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Smith v Fisher Cartwright Berriman Pty Ltd[2023] QDC 225

Smith v Fisher Cartwright Berriman Pty Ltd[2023] QDC 225

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Fisher Cartwright Berriman Pty Ltd t/as FCB Workplace Law [2023] QDC 225

PARTIES:

NICHOLAS STEPHEN SMITH

(applicant)

v

FISHER CARTWRIGHT BERRIMAN PTY LTD T/AS FCB WORKPLACE LAW

(respondent)

FILE NO:

BD No 267 of 2023

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2023

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 October 2023

JUDGE:

Sheridan DCJ

ORDERS:

  1. The application for an order for the assessment of costs is dismissed.
  2. Subject to any further order of the court in the event submissions as to costs are made within 14 days, the applicant pay the respondent’s costs of the application to be assessed on a standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS AND REFERENCES – where the applicant applied pursuant to s 335(1) of the Legal Profession Act 2007 (Qld) (“LPA”) for an assessment of costs charged in a number of bills delivered to them by the respondent – where s 335(5) of the LPA requires that an application for an assessment of costs be made within 12 months after the bill was given to the client – where the application for an assessment of costs was made out of time – whether the court should exercise the discretion conferred on it by s 355(6) of the LPA in deciding to deal with the application

LEGISLATION:

Legal Profession Act 2007 (Qld), s 333, s 335, s 339

CASES:

Challen v Golder Associates Pty Ltd [2012] QCA 307

Cupo and Anor v Andersen Lawyers [2015] QSC 202

Frigger v Murfett Legal Pty Ltd [2012] WASC 447

Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306

Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

Oshlack v Richmond River Council (1998) 193 CLR 178

Smith v SBP Employment Solutions Pty Ltd (No 2) [2019] FCCA 3318

Smith v SBP Employment Solutions Pty Ltd (No 3) [2019] FCCA 3516

Smith v SBP Employment Solutions Pty Ltd (No 4) [2020] FCCA 61

COUNSEL:

The applicant appeared on his own behalf

T Pincus, with P Willoughby, for the respondent

SOLICITORS:

The applicant appeared on his own behalf

FCB Workplace Law for the respondent

The application

  1. [1]
    The applicant, Mr Smith, is a former client of the respondent, Fisher Cartwright Berriman Pty Ltd t/as FCB Workplace Law (FCB). FCB provided legal services to Mr Smith in the period between 21 May 2018 and 20 July 2021 in relation to unlawful dismissal proceedings in the Federal Circuit Court and on appeal in the Federal Court.
  2. [2]
    During the period of the retainer, FCB delivered 43 invoices, including two invoices for fees to be paid to Dr Haddrick of counsel, who had been retained by FCB to act on behalf of Mr Smith.
  3. [3]
    The first invoice was issued on 31 May 2018 and the last invoice was issued on 30 June 2021.
  4. [4]
    On 7 February 2023, Mr Smith applied for an assessment of the legal costs charged in the 43 invoices pursuant to s 335(1) of the Legal Profession Act 2007 (Qld) (LPA); including those charged by Dr Haddrick. A schedule of the relevant invoices was included in the application. The invoices totalled an amount of $549,923.65.
  5. [5]
    Section 335(1) requires that a costs application be made within 12 months after the bill was given or the request for payment made, but s 335(6) permits the court to deal with the application out of time “after considering the reasons for the delay”.
  6. [6]
    It is not in dispute that the costs application was made out of time in relation to all invoices and the issue is whether the court should exercise its discretion to deal with the application.
  7. [7]
    Mr Smith was at all times self-represented in the bringing of and on the hearing of his application.  FCB briefed Mr Pincus of counsel to appear on its behalf at the hearing of the application.
  8. [8]
    Mr Smith did not serve Dr Haddrick with the application contrary to s 339(2) of the LPA. Section 339(2) makes it mandatory for the applicant to give notice of the application to a counsel to whom legal costs had been paid or are payable.  Despite non-compliance, Mr Smith and Mr Pincus agreed that the court should proceed to hear the application and make orders for the giving of notice to Dr Haddrick and permitting him to make submissions prior to the giving of judgment.
  9. [9]
    By email dated 23 October 2023, Dr Haddrick informed FCB:

“I note that (as far as I can see) there has not been any allegation made against me, and, as I understand the circumstances, there is no potentiality for any adverse finding to be made against me.  In these circumstances, I can confirm that I do not wish to be further heard in respect of Mr Smith’s application to the District Court to have time extended to allow him to have his costs assessed.”

  1. [10]
    Mr Smith filed an affidavit in support of his application, and prior to the hearing, Mr Smith filed a further four affidavits. FCB filed five affidavits in response, including an affidavit by Mr Turner, as General Counsel of FCB, and Ms Byrne, as the solicitor responsible for the conduct of the litigation.  Their evidence was not challenged.
  2. [11]
    Much of the material in the affidavits by Mr Smith was in the form of submissions, not evidence, but Mr Pincus, quite properly, submitted that rather than waste the court’s time to address each of the objections, the court should assess such statements as being submissions and not evidence. I will have due regard to all of the material placed before the court by Mr Smith, but where it is clear that the material is really a matter of submissions, I will treat them accordingly and where they are statements of evidence, I will assess the strength and veracity of them in the normal manner.

Nature of the court’s discretion

  1. [12]
    Division 7 of Part 3.4 of the LPA provides a legislative scheme for the disclosure of legal costs by law practitioners, and the assessment of those costs. The LPA is to be construed having regard to its purposes: one of which is the protection of consumers of the legal profession and the public generally.
  2. [13]
    The discretion accorded to the court by s 335(6) is couched in different terms to the equivalent provisions in the uniform legislation for the regulation of the legal profession in some other states.  The equivalent provision in that other legislation makes the discretion exercisable if a judge determines, after having regard to the delay and the reasons for the delay, that it is “just and fair” for the application to be dealt with out of time. In Mishra v Bennett & Philp Pty Ltd, Holmes CJ said that “the fact that the Queensland provision specifies consideration only of the reasons for delay, not its effect, suggests that the focus is intended to be more on the difficulties faced by the applicant in making the application than those which will face the respondent should it be granted.”[1] This was said to be “consistent with the character of Pt 3.4 Legal Profession Act 2007 as consumer protection legislation.”[2]
  3. [14]
    Nevertheless, it is clear from the approach taken in Mishra v Bennett & Philp Pty Ltd, that while the focus is on the reasons for the delay in the bringing of the application, the prejudice faced by the law practice by the delay is still a relevant consideration.  The legislation imposes time limits and those time limits are relatively short to ensure that if an assessment is called for it is called for promptly.
  4. [15]
    Mr Pincus accepted in making his submissions that, notwithstanding the primary consideration expressed in the legislation, there remains a broad judicial discretion and the additional factors which might be relevant include:
    1. adopting the language of Boddice J in Cupo and Anor v Andersen Lawyers, the nature of the overall retainer, the length of time over which it took the ultimate proceeding to be finalised, and the circumstances that the excessive nature of any costs may only have been fully clear once all of the bills have been rendered;[3] and
    2. adopting the language of Master Newnes in Monopak Pty Ltd v Maxim Litigation Consultants, the client’s awareness or otherwise of the time limit, whether the client was represented by other solicitors after the end of the retainer, any delay after it was apparent that the client knew of the right to an assessment, whether there is evidence of overcharging, and the nature and degree of any prejudice to the practitioner if an assessment is permitted despite the delay.[4]

Events prior to the retainer

  1. [16]
    The retainer by Mr Smith arose out of the termination of his employment by SBP Employment Solutions Pty Ltd (SBP) on 20 November 2017. He had been employed by SBP since 1 June 2015.  On 21 October 2016, in the course of his employment, Mr Smith sustained injuries in a motor vehicle accident on his way to work. 
  2. [17]
    Arising from the accident, Mr Smith brought a workers compensation claim.  FCB did not act in relation to that claim. That claim was concluded in or about June or July 2018.
  3. [18]
    On 3 May 2017, Mr Smith commenced a personal injury claim arising from the accident. Bennett and Philp Lawyers had the conduct of those proceedings on behalf of Mr Smith.
  4. [19]
    On 3 April 2018, Mr Smith commenced proceedings against SBP and seven other related parties in the Federal Circuit Court,[5] alleging that his employers unlawfully terminated his employment and failed to pay his annual leave entitlements in contravention of provisions of the Fair Work Act 2009 (Cth). At the time of commencement of the proceedings, Mr Smith was receiving advice from a person who was not a legal practitioner and Mr Mark Healy of counsel.

The retainer and cost disclosure letters

  1. [20]
    Mr Smith first instructed FCB on 17 May 2018; that is after the proceedings in the Federal Circuit Court had been commenced.  At the time of the appointment of FCB, a statement of claim had not been filed.  
  2. [21]
    An initial costs disclosure letter was provided to Mr Smith on 17 May 2018, estimating a cost of $85,000 (ex GST). At that time, the costs disclosure anticipated a two-day hearing. The letter provided that the costs agreement was governed by the law applying in Queensland. 
  3. [22]
    The disclosure notice set out the standard legal disclosures that apply in respect of all legal services provided by FCB and LPA.  The disclosure notice contained a statement in relation to the right to apply for a cost assessment and provided that any such application must be made within 12 months of the 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.
  4. [23]
    Dr Haddrick of counsel was retained on or about 18 June 2018.  Dr Haddrick provided to FCB his costs agreement containing his fee estimate of $12,000 (ex GST) for the preparation of the Statement of Claim.  The agreement included his daily and hourly rate.  The letter was provided to Mr Smith that day.
  5. [24]
    During the course of the substantive proceedings in the Federal Circuit Court, a total of ten costs disclosures were provided to Mr Smith.  By September 2018, the cost estimate had increased from $85,000 to $145,000, by December 2018 to between $190,000 to $199,000, by July 2019 to between $220,145 and $232,145, by October 2019 to $289, 821, and by the final costs disclosure in January 2020 to be between $324,782 and $330,782. 
  6. [25]
    The substantive proceedings in the Federal Circuit Court were heard over six days: an initial 4 days commencing on 29 July 2019 and further hearings on 28 October and 21 November 2019.
  7. [26]
    The primary judge delivered judgment in favour of Mr Smith on 5 December 2019.[6] The order required the respondents to pay Mr Smith the sum of $589,439.43 as compensation for loss of earnings and superannuation plus $13,925.16 for interest and imposed pecuniary penalties against the respondents totalling $275,940.00.[7] 
  8. [27]
    A separate application was brought on 9 December 2019 for costs, and an order was made on 16 January 2020 that the respondents pay 60% of Mr Smith’s costs.[8]

Invoicing

  1. [28]
    FCB’s first invoice in the substantive proceedings was issued on 31 May 2018 with the final invoice for the substantive proceedings issued on 19 February 2020.  Each invoice issued in the substantive proceedings was captured and billed under a single retainer using the same matter number.
  2. [29]
    Each invoice issued to Mr Smith contained a statement at the foot of the invoice which provided:

“You may apply to have this bill of costs assessed under Division 7 of Part 4.3 of the Legal Profession Uniform Law (NSW).  Any such application must be made within 12 months after this bill has been given to you.”

  1. [30]
    Given the costs agreement was said to be governed by the law of Queensland, the reference to the NSW legislation was clearly an error and the note at the foot of each invoice should have made reference to the law applying in Queensland. As required by the Queensland and New South Wales legislation, the note clearly stated the requirement for the application for the bill to be assessed to be made within 12 months after the bill has been given.
  2. [31]
    In late November 2019, prior to the delivery of judgement in the substantive proceedings, Mr Smith requested that any further costs disclosures and invoices be sent to Mr O'Connor, the solicitor acting for Mr Smith in his personal injury claim.  That resulted in the ninth and tenth costs disclosures being provided to Mr O'Connor. Two costs disclosure letters dated 12 December 2019 and 12 February 2020, in relation to the appeal, were also sent to Mr O'Connor. On 17 February 2020, Mr O'Connor sent an email to FCB indicating that communication directly to Mr Smith was to resume.

Appeal proceedings

  1. [32]
    On 17 December 2019, following the delivery of judgment in the substantive proceedings on 5 December 2019, the employers appealed to the Federal Court against the order made in the substantive proceedings for the payment of compensation and the imposition of pecuniary penalties.  On 13 February 2020, the employers appealed against the costs order. 
  2. [33]
    The employers sought a stay of the judgment. That resulted in a negotiated outcome to enable a part payment to Mr Smith, in order to give Mr Smith funds to pay his lawyers, on condition of a caveat being placed over the matrimonial home. 
  3. [34]
    By this stage, Mr Smith was involved in family law proceedings, following his separation from his wife.
  4. [35]
    The first appeal costs disclosure statement was issued by FCB on 11 December 2019, estimating a cost of $111,700 (ex GST) and including an amount of $46,500 for counsel’s fees.  The statement was issued together with a further costs agreement in relation to the appeal.
  5. [36]
    The costs agreement contained the same disclosure notice as the first costs agreement, including notice of the right to apply for an assessment, provided such a request was made within 12 months of the delivery of the bill.
  6. [37]
    In the course of the appeal, FCB provided a total of three costs disclosures to Mr Smith. Under cover of a letter dated 18 December 2019, Dr Haddrick provided to FCB a further costs agreement in relation to the appeal proceedings.
  7. [38]
    The first invoice in relation to the appeal was issued on 31 December 2019 and the final invoice was issued on 30 June 2021.  The invoices for the appeal were all captured and billed under a different matter number from the substantive proceedings. Each invoice contained the same statement at the foot of the invoice in relation to the making of an application for an assessment of the bill as appeared in each of the invoices issued in the substantive proceedings.
  8. [39]
    During the appeal proceedings, by emails dated 28 February, 13 May, 30 September, 6 November, 20 November, 10 December and 11 December 2020, Mr Smith requested from FCB copies of particular invoices and invoice ledgers. On 11 December 2020, in his email correspondence, Mr Smith referred to having “wasted well over $500k” and referred to “what has been chewed up on this nightmare.”  In response to the request on 11 December, Mr Smith was provided with a report of all invoices issued and a statement of account.
  9. [40]
    The appeal was heard on 9 November 2020, with final submissions on 2 June 2021. On 8 June 2021, the appeal judge allowed the appeal in part, reducing the sum of the compensation to $115,478.75 plus $9,982.25 for interest, setting aside and reducing some of the pecuniary penalties, and replacing the primary judge’s order as to costs with no order as to costs.
  10. [41]
    On 9 July 2021, Mr Smith requested by email a ledger of the firm’s costs.  In response, he was provided a further report of all invoices and a statement of account.
  11. [42]
    On 20 July 2021, the employers brought an application seeking their costs of the appeal.

Termination of retainer

  1. [43]
    By email dated 20 July 2021, Mr Smith terminated FCB’s retainer.  FCB filed a notice of ceasing to act that day.
  2. [44]
    At that time, Mr Smith was still to file his submissions in the employers’ application for costs of the appeal and the application was yet to be heard.
  3. [45]
    By September 2021, Mr Smith had collected a copy of the files for both matters, which also included copies of all invoices generated by the firm in both matters.

Request for assessment prior to application

  1. [46]
    On 1 June 2022, Ancora Lawyers, on behalf of Mr Smith, wrote to FCB requesting FCB agree to an assessment of all invoices issued during the period May 2018 to July 2021 to be undertaken forthwith. A response was requested by 8 June 2022.  The letter stated that, failing receipt of a positive response, an application would be made to the District Court without further reference.  It was stated that although Mr Smith’s anticipates that FCB may assert his request is out of time, “the client’s position would be that any delay would not be to your firm’s prejudice.”
  2. [47]
    FCB responded on 8 June 2022, declining to agree to the request and stating that any proceedings brought would be vigorously defended.
  3. [48]
    There appears to have been no further correspondence from or on behalf of Mr Smith with FCB until service of the costs application on FCB on 5 April 2023.  The application had been filed by Mr Smith on 7 February 2023.

This costs assessment application

  1. [49]
    Section 333(2) of the LPA provides that costs which are the subject of an interim bill may be assessed either at the time it is delivered, “or at the time of the final bill.”  As noted by Holmes CJ in Mishra v Bennett & Philp Pty Ltd, s 333(2) enables a costs application to be made either at the time an interim bill was delivered or at the time the final bill was rendered, with the limitation period running accordingly.[9]  Holmes CJ accepted the definition of “final bill” as stated by the Court of Appeal in Challen v Golder Associates Pty Ltd to be “the last bill rendered by the law practice for the legal services the law practice was retained to provide.”[10]  Holmes CJ observed that leads to the question of what were the legal services that the respondent was retained to provide.[11]
  2. [50]
    In the course of the hearing, Mr Smith accepted, as was asserted by FCB, that there were two separate retainers; one retainer in relation to the substantive proceedings and the second retainer in relation to the appeal against the decision in the substantive proceedings.  That position is consistent with the costs agreement issued by FCB and by counsel.
  3. [51]
    The final bills in each retainer had been issued on 19 February 2020 and 30 June 2021; though the final bill issued on 30 June 2021 was a nil invoice resulting in FCB maintaining that the final bill in the second retainer was issued on 31 May 2021.
  4. [52]
    As to the 12-month period prescribed by s 335, it was accepted that the time for the bringing of the application by Mr Smith in relation to the first retainer expired on 18 February 2021 and the time for the bringing of the application in relation to the second retainer expired on 30 May 2022, or perhaps 29 June 2022. 
  5. [53]
    The result is that the application in relation to the first retainer was nearly two years out of time, and the application in relation to the second retainer was more than seven or eight months out of time.

Stated reasons for delay

  1. [54]
    In his application, affidavits and other material, Mr Smith makes a number of statements about his situation and the solicitors. The written case explaining the delay can be reasonably summarised as arising from delays caused by his ongoing health treatment, his not wanting to jeopardise his ongoing legal representation, his not knowing the extent of costs charged, his ill-health generally and his divorce.
  2. [55]
    As to his health issues, Mr Smith spoke of having faced “a significant number of major life changes”. Those life changes, he submitted, started with the injuries received in a motor vehicle accident in 2016 and the resultant injuries suffered which led to the subsequent termination of his employment.  It was that termination which became the subject of the unfair dismissal proceedings conducted by FCB.
  3. [56]
    Mr Smith described his health conditions as being both mental and physical and said that they were continuing.   He said he found himself in a position where he could not work, he had a big mortgage to service, he felt hopeless, useless and suicidal.  He said he was not coping. He said, “And at home, look, I’m not blaming the matter but it was probably the straw that broke the camel’s back and things continued to deteriorate at home.” 
  4. [57]
    The difficulty with this aspect of the explanation is that none of it specifically deals with the delay between the last invoices and the application.
  5. [58]
    His marriage, for instance, broke down sometime previously, in 2019. 
  6. [59]
    Mr Smith has a number of health issues, but he has had them for some period. His general practitioner provided a letter dated 14 September 2023 describing Mr Smith as having suffered from PTSD/depression/anxiety, a neurological disorder, headaches and chronic pain, hearing loss, acute glaucoma, cataracts and Fuchs dystrophy and Parkinson’s disease for over three years.  There is no evidence of Mr Smith suffering particular health issues or hospitalisations in the relevant time periods.
  7. [60]
    There is also much in the submission made on behalf of FCB that Mr Smith’s “mostly coherent and often-assertive correspondence with FCB … preclude a finding that any lack of sophistication or ill-health is sufficient” to adequately explain the delay.
  8. [61]
    Mr Smith’s stated concern that he did not want to jeopardise his working relationship with FCB is inconsistent with the number of queries raised during the retainers in relation to costs. Moreover, Mr Smith terminated FCB’s retainer in June 2021; some eighteen months prior to the filing of the application.  From that point on, there was no continuing relationship which any application might have jeopardised.
  9. [62]
    Similar considerations apply to his assertion that he was unaware of the full extent of the costs, and statements that “despite his best endeavours” he could not “produce an entire complete set of invoices” until the receipt of the affidavit of Mr Turner, a solicitor employed by FCB, on 18 April 2023, and that he did not have access to communications between himself and FCB because he did not have access to his matrimonial home.
  10. [63]
    Mr Smith had requested specific invoices on 28 February 2020, the ledger of invoices on 30 September 2020, copies of all invoices on 20 November 2020, the ledger of invoices on 10 December 2020, the ledger of the firm’s costs on 9 July 2021, and all invoices on 19 July 2021. All requests were granted in a timely way. Mr Smith collected the files in September 2021.
  11. [64]
    As previously noted, by 11 December 2020, in his email correspondence, Mr Smith was referring to having “wasted well over $500k” and referred to “what has been chewed up on this nightmare.” 
  12. [65]
    The correspondence makes it impossible to accept that Mr Smith was not fully aware of the costs that he had paid.  
  13. [66]
    In summary, none of the explanations provided by Mr Smith for the delay in bringing the application are particularly persuasive. He had various health conditions, but none of them prevented him from engaging in various actions against others nor challenging his solicitors invoicing and costs during the period of the retainers. He was obviously unafraid of jeopardising his relationship with his solicitors in doing so, and the challenges themselves show his awareness of the costs of litigation.
  14. [67]
    There are five further matters that arise in the material.

Excessive fees

  1. [68]
    The first matter is the submission by Mr Smith that FCB charged excessive fees and duplicated work among other things.  Mr Smith identified a number of apparent issues in the invoices.  First, Mr Smith deposed that there was a duplication of costs between two of the solicitors at FCB, Ms Byrne and Ms Seeto. In his affidavit, he included as an example charging for 6 hours of meetings on 23 July 2018 for one three-hour meeting. Second, Mr Smith deposed that there was a duplication of costs between Ms Byrne and counsel “in relation to drafting of written submissions.”  Third, Mr Smith deposed that there were two examples of invoices issued where the amount of the invoice and the amount on the ledger were different. Fourth, Mr Smith deposed that the hourly rate of another one of the solicitors, Ms Hohner, was incorrectly stated. Fifth, Mr Smith deposed there was a duplication of costs billed across three different matter numbers. Sixth, Mr Smith deposed that Ms Byrne charged for time spent addressing billing concerns. Finally, Mr Smith deposed that there were “significant incorrect dates on 3 individual cost matter schedules”.
  2. [69]
    Ms Byrne, the solicitor responsible at FCB, addressed each of these allegations.  As to the issue of duplication of costs, Ms Byrne deposed that although there were occasions where both herself and Ms Seeto attended meetings, she did not consider they resulted in any duplication as opposed to necessary work in the usual conduct of proceedings and says that she had input into the submissions drawn and ultimately settled by counsel.
  3. [70]
    As to the third allegation, that invoices did not match with the ledger, Ms Byrne deposed that in each case it arose because moneys were applied from trust funds with the ultimate amount payable being reduced.
  4. [71]
    As to Ms Hohner’s hourly rate, Ms Byrne deposed that Ms Hohner’s hourly rate was increased from $350 to $360 and that due to an administrative error this was not advised to Mr Smith until 28 November 2018. Ms Byrne deposed further that Ms Hohner performed six hours of work during this period and that the FCB was, in any case, entitled to charge out Ms Hohner for this rate pursuant to the costs agreement.
  5. [72]
    As to the fifth allegation, Ms Byrne deposed that she is not aware of any instances of the same work being charged in more than one of the proceedings.
  6. [73]
    As to the sixth allegation, Ms Byrne deposed that the invoice makes clear that there was no charge for time addressing billing concerns and says that she is “not aware of any instances of Mr Smith being charged for such matters”.
  7. [74]
    In terms of the incorrect dates, Ms Byrne deposed that the costs disclosures were provided to Mr Smith on the correct dates, but conceded that the second appeal costs disclosure bore the wrong date due to a typographical error.
  8. [75]
    As the matter presently stands, there is insufficient evidence to indicate that there has been overcharging, nor that the invoices are self-evidently excessive. As will ultimately appear in the next part of this judgment, the ultimate costs have the hallmarks of being the product of proceedings which simply became expensive; not the product of overcharging.

The enlargement of the costs and the cost disclosure letters

  1. [76]
    The second matter reflects the submission by Mr Smith that “the matter should not have ever progressed any further than the cost of preparing and sending a threatening letter of demand”. Mr Smith said that FCB “knew [he] was already ill and … had complete disregard for the further detrimental effects this matter could have and did have on [his] already serious medical positions.” Mr Smith said that FCB did not put his best interests as a client first which would have seen FCB advising him that he should not proceed with the claim. 
  2. [77]
    In making his oral submissions, he said that if he was advised at the outset that the legal costs could “escalate to an unknown number [he] would have walked away”.  He said that he felt entrapped and that once he had “committed funds” he felt that he “couldn’t walk away”.
  3. [78]
    Mr Smith submitted that FCB had deliberately misled him in respect of the “first cost matter schedule” because it was “incorrectly dated” and did not indicate the “overall true complexities affecting … [the] legal matter, nor the real extent of the potential escalation … nor worst case COST scenarios, nor walk [him] through the entire journey upfront, including possible implications and complications”, among other things.
  4. [79]
    In Ms Byrne’s affidavit, Ms Byrne deposed to the various factors that resulted in the cost increase.  In particular, she stated that Mr Smith on a significant number of occasions did not provide the firm with instructions in a manner that would facilitate optimal cost efficiency. Because of their concern that the Fair Work Act claim might overlap with the personal injuries claim, they engaged with his personal injury lawyers in relation to that claim. Additional costs were incurred when proceedings were discontinued against the eighth respondent to the Fair Work Act claim and in giving advice in relation to whether to continue against the second respondent in that claim. Costs were incurred in relation to the possibility of adding a misleading and deceptive conduct claim in those proceedings and abandoning some of the claims made in the originating document. Ms Byrne stated that when the insurer became involved, there was a different litigation strategy adopted, which resulted in disagreement about rudimentary process-related matters. Ms Byrne said that additional costs were incurred as a result of Mr Smith applying for costs in those proceedings and by the extensive submissions required by the primary judge as to quantum. Finally, additional costs were incurred as a result of a stay application brought by the respondents in relation to the judgment debt, and the need for the firm to engage with Mr Smith’s family lawyers in order to have a caveat lodged over the family house in return for the partial payment of the judgment debt.
  5. [80]
    Ms Byrne further explained the reasons for the successive costs disclosure letters.  The second one, sent 25 June 2018, followed the engagement of new counsel and related to the need to obtain extensions of time to allow the statement of claim to be filed and to give preliminary advice to Mr Smith about the abandonment of some claims and the possible addition of another and the fact that taking instructions from Mr Smith was more complex and time-consuming than originally anticipated. The third cost disclosure letter sent 5 September 2018 reflected, according to Ms Byrne, the unanticipated voluminous material produced by Mr Smith for his affidavits, unanticipated complications and complexities getting instructions from Mr Smith, unanticipated requests for further and better particulars of the respondent’s pleading, inspection of documents, the necessity for additional medical evidence and an increase in the number of days for hearing to four.
  6. [81]
    Ms Byrne said that the fourth disclosure letter, sent 28 November 2018, related to an increase in the cost of preparing the affidavit material. The fifth disclosure letter, sent 20 December 2018, occurred as a result of Mr Smith requesting and being granted a reduction in the fees to be charged by the firm and counsel and the estimated hearing time being increased to five days. The fifth disclosure letter was amended following adjustments being made at the request of Mr Smith.
  7. [82]
    Ms Byrne says that a sixth costs disclosure letter was sent on 19 July 2019 because of an increase in the estimated fees for preparation necessitated by the complexity of the medical evidence, the interaction of the claim with the works compensation claim, matters relating to privilege as a result of Mr Smith’s separation from his wife, responding to specific enquiries from the court and addressing annual leave payment issues in dispute. A seventh cost disclosure letter was sent on 26 September 2018 as a result of an increase in fees necessitated by the interaction with the workers compensation claim, a last-minute subpoena of a significant volume of material produced by the works compensation authority, in anticipation of a costs application and in relation to disbursements for a transcript.
  8. [83]
    The eighth disclosure letter, sent 28 October 2019, was said to relate to the increased cost of preparation, an error on the previous disclosure letter relating to evidence for the proceeding, the interaction with the workers compensation claim and the complexity of the submissions required. According to Ms Byrne, the ninth letter, sent 3 December 2019, arose from an increase in fees for the hearing stage, Mr Smith’s instructions to make a costs application and compliance with orders from the court relating to quantum matters. The tenth disclosure letter, sent 29 January 2020, followed the taxation of costs process.
  9. [84]
    The evidence indicates that the steps required in the proceedings expanded beyond what was originally envisaged. It is unfortunate that this occurred and that the costs expanded with the additional steps required to bring the claim to a successful conclusion. The judgment amount ultimately obtained indicates that it was reasonable to prosecute the claim beyond a letter of demand.
  10. [85]
    It is important to keep in mind, in any event, that a substantial total amount of costs on its own does not enable any conclusion to be drawn as to whether the amounts charged might be excessive.[12] As Hall J remarked in Frigger v Murfett Legal Pty Ltd: “It may well be that the costs rose beyond the applicant’s initial expectations. That is not unusual.”[13]
  11. [86]
    The enlargement of the costs of the proceedings do not justify an extension of time.

Prejudice

  1. [87]
    Another consideration relates to the prejudice to FCB if the application were granted. It is well recognised that delay is “inherently prejudicial”. Apart from the general prejudice, an extension of time would make things particularly difficult for FCB.  Ms Byrne, who regularly had day-to-day conduct of the proceedings, was absent on parental leave for significant periods of the retainers, and the two solicitors who had day-to-day conduct in her place have since left the firm.

Awareness of legal rights

  1. [88]
    During oral submissions, Mr Smith said he was aware of the limitation period, following the engagement of Ancora Lawyers.  The letter from them demonstrates that fact.  Mr Smith did not swear in any of the material, nor did he distinctly assert in his oral submissions, that he was unaware of the limitation period before that time.
  2. [89]
    It would have been difficult for him to do so.  His right to have his costs assessed and the limitation on his right to do so was set out in the disclosure notice forming part of the costs agreements and also appeared at the foot of each invoice.  He obviously read these documents and was aware of their contents given the detailed queries made by him about the cost disclosures and the invoices during the period of the retainer.
  3. [90]
    Mr Smith had required that for a three-month period from November 2019 to February 2020, all costs disclosures and invoices be sent to Mr O'Connor, the solicitor acting for Mr Smith in his personal injury claim.  Whilst there is no evidence as to what advices were given by Mr O'Connor, that fact must weigh in the balance of deciding the extent of Mr Smith’s awareness of his legal rights.
  4. [91]
    Leaving all that aside, there is still a significant period between June 2022 and February 2023 before any application was brought.

Legal representation

  1. [92]
    In his material, Mr Smith says that he has been unable to afford further legal representation, and that the preparation and lodgement of the application has taken additional time because he was doing it himself. 
  2. [93]
    This, of itself, does not justify the delay. It is evident that Mr Smith knew his legal rights and obtained some form of legal advice in the interim.  Mr Smith consulted and obtained advice from Travis Shultz & Partners in December 2021.  He was apparently advised at that time that he “could very well have legal rights against” FCB in relation to alleged overcharging.  He also had consulted and obtained advice from Ancora Lawyers at some date before 1 June 2022.  Ancora Lawyers sent a letter to FCB requesting its consent to a costs assessment.
  3. [94]
    The absence of legal representation did not prevent him from bringing the application when he eventually did so, nor presenting it at the hearing.
  4. [95]
    I do not accept that the absence of legal representation prolonged the making of the application.

Conclusion

  1. [96]
    In all the circumstances, particularly the stated reasons for the delay, I do not consider an extension of time is justified.

Costs

  1. [97]
    Given my conclusion, the starting point is that the costs of the application should follow the event unless I am persuaded it is an appropriate case to order otherwise.  The purpose of a costs order is not to punish the unsuccessful party but to compensate a successful party.[14] In this case, that would mean that the applicant pay the respondent’s costs of the application on a standard basis. 
  2. [98]
    If the parties wish to contend that a different order should be made, then they should make submissions in writing, limited to four pages, within 14 days of this order.  If no submissions are made, then the orders will take effect at that time.  If submissions are made, the order as to costs will be those made after the submissions are considered.

Orders

  1. [99]
    The orders I make are that:
    1. The application for an order for the assessment of costs is dismissed.
    2. Subject to any further order of the court in the event submissions as to costs are made within 14 days, the applicant pay the respondent’s costs of the application to be assessed on a standard basis.

Footnotes

[1] Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [30].

[2] Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [30].

[3] Cupo and Anor v Andersen Lawyers [2015] QSC 202, [56].

[4] Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112, [101].

[5]  Although this was reduced to six others, being seven respondents in total, in the course of the proceedings.

[6] Smith v SBP Employment Solutions Pty Ltd (No 2) [2019] FCCA 3318.

[7] Smith v SBP Employment Solutions Pty Ltd (No 3) [2019] FCCA 3516.

[8] Smith v SBP Employment Solutions Pty Ltd (No 4) [2020] FCCA 61.

[9] Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [16].

[10] Challen v Golder Associates Pty Ltd [2012] QCA 307, [45], quoted in Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [17].

[11] Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [17].

[12] Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112, [117].

[13] Frigger v Murfett Legal Pty Ltd [2012] WASC 447, [25].

[14] Oshlack v Richmond River Council (1998) 193 CLR 178, [97].

Close

Editorial Notes

  • Published Case Name:

    Smith v Fisher Cartwright Berriman Pty Ltd t/as FCB Workplace Law

  • Shortened Case Name:

    Smith v Fisher Cartwright Berriman Pty Ltd

  • MNC:

    [2023] QDC 225

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    04 Dec 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Challen v Golder Associates Pty Ltd [2012] QCA 307
2 citations
Jump To
Cite 1 - [2012] QCA 307
Cite 2 - [2012] QCA 307
Cupo v Anderssen Lawyers [2015] QSC 202
2 citations
Jump To
Cite 1 - [2015] QSC 202
Cite 2 - [2015] QSC 202
Mishra v Bennett & Philp Pty Ltd(2021) 8 QR 306; [2021] QSC 158
6 citations
Jump To
Cite 1 - (2021) 8 QR 306
Cite 2 - (2021) 8 QR 306
Cite 3 - (2021) 8 QR 306
Cite 4 - (2021) 8 QR 306
Cite 5 - (2021) 8 QR 306
Cite 6 - (2021) 8 QR 306
Oshlack v Richmond River Council (1998) 193 CLR 178
2 citations
Jump To
Cite 1 - (1998) 193 CLR 178
Cite 2 - (1998) 193 CLR 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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