Jackson v Creswick Middleton Solicitors
[2000] QDC 46
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- Unreported Judgment
- Jackson v Creswick Middleton Solicitors[2000] QDC 46
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Jackson v Creswick Middleton Solicitors[2000] QDC 46
Jackson v Creswick Middleton Solicitors[2000] QDC 46
DISTRICT COURT OF QUEENSLAND |
CITATION: | Jackson & Anor v. Creswick Middleton Solicitors |
PARTIES: | RICKY KARL JACKSON & LEANNE MARGARET JACKSON (Appellants) v. CRESWICK MIDDLETON SOLICITORS (Respondent) |
FILE NO/S: | Appeal 875 of 2000 M 17198 of 1999 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Brisbane |
DELIVERED ON: | 18 May 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 March 2000 |
JUDGE: | McGill D.C.J. |
ORDER: | [Appeal allowed in terms to be agreed or determined] |
CATCHWORDS: | Emanuele v. Australian Securities Commission (1997) 188 CLR 114 - applied Malleson Stewart Stawell & Nankilvell v. Williams [1930] VLR 410 - followed Currie v. Robinson [1968] QWN 25 - considered Re: Walsh Halligan Douglas' Bill of Costs [1990] 1 Qd.R. 288 - considered Re: Bailey's Bill of Costs [1994] 1 Qd.R. 576 - considered Haigh v. Ousey (1857) 7 E&B 578 - applied McKelvie v. Page [1999] 2 Qd.R. 259 - applied Morgan v. Meissner [1975] 1 NSWLR 614 Queensland Law Society Act 1952 s. 48J |
COUNSEL: | B.S. Kelleher for the appellants C.A. Adams for the respondent |
SOLICITORS: | Murrays Lawyers for the appellant Creswick Middleton for the respondent |
- [1]On 20 July 1999 the respondent commenced a proceeding in the Magistrates Court Brisbane claiming from the appellants $1,094.40 for professional work done and disbursements incurred by the respondent at the request of the appellants “particulars of which have been delivered to the defendants”. The attached Statement of Claim alleged the respondent was a firm of solicitors retained by the appellants and that it attended to “certain professional work on behalf of the defendants and incurred disbursements” for an amount included in an invoice dated 25 June 1999, delivered the day after the appellants terminated the retainer.
- [2]A Notice of Intention to Defend was filed on 9 December 1999. The attached defence alleged that the fees charged were excessive, that the action had been commenced contrary to subsections 48J(1) and (2) of the Queensland Law Society Act 1952 (“the Act”), and that the respondent was not entitled to bring the action against the appellants. In a reply filed on 24 January 2000 the respondent alleged that the work was urgent work within the meaning of s. 48(1) of the Act and that the appellants terminated the respondent's retainer without notice and without cause prior to the respondent's making a written agreement with the appellants, that they expressly or by implication indicated that they would not pay the fees as a consequence of which the respondent was entitled to commence the proceedings, that the fees charged were in accordance with the respondent's scale of fees which the appellants had agreed to, that the invoice dated 25 June 1999 set out the period of the account and the items of work carried out for that period, and that on 1 September 1999 the respondent provided the appellants with a bill in itemised form based on the retainer in the sum of $1,664, and on the Supreme Court scale of $1,370.69. There are also a number of other facts alleged in the reply, the relevance of which is not immediately apparent.
- [3]On 24 January 2000, the respondent applied to the court for judgment pursuant to r. 292, together with an order for costs. That application came before a Stipendiary Magistrate on 4 February 2000, who gave leave under s. 48J(2) of the Act for the respondent to proceed with the action, and gave judgment for the respondent for damages to be assessed by a Magistrate, but made no order as to the costs of that day.
- [4]On 3 March 2000 the appellants filed a Notice of Appeal subject to leave by which they sought leave to appeal against that order. That application came before me in Chambers on 16 March 2000 when I gave leave to appeal, and, in order to save costs, directed that the appeal be heard instanter before me, but with the parties having leave to supplement the oral submissions by written submissions. Those written submissions were subsequently provided by both parties, the most recent forwarded on 12 April 2000.
Matters In Issue
- [5]The dispute in this case turns on the statutory provisions inserted into the Act by the Civil Justice Reform Act 1998. The long title of that Act indicates that one of its purposes was “to reform the law regulating the relationship between solicitors and clients concerning fees and costs”. The principal provision in dispute was s. 48J which was one of a number of provisions then inserted. That new section is in the following terms:
- “(1)A practitioner or firm may start a proceeding in a court to recover fees or costs from a client only if the practitioner or firm has given the client an account that -
- (a)is in a form agreed to in a client agreement between the practitioner or firm and the client; or
- (b)clearly sets out all items of work done for the client and the amount charged (whether by way of fees or costs) for each item.
- (2)Further, the practitioner or firm must obtain the court's leave to start the proceeding if-
- (a)it is one month or less since the account was given; or
- (b)the client has applied for an appointment by the clerk of the tribunal of a costs assessor to assess the account and the assessment has not concluded.”
- [6]The terms of subsection (1) correspond with the terms of s. 6ZA(1) which provide:
“This division applies if a client -
- (a)is given an account that -
- (i)is in a form agreed to in a client agreement between the client and the practitioner or firm; or
- (ii)clearly sets out all items of work done for the client and the amount charged for each item; and
- (b)applies to the Tribunal for an appointment by the clerk of the tribunal of a costs assessor to assess the account and gives the clerk a notice of objection stating, to the best of the client's ability, the items in the account to which the client objects and the client's grounds for the objection.”
- [7]In circumstances where that is done, the clerk of the tribunal may appoint a costs assessor to assess the account, and the assessment will become binding unless within 30 days an application is made to a court under s. 6ZF to decide the reasonableness of the fees charged. The scheme therefore seems to be that a client who receives an account which satisfies the requirements of s. 6ZA(1)(a) will be able to apply to the Tribunal for an appointment of a costs assessor as a means of having the amount charged reviewed, and until the client is given such an account, a practitioner or firm cannot start a proceeding in a court to recover the fees or costs. Once the account is given, the client has in effect one month to apply for the appointment of a costs assessor, and if the client has so applied, the practitioner or firm is not to start proceedings without the court's leave until the assessment is concluded.
Can Leave Be Given Nunc Pro Tunc?
- [8]The question of whether leave can be granted under s. 48J(2) after the proceedings have been commenced without leave is to be determined as a matter of statutory construction: Emanuele v. Australian Securities Commission (1997) 188 CLR 114. The requirement for leave in the circumstances specified in subsection (2) is mandatory; this follows from the use of the word “must”. There is, however, nothing in the actual wording of subsection (2) which expressly requires the leave to be obtained prior to starting the proceeding. The concept of giving leave to do something after it has been done, which may be conveniently described as leave nunc pro tunc, is one which is very well recognised in the law, and there are numerous examples of situations where it has been held that such leave may be given. Accordingly, mere mandatory imposition of a statutory requirement to obtain the court's leave to start a proceeding does not necessarily imply that the leave can only be obtained before the proceeding is started.
- [9]It would have been easy enough for the legislature to have said “The practitioner or firm must obtain the court's leave before starting the proceeding ...” if that had been the desired outcome. There is, I think, nothing in the general scheme of either s. 48J, or the amendments to the Act which were effected by the Civil Justice Reform Act 1998, which would give rise to an implication of such a restriction on the court's capacity to grant leave to start the proceeding. Furthermore, it is obvious that a situation could arise where the practitioner or firm would be unaware that leave were necessary, if more than one month had passed since the account was given and an application had been made by the client to the clerk of the tribunal, but the practitioner or firm was unaware of it. If a proceeding were started in such a situation, an application for leave would be necessary, but it would be odd for the legislature to require that, if the court were disposed to grant leave, it would still be necessary for the existing proceeding to be discontinued, and a fresh proceeding to be started.
- [10]I have been referred to a number of authorities dealing with this question in the context of other statutes; one of the matters to which I was helpfully referred was the comment by Kirby J in Emanuele (supra) at p. 147 that “it is difficult, if not impossible, to reconcile all of the decisions on this and analogous questions”. This probably reduces the value of decisions on particular forms of words in other statutes. I accept that it is ultimately a matter of the construction of the individual statute; perhaps the only other really helpful thing which can be drawn from the authorities is that it is not uncommon for statutes to be construed as allowing leave nunc pro tunc where such an outcome is consistent with the express words of the relevant provision: see e.g. McKelvie v. Page [1999] 2 Qd.R. 259 at 264. I am not aware of any previous authorities on this particular provision. In my opinion, the proper construction of s. 48J(2) is that leave may be given to start the proceeding nunc pro tunc.
Was An Account Given As Required?
- [11]The next issue is whether the plaintiff had complied with the requirement in subsection (1). That is to be determined by reference to the invoice dated 25 June 1999; the respondent did not contend, before me or before the Magistrate, that either of the documents produced subsequently satisfied that subsection. It was, however, submitted that the invoice should be taken together with the covering letter. For present purposes I am prepared to accept that submission.
- [12]It was common ground that there was no client agreement, so the “account” had to comply with the requirements of para. (b). This paragraph requires that all items of work done be set out, together with the amount charged for each of them, and that this be done clearly. What has been done in the present case in the invoice is to list particular tasks for which a charge is made at a particular rate, and specify the number of such tasks performed. For example, the first item under the heading “Correspondence” is “short letters not exceeding one folio (72 words in length), 5 @ $14.50”. From this and the other items one can ascertain that during the relevant period there were 6 letters sent, one of which exceeded one folio in length, there were 11 telephone calls not requiring legal skill and knowledge and 5 which did require legal skill or knowledge or both, 14 pages of documents were read closely and a further 3 pages scanned only, there were 45 minutes of personal attendance by a solicitor, and some facsimile transmissions were sent and received, for which an amount of $65.50 was claimed by way of outlays. There was also a charge for care and consideration.
- [13]The covering letter refers to an attendance by the solicitor on the clients on a particular day to obtain an outline of their problem, and to give certain advice, and says that there were some discussions with the other party to the dispute, further conferences with the clients, and numerous telephone conversations with other relevant persons, a fax was sent to the other party to the dispute and there was a response. This provides some additional information, although I have some difficulty in reconciling the description of the work in the letter with the terms of the invoice. For example, there is no obvious explanation for the 6 letters, the documents perused are not identified, and little is known about what was sent by fax to the other party to the dispute, and whether other or what faxes were sent or received so as to justify the amount claimed by way of outlays.
- [14]The idea that a solicitor must give a client a bill containing a detailed account of all of the work done on the client's behalf has long been a feature of statutory regulation of the relationship between solicitor and client: Re: Morris Fletcher & Cross' Bill of Costs [1997] 2 Qd.R. 228 at 247. Under the legislation which was replaced by the provisions in the Civil Justice Reform Act, the Legal Practitioners Act 1995, formerly the Costs Act of 1867, the statutory requirement was simply that the solicitor deliver a bill. However, it had always been recognised that what was required was a detailed bill, and the capacity of the client on receipt of the bill to refer it to taxation led logically to the conclusion that the bill to be delivered was one in a form suitable for assessment as to the appropriateness of taxation.
- [15]In Malleson Stewart Stawell & Nankivell v. Williams [1930] VLR 410, Mann J said:
“The courts have repeatedly held that a bill of costs must contain such detail as will enable the client to make up his mind on the subject of taxation and will enable those advising him to advise him effectively as to whether taxation is desirable or not.”
Indeed, there is longstanding authority in support of such an approach to a solicitor's bill of costs. In Haigh v. Ousey (1857) 7 E&B 578, it was said that the bill ought to be drawn so as to enable the client to judge its fairness, a solicitor to advise on it and a taxing officer to judge the propriety of the various charges. See also Cordery on Solicitors, 9th ed, Div. L. para. 455.
- [16]The former decision was followed and applied by Douglas J in Currie v. Robinson. [1968] QWN 25. In that case a bill was delivered showing services performed in an itemised manner but without any allocation of costs to any particular action taken by the solicitors, just a lump sum shown for the amount charged. That was held not to be a bill for the purposes of the then relevant provision, s. 22 of the Costs Act of 1867. The decision was also referred to with approval by Dowsett J in Re: Walsh Halligan Douglas' Bill of Costs [1990] 1 Qd.R. 288 at 294. In that case there was agreement that the solicitors would charge on an hourly basis for work done in preparation for trial, and bills were delivered “setting out in some detail the nature of the professional work and justification of the fee, summarised in the last paragraph with the number of hours”. His Honour said that the adequacy of the bills had to be considered in the context of “the degree of business and legal sophistication of the client, whether the client has in-house legal advice, whether another firm of solicitors is also advising, and any agreement reached between the parties as to the basis for charging”: p. 294. The only one of these which would apply in the present case was the third; the appellants did at the time when the invoice was sent have another firm of solicitors acting for them.
- [17]His Honour went onto conclude that the bills in that case were sufficient to satisfy the requirements of the Costs Act for the following reasons (p. 295):
“They were sufficient ... to indicate the number of hours being spent in preparation for trial and the rate at which those hours were being charged, both by solicitor and counsel. The bills described the ways in which the hours were being spent, and anybody with reasonable experience in the field of litigation would be able to judge the reasonableness or otherwise of those hours.”
Both of those authorities were referred to with approval by Kiefel J in Re: Bailey's Bill of Costs [1994] 1 Qd.R. 576 at 579; Her Honour in that case decided that it was not necessary that bills comply with the requirements of the Rules of the Supreme Court as to form for the bills to satisfy the requirements of the Costs Act. In that case the criticism of the bills was limited to arguments as to layout; it does not appear that any argument was addressed as to the adequacy of the information contained in the bills. Her Honour said that the requirement was essentially that the bills contain sufficient materials to enable the party charged to obtain advice as to the taxation, rather than being so framed and drawn as to enable the client immediately to proceed to have the bill taxed: p. 579. See also Morgan v. Meissner [1975] 1 NSWLR 614.
- [18]Under the statutory amendments introduced by the Civil Justice Reform Act 1998, when a client applies to the tribunal for the appointment of a costs assessor to assess the account, the client is required to give the clerk “a notice of objection stating, to the best of the client's ability, the items in the account to which the client objects and the client's grounds for the objection”. That supports the view that the statute contemplates that some detail would be provided as to the basis upon which charges were being made, so as to enable the client to identify objectionable items, and to formulate meaningful grounds for objection, on the basis of the contents of the account. It follows from s. 480 which permits a costs assessor to obtain additional information, that the account would not necessarily be expected to contain everything which a costs assessor might require in order properly to assess the costs. Nevertheless, it ought to be able to function as a basis for the assessment by the costs assessor.
- [19]The wording of s. 48J(1)(b) is different from the wording in the former legislation in Queensland, but it does not necessarily follow that there was an intention to depart from the previous law as to the requirements of a “bill”. It is not uncommon these days for statutes to cast aside time-hallowed terminology around which a considerable body of learning has built up merely in the interest of adherence to current fashion in legislative drafting. On at least one occasion the legislature has expressly acknowledged that this occurs: Judicial Review Act 1991 s. 16(1). I think the wording of the relevant part of s. 48J is consistent with what was required for a valid bill under the previous legislation. Although part of the object of the 1998 Act was to reform the law in this area, it does not necessarily follow that the reform was intended to include a reduction of the information required to be contained in a solicitor's bill before the solicitor could sue on the bill, thereby reducing the protection afforded by this mechanism to clients. In any case, if that was the legislative intention, the terms adopted do not make clear that this was to change and to what extent. In my opinion, the previous law on that subject remains applicable under these provisions.
- [20]In my opinion, in the present case the invoice, even if read with the covering letter, does not provide sufficient information to enable a person even with the advantage of appropriate legal advice to make a proper determination about whether or not to dispute the amount of the bill. Although there is a kind of quantitative analysis of the volume of work claimed to be undertaken by the solicitors, there is no means by which the appropriateness of that work to the instructions given and the nature of the objective sought to be achieved by the efforts of the solicitors can be assessed, because the purpose of the various steps taken is not revealed. There is no way of assessing whether, for example, it was appropriate to charge for 5 letters rather than say 2.1 cannot say what was said by Dowsett J of the bill in Walsh Halligan Douglas (supra). It has always been regarded as a legitimate consideration for the purpose of assessing costs whether the work charged for was appropriately done, as well as whether the rate of charge for the work was appropriate. This approach appears to be reflected in the terms of s. 48I of the Act, specifying the maximum amount of fees and costs a practitioner or firm may charge and recover, both in relation to the assessment of a reasonable amount for work, and in relation to the determination of whether an item of work is an extraordinary item of work for the purposes of that section.
Conclusion
- [21]It follows, in my opinion, that the respondent did not comply with s. 48J(1). There is no power in that provision for the court to give leave to start a proceeding if that subsection has not been complied with, and I think that it stands at the moment as a bar to any action on the part of the respondent to recover fees or costs from the appellants in relation to the work done, and is necessarily fetal to the current proceeding. Rather than its being clear that the plaintiff must succeed, as must have been the view of the Magistrate to have given judgment, in my opinion it is clear that the plaintiff must fail.
- [22]In these circumstances it is unnecessary for me to determine whether the order that was made for damages to be assessed by a Magistrate was appropriate if the plaintiff had been entitled to sue in respect of the invoice. There is power in S. 48K for the court to appoint a tribunal costs assessor to assess the account, and such a step would seem to be appropriate if there had been no previous assessment by a tribunal costs assessor, there was no client agreement, and there was no scale for the work provided under an Act, because in such circumstances the amount recoverable is an amount assessed by a tribunal costs assessor: s. 481(1)(c). It may be, however, that there was a statutory scale applicable to the work in the present case.
- [23]It is apparent therefore that the appeal should be allowed, the judgment given below set aside, and the application for summary judgment dismissed. Whether in these circumstances there was any point in giving leave to commence the proceeding, and whether the proceeding ought now to be stayed or dismissed, or whether some other order ought in the circumstances to be made, are matters upon which I have not yet received submissions. I will circulate these reasons and invite either agreement as to what orders are appropriate to reflect the conclusions arrived at or further submissions, and any further submissions in relation to the costs of the appeal, and the proceedings subject to the appeal, before I make the appropriate formal orders determining the appeal.
Comment
- [24]One thing which has become apparent in the course of my consideration of the legislation is that there is potentially a difficulty with the interrelationship of S. 6ZA and s. 48J of the Act. In the present case I was told that the clerk of the tribunal, when requested to appoint a costs assessor to assess the account, declined to do so because it did not fall within s. 6ZA(1)(a). Then the Magistrate held that the requirements of s. 48J(1) had been complied with. As it happens, in this case I have concluded that his finding to that effect was in error, but a case could arise where the decision of a court was properly that s. 48J(1) had been complied with, and either the conclusion of the clerk of the tribunal was in error or the facts were such that different people could legitimately arrive at different views as to whether the respective statutory requirements had been satisfied. Such a situation would deprive the client of the protection intended to be conferred by Div. 6A of the Act. This, I think, is a difficulty with the operation of these provisions which the legislature should consider further.