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Murdock v Sterling Law (Qld) Pty Ltd[2019] QDC 226

Murdock v Sterling Law (Qld) Pty Ltd[2019] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Murdock v Sterling Law (Qld) Pty Ltd [2019] QDC 226

PARTIES:

JOANNE MURDOCK

(appellant)

v

STERLING LAW (QLD) PTY LTD trading as STERLING LAW (QLD) PTY LTD

ABN 64 165 643 881

(respondent)

FILE NO:

1636 of 2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

11 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2019

JUDGE:

Porter QC DCJ

ORDER:

  1. Appeal dismissed.
  2. The appellant pay the respondent’s costs of the appeal fixed at $11,000 inclusive of GST.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the appellant is a former client of the respondent – where the respondent provided a bill to the appellant – where the appellant requested an itemised bill pursuant to s. 332 of the Legal Profession Act 2007 (Qld) – whether the bill provided by the respondent to the appellant was an itemised bill pursuant to s. 300 of the Legal Profession Act 2007 (Qld)

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where the appellant is a former client of the respondent – where the respondent brought a claim against the appellant to recover monies said to be owing – where  the respondent applied for and obtained summary judgment in the Magistrates Court – where the appellant contends that the respondent had not provided an itemised bill of costs as requested – where the appellant made deemed admissions regarding the substance of the respondent’s claim – where no application was made to withdraw the deemed admissions – whether the learned Magistrate erred in granting summary judgment to the respondent

Legal Profession Act 2007 (Qld), s 300, s 329, s 330, s 332, s 335, s 338, s 340, s 341

Magistrates Court Act 1921(Qld), s 45

Uniform Civil Procedure Rules 1999 (Qld) r 720, r 743, r 743A, r 743B, r 743C

28 Careel Development Pty Ltd v S.O.S. Plumbing Services (Qld) Pty Ltd [2016] QDC 223

Clayton Utz Lawyers v P&W Enterprises Pty Ltd [2011] QDC 5

Piper Alderman v Smoel [2017] VSCA 42

Pott v Clayton Utz [2012] QSC 167

Robertson v Boe Williams Lawyers [2013] QCA 252

Tabtill No. 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115

COUNSEL:

WT Fitzgerald (solicitor) for the appellant
PG Jeffery for the respondent

SOLICITORS:

Rose Litigation Lawyers for the appellant

Sterling Law for the respondent

Summary

  1. [1]
    The appellant (Ms Murdock) retained the respondent incorporated law legal practice (Sterling) to act for her in a de facto property settlement on 20 March 2017.  On the same day she entered into a written costs agreement (the Costs Agreement) and received a Disclosure Notice under the Legal Profession Act 2007 (Qld) (LPA).  Sterling acted in the matter until 12 December 2018 when they terminated the Costs Agreement and provided a bill (the Bill) for $66,657.19 including disbursements and GST.  The Bill was not paid.
  1. [2]
    Sterling commenced proceedings on 17 January 2019 and obtained summary judgment for the whole of the claim plus costs in the Magistrates Court on 15 April 2019. Ms Murdock appeals that judgment to this Court under s. 45 Magistrates Court Act 1921 (Qld).
  1. [3]
    The primary point of substance raised on the appeal is whether the Bill is an itemised bill as defined in s. 300 LPA. For the reasons which follow, I consider that it is. There is no other error evident in the decision to grant summary judgment. Accordingly the appeal must be dismissed with costs.

Facts

  1. [4]
    The following matters were uncontested on the evidence before his Honour.
  1. [5]
    Ms Murdock instructed Mr Bertrand of Sterling in person on 20 March 2017. The Costs Agreement signed by her relevantly provided:

4.1 A bill will be sent to you if you terminate this agreement, we terminate this agreement or at the conclusion of your matter. Our bills contain information of professional fees, other charges, disbursements and expenses and GST. You agree and consent to us emailing you our bills.

4.2 Our bills are payable on receipt. If bills remain unpaid for 14 days of becoming due for payment, interest may be charged on the unpaid amount at the rate of 10% per annum.

6.1 You may terminate this agreement at any time.

6.2 Should this agreement be terminated at any time, you remain liable for the legal costs up until that time.

6.3 If you do not pay monies in accordance with the costs agreement, we may suspend work and may cease acting for you. We will not continue to do the work and may terminate the agreement:

  1. (a)
    if you fail to pay our bills or deposit monies to our trust account as required from time to time;
  1. (b)
    if you fail to provide us with adequate instructions within a reasonable time;
  1. (c)
    if you give instructions that are deliberately false or intentionally misleading;
  1. (d)
    if you fail to accept an offer of settlement which we think is reasonable;
  1. (e)
    if you fail to accept advice we (or counsel) give you;
  1. (f)
    if you engage another law practice to advise you on this matter without our consent;
  1. (g)
    if we, on reasonable grounds, believe that we may have a conflict of interest;
  1. (h)
    if you ask us to act unethically; or
  1. (i)
    for other just case.

6.4 If the agreement is terminated either by you or us, you will be required to pay our professional fees, fees for other items and expenses and disbursements up to the date of termination.

6.5 We will give you notice of our intention to terminate our agreement, and of the grounds on which the notice is based.

6.6 On termination, we are entitled to retain possession of your documents and trust money while there is money owing to us for our professional fees, fees for other items and expenses and disbursements, unless and until security is provided for our costs.

  1. [6]
    Sterling also provided a Disclosure Notice which relevantly provided:

1.1 You have the right to:

  • Receive a bill of costs from us;
  • Request an itemised bill of costs after you receive a lump sum bill from us;

  • Apply for costs to be assessed within 12 months if you are unhappy with our costs (see para 1.4 below);

1.4 The following avenues are open to you under the terms of the Legal Profession Act 2007 (Qld) in the event of a dispute in relation to legal costs:

  • To apply for costs assessment within 12 months of delivery of a bill or request for payment or such extended time as may be permitted by the court or costs assessor after considering the reason for the delay…
  1. [7]
    The Disclosure Notice contained a series of estimates, which were increased from time to time as the matter proceeded. No complaint about adequacy of disclosure of estimates is made.
  1. [8]
    The Bill discloses that Sterling worked consistently on the matter over the period 20 March 2017 to 12 December 2018. More will be said about the Bill below. From 16 November 2018, Ms Murdock ceased providing instructions to or returning calls from Sterling. On 3 December 2018, Mr Bertrand wrote to Ms Murdock communicating an intention to terminate the Costs Agreement. No response was received. On 12 December 2018 he wrote to Ms Murdock notifying the termination of the Costs Agreement and the retainer in the proceedings then underway. No complaint was or is made as to the lawfulness of the termination of the Costs Agreement.
  1. [9]
    Mr Bertrand enclosed the Bill in the 12 December 2018 letter.
  1. [10]
    The form of the Bill is at issue in this proceeding. The Bill contains 10 pages of particulars. The character and content of the Bill is sufficiently seen from the entries for the first month of work, from 20 March to 20 April 2017. The Bill provides:

Date

details of work performed

time units

provider

20 March 2017

attendance with you

5

LCB

21 March 2017

attendance with you and Marilyn Papinczak

16

LCB

21 March 2017

attendance with you

17

LCB

21 March 2017

attendance with you, drafting and typing letter to Dennis Dregmans

6

LCB

21 March 2017

drafting and typing email to Marilyn Papinczak

1

LCB

21 March 2017

perusing email from Marilyn Papinczak

1

LCB

21 March 2017

drafting and typing amendments to draft letter to Dennis Dregmans

1

LCB

22 March 2017

attendance with you

3

LCB

23 March 2017

drafting and typing email to Marilyn Papinczak

2

LCB

24 March 2017

telephone attendance with you

3

LCB

24 March 2017

telephone attendance with Marilyn Papinczak

2

LCB

25 March 2017

telephone attendance with you

1

LCB

26 March 2017

telephone attendance with Marilyn Papinczak, drafting and typing amendments to draft letter to Dennis Dregmans

3

LCB

27 March 2017

telephone attendance with you, perusing email from Marilyn Papinczak, drafting and typing letter to Dennis Dregmans, drafting and typing email to Marilyn Papinczak

5

LCB

27 March 2017

telephone attendance with you

1

LCB

5 April 2017

telephone attendance with you

3

LCB

10 April 2017

perusing email and letter from Keating Lehn, perusing draft protection order, call to you

3

LCB

10 April 2017

call to you, drafting & typing letter to Keating Lehn, drafting & typing email to Marilyn Papinczak

9

LCB

12 April 2017

telephone attendance with you

1

LCB

12 April 2017

attendance with you

5

LCB

12 April 2017

telephone attendance with you, drafting and typing email to Marilyn Papinczak

4

LCB

12 April 2017

telephone attendance with you

1

LCB

13 April 2017

telephone attendance with you

4

LCB

13 April 2017

telephone attendance with Courtney Murdock, drafting and typing email to Courtney Murdock

4

LCB

13 April 2017

telephone attendance with you, drafting and typing letter and email to Keating Lehn

6

LCB

14 April 2017

perusing email from Courtney Murdock

1

LCB

18 April 2017

perusing email & letter from Keating Lehn

1

LCB

18 April 2017

perusing email and letter from Keating Lehn, telephone attendance with you

5

LCB

18 April 2017

telephone attendance with you

1

LCB

18 April 2017

drafting and typing email to Keating Lehn

1

LCB

20 April 2017

attendance with you at Richlands Magistrates Court

23

LCB

  1. [11]
    Those entries are typical of the balance of entries in the Bill. It can be seen that:
  1. (a)
    There are a large number of relatively short telephone attendances on Ms Murdock;
  1. (b)
    Where more than one item of work is done on a day, all items are identified (that is, the Bill does not say the work on that day “included” specified items);
  1. (c)
    In some cases, more than one item of work is shown as being done in respect of a particular number of units, but in those cases, there are generally relatively short periods of work involved, the longest being 54 minutes; and
  1. (d)
    Where there have been dealings with persons other than Ms Murdock, the name of the person or law firm is identified.
  1. [12]
    Ms Murdock retained Whitehead Crowther Lawyers to represent her in relation to the Bill. On 11 January 2019, Whitehead Crowther wrote to Sterling as follows:

Dear Sirs,

Re: Joanne Murdock-property settlement Dennis Dregman

We act for Joanne Murdock and note your firm previously acted.

You will be aware that our client was dissatisfied with your service and advice.

She instructs us that she is particularly aggrieved by your firm commencing these proceedings when she instructed you not to do so and desired to proceed on a more conciliatory basis.

Nevertheless these proceedings are now in progress, you have terminated your costs agreement with Ms. Murdock and have rendered an account in the sum of Fifty six thousand and [eighty-]eight dollars and ninety cents ($56,088.90) together with disbursements in the sum of ten thousand seven hundred dollars ($10,713.29).

We have been instructed to advise her in relation to this account.

We respect the work performed by you in the initiation of these proceedings, preparation of affidavits, mediation attempt and more and in these circumstances wish to advise our client of an appropriate payment to your firm.

To assist us with same we would be grateful if you would forward to our office the following:

  1. Copy solicitor client agreement signed by our client.
  1. An account in itemized format prepared in accordance with the Law Society rules.

Once we receive this information we will revert back to you with instructions.

Any recovery action contemplated by you in your correspondence dated 12 December 2018 will be strenuously defended and a properly itemized account will be requested in those proceedings.

We anticipate this is a matter that can be resolved once we are in a possession [sic] of those items mentioned herein.

  1. [13]
    Mr Bertrand responded on 12 January 2019, relevantly:
  1. (a)
    Denying that the proceedings relating to the property settlement had been commenced without instructions;
  1. (b)
    Pointed out that the Law Society Rules 1987 had been repealed on 30 June 2006; and
  1. (c)
    Asserting that the Bill comprised an itemised account, describing the information in the Bill and asking “what further information you are requesting and which law(s) require such further information to be provided…”.
  1. [14]
    Sterling commenced these proceedings on 19 January 2019. After pleading the retainer, Costs Agreement and Disclosure Notice, the Statement of Claim pleaded, relevantly:
  1. The plaintiff performed work for the Defendant in accordance with the Defendant’s instructions and pursuant to the Costs Agreement as follows:
  1. (a)
    Leon Bertrand performed 137.1 hours of work in his capacity as a principal or director of the firm;
  1. (b)
    Samuel Wasley performed 4.4 hours of work in his capacity as a para-legal of the firm;
  1. (c)
    An Initiating Application, Supporting Affidavit, and Financial Statement documents were filed by the firm in in the court registry on 14 November 2017; and
  1. (d)
    Printing and photocopying of documents in the order of a cost of at least $48.90.
  1. The Plaintiff has incurred the following expenses/liabilities under the Costs Agreement as follows:
  1. (a)
    Counsel’s fees totalling $5,087.50;
  1. (b)
    GST at a rate of 10% totalling $5,608.89;
  1. (c)
    Express postage costs of letters and documents totalling $4.90; and
  1. (d)
    Ordinary postage costs of letters and documents totalling $12.00.

  1. Enclosed with the letter mentioned in the preceding paragraph [sent 12 December 2019] was an invoice from the firm by way of service totalling $66,802.19 for fees and outlays less the sum of $145 held in trust on the Defendant’s behalf, and showing an outstanding balance/required payment of $66,657.19 (“the Bill”).
  1. The Bill:
  1. (a)
    was for work performed and outlays/liabilities incurred by the Plaintiff for the Defendant pursuant to the Costs Agreement;
  1. (b)
    was signed by Leon Bertrand, Legal Practitioner Director of the Plaintiff;
  1. (c)
    was posted to the Defendant’s address on or about 12 December 2018;
  1. (d)
    included a written statement setting out the avenues of a costs assessment under Division 7 of the Act and the setting aside of the Costs Agreement under section 328 of the Act, as well as the time limits which applied to these avenues.
  1. [15]
    The defence relevantly pleaded:
  1. The defendant does not admit allegations in paragraphs 8, 9 of the Statement of Claim The defendant has made reasonable inquiries and remains uncertain of the trust or otherwise of the allegation and is unable to admit it because despite requesting the Plaintiff to provide copy of a properly itemised account of work performed the Plaintiff has not provided copy of same.
  1. The defendant further denies the allegation in paragraph 8, 9, 12 of the statement of claim being costs and outlays claimed by the Plaintiff on the basis that it was an express and implied terms of the solicitor client agreement that the Plaintiff would perform work that was reasonable and necessary and in breach of that term performed and charged to the defendant work that was unreasonable and unnecessary.
  1. In breach of the Plaintiff’s agreement to act in accordance with the defendants instructions the Plaintiff including:

a. Commencing Family Court De Facto property settlement by filing the Application immediately after the defendant’s instructions were not to refrain from filing an aplication in the family law courts.

b. Failing to apply to reschedule a mediation due to health concerns expressed by the Defendant;

c. Creating a conflict of interest by

i. Insisting on the appointment of a Litigation Guardian;

ii. Serving to act in relation to their own commercial interests to the determinant of the Defendant’s claim.

  1. The Defendant otherwise denies the Plaintiff is entitled to be paid the fees and outlays as claimed in their prayer for relief because:-

a. The charges for the work allegedly performed by the Plaintiff were excessive and the Defendant has been overcharged;

b. Despite a request made by the Defendant the Plaintiff has not provided proof that the Plaintiff in fact completed all of the work referred to in the Plaintiff’s invoices;

c. Despite a request being made by the Defendant the Plaintiff has not demonstrated that such work for which the Defendant was charged was reasonable and necessary for the conduct of the family law matter for which the Plaintiff was retained by the Defendant;

d. The Defendant did not authorise the Plaintiff to engage a barrister and such retainer exists between the Plaintiff and the barrister and the defendant was not a party to the contract between the Plaintiff and the barrister;

e. The Plaintiff engaged the Defendant on a speculative basis where fees were to be paid on finalisation of the matter and the Plaintiff assumed the risk of completing the work for the Defendant on a speculative basis accordingly;

  1. The Defendant further denies liability as to the quantum of the amount claimed by the Plaintiff in that that the Defendant requested an itemised invoice pursuant to section 332 of the Legal Profession Act 2007 (Qld) (“the Act”) and no such itemised invoice has been given to the Defendant as contrary to section 300 of the Act the invoices provided by the Plaintiff do not:

a. Detail how the legal costs are made up in a way that would allow the legal costs to be assessed; and

b. Provide sufficient information to enable the Defendant to make an informed decision whether the costs are reasonable and whether ot have the Plaintiff’s costs assessed; and

c. Provide a detailed description of each item of work done.

[typographical errors in original]

  1. [16]
    The effect of the defence was that:
  1. (a)
    Sterling did work which was not reasonable and necessary, though no such work is identified from the items on the Bill;
  1. (b)
    Sterling retained the barrister Ms Downes without authority;
  1. (c)
    The Costs Agreement was a speculative fee agreement; and
  1. (d)
    Ms Murdock is not liable for the amount claimed because no itemised bill has been provided under s. 332 LPA.
  1. [17]
    The application for summary judgment was served on 7 March 2019.
  1. [18]
    Sterling also served a Notice to Admit Facts on 27 March 2019. The Notice to Admit Facts put the factual case for Sterling on each and every fact in issue on the pleadings and necessary to make good the plaintiff’s case. Relevantly it included the following:
  1. The Plaintiff did not ever agree or promise to engage the Defendant on a speculative basis.
  1. The Plaintiff did not ever engage the Defendant on a speculative basis.

   

  1. On 22 January 2018 Defendant did authorise the Plaintiff to engage Susan Downes of Counsel on her behalf.

  1. Between 20 March 2017 and 12 December 2018 (inclusive), Leon Bertrand performed 137.1 hours of work for the Defendant in his capacity as a principal or director of the Plaintiff.
  1. The work mentioned in the preceding paragraph was performed in accordance with the Defendant’s instructions and was not excessive.
  1. Between 20 March 2017 and 12 December 2018 (inclusive), Samuel Wasley performed 4.4 hours of work for the Defendant in his capacity as para-legal of the Plaintiff.
  1. The work mentioned in the preceding paragraph was performed in accordance with the Defendant’s instructions and was not excessive.

   

  1. The bill dated 12 December 2018 mentioned and referred to at paragraphs 12 and 13 of the Statement of Claim was reasonable, necessary and fair having regard to all of the work that the Defendant instructed the Plaintiff to perform.

   37. The Defendant has not been overcharged by the Plaintiff. 

  1. [19]
    The Notice to Admit Facts was not responded to within 14 days or at all.
  1. [20]
    The summary judgment application was listed for hearing on 15 April 2019. On 12 April 2019 Ms Murdock cross applied:
  1. (a)
    For an order under r. 743 Uniform Civil Procedure Rules 1999 (UCPR) requiring Sterling to file “an itemised invoice as settled by a costs assessor”; alternatively
  1. (b)
    That a costs assessor be appointed to assess the Bill (presumably under r 743A UCPR).
  1. [21]
    The only material filed in support of that application or in resisting Sterling’s application was an affidavit of Mr Whitehead swearing up the availability of an assessor to accept appointment. His Honour granted leave to rely on that cross application on the hearing of the summary judgment application.
  1. [22]
    His Honour granted summary judgment. His reasons were brief:

BENCH: Yes. This is an application for summary judgment that was served on the 7th of March apparently.  There’s an affidavit from Leon Bertrand dated the 7th of March which sets out or annexes an itemised bill, also a copy of the costs agreement.  Issue is taken with the estimates in an annexure to that bill, but in the statement of claim it is stated that there were various updates of that estimate, and in paragraph 1 of the defence of the defendant she admits that paragraph, that is, that she did get updates.  She hasn’t descended to an affidavit in this matter.  That’s pretty crucial, really, when, in particular, she’s been given an itemised bill.  Having paid nothing and then come along and say, “Now I want it all costs assessed”, when she hasn’t given any reason in writing.  Again, wild assertions from the bar table by her solicitor about the unreasonableness of telephone conversations, the costs for telephone conversations to herself, that would’ve been obvious after a while that she was being charged for each telephone conversation.  It’s a costs agreement based on payment per time.

In any case, if you want to challenge a bill you’ve actually got to descend to particulars.  It’s – the outline of submissions refers to a case by Mr Justice Bodice [sic] being Pott v Clayton Utz [2012] QSC 167 which makes it clear that you can’t even submit an affidavit swearing to general concern as to overcharging and of advice that further information is required.  Specific details have to be in there.  Now, that’s where an affidavit was given.  Here, we haven’t even got an affidavit.  In the circumstances, I’m satisfied that there’s no real argument on the present pleadings where there’s been notices to admit that haven’t been responded to.  So there’s deemed admissions.  There’s been no application to set aside those deemed admissions.  There’s been no affidavit.  In the circumstances, I’ll grant summary judgment.

  1. [23]
    Although the judgment did not specifically deal with the matter, it is evident his Honour must have considered the appellant ought not to have the relief in the cross application. The granting of summary judgment necessarily disposed of the cross application as well.

The Notice of Appeal

  1. [24]
    The Notice of Appeal raises six grounds of appeal:
  1. (a)
    First, that his Honour erred in not finding that the Bill was not an itemised bill under s. 300 LPA and therefore erred in not finding that Sterling breached s. 332 LPA by failing to provide a bill in that form;
  1. (b)
    Second, that his Honour erred in therefore not dismissing the proceedings under s. 332(5) LPA;
  1. (c)
    Third and fourth, two grounds were relied upon based on his Honour’s failure to appoint a costs assessor.  It was alleged his Honour rejected that application because there was no affidavit in support and that this was an error for two reasons:
  1. (i)
    That the effect of r. 743B UCPR is to exclude the requirement under r. 743A that an application for an assessment be accompanied by an affidavit;
  1. (ii)
    Alternatively, that Mr Bertrand’s affidavit was an affidavit in support of the application because it exhibited the defence which contained statements that met the requirements of an affidavit under r. 743A;
  1. (d)
    Fifth, that his Honour erred in finding that the appellant had no real prospect of defending the claim and that there was no need for a trial;
  1. (e)
    Sixth, that his Honour erred in ordering summary judgment because the weight of the evidence did not justify his Honour doing so.

Preliminary observations

  1. [25]
    There are a few points to note before considering the appeal in substance.
  1. [26]
    First, I refer to analysis of s. 45 Magistrates Court Act by his Honour Dorney QC DCJ in 28 Careel Development Pty Ltd v S.O.S Plumbing Services (Qld) Pty Ltd [2016] QDC 223 at [15] where his Honour considers whether an appeal in an interlocutory matter gives rise to a strict appeal or an appeal by way of rehearing.  As his Honour observed, it is a little difficult to reconcile the terms of r. 765(2) with r. 766(1) UCPR.  It makes little difference in this case, where no further evidence has been led.  In any event, I am content to approach the matter as an appeal by way of rehearing.
  1. [27]
    Second, the lack of evidence to contradict the Notice to Admit Facts and to support the defence was seemingly not adverted to before the hearing of the appeal.  During the hearing, however, Mr Fitzgerald (who appeared for Ms Murdock) raised the existence of evidence filed on an application for a stay by Ms Murdock as relevant to answering the Notice to Admit Facts and to make good the defence.  He then sought an adjournment of the appeal, mid-hearing, so that he could prepare a proper application to lead fresh evidence.  I dismissed the application to adjourn for that purpose for the reasons given during the hearing.  In short, however, the reasons were that:
  1. (a)
    Mr Fitzgerald was uncertain as to precisely what specific evidence challenging the Bill or part thereof could be led.  He only had broad instructions beyond the matters in the affidavit he referred to in argument;
  1. (b)
    There was no evidence as to why the evidence was not led at the summary judgment hearing, nor any evidence as to why the application to lead further evidence was not brought before the hearing of the appeal;
  1. (c)
    Mr Fitzgerald did not have instructions to pay the costs thrown away by the adjournment (and there would be real doubt that any such costs would be paid, given the history of the matter); and
  1. (d)
    It appeared that the application itself would be of doubtful prospects of success (or at least could not be seen to be compelling) given the vague nature of the evidence to be led, the fact that such evidence would almost certainly have been available at the summary judgment hearing, that no explanation was given as to why it was not led then and that there was at least some reason to doubt the evidence in Ms Murdock’s affidavit sworn 2 October 2019 (the Stay Affidavit) on the one occasion it descended into detail.[1] 
  1. [28]
    Even allowing for the fact that the appeal was in respect of a summary judgment (where more receptiveness should ordinarily be shown to new evidence, particularly bearing in mind the discretion arising from the question of whether a trial of the claim should occur), it seemed to me that the adjournment should be refused.
  1. [29]
    Third, it is unclear that any of the points now raised on appeal were argued before his Honour, at least in the manner they were put in this Court.  Mr Jeffrey took the point in respect of some grounds.  However, the grounds did not give rise to new factual issues and there was no other good reason to refuse to deal with them.

The Statutory Provisions

  1. [30]
    This appeal falls to be determined by reference to Part 3.4 of the LPA, headed Costs Disclosure and Assessment.
  1. [31]
    The starting point is the definitions in s. 300 LPA, which relevantly states:

itemised bill means a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under division 7. 

lump sum bill means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.

  1. [32]
    Division 6 deals with billing. It relevantly provides:

329 Legal costs can not be recovered unless bill has been served

  1. (1)
    A law practice must not start legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person under sections 330 and 331 or under provisions of a corresponding law that correspond to sections 330 and 331.
  1. (2)
  1. (3)
    A court of competent jurisdiction before which any proceedings are brought in contravention of subsection (1) must stay those proceedings on the application of a party or on its own initiative.
  1. (4)
    This section applies whether or not the legal costs are the subject of a costs agreement.

330 Bills

  1. (1)
    A bill may be in the form of the lump sum bill or an itemised bill.

332  Request for itemised bill

  1. (1)
    If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.

Note—

A bill in the form of a lump sum bill includes a bill other than an itemised bill.

  1. (2)
    The law practice must comply with the request within 28 days after the date on which the request is made.
  1. (3)
    If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay.
  1. (4)
    Subject to subsection (5), a law practice must not commence legal proceedings to recover legal costs from a person who has been given a lump sum bill until at least 30 days after the date on which the person is given the bill.
  1. (5)
    If the person makes a request for an itemised bill within 30 days after receiving the lump sum bill, the law practice must not commence proceedings to recover the legal costs from the person until 30 days after complying with the request.

  1. [33]
    The substantive effect of these provisions as they are relevant to this case is that a lawyer must give a client either a lump sum or itemised bill 30 days before commencing proceedings. If the client receives a lump sum bill and requests an itemised bill, the lawyer must not commence proceedings until 30 days after they have provided the itemised bill.
  1. [34]
    Division 7 deals with costs assessment. It relevantly provides:

335 Application by clients or third party payers for costs assessment

  1. (1)
    A client may apply for an assessment of the whole or any part of legal costs.
  1. (2)
  1. (3)
    The costs application may be made even if the legal costs have been wholly or partly paid.
  1. (4)
    If any legal costs have been paid without a bill, the client or third party payer may nevertheless make the costs application.
  1. (5)
    A costs application by a client or a third party payer must be made within 12 months after—
  1. (a)
    the bill was given, or the request for payment was made, to the client or third party payer; or
  1. (b)
    the costs were paid if neither a bill was given nor a request was made.

   

338  Consequences of application

If a costs application is made—

  1. (a)
    a person liable for the legal costs concerned can not be required to pay money into court on account of the legal costs; and
  1. (b)
    subject to the leave of the court, the law practice must not start any proceedings to recover the legal costs until the costs assessment has been completed.

340  Assessment of complying costs agreements

  1. (1)
    A costs assessor for a costs application must assess any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if—
  1. (a)
    a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs; and
  1. (b)
    the agreement has not been set aside under section 328;

341  Criteria for assessment

  1. (1)
    In conducting a costs assessment, the costs assessor must consider—
  1. (a)
    whether or not it was reasonable to carry out the work to which the legal costs relate; and
  1. (b)
    whether or not the work was carried out in a reasonable way; and
  1. (c)
    the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 340 applies to any disputed costs.
  1. (2)
    In considering what is a fair and reasonable amount of legal costs, the costs assessor may have regard to any or all of the following matters—
  1. (a)
    whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;
  1. (b)
    any disclosures made by the law practice under division 3;
  1. (c)
    any relevant advertisement as to—
  1. (i)
    the law practice’s costs; or
  1. (ii)
    the skills of the law practice, or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf;
  1. (d)
    the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter;
  1. (e)
    the retainer and whether the work done was within the scope of the retainer;
  1. (f)
    the complexity, novelty or difficulty of the matter;
  1. (g)
    the quality of the work done;
  1. (h)
    the place where, and circumstances in which, the legal services were provided;
  1. (i)
    the time within which the work was required to be done;
  1. (j)
    any other relevant matter.

  1. [35]
    Finally, also relevant to this appeal are rr. 743A to 743C UCPR which provide:

743A  Application for costs assessment

  1. (1)
    A person applying for a costs assessment must apply to the relevant court.
  1. (2)
    The application must—
  1. (a)
    be in the approved form; and
  1. (b)
    state the names of any persons to whom notice must be given under the Legal Profession Act 2007, section 339(1); and
  1. (c)
    if practicable—
  1. (i)
    nominate a particular costs assessor for the assessment; and
  1. (ii)
    state the applicable hourly rate of the nominated costs assessor; and
  1. (d)
    be accompanied by the following—
  1. (i)
    an affidavit;
  1. (ii)
    if applicable, the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest;
  1. (iii)
    the prescribed fee.
  1. (3)
    If the applicant has an itemised bill for all of the costs to be assessed under the application, a copy of the itemised bill must be an exhibit to the affidavit.
  1. (4)
    If the applicant does not have an itemised bill for all of the costs to be assessed under the application, the best information the applicant has as to the costs to be assessed must be included in the affidavit.
  1. (5)
    The affidavit must also—
  1. (a)
    state whether the applicant disputes or requires assessment of all or what part of the costs; and
  1. (b)
    if the applicant disputes all or part of the costs, state the grounds on which the applicant disputes the amount of the costs or liability to pay them.

   743B  If recovery proceedings started

  1. (1)
    If a law practice has started a proceeding in a court to recover costs from any person, any application for assessment of all or part of those costs must be made by application in the proceeding.
  1. (2)
    At the directions hearing mentioned in rule 743G, the court may also give directions as to the conduct of the proceeding.
  1. (3)
    If no application for assessment is made in the proceeding, the court may, at an appropriate stage of the proceeding—
  1. (a)
    order that any costs be assessed by a costs assessor; and
  1. (b)
    give appropriate directions.

   743C  Court may direct preparation of itemised bill

If there is no itemised bill for all of the costs to be assessed under an application, the relevant court may give the directions it considers appropriate for an itemised bill to be prepared, filed and served.

First ground: Was the Bill an ‘itemised bill’? 

  1. [36]
    The appellant contends that his Honour erred in not concluding:
  1. (a)
    That the Bill was not an itemised bill as defined in s. 300 LPA;
  1. (b)
    That the appellant requested an itemised bill within 30 days of receipt of the Bill pursuant to s. 332(5) LPA; and
  1. (c)
    That Sterling failed to provide an itemised bill prior to commencing proceedings or at all.
  1. [37]
    There is no dispute that no further bill was provided after the provision of the Bill. The points of real contention are the first two points.

A request was made within 30 days

  1. [38]
    It is convenient first to deal with the second point. The appellant relies on the statement at point 2 in the letter of 11 January 2019 as comprising the request for an itemised bill under s. 332(1) and 332(5) LPA. Sterling disputes this proposition. The question to be determined, therefore, is whether the request for an “account in itemized format prepared in accordance with the Law Society rules” made in the 11 January letter comprises a request for an itemised bill as defined in s. 300 LPA.  I assume (as did Sterling) that the reference to the ‘Law Society rules’ is a reference to the Queensland Law Society Rules 1987 (QLS Rules).
  1. [39]
    As Sterling correctly stated in its letter of 12 January 2019, the QLS Rules were repealed on 30 June 2006.[2]  Even at that time, however, it appears that there were no rules relating to costs in the QLS Rules.[3]
  1. [40]
    Neither party’s written outline advanced any detailed argument on this issue. Sterling maintained, however, that the request was not one for an itemised bill under the LPA. That submission has some merit. The letter did not ask for the itemised account to be in a form which showed how the legal costs are made up in a way that would allow the legal costs to be “assessed under division 7” but rather in a format in accordance with the repealed Rules.  The appellant’s position seemed to be that I ought to assume that an account in that form would be consistent in substance with what was required under division 7.  However, the relevant part of the QLS Rules were never identified nor any submission made to establish that assumption.
  1. [41]
    On the other hand, the authorities concerning requirements for an itemised bill at common law and under previous Queensland statutes have been considered to apply to the analysis of whether a bill is an itemised bill under s. 300, including by judges of this Court.[4]
  1. [42]
    Very little is required to make a proper request for an itemised under the LPA. Further, the current costs statutes have been in place for many years. The appellant bore the onus on this issue, and it is extraordinary that the appellant’s case turns on a failure specifically to refer to a statute which has been fundamental to the administration of legal costs in Queensland for 13 years. However, and not without some misgiving, the approach in the authorities in paragraph [41] is sufficient to persuade me to accept that the characteristics of  an itemised bill which was called for under the QLS Rules were substantially the same as the characteristics of an itemised bill under the LPA.  Accordingly, the request contained in the 11 January 2019 letter was, and would be objectively understood as being, for a bill with the characteristics of an itemised bill as defined in s. 300 LPA.  I note that is how the matter was approached by Sterling in its letter responding to the 11 January letter.

The Bill was an itemised bill

The Law

  1. [43]
    The starting point for this issue is the authorities dealing with what is required in an itemised bill. The authorities are helpfully summarised and applied by Reid DCJ in Clayton Utz Lawyers v P&W Enterprises Pty Ltd [2011] QDC 5.  In that case, Clayton Utz was contending that the bill it had provided was an itemised bill.
  1. [44]
    After setting out the statutory provisions, his Honour summarised the previous authorities as follows:

[21]  Apart from the provisions of the Legal Profession Act to which I have referred, there are a number of relevant cases which were referred to in argument and which deal with the question of whether a bill was an itemised bill at common law and/or pursuant to provisions of earlier legislation, such as the Costs Act 1867 (Qld), governing such matters.

[22]  In Re Walsh Halligan Douglas’ Bill of Costs (1990) Qd R 288, Dowsett J held that the bills there delivered did constitute bills of “fees, charge and disbursements” within the meaning of s 22 of the Costs Act 1867. His Honour in that case noted a difficulty with time charging, as has occurred in the case before me, in that:

“It may be difficult for the client to know whether the hours worked in preparation were fairly attributable to the presentation of his case or whether they might more accurately be described as self education on the part of an inexperienced or ill-educated practitioner …”

[23]  His Honour also pointed to the particular circumstances of the case before him (in that case that the client employed its own corporate solicitor who supervised the case on its behalf, and had its Sydney solicitors also supervise the work of Walsh Halligan Douglas) and said:

“Many of the cases concerning the obligation of a legal practitioner to his client as to fees contemplate a client with little or no commercial strength and little or no recourse to other legal advice.”

[24]  Although there is no direct evidence of the level of commercial sophistication of P&W, I infer it is not an insubstantial development company and certainly has the advice of its current lawyers. An affidavit tendered during the hearing indicated that Mr Willis, P&W’s managing director had significant experience as a project manager and was familiar with the matter in dispute in the principal proceedings.

[25]  At p 294 of the case, Dowsett J cited with approval a passage of Mann J in Malleson Stewart Stawell and Nankivell v Williams (1930) VLR 410, where his Honour had said:

“Courts have repeatedly held that a bill of costs must contain such details 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.”

[26]  Dowsett J continued:

“The bill must sufficiently particularise the charges to enable the client to take informed advice as to whether he should demand taxation.”

[27]  Referring again to the client’s level of commercial and legal sophistication, his Honour said also at p 294:

“I consider that the adequacy of the bills must really be considered in the light of all of these factors. If the test be what is adequate in order to enable the client to determine on advice whether to seek taxation, it is reasonable to take into account 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 of charging.”

[28]  His Honour continued at p 295:

“The bills describe 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. Of course, even an experienced client may not be able to do that, but the test for the purposes of s 22 contemplates the taking of advice.”

[29] In the recent case of Vitobello and Hayter v Russell & Co Solicitors (2009) QDC 249, Robin DCJ emphasised this question of advice as to the desirability of referring a matter for assessment. At p 6 of his judgment, his Honour said:

“The stakes are high in the sense that whoever does badly in the assessment may have to bear the costs of it. The clients should be given a clear idea of what is involved in items they contemplate challenging.”

[30]  That view is reinforced by the decision of the Court of Appeal in Ralph Hume Garry v Gwillim (CA) (2003) 1 WLR 510. In that case, Ward LJ in a judgment with which Mance LJ and Sir Martin Norse agreed said at p 522:

“Against that background the principles to be deduced from these cases appear to me to be these.

  1. (1)
    The legislative intention was that the client should have sufficient material on the face of the bill as to the nature of the charges to enable him to obtain advice as to taxation. The need for advice was to be able to judge the reasonableness of the charges and the risks of having to pay the costs of taxation if less than one-sixth of the amount was taxed off.
  1. (2)
    That rule was, however, subject to these caveats:
  1. (a)
    precise exactness of form was not required and the rule was not that another solicitor should be able on looking at the bill, and without any further explanation from the client, see on the face of the bill all information requisite to enable him to say if the charges were reasonable;
  1. (b)
    thus the client must show that further information which he really and practically wanted in order to decide whether to insist on taxation has been withheld and that he is not already in possession of all the information that he could reasonably want for consulting on taxation.
  1. (3)
    The test, it seems to me, is thus, not whether the bill on its face is objectively sufficient, but whether the information in the bill supplemented by what is subjectively known to the client enables the client with advice to take an informed decision whether or not to exercise the only right then open to him, viz, to seek taxation reasonably free from the risk of having to pay the costs of that taxation.
  1. (4)
    A balance has to be struck between the need, on the one hand, to protect the client and for the bill, together with what he knows, to give him sufficient information to judge whether he has been overcharged and, on the other hand, to protect the solicitor against late ambush being laid on a technical point by a client who seeks only to evade paying his debt.”

[underlining added]

  1. [45]
    The application of these principles, will differ from case to case. In Tabtill No. 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115 at [84], Applegarth J observed (footnotes omitted):

[84]  The applicants in their submission cited examples given in recent cases of the contents of tax invoices that do not constitute itemised bills for the purposes of the Act. These include:

  1. (a)
    claims for unexplained meetings in the solicitor’s office involving personnel within the firm;
  1. (b)
    costs claimed for “file management”;
  1. (c)
    legal research; 
  1. (d)
    company searches where there is no information as to what companies are being investigated;
  1. (e)
    claims for perusing pleadings when it is not clear from the entry in the bill just what is the particular document being perused;
  1. (f)
    claims for costs in bills that consist of generalized descriptions of work undertaken; and
  1. (g)
    rolled up claims for the undertaking of a number of activities during a period of time but which do not include any details of the size of the letter or e-mail drafted or perused.

These examples are drawn from the authorities of Vitobello and Hayter v Russell & Co Solicitors, Golder Associates Pty Ltd v Challen and Clayton Utz Lawyers v P & W Enterprises Pty Ltd. However, they are simply illustrative of the general principles that I have discussed, and the sufficiency of the information contained in the tax invoices in this case must be assessed in the circumstances of this case.

  1. [46]
    It might be thought that the test stated in the underlined passages sits a little uneasily with the definition of itemised bill in s. 300, given that it refers to a bill that would allow the legal costs to be assessed under division 7, rather than one which would allow an informed decision to be made about whether to seek assessment. The Victorian Court of Appeal addressed that question recently and observed (footnotes omitted)[5]:

[36]  The question here is whether Piper Alderman is bound by the tax invoices it has rendered. To recap, s 3.4.43(2) of the LPA provided:

If, before giving an itemised bill the law practice had previously given a lump sum bill, on a costs review the law practice is not bound by the amount and matters stated in the lump sum bill.

With ‘itemised bill’ defined in s 3.4.2 of the LPA to mean ‘a bill that specifies in detail how the legal costs are made up in a way that would allow them to be reviewed under Division 7’ and ‘lump sum bill’ defined to mean ‘a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.’

[37]  The text of s 3.4.43(2) and the definition of ‘itemised bill’ direct attention to the ability to use a bill for the purposes of a costs review. True it is that some of the authorities which focus on the need for sufficient detail in a bill to enable the recipient to make a decision as to the reasonableness of the charges, whether to have the bill taxed and to take advice in that regard may therefore, at first blush, seem to miss the mark for the purposes of the LPA definitions. Moreover, some of those authorities speak in these terms when they are dealing with lump sum, rather than detailed or itemised bills for taxation. However, little turns on this as a bill must at least satisfy that test if the bill is in a form that may be reviewed under Div 7. Given the statutory language in the LPA, it is perhaps better to express as an overarching requirement for an itemised bill that it include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court. To give that more content however, it is necessary to look to the context and purpose of the provisions.

[underlining added]

  1. [47]
    It can be seen that the Court in that case posits a different test from that posited in the cases to which I have already referred, although the difference is (as the Court appeared to think) more one of form than substance. So much is confirmed by the subsequent reasoning in that case. The Court first noted the Costs Court in Victoria operates with as little formality and technicality and with as much expedition as possible. Rule 720 UCPR has a similar tenor. The Court then observed at [40] that a “no-nonsense and practical approach to whether the bill specifies sufficient detail about how the costs are made up is endorsed. So, when looking at the bill in question, the reader should not approach the task as if it was one of construction of a statute or a formal written agreement between parties.”
  1. [48]
    After noting that the solicitor’s file would ordinarily be available at the hearing or able to be produced, the Court observed:

[41]  In addition, whether the bill has sufficient detail to enable it to be reviewed cannot be assessed in a vacuum. The knowledge of the recipient about the context in which the charges were made is relevant. One would expect the recipient to have some knowledge (at least at a high level) of the work that was required. So, for example, in a litigious matter, one would expect the bill recipient to know (in addition to other things) that discovery was a task that had to be performed; the names of the partners, associates and lawyers working on the matter; and the name of the law practice acting for the opponent. 

  1. [49]
    This observation echoes the cases cited in Clayton Utz Lawyers v P&W Enterprises that regard has to be had to the knowledge of the client of the work the subject of the proceedings.  Similarly, the Court of Appeal emphasised that each bill has to be considered in its own context.
  1. [50]
    The legislation considered by the Victorian Court of Appeal is very similar to that in this State, particularly the relevant provisions of the Legal Profession Act 2004 (Vic) and the relevant provisions in the LPA.  While this Court should follow the decision of an intermediate Court of Appeal in another State in respect of uniform legislation, it does not seem to me that the overall statutory context for resolution of costs disputes between Victoria and Queensland was at that time entirely uniform: Queensland has no Costs Court and consequently there are differences of detail in how assessment occurs.  Despite the approach in [37] of Piper Alderman having much to commend it as a matter of statutory interpretation, it seems to me I should follow the approach of other judges in the District and Supreme Court of this State in respect of the approach to the Queensland statute.  That is particularly so as the difference in approach was not raised in the appeal.
  1. [51]
    Ultimately, however, as I have observed, the two approaches differ more in form than in substance. Determining whether to seek assessment necessarily requires an ability to identify with sufficient certainty what the likely outcome would be of an assessment under Division 7. That includes being able to assess (with the assistance of legal advice and using the client’s esoteric knowledge of the matter), the matters in s. 341 LPA.
  1. [52]
    Finally, it has been held that an applicant seeking to establish an entitlement to an itemised bill under s. 332 LPA carries an onus to demonstrate that the legal practice has not provided an itemised bill in accordance with the statute.[6] 

Analysis

  1. [53]
    The appellant’s argument that the Bill is not an itemised bill is succinctly stated in paragraphs 9 to 12 of the outline of argument:
  1. The appellant submits that the generalised descriptions are evident from the fact of the Lump Sum Bill.
  1. For instance, the following narration contained within the Lump Sum Bill is not capable of assessment because it does not “state in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under part 3.4, division 7 of the LPA”.

  ”26 February 2018 attendance with you 9 LCB”

  1. With respect to the above narration, a costs assessor (or the appellant or her advisors) reviewing the Lump Sum Bill would have no basis to determine:
  1. (a)
    what the “attendance with you” related to;
  1. (b)
    the purpose of the “attendance with you”;
  1. (c)
    whether the “attendance with you” was a properly incurred legal cost; and
  1. (d)
    whether nine units is an appropriate and reasonable charge for an “attendance with you”.
  1. Consistent with the decision of Clayton Utz v P & W, the appellant submits that the narration (and the other narrations contained within the Lump Sum Bill) is:
  1. (a)
    little more than a recitation of the hours of work performed and a brief and wholly inadequate explanation of the work actually performed”; and
  1. (b)
    of such a general nature as to be no assistance to the appellant and her solicitors “even having regard to the client’s knowledge of the matter [and] information

   [footnotes omitted, emphasis in original]

  1. [54]
    Particular reliance is placed on the analysis by Reid DCJ of the bill in Clayton Utz Lawyers v P&W Enterprises.  His Honour summarised his conclusion that the bill there in question was not an itemised bill as follows:

[31]  Examination of the invoices in my view brings me to the strong conclusion that they do not meet the requirements of an “itemised bill” as defined in s 300 of the Legal Profession Act. In my view, they do not state, in detail, how the legal costs are made up in a way that would allow those costs to be assessed, having regard to s 341 of the Act. In my view, an experienced litigation solicitor, having perused the bill and conferred with representatives of P&W and in particular with Mr Willis, the company managing director, would not be able to properly advise it about a decision as to whether to require assessment, or as to the reasonableness of the solicitors in carrying out the work to which the costs relate, whether the work was carried out in a reasonable way, and the fairness and reasonableness of the amount of legal costs in relation to the work.

[32]  In my view, the description of the work performed in the various invoices is little more than a recitation of the hours of work performed and a brief and wholly inadequate explanation of the work actually performed.

[33]  Some examples may be used to illustrate my concerns.

[34]  On 21 December 2009 a claim is made for 8.9 hours of work by a solicitor. The charge amounts to some $2,581, being 8.9 hours at $290 per hour. The following description is given of the work:

“Various activities including letter to Dibbs Barker re Mitchell Brandtman report; prepare response to show cause notice; peruse affidavits and email to counsel re same.”

[35]  In my view, it is clear from the description of the work that activities other than those specifically enumerated are said to have been performed. Furthermore, there is no indication, for example, of the detail of the letter to Dibbs Barker, or of the work involved in preparing a response to the show cause notice. It is not clear what affidavits were perused. In my view, a reasonably experienced litigation solicitor, with the benefit of advice from Mr Willis or other representatives of P&W, would not be able to form an opinion as to whether the 8.9 hours of work performed on that day was reasonable or otherwise required having regard to the provisions of s 341 of the Legal Profession Act.

  1. [55]
    It is evident from the extract of the Bill set out above in paragraph [10] above that the Bill does not suffer from a number of the defects identified in the bill in that case:
  1. (a)
    First, the Bill does not use the expression “various activities including” in any item;
  1. (b)
    Second, the Bill rarely identifies more than one task per item and where it does it appears to list all tasks undertaken;
  1. (c)
    Third, where the Bill refers to activities involving persons other than Ms Murdock, those persons are identified by name.
  1. [56]
    The appellant’s submissions do no challenge the Bill on those specific grounds, however. Rather the complaint relates to the inadequate narration as to what specific work was done for each item, with emphasis placed on the numerous entries identified as “attendance with you”. (There are even more entries identified as “telephone attendance with you”.) In most cases, the subject or content of the attendances are not identified.
  1. [57]
    In the particular circumstances of this case, I do not accept that that makes the Bill inadequate as an itemised bill. I hold that view for the following reasons.
  1. [58]
    First, this was not a case involving a complex commercial dispute raising issues and requiring steps to be taken which the client would have been content to leave in the hands of the solicitors.  This case involved the appellant’s personal claim for de facto property settlement.  It involved her personal affairs and could proceed only with her personal instructions.  It is reasonable to assume therefore that she would have been directly involved in all aspects of the proceeding.  That impression is reinforced by the Bill which shows most of the material steps in the litigation being carried out with the appellant involved directly.  Importantly, there was no evidence to suggest the contrary.
  1. [59]
    Second, where events did not involve the appellant personally, they involved identified third parties.  There is no reason to think that the appellant did not know who these persons were and what their involvement in the proceedings was.  There is no evidence to suggest the contrary.
  1. [60]
    Third, most of the unparticularised attendances involve relatively short periods of time, usually 30 minutes or less.  It is reasonable to assume that the appellant would be able to instruct a solicitor as to whether it was her practice very frequently to call Mr Bertrand.  There is no evidence suggesting the contrary.
  1. [61]
    There are some examples of longer attendances but they are relatively few. Again it is reasonable to assume, given the nature of the matter, the appellant could give some explanation to a solicitor advising on challenging the Bill as to whether she could identify a proper reason for those longer attendances. There is no such evidence.
  1. [62]
    It might be thought that despite the above, the numerous unparticularised entries are of themselves sufficient to justify the conclusion that the Bill does not meet the requirements of an itemised bill under the LPA. However it is not a case where there is simply an absence of evidence from the appellant.
  1. [63]
    The evidence before the learned Magistrate and before this Court included the correspondence from the appellant’s then solicitors. This correspondence singularly failed to advance any evidence of specific grounds to challenge the adequacy of the Bill as an itemised bill, as can be seen from the following:
  1. (a)
    The letter of 14 February 2019 stated, relevantly:

To be clear, our client does not deny owing legal cost to you for services rendered in relation to family court proceedings but rather, disputes the quantum of such cost for which she is entitled to do so.  In the circumstances, we fail to see how this would justify a summary judgement or a strike out application on your part.

Costs such as this are avoidable if you are willing to negotiate sensibly in an attempt to settle this matter instead of criticising the defence and counterclaim.  We note that in circumstances of a dispute regarding the issues of cost the court will prefer independent objective evidence from a third party expert.

In the circumstances, we have been instructed to propose the appointment of an independent costs assessor to resolve the issue.  If the costs claimed are legitimate you should have no concerns agreeing to a costs assessor being appointed by the Queensland Law Society.

  1. (b)
    The letter of 4 March 2019 stated, relevantly:

We are instructed our client is agreeable to the following moving forward:

1) You issue an itemised invoice as settled by a costs assessor;

2) Our client will then consider your itemised invoice and if still not satisfied will pay for the file to be assessed by an independent costs assessor from the panel provided by the court;

If this is agreed to and attend [sic] to promptly then the parties should be able to resolve the issue of quantum in a timely and economical way.

With respect we do not see that our client’s defence does not plead a defence, but rather that she accepts liability but disputes the quantum of the claim.  We fail to see that a Magistrate would enter into a default judgment in those circumstances, particularly where our client is taking steps to try and resolve the issue of quantum in circumstances where she indicated her willingness to engage in this process prior to your filing of a claim.

  1. [64]
    Nothing more was put before the learned Magistrate. The tenor of this correspondence and indeed the submissions below and in this Court was that it is enough just to assert that the appellant disputed the quantum, without addressing specifically the defects alleged in the Bill with evidence.[7]  That is a doubtful approach to any summary judgment application. 
  1. [65]
    However even if it was thought that the onus might still be discharged in any event, the appellant faced the insuperable difficulty of the Notice to Admit Facts. I can see no basis to simply ignore that document on this appeal, and none was identified by the appellant. The inadequacies of the Bill turn for the most part on the lack of particulars for the various attendances on the appellant. As I have noted, that is something which might or might not render the Bill insufficient depending on the evidence of the appellant. However, not only is there no evidence from the appellant, but there are positive admissions of the key issues in dispute on the pleadings.
  1. [66]
    No application was made for leave to withdraw the admissions, even when the point arose on the appeal.[8]  No submission was made as to why the admissions in the Notice should not be relied upon, nor as to why the Notice was not effective to answer the challenges to the Bill in the defence.
  1. [67]
    In Clayton Utz Lawyers v P&W Enterprises, Judge Reid commented:

[40]  In determining that the bills in this case are not sufficiently particularised to constitute “itemised bills” as defined in s 300 of the Legal Profession Act, I am conscious of the salutary warning of Patteson J in Keene v Ward (1849) 13 QB 515, namely:

“In requiring the delivery of an attorney’s bill, the Legislature intended that the client should have sufficient materials for obtaining advice as to taxation; and we think that we fulfil that intention by holding the present bill sufficient within that principle; whereas, if we required in respect of every item a precise exactness of form, we should go beyond the words and meaning of the statute, and should give facilities to dishonest clients to defeat just claims upon a pretence of a defect of form in respect of which they had no real interest.”

  1. [68]
    The Bill in this case, falls to be considered in circumstances where only modest evidence from the appellant might have been sufficient to answer the inference that with her own knowledge of the matter, she would be able sufficiently to instruct her solicitor so as to decide whether to seek assessment. No such evidence has ever been forthcoming, despite her being represented by solicitors. In those circumstances, the salutary warning mentioned by his Honour supports the conclusion that the Bill is sufficiently detailed in this particular case to meet the requirements of an itemised bill.

Second ground: Should the proceedings have been dismissed?

  1. [69]
    Although I have found that there was a request for an itemised bill, I am not persuaded that the Bill was not such a bill in the circumstances of this case. There was therefore no basis for the proceedings to be stayed or dismissed for failure to provide such a bill under s. 335 LPA.

Third and fourth grounds: Was there a proper application for assessment?

  1. [70]
    The appellant’s submission that the learned Magistrate dismissed the cross application for assessment because it was not supported by an affidavit relies, seemingly, on the references in his Honour’s reasons to the lack of an affidavit swearing to overcharging. It is not clear to me that was what his Honour was referring to there. However, his Honour plainly refused the relief on the cross application and the appellant may challenge that on this appeal.
  1. [71]
    His Honour’s decision was seemingly justified, at the least, on the basis that there was no affidavit in support of the application before him. The appellant challenges this as a basis for refusing the cross application on two grounds.
  1. [72]
    First, the appellant contends that there was an affidavit in support of the application meeting the requirements of r. 743A in the form of Mr Bertrand’s affidavit filed 7 March 2019.  The appellant relied in particular on the copy of the defence exhibited to Mr Bertrand’s affidavit.  A pleading is not evidence of a matter stated in it except to the extent it contains an admission unless the truth of the facts alleged are sworn to.  On no view of Mr Bertrand’s affidavit could it be construed as swearing to the facts of the defence.  This ground has no merit.
  1. [73]
    Second, the appellant contends that there was no need for an affidavit in support because the effect of r. 743B was to dispense with the requirement for a supporting affidavit where an application was made in proceedings.  I reject that submission.  Rule 743B is a procedural provision identifying how an application of the kind identified in r. 743A should be made where a proceeding is on foot.  There is no rational reason why such a provision should be taken to dispense with any of the requirements of an application for costs assessment under r. 743A(2), each of which are necessary to permit the Court properly to consider an application under that section.
  1. [74]
    The position before the learned Magistrate and before this Court on appeal remained as described by Morrison JA in Robertson v Boe Williams Lawyers [2013] QCA 252 at [29] that “the material did not indicate any proper grounds upon which the costs or the liability to pay them was disputed”.  A fortiori given the terms of the Notice to Admit Facts.

Fifth and sixth ground: Was summary judgment otherwise properly granted?

  1. [75]
    The appellant advanced only one specific argument as to why summary judgment was not properly granted which went beyond reasserting the matters already dealt with above.
  1. [76]
    The appellant contended that it was a term of the Costs Agreement that the appellant could, as of right, require the provision of an itemised bill and require Sterling to submit to costs assessment.
  1. [77]
    The former argument need not be further considered because of my conclusion above that in the particular circumstances of his case, the appellant had not established that the Bill was not an itemised bill under the LPA.
  1. [78]
    As to the latter, the appellant submitted that on the proper construction of those parts of the Disclosure Notice in paragraph 6 above, she had a contractual right to have the costs assessed so long as it occurred within 12 months of delivery of the Bill if the appellant was unhappy with the costs. As each of those conditions were met, it was irrelevant that no proper application for assessment under the UCPR had occurred.
  1. [79]
    I reject that submission.
  1. [80]
    First, the statements relied upon did not appear in the Costs Agreement but in the Disclosure Notice.  It does not appear to me that on the proper construction of the Costs Agreement, the matters stated in the Disclosure Notice became the subject of contractual promises.  That conclusion is not compelled by the LPA itself.  Rather, the LPA specifies what has to be disclosed and what the legal effect of non-compliance with the disclosure regime might be.
  1. [81]
    A costs agreement might be drafted in a manner which involves the matters stated in the Disclosure Notice (to the extent they are in the form of promises or warranties by the legal practitioner) becoming contractual promises as well as statutory obligations. However, the Costs Agreement does not do so. It only deals with the Disclosure Notice in clause 1:

1.1 Before providing legal services and entry into any costs agreement, we are required to provide you with disclosure of information under the Legal Profession Act 2007 (Qld).

1.2 A disclosure notice was provided to you with document and by signing this document or otherwise accepting the offer:

  1. (a)
    you acknowledge you have received the disclosure notice; and
  1. (b)
    that you acknowledge that you have read the disclosure notice.
  1. [82]
    That clause does not on any view amount to giving contractual effect to the obligations on Sterling stated in the Disclosure Notice.
  1. [83]
    Second, the statements about the right to assessment are framed by reference to the LPA, as is made clear by clause 1.4 of the Disclosure Notice.  That recognises that the client’s avenues in relation to a dispute about costs are those which arise “under the terms of the” LPA.  Thus the Disclosure Notice recognises the right to apply for costs assessment, not an absolute right to costs assessment.  Any ambiguity in that regard in the dot point dealing with assessment under clause 1.1 of the Disclosure Notice is addressed by the reference in that dot point to clause 1.4.  This is reinforced by the fact that the Disclosure Notice is a statutory document to which statutory consequences are attached. 

Conclusion

  1. [84]
    I do not consider that the appellant has made out any of the grounds advanced for challenging his Honour’s conclusion that there was no real prospect of defending the claim. I have also considered, however, whether on appeal I am satisfied that there is no need for a trial of the claim. I am so satisfied. The appellant has had ample opportunity properly to articulate a challenge to the Bill. For reasons which remain largely unexplained, no evidence to sustain a proper challenge was put before his Honour and none was sought to be put before this Court until raised, seemingly as an afterthought and in inadequate terms, during the hearing of the appeal.
  1. [85]
    A sense of grievance by the appellant can certainly be detected in the material. But that alone is insufficient to justify refusal of summary judgment. Sterling was entitled to expect the appellant properly to comply with the substantive and procedural aspects of a challenge to the Bill, particularly as the appellant was legally represented in that matter. I am not satisfied on the evidence before me, and taking into account the matters raised in the application for an adjournment, that there is a need for a trial of the claim nor that his Honour erred in implicitly reaching the same conclusion.
  1. [86]
    I dismiss the appeal with costs.

Costs

  1. [87]
    Sterling filed an affidavit on the question of costs which I have only now read. It seeks costs on an indemnity basis because of an offer on 28 May 2019 to settle the appeal on the basis that the appeal be dismissed with no order as to costs. There is little by way of compromise in that offer and I am not persuaded that alone it is sufficient to justify a costs order on an indemnity basis.
  1. [88]
    Rule 687(2)(c) UCPR allows this Court to fix an amount for costs. That is a discretion which I consider should be exercised in this matter. I have before me detailed particulars of costs incurred sworn to by Mr Bertrand, apparently calculated by reference to the Scale of Costs for this Court. The appeal was not straightforward and I am satisfied that it was reasonable and necessary to retain counsel and that it required considerable work properly to respond to the grounds of appeal, even if some could ultimately be disposed of in brief terms in this judgment.
  1. [89]
    Having regard to Mr Bertrand’s affidavit, I order the appellant to pay the respondent’s costs of the appeal fixed at $11,000 inclusive of GST.

Footnotes

[1]See Exhibit 2 on the adjournment application.

[2]Legal Profession Amendment Regulation (No. 1) 2006  which inserted s. 33 into Legal Profession Regulation 2004 which repealed the QLS Rules from that date.

[3]See Queensland Law Society Rules 1987 consolidated as at 24 August 2001.

[4]Clayton Utz Lawyers v P&W Enterprises Pty Ltd [2011] QDC 5 at [21] to [30]; Pott v Clayton Utz [2012] QSC 167; Tabtill No. 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115 at [78] to [83] and see the same approach in the Victorian Court of Appeal to equivalent legislation in Piper Alderman v Smoel [2017] VSCA 42 at [37].

[5]Piper Alderman v Smoel [2017] VSCA 42.

[6]Tabtill No. 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115 at [87].

[7]As noted, an attempt was made at the hearing to adjourn the appeal to seek leave to put on additional evidence, but that application was refused for the reasons given on that day, including that the appellant’s solicitor did not have instructions as to the evidence, if any, which would ultimately be led beyond the inadequate evidence in the Stay Affidavit.

[8]Before the learned Magistrate a vague explanation was given for the failure to respond to the Notice, which even if true would not necessarily result in leave being granted to withdraw the admissions: see TS1-8 at lines 30 to 47.

Close

Editorial Notes

  • Published Case Name:

    Murdock v Sterling Law (Qld) Pty Ltd

  • Shortened Case Name:

    Murdock v Sterling Law (Qld) Pty Ltd

  • MNC:

    [2019] QDC 226

  • Court:

    QDC

  • Judge(s):

    Porter DCJ

  • Date:

    11 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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