Gregg Lawyers Pty Ltd v Farrar (No 2)
[2016] QDC 57
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Gregg Lawyers Pty Ltd v Farrar (No 2)[2016] QDC 57
- Add to List
Gregg Lawyers Pty Ltd v Farrar (No 2)[2016] QDC 57
Gregg Lawyers Pty Ltd v Farrar (No 2)[2016] QDC 57
DISTRICT COURT OF QUEENSLAND
CITATION: | Gregg Lawyers Pty Ltd & Anor v Viki Maree Farrar (Formerly Sweeney) (No.2) [2016] QDC 57 |
PARTIES: | GREGG LAWYERS PTY LTD First Applicant and ANGELA JULIAN-ARMITAGE Second Applicant v VIKI MAREE FARRAR (FORMERLY SWEENEY) Respondent |
FILE NO: | D319/11 |
DIVISION: | Civil |
PROCEEDING: | Application for an Indemnity Certificate |
DELIVERED ON: | 21 March, 2016 |
DELIVERED AT: | Southport |
HEARING DATE: | 11 March, 2016 |
JUDGE: | Judge C. F. Wall QC |
ORDER: | Application refused. |
LEGISLATION: | Appeal Costs Fund Act 1973 Sections 15, 16 Legal Profession Act 2007 Sections 315, 340, 342 |
CASES: | Paroz v Clifford Gouldson Lawyers [2012] QDC 125 Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72 Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 Spencer v Burton [2015] QCA 145 Gregg Lawyers v Farrar [2014] QDC 194 Gregg Lawyers v Farrar [2015] QCA 289 Tabtill Pty Ltd v Creswick [2012] QCA 78 |
CATCHWORDS: | COSTS – Indemnity certificate – application for – relevant discretionary considerations. |
COUNSEL: | First and Second Applicants: Mr M.P. Amerena Respondent: Mr D. Topp |
SOLICITORS: | First and Second Applicants: Gregg Lawyers Respondent: Lynn & Rowland Lawyers |
Introduction
- [1]The client, the unsuccessful respondent to the application by the lawyers to review costs assessments by a costs assessor, has applied for an indemnity certificate under s 15(2) Appeal Costs Fund Act 1973. On 10 March 2016, I ordered the client to pay the costs of the lawyers of and incidental to the application to review the costs assessment. It is these costs that would be encompassed by the certificate should one be granted.
- [2]For present purposes and for the reasons referred to by Judge McGill in Paroz v Clifford Gouldson Lawyers [2014] QDC 125 at [45]-[65], I accept that this court can grant an indemnity certificate in this type of matter.
- [3]The grant of such a certificate is discretionary and is dependent on the application succeeding on a question of law. In such a case the following have been said to be relevant considerations[1]:
- whether the submissions or arguments on the review application were reasonably advanced or were fairly arguable including the extent to which the respondent was unsuccessful on other issues raised by her?
- whether there was any proper basis for the decision of the costs assessor. If there was not, did the respondent lead the costs assessor into error, e.g. by inviting a decision for which there is no legal warrant or which is inconsistent in some respect with settled legal principle? Whether the respondent’s conduct and submissions contributed to the error/s of law made by the costs assessor, including any failure to give adequate reasons?
- [4]The issues of law upon which the lawyers succeeded involved whether the barrister was required to disclose the change in her estimated legal fees (s 315 Legal Profession Act 2007), the consequences of failure to disclose as soon as practicable (s 340), directors fees (s 342) and the inadequacy of the costs assessor’s reasons. The numerous other issues all involved questions of fact and, with the exception of whether an oral hearing should have been held and whether the costs assessor failed to appreciate that he did not have all of the solicitor’s file, the client failed on those issues[2]. The client’s arguments on the first three issues of law which I have referred to failed and were unsuccessfully repeated before me. In my view, the arguments and submissions advanced by the client on each of the issues of law contributed to the inadequate reasoning of the costs assessor. His reasons were inadequate because to a large extent they made no sense and that was in no small way contributed to by the arguments and contentions advanced by the client.
- [5]On the review hearing the client disputed that the costs assessor’s reasons were inadequate and submitted they were explicable by reference to the marked up bills[3]. That was not my view. On appeal to the Court of Appeal the client argued (unsuccessfully again) that the costs assessor’s reasons were adequate.
- [6]The client relies on the “reasoning and methodologies” applied by the costs assessor but in my view she contributed to his inadequate reasons. When I suggested to Mr Topp that the costs assessor effectively adopted everything put to him by the client, he submitted that the costs assessor “makes the decision… and the ball was in his court to not only do the job but to do it properly which he failed to do” and that the “defaults” by the costs assessor were out of the client’s control. In my view, that overlooks the extent to which the client led the costs assessor to a decision about which he gave inadequate reasons relying on submissions made by the client.
- [7]Much of the time taken up on the review hearing concerned issues other than the adequacy of the costs assessor’s reasons. The other errors of law made by the costs assessor were largely attributable to the arguments and submissions advanced to him by the client. To this extent I agree with Mr Amerena that the client is “relevantly at fault” because she induced the costs assessor to make errors of law by the case she advanced to him.
- [8]There seems to be no basis upon which a certificate limited to only part of the review hearing could be granted. Sections 15 and 16 seem to contemplate a certificate covering all of the costs of the hearing, not some of them.
- [9]For these reasons I do not consider the discretion to grant a certificate “should be exercised in favour of sanctioning the expenditure of public funds to indemnify” the client[4].
- [10]The application for an indemnity certificate is refused.
Footnotes
[1] Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72 at [7]-[11]; Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [17]; Spencer v Burton [2015] QCA 145 at [22]-[24] and Paroz v Clifford Gouldson Lawyers [2014] QDC 125 at [64]
[2] See Gregg Lawyers v Farrar [2014] QDC 194 and [2015] QCA 289
[3] See [2014] QDC 194 at [144], notwithstanding that the client’s counsel did have difficulty fathoming some of the costs assessor’s reasoning, see [150] and [2015] QCA 289 at [85]
[4] Tabtill Pty Ltd v Creswick [2012] QCA 78 at [11]