Sunba v Harnett Lawyers[2014] QDC 34

DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondent is the solicitor who acted for the applicant in matrimonial proceedings. They delivered a number of bills, all relating to that ongoing matter, totalling $135,095.29. That sum has all been paid by the applicant with the exception of $18,257.99 which has been retained by the respondent, by agreement, in its trust account in the name of the applicant pending determination of this dispute.

2. [2]
   The applicant commenced these proceedings in which she seeks assessment of all legal costs pursuant to r. 743A of Uniform Civil Procedure Rules 1999 (UCPR) on 16 January 2014. The application sought the following orders:

1. Assessment of legal costs, being all of the professional costs and outlays charged by the respondent to the applicant relative to matrimonial matters and for which tax invoices were issued, as follows:

1. (a)
   (a list, by number and dollar amount of 22 separate invoices, the most recent of 29 January 2013, and totalling a $135,095.21 was then renumerated.)

2. Within twenty-eight (28) days, and before commencement of the assessment the respondent deliver to the applicant at the office of her solicitors itemised bills with respect to each of the tax invoices referred to in the previous sub-paragraph and setting out:

1. (a)
   full details of each item of work done;

2. (b)
   the date each item of work was done;

3. (c)
   the basis of the charge for the work;

4. (d)
   the amount charged for carrying out each item of work; and

4. (e)
   the name of each person who carried out the work.

3. The assessments be carried out by Mr Glen Robert Walter whose hourly rate is $275.00 inclusive of GST;

4. Within seven (7) days after the delivery of itemised bills the respondent is to deliver to the applicant all documents which comprise all parts of the file of the respondent concerning the applicant and which have not already been delivered;

5. Before the costs are assessed and pursuant to r. 743G(2), there be a trial of the following questions:

1. (a)
   Whether the applicant is liable to pay those costs?

2. (b)
   Whether the costs agreement relied on by the respondent is void?

3. (c)
   Whether the respondent was in breach of the contract of retainer?

4. (d)
   Whether the respondent acted without the instructions of, or contrary to the instructions of, the applicant?

3. [3]
   Initially, the respondent contended in correspondence that the application was out of time pursuant to s. 335(5) Legal Profession Act 2007 (Qld) (‘the Act’) as the final invoice relating to the matrimonial proceeding was said to have been given on 21 December 2012. In fact, it is now accepted that the final invoice was not given until 29 January 2013 (see paragraph [3] of the affidavit of the applicant filed 16 January 2014). It is common ground that the phrase ‘made within 12 months after the bill was given’ as used in s. 335 of the Act means the date of the last of a series of bills with respect to any ongoing matter. It is accepted that each of the bills referred to in the application related to an ongoing matter and so that there is now no issue related to the time of commencing of the application under s. 335(5) of the Act.

4. [4]
   The matter came before me as a directions hearing pursuant to r. 743G of UCPR. Before me, counsel for the Applicant submitted that two orders were sought namely:

1. (i)
   delivery of itemised bills; and

2. (ii)
   delivery of the balance of the file.

5. [5]
   It can thus be seen that the orders sought before me are part of the substantive relief sought in the original application as set out above. Counsel for the respondent opposed the orders sought on a number of bases. He principally submitted that this court has no jurisdiction to determine the matter, because of the provisions of rr. 743 and 743A of UCPR. Rule 743 provides:

’In this part –

relevant court, for an assessment of costs under the Legal Profession Act 2007, means the court having the lowest monetary limit to its jurisdiction in a personal action that is not less than the costs claimed.’

6. [6]
   In this case, where a sum of $135,095.21 is sought, this would mean the relevant court is the Magistrates Court. It is then said this court does not have jurisdiction to determine the matter having regard to r. 743A(1) of UCPR which provides:

‘A person applying for a costs assessment must apply to the relevant court.’

7. [7]
   Counsel for the respondent submits that because this application was not made to the ‘relevant court’ the application must be dismissed.

8. [8]
   In opposing such an order counsel for the applicant submits that if that were to occur the applicant would suffer irreparable injustice because the applicant would now be out of time in which to commence fresh proceedings in the Magistrates Court having regard to s. 335(5) of the Act.

9. [9]
   I interpose that if I was to determine that the matter had not been commenced in the relevant court, I would not dismiss the proceedings as the respondent’s counsel contends I should do, but instead would transfer the matter pursuant to s. 28 of the Civil Proceedings Act 2011 to the Magistrates Court. Section 28 of that Act provides:

1. ‘(1)
   This section applies if the court in which a proceeding is pending (the relevant court) considers it does not have jurisdiction for the proceeding (other than because of a counterclaim).

1. (2)
   If the relevant court considers another court has jurisdiction for the proceeding, the relevant court may, by order, transfer the proceeding to the other court.

1. (3)
   Unless an order is made under subsection (2), the relevant court –

1. (a)
   must strike out the proceedings; and

1. (b)
   may order the party who started the proceeding to pay the costs of any other party to the proceeding.’

10. [10]
    The applicant’s counsel contends that although the effect of the provisions of the UCPR are that the assessment itself must be conducted in the Magistrates Court, that court does not have jurisdiction to make the orders sought on the application before me.

11. [11]
    The respondent’s counsel argues that the orders sought, and indeed each of the orders sought in paragraphs 2, 3, 4 and 5 of the originating application, are orders ancillary to any assessment of costs as sought in paragraph 1 of the application. In particular the respondent relies on r. 743G of UCPR which it submits is consistent with the proposition that the court hearing the application for assessment ‘will decide the ancillary matters… subject to the implied qualification that it has jurisdiction to do so’ (to adopt the words of the respondent’s counsel’s submission).

12. [12]
    So far as relevant, r. 743G provides as follows:

1. (1)
   The relevant court may hold a directions hearing in relation to an application for a costs assessment.

1. (2)
   At a directions hearing, the relevant court may consider the following matters –

1. (d)
   whether it is appropriate for any question to be tried before the costs are assessed, including, for example –

1. (i)
   whether a person claiming to be liable to pay costs is liable to pay those costs; and

1. (ii)
   whether any costs agreement relied on by the lawyer concerned is void; and

1. (iii)
   whether the lawyer concerned was negligent; and

1. (iv)
   whether the lawyer concerned was in breach of the contract of retainer; and

1. (v)
   whether the lawyer concerned acted without the instructions of, or contrary to the instructions of, the client.

1. (e)
   whether anything else should be done before the costs are assessed.

13. [13]
    It should be noted that paragraph 5 of the originating application specifically seeks orders for determination of matters referred to in r. 743G(2)(d)(i), (ii), (iv) and (v) prior to the assessment of costs.

14. [14]
    A question I must determine is whether orders for delivery of an itemised bill, and for delivery of the file or balance of it to the applicant are matters that are within the jurisdiction of the Magistrates Court or whether I should make such orders.

15. [15]
    The applicant ultimately sought orders that the respondent deliver an itemised bill and for delivery of the balance of the applicant’s file to her and that the matter then be adjourned to allow the applicant to apply to the Legal Practice Tribunal to set aside the costs agreement made between the respondent and the applicant.

16. [16]
    Section 328 of the Legal Profession Act 2007 provides that:

1. (1)
   On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable.

17. [17]
    It is clear therefore that only the Supreme Court or the Tribunal can set aside such an agreement. To that extent therefore the orders sought in paragraph [5] of the originating application appear to be clearly beyond the jurisdiction of ‘the relevant court’, in this case the Magistrates Court.

18. [18]
    The respondent’s counsel submits that to order the applicant to prepare an itemised bill at this time would be ill-conceived because, if the applicant is ultimately successful in the proposed application to set aside the costs agreement, the respondent will then be required to deliver a bill calculated according to scale so that any itemised bill the applicant respondent prepared would be superfluous.

19. [19]
    The respondent also submits that the bills which have been delivered are sufficiently itemised.

20. [20]
    In my view it is unnecessary to finally determine that matter but I indicate that it is my preliminary view that the bills delivered are not properly itemised. Whilst others have, I am sure, more eloquently considered the requirements of an itemised bill, I have delivered a judgment relevant to such matters in Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5, and, if only on the basis of my familiarity with that case, indicate that it would appear to support the view that the bills delivered in this matter do not meet the description of the term ‘itemised bill’ as used in the Legal Profession Act 2007.

21. [21]
    Ultimately, as I said, it is unnecessary to determine that matter because I accept the respondent’s counsel’s submission that to order delivery of such bills, prior to determination of the proposed application to set aside the costs agreement, would involve potentially unnecessary expense. If the applicant is unsuccessful with her proposed application, that matter can be revisited by the parties. My view, as I have said, is that the bills that have been delivered are not itemised.

22. [22]
    That leaves for consideration the question of whether I can, having regard to the fact that this court is not in this case the ‘relevant court’ within the meaning of r. 743 of the UCPR, and should, make an order that the respondent deliver to the applicant the balance of the file to which she may be entitled.

23. [23]
    That order is opposed by the respondent on the following bases:

1. (i)
   such an order is ancillary to an assessment of costs and having regard to r. 743G of the UCPR, the Magistrates Court is the appropriate court to determine such a matter; and

2. (ii)
   the applicant has not demonstrated that the respondent has failed to deliver to her all of the file to which she is entitled.

24. [24]
    In my view r. 743G UCPR, and in particular sub-rule (2)(e) thereof on which the respondent principally relies, does not empower a Magistrates Court to make orders relating to the delivery by a solicitor to a client of documents to which the client is entitled. Whilst the Magistrates Court may, at the time of a directions hearing, form a view that all of a file has not been delivered and may consider that to do so is necessary before any assessment of costs, that ‘ consideration’ (to use the language of r. 743G(2)) does not empower a Magistrates Court to make orders for delivery of such chattels. By contrast the District Court, pursuant to s. 68(1)(a)(ii) District Court of Queensland Act 1967 has such a power.

25. [25]
    I turn to the question of whether I should make such an order in this case. The respondent’s counsel submits that the applicant has been provided with all of her file to which she is entitled. He submits that a letter (Exhibit DJE 4 to the affidavit of Dean Evans sworn 30 January 2014) from the respondent to the applicant’s solicitor of 29 January 2013 (my emphasis) supports such a finding. The letter says, so far as relevant:

‘Please find attached:

1. Mrs Sunaba’s client documents in this matter.’

26. [26]
    He further submits that there is no evidence of any subsequent complaint of missing material to which the applicant was entitled or request for any further material or evidence of any particular document to which she says she is entitled.

27. [27]
    He refers to Cordery on Solicitors (7^th ed, pp 99-100) and submits that the only documents to which the applicant is entitled are:

1. (i)
   documents in existence before the retainer commences and sent to the solicitor by the client, or her agent, during the currency of the retainer;

2. (ii)
   documents which only came into existence during the currency of the retainer and for the purpose of business transacted by the solicitor pursuant to the retainer:

1. (a)
   prepared by the solicitor for the benefit of the client, and which had been paid for by the client; and

2. (b)
   documents prepared by a third party during the course of the retainer and sent to the solicitor, other than at the solicitor’s expense.

28. [28]
    The applicant’s counsel does not dispute that legal position but submits that in circumstances where the originating application was served on the respondent on 17 January 2014 and sought orders, as I have stated, for delivery to the applicant of ‘ all documents which comprise all parts of the file of the respondent concerning the applicant and which have not already been delivered’, that the respondent solicitors could be expected to have filed material stating that all relevant documents had been delivered, if that were in fact the case. Furthermore, he refers to Exhibit DCE-1 to the affidavit of Mr Evans which is a letter from the respondent to the applicant’s solicitor of 24 January 2014, a week after the service of the application seeking order for delivery of the file. That letter does not contend that all of the documents to which the applicant is entitled have been delivered, which might be expected if the respondent contended that they had.

29. [29]
    Furthermore, Exhibit DCE-2 to that affidavit, a letter from Mr Evans to the respondent of 28 January 2014, specifically indicates that the applicant sought an order or direction ‘for delivery of all parts of the file not already delivered’ on the return date of the application. Again, the respondent did not subsequently contend in correspondence that the file or at least all of it to which the applicant was entitled had already been delivered despite the respondent responding to that letter by its own letter of 30 January (Exhibit DJE-3 to Mr Evans’ affidavit). That letter did not traverse the issue of delivery of the file at all.

30. [30]
    In my view, the respondent’s failure to address the issue, clearly raised in the application and in correspondence and said to be one of the orders that would be sought on the return date of the application, in subsequent correspondence does cause me to conclude it is appropriate to make an order for delivery of the file to which the applicant is legally entitled. I think that, on balance, an inference that there are such documents which have not yet been delivered can be drawn from the respondent’s solicitor’s failure to respond to the allegation in the correspondence in circumstances where the application sought an order for such delivery.

31. [31]
    In the circumstances I order, subject to any submissions to the form of an appropriate order:

1. that the respondent deliver to the applicant all documents which comprise all parts of the file of the respondent concerning the applicant to which she is entitled and which have not already been delivered;

2. the originating application is otherwise transferred to the Magistrates Court, pursuant to s. 28 of the Civil Proceedings Act 2011 to be brought on by either party upon giving seven days’ clear notice in writing to the other; and

3. Costs of the application be each party’s costs in the proceedings.