O'Connell v Crouch & Lyndon Pty Ltd
[2014] QDC 219
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- Unreported Judgment
- O'Connell v Crouch & Lyndon Pty Ltd[2014] QDC 219
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O'Connell v Crouch & Lyndon Pty Ltd[2014] QDC 219
O'Connell v Crouch & Lyndon Pty Ltd[2014] QDC 219
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Connell v Crouch & Lyndon & Anor [2014] QDC 219 |
PARTIES: | Cathy Maree O'CONNELL (Respondent/Appellant) -and- CROUCH & LYNDON PTY LTD (Applicant/First Respondent) -and- Philip Bruce SCOTT (Second Respondent) |
FILE NO: | BD 2008/14 |
DIVISION: | Civil |
PROCEEDING: | Appeal and Application in the proceeding |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 24 September 2014 |
DELIVERED AT: | Townsville |
HEARING DATE: | 17 July 2014 |
JUDGE: | Durward SC DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE & PROCEDURE – APPEAL BY LEAVE – THRESHOLD TEST – whether any important question of law or justice involved – whether leave should be granted – whether notice of appeal should be dismissed. PRACTICE & PROCEDURE – GROUNDS OF APPEAL – STRIKING OUT – meaning of broad and discursive grounds – whether grounds have merit – whether appeal grounds should be struck out – whether appeal should be dismissed. PRACTICE & PROCEDURE – COSTS – CERTIFICATE OF COSTS ASSESSOR – FINALITY OF CERTIFICATE – whether in circumstances where no specific statutory review sought within time an order adjusting the costs assessed by Costs Assessor can be made – whether disputed funds retained on account of appellant in lawyers Trust Account should be applied to reduction of any judgment sum awarded to respondent to the appeal. PRACTICE & PROCEDURE – COSTS – SUCCESSFUL PARTY – basis upon which assessed – where parties to be heard further. |
LEGISLATION: | Sections 45 and 47 Magistrates Court Act 1921; Sections 322, 335, 340 and 341 Legal Profession Act 2007; Chapter 7 Part 4 of the Uniform Civil Procedure Rules 1999. |
CASES: | Ramzy v Body Corporate 4GC 3CT38396 [2012] QDC 397; von Risefer v Permanent Trustee Company Limited [2005] QCA 109. |
COUNSEL: | P O'Brien of Counsel for the Applicant/First Respondent and the Second Respondent Ms O'Connell, Respondent/Appellant, appeared self-represented |
SOLICITORS: | Crouch & Lyndon Lawyers for the Applicant/First Respondent and the Second Respondent |
- [1]The Respondent/Appellant (“the appellant”) filed two Notices of Appeal. The first, filed on 28 May 2014 was in the incorrect form. The second, filed on 02 June 2014, correctly sought leave to appeal.
- [2]The issue of leave to appeal is the critical threshold issue. Hence it falls to be determined as the primary issue in this proceeding. Whilst I am not required to consider the merits of the appeal if leave is refused or if granted there is nevertheless no important question of law or justice involved, I have decided that in this case I should refer to the history of the litigation and the decisions made in the Magistrates Court because there is an appeal by leave and an application to be determined.
- [3]The appellant was involved in a dispute with a Mr Hall over a building contract. She decided to sue Mr Hall. The detail of the dispute is not relevant in this judgment. She initially consulted a barrister (“Walsh”) who quite properly told her that she would need to retain a solicitor if he was to be briefed to represent her interests. She retained lawyers (the “first respondent”) to provide legal services.
The proceedings
- [4]A proceeding about the dispute was commenced. Subsequently and before any hearing on the merits, the proceeding was in effect abandoned by her, apparently because of the costs involved. A further dispute then arose about the costs and outlays charged by the first respondent. A cost assessor was appointed and he issued a Cost Assessor’s Certificate.
- [5]The appellant filed an application challenging the costs assessment in the Magistrates Court. After a hearing a Magistrate delivered a Decision in which the appellant was partially successful.
- [6]The appellant filed an appeal in this Court against the Decision. She included as a party the Second Respondent, who had not been a party in the application below. The respondents to the appeal filed an application seeking, inter alia, an order to strike out the Notice of Appeal; and alternatively, an order for security for costs.
- [7]I heard the first respondent’s application and the appellant’s application for Leave to Appeal, on 17 July 2014. The appellant appeared on the hearing of the appeal, with consent of the first respondent and my leave, by telephone. She was unable to appear in person because of a medical condition, a shoulder injury as I understand. Her general practitioner had provided advice to the Registrar that the appellant was “unfit for work or study from 14 July 2014 to 21 July 2014” inclusive. She was prepared to argue her case by telephone appearance. She was not legally represented but was content to conduct her own case.
The costs agreement
- [8]The appellant and the first respondent entered into a costs agreement in writing, on or about 13 March 2013, to provide legal services.
- [9]The costs agreement was not signed by the appellant. However, it is nevertheless enforceable. Section 322 (3) of the Legal Profession Act 2007 provides the requirements, namely that: “The costs agreement must be written or evidenced in writing”. The retainer thus created was confirmed by her instructions to the first respondent in the proceedings that followed.
- [10]An employed lawyer of the firm also provided an estimate of fees for each of several anticipated “stages” of the litigation. That in itself is not unusual and the estimates were as that word means: that is, an informed but anticipatory assessment of what costs and outlays might ordinarily in such litigation amount to, so that client and lawyer are equally informed of that issue as the litigation might progress from stage to stage. An estimate is not a fixed fee.
- [11]The appellant paid into the first respondent’s Trust Account several sums of money. There remains in the Trust Account a sum of $13,250.00.
- [12]The appeal and the issue of leave to appeal have arisen because of a dispute, between the appellant and the first respondent, about costs and outlays charged by the latter.
The dispute with the first respondent
- [13]There is a relevant sequence of events:
- Costs Agreement and retainer commenced
- Invoices delivered by the firm
- The joinder/identification of parties issue
- The abandoned hearing dates
- The appellant’s request for appointment of a cost assessor
- The appointment of the cost assessor
- The preliminary assessment
- No submissions made to the cost assessor
- The Costs Assessor’s Certificate filed.
The bills rendered by the first respondent
- [14]The first respondent rendered four tax invoice bills to the Appellant:
Tax Invoice B1843 dated 28 May 2014 $4,961.44
Tax Invoice B1844 dated 28 May 2014 $848.16
Tax Invoice B1845 dated 28 May 2014 $6,284.30
Tax Invoice B1846 dated 28 May 2014 $3,667.40
Total $15,761.30
- [15]The first respondent also rendered to the appellant a Trust Account Statement as at 28 May 2014 with respect to the sum of $13,250.00 held on her account in its Trust Account.
The costs assessment
- [16]Orders were made by the Magistrates Court on 15 July 2013 appointing Mr James McClelland to assess the costs. Mr McClelland made a provisional assessment of the appellant’s legal costs on 01 November 2013, and gave the parties the opportunity to make submissions in relation to it. Neither party did so. The appellant sought to make oral submissions but Mr McClelland ruled that he would not take oral submissions from one party alone. He wrote to the parties on 12 November 2013 inviting written submissions to be provided within fourteen days. Neither party did so.
- [17]The appellant took issue with Mr McClelland continuing with his assessment. However, Mr McClelland wrote to the appellant on 02 December 2013 advising that he would proceed further with this costs assessment after 11 December 2013 unless she made application and the Court ordered otherwise.
- [18]Mr McClelland completed his assessment and filed his Cost Assessor’s Certificate for the sum of $19,010.24 on 07 January 2014.
- [19]The appellant did not apply to the Court pursuant to Rule 742 of the Uniform Civil Procedure Rules 1999 (“UCPR”) for a review of Mr McClelland’s assessment. Such an application for review was required by the Rule to be made within fourteen days of receipt by the appellant of the Cost Assessor’s Certificate.
The application in the Magistrates Court
- [20]The appellant filed an application in the Magistrates Court on 17 December, 2013 for Orders:
- (a)That the respondent’s refund the sum of $8,250.00 held in it’s trust account;
- (b)That the respondent’s withdraw the bills; and that
- (c)That the Costs Assessor be stood aside.
- [21]On 03 February 2014 Magistrate Previtera made the following directions/orders:
- The application that the cost assessor step aside was dismissed;
- Directions were made for the filing of affidavit material by both the applicant and the respondent, with the qualification that no further material was to be filed, after the filing of the respondent’s material, without leave of the court; and
- Costs were reserved.
- [22]Her Honour also said, with respect to the Directions made:
“What I can do is make a note that the respondent has sought that the hearing be by way of affidavit material and that I have indicated that I can’t bind another court. But you should expect that that might be the outcome – that you’ll be limited to what material you filed and it’ll be determined on the material without any cross-examination.”
- [23]The Directions Order that was filed by the first respondent on 04 March 2014 referred to the specific directions made by her Honour:
- "1.The Applicant file and serve any affidavit material upon which she relies and argue the grounds for seeking orders in paragraphs 1, 2 and 3 of the Application filed 17 December 2013 (to include the filing of the actual bills the subject of the dispute) by 4.00pm on 21 march 2014.
- 2.The Respondent file and serve any material in response by 4.00pm on 11 April 2014.
- 3.No further material be filed after the filing of the Respondent’s material without leave of the Court”.
- [24]On 28 March 2014 the appellant made and filed a statutory declaration stating that “The attached statement of 4 pages plus 8 booklets is a true account of events”. The statement was a letter dated 27 March 2014 addressed to the Registrar of the Magistrates Court at Brisbane. The 8 booklets were not indexed and were not referred to or explained in the letter.
The hearing in the Magistrates Court
- [25]On 17 December, 2013 the appellant’s application was heard in the Magistrates Court before Magistrate Nunan. His Honour informed the parties that he would not receive evidence from the Bar table. Hence he gave effect to the Directions made or foreshadowed at the earlier hearing. There is nothing remarkable about that statement or its effect. It did not extend to the making of oral submissions: his Honour heard oral submissions from the parties, on the basis of the evidence filed (from the appellant who appeared in person and from the second respondent, on behalf of the first respondent) and was also provided with a written submission on behalf of the respondents. The appellant did not provide a written submission.
- [26]The hearing commenced at about 9.30 a.m. and his Honour received written material for his consideration, including an affidavit exhibiting several volumes of documents contained in arch lever files produced by the appellant. His Honour returned to court finally at about 3.30 p.m. and his decision was reserved.
The Decision in the Magistrates Court
- [27]On 01 May 2014, his Honour gave his decision. So far as is relevant for my purposes in this judgment, his Honour made the following findings/determinations:
- Magistrate Nunan referred to the previous lawyers involved in the dispute and by implication criticised their conduct in advising the appellant and their making of a QCAT application against the builder, Mr Hall.
- He referred to the bills rendered by the subsequent lawyers, the first respondents, and to the cost assessment by the cost assessor which he noted reduced the total amount billed.
- His Honour found that the appellant had retained the barrister (Walsh) directly: Walsh had referred her to the first respondent.
- His Honour found that the first respondent had provided a cost estimate; that a cost agreement was made between the appellant and the first respondent which, whilst not signed, became binding by her having subsequently given instructions for the provision of legal services by the first respondent; that the first respondent had made errors (referred to as developing into a “debacle”) in an application to join a party to the proceeding; that the cost items relating to that joinder application had been disallowed by the cost assessor; and referred to the other options available to the appellant, following the receipt of the Cost Assessor’s Certificate by her.
- His Honour referred to the appellant’s objections to the costs billed by the first respondent as “broad ranging” and her assertion that most were associated with the failed joinder application. He referred to the loss of the “two day” trial dates that followed the failure of the joinder application; to the trial itself, which proceeded in December 2013; and to the parties’ view that the outcome of the trial was not relevant to the application he was considering.
- His Honour was satisfied that there was work done by the first respondent for the appellant; and was satisfied with the cost assessment. However, he considered that a further reduction in the costs assessed should be made because of the loss of the earlier trial dates. He reduced the bills by a further $2,500.00 in an exercise of what he referred to as a wide ranging discretion (but see my observations, infra at [52] – [54]).
- His Honour referred to the appellant’s burden of proof (the balance of probabilities) on the application.
- His Honour dismissed the application and gave judgment for the sum of $13,250.00. He applied the $8,250.00 paid by the appellant and held in the Trust Account of the first respondent, for barrister’s fees, to the judgment sum. He also applied the $3,250.00 paid by the appellant and held in the trust account, in reduction of the judgment sum. He fixed costs globally in the sum of $1,000.00.
- The judgment order was filed on 02 May 2014.
Correspondence with the Magistrates Court
- [28]The appellant wrote to his Honour, copying the correspondence to the Chief Magistrate, and also wrote to the Registrar of the Court. The Chief Magistrate replied and quite properly declined to intervene in the matter. The letters complained, in a broad ranging way, about many if not all of the grievances that the appellant had with respect to lawyers, the Magistrate, the court and to the proceeding generally. I do not need for the purposes of this judgment to refer any further to the correspondence.
The grounds of appeal/orders sought by the appellant
- [29]The Appellant is aggrieved at the decision of Magistrate Nunan. The grounds, as I have observed elsewhere in this judgment, are broad and largely incomprehensible. The orders sought are no better expressed. However, they can be summarised, doing the best I can, as follows: 1. Appeal allowed; 2. Decision of Magistrate Nunan to be set aside (costs order?); 3. Counsel’s fees to be disallowed and money deposited for counsel to be refunded; 4. The bill rendered for work on a joinder issue, to be withdrawn; 5. The bill rendered for $917.40, for costs of a valuation, to be withdrawn; 6. The money in the first respondent’s Trust Account be returned, as no more than $8,000 work was authorised; 7. Other bills should be re-assessed; 8. Five files being illegally held by the first respondent to be returned.
- [30]At the outset of the hearing, I asked the appellant to identify the matters that she relied on as amounting to important principles of law or justice, which is the test for the granting of leave in the Act. The grounds of appeal were largely incomprehensible. They do not identify any error of law by the Magistrate. They do not identify any important principle of law or justice, as is necessary to obtain leave to appeal.
- [31]Nevertheless, I finally elicited the matters relied on, as best I could, as follows (my summary): the appellant considered the decision of his Honour to be unjust, complained that she was not allowed to make submissions from the bar table and that the submissions had to be in writing said that the Magistrate spent time out of court but did not properly consider any or all of the material, referred to the costs agreement and claimed that the billings were false, said that the money provided to the first respondent was never intended to go to them and complained the barrister did not do any work and complained that the solicitor did not do some of the work that the first respondent was retained for, she said that the $8,250.00 in the trust account was intended for the barrister and that he never did any work and therefore should be returned to her, that the $8,000.00 was sent to the solicitors for the purpose of the provision of legal services and that she had sent an email on 30 April 2013 referring to the $8,000.00 having been used up, which elicited a response that an extra $6,000.00 was required for the hearing of the matter.
Leave to appeal
- [32]Section 45 of the Magistrates Courts Act 1921 (“the Act”) relevantly provides:
- "45Appeal
- (1)Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court –
- (a)In an action in which the amount involved is is more than the minor civil dispute limit; …
may appeal to the District Court…
- (2)Provided that
- (a)where …
- (1)the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved; … “
- [33]The minor civil dispute limit is currently $25,000.00.
The Courts powers on appeal
- [34]Section 47 of the Act provides, so far as is relevant:
- "47Jurisdiction of the District Court
On the hearing of an appeal … , the District court may do any of the following:
- (a)draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
- (b)order judgment to be entered for any party;
- (c)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
- (d)make such order with respect to costs of the appeal … as it thinks proper.”
Discussion
- [35]The appellant’s grievances also covered other issues. Her submissions were in the nature of a broad expression of dissatisfaction on several fronts: dissatisfaction with the conduct of the first respondent and specific members or employees of it; the hearing process in the Magistrates Court; the level of understanding by the Magistrate of her submissions and the materials she had exhibited to the affidavit in support of her application; and an allegation, which I consider to be unfounded and unjust, that his Honour had not properly considered and did not understand her submissions; and she made two unsubstantiated allegations of dishonest or fraudulent conduct by the first respondent and members or employees of it.
- [36]I am satisfied that Magistrate Nunan did consider the appellant’s submissions and the materials exhibited to her affidavit. That conclusion is at least apparent from the following:
- His Honours lengthy absence from the courtroom for that specific purpose (reading the material provided to him);
- The nature of his findings set out in his decision;
- His Honours reduction of the cost assessment on account of the work of the firm in respect of, inter alia, the “joinder issue” (as it has been conveniently described in the course of the proceeding) and the consequence abandonment of hearing dates that were imminent at the time the joinder issue was abandoned. There does not seem to be any contest about the “joinder issue” having been dealt with by the firm in an unsatisfactory way.
- [37]His Honour had a broad discretion in determining what monies were available to acquit the costs and outlays of the first respondent. There is nothing in the material that supports the contention that the discretion miscarried or that his Honour otherwise erred in his determination of the application. It was open in all the circumstances for his Honour to make the findings and to determine the application on the basis that he did.
- [38]Upon an independent assessment of the material relied upon by the parties and reflecting the powers of this Court in s 47 of the Act I make the following findings:
- The appellant’s grievances are set out in a rambling discourse which is difficult to decipher, save that I have identified the issues as best I can (as I have set out above). I find that there is no proper basis for any of the grievances expressed by the appellant against the first respondent (or for that matter against the second respondent) and that there is no proper basis for granting the orders sought by her in the appeal.
- I find that the first respondent provided the legal services in accordance with the costs agreement and the costs estimates and raised and rendered bills in respect of that work.
- I find that the cost assessor was correct in reducing the invoiced bills on account of the work associated with the so called joinder issue.
- I find that the further reduction in fees applied by Magistrate Nunan was properly made on the basis to which he referred and I agree with his assessment and the sum of which the fees were reduced. There are two further issues that I will deal with now, namely: the position of the second respondent, who has been joined in the appeal; and the critical threshold matter that I need to consider in respect of the appeal, the issue of leave.
Conclusion
- [39]I am satisfied that the work done by the first respondent that gave rise to the invoices issued was done within the ambit of the retainer and not otherwise.
- [40]I am satisfied that the work done by the first respondent gave rise to the invoices issued was done within the period of the retainer and not otherwise; and that the work was necessary to advance the terms of the retainer, save for the matter that led his Honour to reduce the cost assessment.
- [41]I reject the allegations of dishonesty and fraud made against the first respondent and any member or employee of it. The allegations are not substantiated by credible, unequivocal evidence. They are bald allegations that would require proper proof if they were to be at all credible. There is no proper proof. The complaint that the first respondent had misappropriated a sum of monies paid to it by the appellant is nonsense. The monies are currently held in a Trust Account and cannot, because of the dispute, be dealt with or disbursed without instruction from the appellant or otherwise by order of the Court. That is the very purpose of a Trust Account.
- [42]I reject the allegations of dishonest or fraudulent conduct made against the first respondent and the second respondent. On my assessment of the material those allegations are entirely baseless.
The second respondent
- [43]The appellant included the second respondent Mr Scott in the appeal. There is no basis for doing so. He was not a party to the proceedings in the Magistrates Court. The only opposing party in the appeal is the first respondent. It is proper to remove the second respondent from the proceeding. I will strike out the second respondent as a party to the appeal.
The issue of leave to appeal
- [44]In Ramzy v Body Corporate 4GC 3CT38396 [2012] QDC 397, his Honour Judge McGill SC wrote at [41], summarising the authorities that describe the test to be applied on an appeal by grant of leave:
“The leading authority on the application of this test is Wanstall v Burke [1925] St R Qd 295, a decision of the Full Court. McNaughton J, with whom O'Sullivan J agreed, said that the effect of the test laid down by the statute was to adopt the practice applied by the High Court at that time under the Judiciary Act 1903 (Cth) section 35(1) (b) in relation to certain applications for special leave to appeal to that court. He quoted a passage where Griffith CJ said:
‘The practice we have already laid down … [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, were involving some important question of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.’
It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding: American Express International Inc v Hewitt [1993] 2 Qd R 352.”
Conclusion
- [45]No “important principle of law or justice” arises on the basis advanced by the appellant or in any other discernible basis in the material.
- [46]Accordingly, I must refuse leave to appeal.
- [47]In the circumstances the application of the first respondent to have the benefit of the alternative order for security for costs does not need to be considered.
- [48]I have considered the application to strike out the Notice of Appeal, but in the circumstances I do not need to determine it. However, if leave to appeal had been granted, I would have granted the first respondent’s application and struck out the appeal on the grounds that it is vexatious, is an abuse of process, is largely unintelligible and it had no prospects of success: see von Risefer v Permanent Trustee Company Limited [2005] QCA 109.
- [49]Sections 335, 340 and 341 of the Legal Profession Act 2007 set out the application for costs assessment, the process of assessment and the criteria for assessment, respectively; and Chapter 7 Part 4 of the UCPR set out the rules applicable to an assessment.
- [50]Mr McClelland’s Cost Assessor’s Certificate was made pursuant to Rule 737 and filed on 07 January 2014. The court has power to review the assessment: rule 742 UCPR. However, the appellant did not seek such a review.
- [51]The first respondent has sought directions and a decision on the assessment pursuant to rule 743H UCPR. However, the orders sought reflected the Cost Assessor’s Certificate namely:
Costs as assessed $19,010.24
Less payment by appellant in May 2013 $ 3,144.84
Balance due $15,865.40
- [52]That submission has left the issue of the $2,500.00 further reduction applied by Magistrate Nunan, in effect, in abeyance. The first respondent did not challenge his Honour’s decision. Hence it is not open to the first respondent to simply ignore that determination. However, the question really is whether the further reduction was open to be made in circumstances where there was no statutory review of the Costs Assessor’s Certificate within the time permitted in the UCPR.
- [53]His Honour in his Decision referred to the reduction of the fees by Mr McClelland with respect to the joinder issue and said that this did not take into account the loss of the two trial days and the fees associated with that. He continued, “Now, I seem to have a wide ranging discretion here under the Legal Profession Act and the Uniform Civil Procedure Rules. So I’ve gone through the bills and decided to reduce them by a further $2,500.00 approximately.“ He gave judgment for the balance of the costs as assessed.
- [54]However, it is the reference to a ‘wide ranging discretion’ that I seek further submissions about.
- [55]The appeal was misconceived. There is no basis for the first respondent’s tax invoices to be withdrawn, as sought by the appellant. There may prima facie be no basis for the Cost Assessor’s Certificate to be challenged. The Cost Assessor’s Certificate appears to be regular.
- [56]Hence there is a real question as to whether there is any basis upon which the Magistrate could have adjusted it; and whether I should confirm the effect of that adjustment in the quantum of costs awarded in the judgment sought by the first respondent.
- [57]I propose to give judgment for the first respondent with respect to the costs assessed, subject to the resolution of that issue. I will require further submissions about the issue of the $2,500.00 reduction. I will defer the determination of the judgment sum.
Costs
- [58]The first respondent has provided a schedule setting out the costs of responding to the appeal and of its application. The costs include fees and outlays with respect to both the first respondent and for counsel briefed for the hearing.
- [59]It seems to me that the appellant should be given the opportunity to be heard (or heard further) about the respondent’s costs in respect of the appeal and the application. I will defer a determination on this issue also.
- [60]I will direct the parties to make further submissions, on those two issues only, on a date to be fixed.
ORDERS
- 1.The second respondent is removed as a party from the proceeding.
- 2.Leave to appeal against the judgment and orders made at the Magistrates Court at Brisbane on 01 May 2014, is refused.
- 3.The appeal is dismissed.
- 4.I order judgment for the first respondent.
- 5.Order that the sum of $13,250.00 held in trust by the first respondent on account of the appellant be paid to the first respondent in reduction of the judgment sum.
- 6.I adjourn the proceeding to a date to be fixed to hear the parties further with respect to the quantum of the judgment and the respondent’s costs of the appeal and of the application.