Lar v Scott[2005] QDC 272

[2005] QDC 272

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

Appeal No BD4737 of 2004

BRISBANE

DATE 23/08/2005

ORDER

HIS HONOUR: Mr Lar, the appellant is a disappointed litigant on a number of counts. He apparently experienced difficulties of a matrimonial nature around 2001, getting involved in issues to do with custody and property and even domestic violence proceedings. He obtained a grant of legal aid but Mr Scott's firm did the work. Mr Scott became the plaintiff in the Magistrates Court proceedings commenced on the 8th of October, 2001 at Beenleigh claiming $4193.08 plus interest and costs. Difficulty was experienced in locating Mr Lar for purposes of service and at least two 12 month extensions of the currency of the claim were obtained.

An amended claim by which the basic claim was increased to $9101.63 was filed on the 15th of June, 2004. Mr Lar was then served and, acting for himself, he filed a defence and counter claim. The defence resembles the typical evasive ones in debt collection-type claims of times long past. Mr Lar was probably unaware that the effect of the UCPR was that he was essentially admitting the allegations of the statement of claim. The defence was in the following terms:

"The defendant relies on the following facts in defence of the claim:

The defendant does not admit the allegation in paragraph 4 of the statement of claim.

The defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because the costs should have been billed and paid for by Legal Aid Queensland.

The defendant had Legal Aid grant's in relation to the matrimonial file to do with domestic violence and family law for interim & final orders."

The counter claim was as follows:

" CUNTERCLAIM (sic)

This counter claim is made by the Defendant against:

The Plaintiff: KEITH DOUGLAS SCOTT

This counterclaim is made in reliance upon the following facts:

1. The plaintiff misrepresented the defendant in domestic violence & family court proceedings.
2. The defendant had a domestic violence order issued against them that affected their career aspirations that resulted in substantial loss of income.
3. The defendant has suffered emotional & psychological stress due to the false accusations and the unforseen events.

The defendant claims the following relief:

1. The defendant claims the sum of $90,000 for lost income
2. The defendant claims a further sum of $10,000 for stress related dysfunctions."

The pleadings together with notice of intention to defend were filed on the 4th of August, 2004. Unsurprisingly the plaintiff filed on the 15th of September, 2004 an application for judgement under rule 292 which was set down for the 4th of November, 2004; there was a supporting affidavit prepared by him, of the traditional kind, to the effect that the money was owing, there was no reasonable defence open, et cetera.

On the 4th of November, 2004, Mr Scott appeared and Mr Lar. The Magistrate on that day adjourned the summary judgment application to 25th of November, 2004 and also ordered "The defendant is to plead and serve an amended defence and affidavit in response to the plaintiff's affidavit at least three days prior to that."  An order was made for $100 costs. Nothing was filed, but on the 25th of November, 2004, having failed to comply with the Magistrate's express direction, Mr Lar provided an affidavit and his amended defence and counter claim.

It explains the counterclaim as based on loss of salary that might have been earned by Mr Lar had he become a police officer. Blame is placed on Mr Scott or his employees, for failure of that to eventuate, given their unsatisfactory services in relation to domestic violence matters.

Essentially, the new defence was to the effect that Mr Lar was to be liable for no costs whatsoever beyond whatever Legal Aid made available to Mr Scott. The affidavit says, inter alia:

"I subsequently received three letters from Legal Aid advising of the success of various applications made on my behalf by Goodfellow Scott or their staff. These were dated:

13th February 2001 regarding contact and residence

19th February 2001 regarding domestic violence

21st February 2001 regarding contact and residence

I only ever completed applications to Legal aid on one occasion when two or three forms were signed by me at the same time. When later I received multiple acceptances, I assumed that this was normal procedure and that if more was required of me, then the plaintiffs would ask me.

4. My clear understanding was that my solicitors as then on the record for me had all of my concerns in hand and were funded for all necessary things by Legal Aid. This was said and implied by the above mentioned solicitors on various dates in words I cannot now specifically recall. I understood that if anything further was required of me in relation to costs, then one or the other of these employed solicitors would have spoken to me about it. Both of them knew I had no money available for legal costs at the time; indeed, I was a full time student studying for a Diploma of Justice and I had just passed Legal Aid's means test.
5. At no subsequent time did anyone from Goodfellow Scott approach me to sign a Costs Agreement and none was ever signed by me. At no subsequent time was I ever asked to pay money for legal services by any person from Goodfellow Scott and no prospect of me needing to pay for any part of what they were undertaking for me was ever put to me in any way."

Mr Lar deposes he learned only 6 days before a court hearing on 16 August 2001 that the solicitors expected payment from him. He says they acted for him in "property" matters without instructions, but he seems to have adopted what they did.

The affidavit exhibits only part 4A of the Queensland Law Society Act 1952 in relation to client agreements, the first page of three versions of a "tax invoice" dated 11 July 2001 of Goodfellow and Scott Solicitors and a couple of faxes passing between the Legal Aid Office and Mr Scott's office.

The second-mentioned exhibit is said to be suspicious because the heading of the tax invoice is "Property/Residence/Contact" in one version, but "Property" alone in another, the intervening version showing "Residence/Contact" crossed out.

The appellant's approach is that the plaintiff was somehow acting deviously (in what appears to me to be no more than a correction of a draft document) in an improper attempt to avoid the consequences of the situation, as the plaintiff really knew he had no entitlement to remuneration except from Legal Aid.

The exchange of messages mentioned records Mr Lar attending the Legal Aid Office "extremely irate that he had been billed as a private client as he was of the understanding that these matters were covered by us". The exchange confirms what I would have thought was common knowledge and commonsense that grants of Legal Aid are strictly limited. It is notorious that Legal Aid's funding is tight.

I find it difficult to accept that a person who has pursued the justice studies, which Mr Lar asserts he has, and who intends to become a police officer, would really believe that services of the wide coverage encompassed here would be provided totally at the expense of Legal Aid without any contribution whatsoever from Mr Lar.

It is mysterious whether the Magistrate on 25 November 2004, whose decision is under appeal, adverted to the affidavit of the appellant and his new pleading. In my opinion, strictly, she would have been entitled not to. They were seriously late. Her "Decision Chamber application" is brief! 

"The Plaintiff  applies for summary judgement against the Defendant. The Claim relates to the legal costs detailed in four separate invoices arising from family proceedings.  The Defendant was legally aided in relation to other work. The work done by the Plaintiff in relation to property matters was not subject to a grant of legal aid. The Plaintiff did not enter a client agreement with the Defendant. The Plaintiff ceased to act for the Defendant shortly before a hearing in relation to the matter when the parties fell into disagreement about security for costs of the proceedings.

The Plaintiff withdraws the claim so far as the account of 14 June 2001 is concerned. Judgement is given to the Plaintiff against the Defendant in respect of the other three invoices except for two items (9 and 10) on the invoice dated 11 July 2001 and except in relation to the amounts claimed under Order 38 Rule 56 which are now reduced from 20% to 10%. Judgement is therefore given to the Plaintiff against the defendant for:-

Claim$7,359.74

Interest 1,986.00

Costs (including costs that those ordered 4/11/04)1,000.00

TOTAL$10,345.74

There is no indication there or on the Court's order sheet to show what material was relied on by the Magistrate. It must have included Mr Scott's affidavit filed on the 5th of November 2004 which makes further adjustments to the amount claimed which altered to $8,580.

The Magistrate's decision shows that there was a further reduction, of which Mr Lar could hardly complain. I think he is entitled to the sympathy that anyone who gets caught up with the law is. When one peruses the accounts exhibited to Mr Scott's latest affidavit, one can well appreciate that those unfamiliar with how legal offices work might be appalled to see the phenomenon of travelling, drafting, and typing, perusal, scanning, telephone attendances, and the like, being charged for, also, "care and consideration" for matters that are not really understood by lay people. surprise at the size of a legal bill is not the same thing as surprise that there is a bill at all.

The Court has not had the benefit of any detailed attack on the amounts owing, according to the plaintiff, and accepted by the Magistrate. It is not shown that the plaintiff has or may have claimed in the action for any work which was the subject of a legal aid certificate.

The points that are relied on the appeal, which was argued by Mr Bell as a speaking "McKenzie friend", are the basic one of a contractual situation in which there was to be no entitlement to charge Mr Lar anything, and the supposed requirements of the Act mentioned.  The affidavit swears there were no circumstances of urgency to excuse the absence of a Costs Agreement. I am indebted to Mr Bell for referring the Court to Thomson Hannan v McDonald [2002] QDC 258, which establishes that if there are deficiencies in compliance by a solicitor with the Act before action they may be cured within the action by the furnishing of proper bills of costs. Of course Mr Bell was not inviting the Court to act in that way on this occasion.

There is a second aspect to today's hearing, which is the appellant's application for the quashing of warrant 3299 of 2001, which has been issued in the Magistrates Court in aid of enforcing the judgment. In the alternative, a stay is sought on that warrant until resolution of the appeal.

There is no particular need for the Court to do anything about that application. If the appeal succeeds and the judgment goes then there is no judgment amount to be collected. If the appeal fails, I am totally unable to see any reason why the warrant should be interfered with.

The Court has affidavits of Mr Scott sworn yesterday and sworn today. The unusual appearance of such affidavits is explained by the justice of allowing Mr Scott to respond to allegations in material which Mr Lar provided only at Court on the 25th of November last year - and of showing the circumstances of steps taken towards enforcement of the judgment.

Apparently, sale of two items of real property is imminent, being scheduled for 2nd of September this year. I record here some surprise at that. One, at least, of the properties is encumbered by a mortgage, but it is concerning to see, in respect of a fairly modest judgment sum, two pieces of real property which may be of substantial market value being put up for sale. One would think that if there is an unnecessary sale of any piece of property, either the bailiff or the judgment creditor might have some serious explaining to do.

In the end, I am not persuaded that this appeal ought to be allowed. If the proper course is to disregard Mr Lar's affidavit sworn on the 25th of November last year, I do not think the amended pleading similarly dated has any relevance at all, then there simply was no material before the Magistrate to establish there was any issue to be tried.

...

HIS HONOUR: Even if the affidavit is regarded, then, quite apart from its contents being contested by Mr Scott's recent affidavit, which is probably beside the point, I must say that I find the assertions of the affidavit close to incredible.

That, I suppose is informed by some general awareness of the way in which things work in our legal system. I am not persuaded that Mr Lar's professed naïve belief that he was getting services of the extent which he did, in relation to a number of legal matters, not all of it could be attributed to Legal Aid grants, for free is sufficient to justify there being a trial for the purposes of Rule 292.

So the appeal will be dismissed.

You asked for costs, Mr Lee?

MR LEE: I do, yes, your Honour, both on the appeal and the application.

HIS HONOUR: All right.

The appeal and the application are both dismissed with costs.