amount of $3419.49 that she was ordered to pay on 6 May 2021 (and has since paid), it is submitted, given the reinstatement of Australian College of Information Technology Ltd, that an order could be made for Australian College of Information Technology Ltd to reimburse Ms McGuire (or the person or entity who paid the debt on her behalf), although the ability of the reinstated entity to pay is unclear.
- [49]Assuming for the purposes of argument that the Company was reinstated to the register on 23 December 2021, Ms McWilliam did not apply, after reinstatement, to:
- (a)seek to cross-appeal Order number 1 of the Orders (by which order the claim against the Company was dismissed); or
- (b)otherwise join the Company as a party to the Appeal Application for the purpose of seeking the order set out above.
- (a)
- [50]The order sought by Ms McWilliam affects an entity (the Company) which is not a party to the appeal. As the appeal is presently constituted, I consider that the Appeal Tribunal has no power to make the order sought.
- [51]In any event, I consider that such an order would not have been just and equitable given that:
- (a)Ms McGuire has no liability to Ms McWilliam pursuant to the Client Agreement; and
- (b)on Ms McWilliam’s own submission, “the ability of the reinstated entity to pay is unclear”.
- (a)
- [52]For the above reasons, I also refuse leave to adduce the further evidence concerning the Company.
- [53]While it is unnecessary to determine the balance of the matters raised by Ms McGuire, I will address the Natural Justice Issue given the nature of the complaint.
Natural Justice Issue
- [54]
[27] In all proceedings the tribunal must act fairly and according to the substantial merits of the case and must observe the rules of natural justice. The rules of natural justice comprise: (a) The rule against bias; and (b) The fair hearing rule.
[28] It is the application of the fair hearing rule that is relevant for present purposes. What fairness requires will depend on the circumstances of the particular case. The fair hearing rule requires that a party has the opportunity to know the case against them, the opportunity to present their case, the opportunity to cross examine witnesses and the opportunity to make submissions. The right to a fair hearing is recognised in the Human Rights Act 2019 (Qld).
(citation omitted)
- [55]Ms McGuire’s complaints in relation to natural justice concern the Adjudicator’s alleged conduct towards each of Ms McGuire’s husband, Daniel McGuire, and Ms McGuire.
Mr McGuire
- [56]The Adjudicator confirmed at the commencement of the hearing that Mr McGuire was the director of the Company.[20] The Adjudicator proceeded on the basis that Mr McGuire was appearing at the hearing in order to represent the Company.[21] However, the Adjudicator established in discourse with Mr McGuire that the Company no longer existed.[22] As the Adjudicator made clear to Ms McWilliam, in light of the fact that the Company was “non-existent” because of the deregistration, no relief could be granted against the Company.[23] Consistently with that indication, the Adjudicator dismissed the claim against the Company.
- [57]The Adjudicator also had exchanges with Mr McGuire in relation to the entity that paid the amount of $990.00 to Ms McWilliam;[24] the extent of any dealings between the Company and lawyers (seemingly in relation to what the Adjudicator saw as relevant to the issue of whether the Company was a “sophisticated client”);[25] and in relation to Ms McGuire’s directorship of the Company and her authority to sign on its behalf.[26] On a perusal of the transcript, I can see no reasonable basis for a conclusion that the Adjudicator intimidated or pressured Mr McGuire or denied him a reasonable opportunity to be heard (particularly against the background that the Adjudicator had indicated that the claim against the Company could not succeed).
Ms McGuire
- [58]With respect to Ms McGuire, a threshold issue concerns the additional material sought to be relied upon by Ms McGuire in this regard. In my view, this material comprises fresh evidence. I do not take this evidence into account for the following reasons. First, Ms McGuire has not made a formal application to adduce such evidence. Second, in my view, the claimed denial of natural justice involves a question of law[27] and such an appeal is determined under s 146 of the QCAT Act and further evidence is not admissible on such an appeal.[28] Third, I would not have allowed such evidence to be adduced in any event as it is not probative of whether or not the Adjudicator afforded Ms McGuire natural justice at the hearing. In my view, that question is to be determined on the basis of the transcript. In these circumstances, there is no basis for Ms McWilliam to adduce the evidence comprising Annexure NM-1 to Ms McWilliam’s reply submissions.
- [59]In relation to Ms McGuire’s complaints, a perusal of the transcript indicates that there were occasions on which the Adjudicator interrupted Ms McGuire. However, it is evident that this was done in an attempt to have Ms McGuire answer the Adjudicator’s question or to keep Ms McGuire on topic. In my view, the Adjudicator also made similar interruptions in relation to Ms McWilliam’s presentation of her case,[29] and in that context treated the parties even-handedly.
- [60]Further, during the course of earlier exchanges with Ms McGuire, the Adjudicator said that she would get her chance later and that he would come back to her.[30]
- [61]After the Adjudicator heard from Ms McWilliam he then said to Ms McGuire:[31]
Along the way, I said I would come back to you and I am now. We’ve had some discussions back and forth whilst I was hearing Ms McWilliam. is there anything you want to add to what you told me earlier and in response to anything you want to address that Ms McWilliam has said? And, in particular, you were referring me to your reply. I think it was a document containing the submissions in reply, was it?
- [62]
- [63]On perusing the transcript as a whole, I consider that whilst there was an element of robustness in relation to the questioning of the parties, I do not consider that there was any unfairness in the approach of the Adjudicator nor any failure to afford Ms McGuire a reasonable opportunity to be heard.
- [64]In my view, Ms McGuire has not raised a reasonable argument that she was denied natural justice and I would have refused leave to appeal on this ground.
Orders made
- [65]For the reasons set out above, the Appeal Tribunal makes the following orders:
- Leave to appeal is granted.
- The appeal is allowed.
- Order number 3 of the Tribunal’s orders made on 6 May 2021 is set aside.
- The claim against Sonya McGuire is dismissed.
- [66]Ms McGuire also seeks an order that moneys paid pursuant to the Decision be refunded by Ms McWilliam.
- [67]While it may be that (and I express no concluded view), upon the setting aside of the orders below, Ms McGuire would have (subject to the outcome of any appeal by Ms McWilliam) a right at common law to recover the moneys paid pursuant to the Decision,[34] I consider that the issue of recovery is a matter arising discretely from the Decision itself and is not properly a matter for the making of orders on the appeal.
- [68]As to costs, Ms McGuire seeks to recover the filing fee for the Appeal Application in the amount of $352.00. I shall hear the parties on the question of costs, and I further order that the parties shall file in the Tribunal and serve on the other party any submissions in relation to costs, no longer than five (5) pages, within 14 days of the date of these orders.
Footnotes
[1]McWilliam v Australian College of Information Technology Ltd & Ors [2021] QCATA 38.
[2]Attachment A, paragraphs 1, 4, 6, 7, (possibly) 18 and 22.
[3]Attachment A, paragraphs 2, 3, (possibly) 10, 11, 12, 13, 17 and 20.
[4]Attachment A, paragraphs 5, 8, 15 and 21.
[5]See Saxer v Hume [2022] QCATA 25 at [2].
[6]Ms McWilliam’s reply submissions, paragraphs 5 and 6.
[7]Ms McWilliam’s reply submissions, paragraph 7.
[8]Sutton & Ors v Tomkins [2017] QCATA 44 at [28]-[29].
[9]T1‑81 line 24 - T1-82 line 13.
[10]T1-82 lines 8-9.
[11]See eg McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 275 at [13].
[12]Cf Brewster t/a PRD Nationwide v de Abaitua [2010] QCATA 25 at [14].
[13]T1-42 lines 1-30.
[14]Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [35]. See also 400 George Street (Qld) Pty Limited & Ors v BG International Limited [2010] QCA 245 at [58].
[15]Tripple A Pty Limited v WIN Television Qld Pty Ltd [2018] QCA 246 at [59].
[16]Ryan v Worthington [2015] QCA 201 at [12]; Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 at [18].
[17]T1-24 line 42 - T1‑25 line 35.
[18][2010] QCATA 87 at [32]-[34] per Dr Cullen Mandikos, Member, Judge Kingham, Deputy President agreeing. See also Willey v Ross Lawyers [2012] QCATA 22.
[19][2021] QCATA 85 at [27]-[28] per Senior Member Brown.
[20]T1‑2 lines 21-27.
[21]T1‑2 lines 21-27.
[22]T1‑6 lines 37 - T1‑8 line 34.
[23]T1‑13 lines 15-22.
[24]T1‑19 lines 1-9; T1‑47 lines 5-21; and T1‑52 lines 17-25.
[25]T1‑28 line 36 - T1‑29 line 8.
[26]T1‑65 lines 42-46.
[27]Craig v South Australia (1995) 184 CLR 163; Pead v Chambers & Anor (No.2) [2021] QCATA 3 at [30].
[28]Ericson v Queensland Building Services Authority [2013] QCA 391 at [11]-[13].
[29]See, for example, T1‑14 lines 20‑26; T1‑22 lines 27‑47; T1‑34 lines 33‑37; T1‑59 lines 25‑33; T1-67 lines 18-32; T1-79 line 42 - T1-81 line 20.
[30]See, for example, T1-46 lines 33-41; T1-47 lines 21-23.
[31]See T1-72 lines 25-30.
[32]See T1-75 line 37 - T1-77 line 15.
[33]See T1-78 line 44 - T1-78 line 22.
[34]Cf Heydon v NRMA Ltd (2001) 53 NSWLR 600; [2001] NSWCA 445 at [12]-[14]; McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (No 2) [2016] NSWCA 260 at [71].