Theden v Nominal Defendant[2007] QSC 316

SUPREME COURT OF QUEENSLAND

1. The second plaintiff applies, pursuant to R 742 of the Uniform Civil Procedure Rules (“UCPR”), for a review by the Court of the Registrar’s reconsidered decision on the assessment of costs payable to him by the first and second defendants (“the defendants”).

2. By his action, the second plaintiff and his wife, the first plaintiff, sought damages for negligence against the defendants. The quantum of the second plaintiff’s claim was settled on the second day of the hearing. His entitlement to recover however remained subject to the first plaintiff establishing liability in the defendants to pay damages.

3. On 10 March 2005 I entered judgment in the sum of $55,000 with costs “to be assessed on the standard basis on the District Court scale applicable to such judgment sum” in favour of the second plaintiff (“the applicant”). An appeal against the decision on the issue of liability was dismissed on 28 June 2005.^[1]

4. The applicant presented three Cost Statements. The first related to the fees of the solicitor initially retained and the second to fees of Queensland solicitors acting as agents for the New South Wales solicitors who were directly retained by the applicant.  The remaining, and contentious, Cost Statement is that of the New South Wales solicitors.  By it, they claimed the sum of $17,128.35.  On taxation the amount allowed was $13,883.80.

5. The defendants sought a Registrar’s reconsideration of the assessment pursuant to R 741 of UCPR, particularly to contend that the second plaintiff was not entitled to recover professional fees for work undertaken by his New South Wales firm of solicitors, which underwent a number of name changes during the currency of the proceedings.  At various times the firm was styled Goudkamp and Mahony, Stacks Lawyers, Stacks the Law Firm with Tom Goudkamp, and Stacks/Goudkamp.^[2]  Mr Goudkamp, it seems, was at all times a principal of the firm.  He was duly admitted a solicitor and barrister in New South Wales where he apparently practised in accordance with the statutory provisions applicable in that State.  Whilst admitted to practise as a solicitor in Queensland on 12 July 1973, he did not at any time hold a current practising certificate as then required by s 38 of the Queensland Law Society Act 1952 nor, I assume, did he seek registration in this State under the provisions of the Mutual Recognition (Queensland) Act 1992.

6. On her reconsideration, the Registrar dealt with the objections and disallowed “the claim for any costs undertaken by the Sydney solicitors in the Costs Statement” and reduced the assessed costs to $11,194.40.  The items disallowed are identified in a letter from Broadley Rees dated 2 February 2007^[3] but they do not need to be referred to individually.  The Registrar was particularly influenced by the decision of the Court of Appeal in Cannon Street Pty Ltd v Karedis & Ors^[4] to which reference will be made. The outcome of this application has implications for the approach yet to be taken on the assessment on the first plaintiff’s costs which will involve significantly larger amounts.

Legislative provisions

7. The work of the New South Wales solicitors was undertaken between April 1998 when instructions were first given and the date of the judgment March 2005. The prevailing statutory controls on persons acting as solicitors in Queensland at the time of the retainer have now been repealed by the Legal Practitioners Act 2004 which took effect from 1 July 2004.  The issue before me however, turns on the relevant provisions before that date which are found in ss 38, 39 and 44 of the Queensland Law Society Act 1952 and s 209 of Supreme Court Act 1995.  They are as follows:-

“Queensland Law Society Act 1952 (QLSA)

38.Prohibition on practising without practising certificate

(1)No solicitor shall on or after 1 July 1931, act or practise as a solicitor unless –

(a)the solicitor has obtained from the secretary on application in proper form a certificate which is then in force to the effect that the solicitor is on the roll of the court as a solicitor thereof and entitled to practices as a solicitor, and

(b)in the case where the certificate aforesaid obtained by the solicitor is subject to a condition prescribed by this Act or a condition prescribed by or imposed pursuant to the rules – the solicitor acts or practises as a solicitor in accordance in all respects with that condition.

(2) No conveyancer shall on or after 1 June 1931, act or practise as such unless the conveyancer has obtained from the secretary on application in proper form a certificate which is then in force to the effect that the conveyancer is on the roll of the court as a conveyancer and entitled to practise as a conveyancer.

39.Persons practising without certificates

(1) Every person who directly or indirectly acts or practises as a solicitor or conveyancer –

(a)without having at the time a certificate then in force issued to the person by the secretary, being a certificate referred to in section 38; or

(b)otherwise than in accordance in all respects with the conditions to which a certificate then in force issued to the person by the secretary, being a certificate referred to in section 38, is subject as prescribed by this Act;

shall be guilty of an offence, and shall be liable on summary conviction to a penalty not exceeding 10 penalty units and in addition shall be guilty of contempt of the court and shall be liable to be punished accordingly.

(3) Where a person, being a body corporate, is guilty of an offence against this section, any director, manager, secretary or other officer of the body corporate who was knowingly a party to the offence shall also be guilty of that offence.

(4) This section does not apply in relation to a barrister-at-law, solicitor or conveyancer in any department of the Government of the Commonwealth or State in the course of his or her official duties.

…

Solicitor may not act or recover fees whilst uncertificated

44. No person acting as a solicitor for a client shall sue, prosecute, defend, or carry on any proceedings in any court without having previously obtained a practising certificate which shall be then in force, or shall be capable of maintaining any action or suit for the recovery of any fee, reward, or disbursement for or in respect of any business, matter, or thing done by the person as a solicitor whilst the person shall have been without such practising certificate.”

Supreme Court Act 1995

“ 209 Appearance to be in person or by barrister or solicitor or person allowed by the judge

(1)In all matters and proceedings in the Supreme Court a party may appear in person or by a barrister or solicitor or by any person allowed by special leave of the judge in any case.

(2)A person who is not a barrister or solicitor of the Supreme Court shall not be entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Supreme Court.

(3)In this section –

“party” includes a person served with notice of or attending a matter or proceeding although not named in the record.”

Application of s 209 of the Supreme Court Act

8. Textually, the provisions of s 209(1) of the Supreme Court Act appear to be limited to controlling who may appear before the Court on behalf of a party (as defined).  Subsection (2) appears to be enacted as an adjunct to that control by prohibiting a person given leave to appear being entitled to remuneration for such appearance or for acting on behalf of the party.  Contextually, the provisions were enacted in the Supreme Court Act Amending Act 1973 to restore to solicitors the right of audience in the Supreme Court of Queensland, a right which had been taken away somewhat inadvertently by the Legal Practitioners Act 1881^[5].  So much appears from the excerpts of the speeches of the Minister for Justice when introducing the amending legislation.  These were referred to by Wilson J in Maggbury Pty Ltd v Hafele Australia Pty Ltd (No.2)^[6] and for convenience I repeat them here:-

“This amending Bill has one objective, namely, to enable solicitors to have a right of audience in the Supreme Court of Queensland.”  Hansard 18 September 1973 p 580.

On the Second Reading of the Bill he said:

“This Bill will amend the Supreme Court Act 1867 by inserting a new section that will give a solicitor a statutory right of audience in the Supreme Court of Queensland… The Bill provides that any party appearing before the Supreme Court will, after the date of assent to the Bill, be able to appear either in person or by a barrister or a solicitor, or by any person allowed by special leave of the judge.  Under the Bill, the only person able to claim or recover a fee for appearing or acting on behalf of a party to a matter or proceeding in the Supreme court will be a barrister or a solicitor.

…

The ideals of any judicial system a cheaper and speedier justice under the law, and I believe that by giving solicitors a right of audience in the Supreme Court, the Bill will go some way towards achieving these ideals.”^[7]

9. In essence the enactment was an enabling provision conferring rights of appearance in the Supreme Court. As an ancillary to this, subsection (2) was intended to prohibit the recovery of remuneration by persons whose right of appearance depends upon subsection (1), that is non-lawyers granted special leave to appear. Cannon Street Pty Ltd v Karedis (supra) per Williams JA at [30]. The Court of Appeal there was concerned with the right of appearance of a legal practitioner before the Supreme Court of Queensland whilst exercising federal jurisdiction.  In those circumstances the right is conferred by provisions of the Judiciary Act 1903 (Cth) and could not be qualified by State enactments such as those appearing in the Queensland Law Society Act.  Statements by Jerrard JA, though obiter dicta, also suggest that s 209 is of limited application.  He said (at para 51):-

“It is therefore appropriate to interpret s 209(2) as enacted to ensure that those given special leave to appear (under s 209(1)) did not charge fees for so appearing, or for acting in court.  It was not intended to apply to interstate practitioners with a right of audience in courts in those other States, or to partnerships of solicitors, but to individuals.”

10. There is no question of federal jurisdiction in these proceedings. The cause of action and its trial were matters falling entirely within the jurisdiction of the State of Queensland.  As I perceive the evidence adduced on the application, the applicant was at all times before the court represented by counsel. The issue centres on whether the firm of solicitors who had conduct of the proceedings and who instructed counsel were “acting in the Supreme Court” in the relevant sense for the purpose of sub-section (2). 

11. The respondents argue that s 209 should be construed so as to limit the right to appear and to conduct proceedings to a solicitor who is duly certified to practise by the Queensland Law Society.  The warrant for such a limitation, they argue, is that a solicitor who is not so certified is prohibited from acting as a solicitor and the court would not countenance an appearance by a person who breaks the law by reason of that appearance.  See s 38 of the QLSA.  They contend that such a person then has no right of appearance under s 209(1) but would require special leave of the court to do so.  Subsection (2) would then disentitle that person to claim remuneration not only for the appearance but also generally for acting on behalf of the client in these Court proceedings even for work done outside Queensland.

12. Whilst there may be some force in this argument had an uncertified solicitor sought to exercise a right of audience, I do not see how, on that account, it can have application to the facts before me. As I apprehend the facts, the principal solicitor, Mr Goudkamp, did not seek to exercise any right to appear before the Court but rather he instructed counsel to appear. On the other hand if the facts were that Mr Goudkamp did appear in person, he could not validly do so without leave. He would thus not be entitled to recover fees for such an appearance. The right to appear, as Jerrard JA observed, pertains to an individual seeking to appear or to act in the Court.

13. As to the broader consideration entailed in “acting on behalf of” a party, Wilson J in Maggbury made a distinction between work done “in relation to” proceedings and work “in the Supreme Court”.  In that case the party entitled to recover party and party costs claimed the professional fees of a solicitor practising in Victoria but not certified to practise in Queensland.  The Victorian solicitors played a major role in doing the preparatory work in Victoria but did not appear in Queensland.  Her Honour found (at para [18]):-

“The second defendant appeared in the Supreme Court by counsel duly admitted in Queensland.  The Queensland solicitors, as solicitors on the record, performed work “in the Supreme Court” and thereby assumed certain obligations to the Court.  In my opinion, the work of the Victorian solicitors, who admitted they played the major role in the preparation of the second defendant’s defence, is properly characterised as work, “in relation to” proceedings in the Supreme Court rather than as work “in the Supreme Court”.”

14. In Cannon Street at first instance,^[8] White J applying this distinction assessed the position of an interstate solicitor who, though not holding a Queensland practising certificate was the principal solicitor and “ran” the litigation in Queensland.  Her Honour concluded, obiter dicta, that an inquiry must in those circumstances be directed to subsection (2) because of the width of the expressions employed – “directly or indirectly” and “in the Supreme Court” – and held that the work identified within the Costs Statement fell within those parameters.

15. In my view, the proper construction of subsection (2) goes beyond reliance upon such textual distinctions but rather depends upon the purpose of the enactment. That purpose was to give solicitors a right of appearance before the Court and other persons the opportunity to appear by the Court’s leave. A solicitor’s right to act on behalf of a client is a matter of the terms of the retainer and compliance with the statutes and rules regulating the solicitor’s profession. The solicitor’s entitlement to remuneration for so acting is similarly controlled by the terms of the retainer and, in some situations, the statutory provisions. In Beaton v McDivitt^[9] Young J observed:-

“The whole essence of appearances by solicitors in the court is that they are the retained representative of the client, and the client is protected from excessive fees etc by the statutory provisions set out in the Legal Practitioners Act.  That a retainer is of the essence of the relationship is emphasised by the decision of the Full Court of the Supreme Court of the Australian Capital Territory in Re Bannister; Ex parte Hartstein (1975) 5 ACTR 100, and also by Herron J in Ex parte WA Grubb Pty Ltd; Re Johnston (1949) 66 WN (NSW) 224 at 226.”

16. It is difficult to conceive that the entitlement to remuneration of a duly certified non-Queensland solicitor, who accepts a retainer to act in the other State and does work leading to the commencement of Queensland proceedings whether via the appointment of Queensland agents or not, was within the contemplation of the legislature when enacting this subsection. The limitations on the proper constructions suggested by both Williams and Jerrard JJA in Cannon Street indicate otherwise.

17. In my view s 209(2) has no relevance to a non-Queensland solicitor’s entitlement to remuneration under a general retainer to commence and maintain proceedings in the Supreme Court at the relevant time. Consequently it seems to me that any objection founded upon s 209 of the Supreme Court Act is misplaced and provides no bar to the applicant’s recovery of costs associated with the solicitors’ work in the proceedings outside of Queensland.  Any regulation of a solicitor’s entitlement to claim costs by reason of the solicitor’s status with respect to practising certificates is properly the topic of other legislation to which I now turn.

The application of the Queensland Law Society Act 1952 (QLSA)

18. Of more significance in the outcome of this application, are the effects of the provisions of the QLSA. Here, the respondents contend that by reason of Mr Goudkamp’s not having a current practising certificate in Queensland he was prohibited by s 38 from acting as a solicitor in this State.  Further by reason of s 44 he is not entitled to recover fees for any business, matter, or thing done by him as a solicitor whether in Queensland or elsewhere.

19. The applicant’s cause of action arose in Queensland as a result of a motor vehicle incident on 9 August 1996.  The applicant and his wife, the first plaintiff, were residents of the Australian Capital Territory.  The applicant retained the firm of which Mr Goudkamp was a principal on 22 April 1998. 

20. The applicant’s solicitors, in their various firm names, used town agents in Queensland when instituting the proceedings and when filing documents thereafter at least until March 2003.  The respondents allege (and it is not contradicted) that the actual work of preparing documents, collecting evidence and preparing the matter for trial was performed by Mr Goudkamp and his firm.

21. Whether Mr Goudkamp was acting as a solicitor in Queensland, the respondents argue, is not to be gauged simply a matter of form but rather as a matter of substance.  They contend that Mr Goudkamp was the principal solicitor in this litigation.  Secondly, the respondents contend that as the principal solicitor he was required to hold a relevant practising certificate and could not rely on certification of solicitors acting as town agents. The respondents suggest that when Mr Goudkamp determined that the proceedings were to be instituted in Queensland he ought to have placed the matter in the hands of Queensland solicitors who were duly certified, or he ought to have taken the necessary steps himself to obtain a practising certificate in Queensland.   

22. The action was instituted by Writ of Summons on 7 April 1999 shortly before the commencement of the Uniform Civil Procedures Rules (UCPR) on 1 July 1999.  The Supreme Court Rules applicable at the time of the institution of the proceedings contemplated that the documents could be filed by a solicitor acting as agent for another solicitor. See Order 2 Rule 9(2).  That was what in fact happened in this instance.  The Writ of Summons was signed by Pescott Reaston as solicitors for the plaintiff (as agents).  Thereafter, documents filed on behalf of the plaintiff continued to be signed by Pescott Reaston, and later Pinder Gandini, as town agents for the plaintiffs’ New South Wales solicitors until 3 February 2003. On that date an Amended Statement of Claim (CFI35) was filed directly by the New South Wales solicitors, Stack the Law Firm with Tom Goudkamp.  That document was not accompanied by a Notice of Change of Solicitor and it gave as an address only that of Mr Goudkamp in New South Wales.  Thereafter it appears that Mr Goudkamp personally signed the documents filed on behalf of the plaintiffs.  By directly filing documents in Queensland, Mr Goudkamp was clearly acting as a solicitor and this he was not qualified to do. There seems little doubt that Mr Goudkamp was indeed the principal solicitor who controlled the litigation, but the question is does this necessarily offend the provisions of QLSA.

23. The respondent relies for support upon cases in other jurisdictions where similar circumstances arose. In Minister for Works v Australian Dredging and General Works Pty Ltd^[10] the Full Court in Western Australia considered whether a company could recover costs awarded to it under an arbitration award.  The company had engaged Victorian solicitors who in turn retained Victorian counsel.  Neither counsel nor the solicitor was a “certified practitioner” within the meaning of Legal Practitioners Act 1893 (WA).  The question before the Court was whether the company could recover the fees paid by it to counsel and solicitor.  There is reference to Western Australian agents being appointed only at a late stage and there was no recourse to the Court during the arbitration.  The Courts jurisdiction arose because of s 1 of the Arbitration Act provided that the award had the same effect “as if it had been made an Order of Court.  The decision turned, not on the provision of s 77 of the Act (similar to s 39 of QLSA), but rather on the fact that the taxation had to be undertaken as though the costs were costs in an action.  By virtue of the fourth schedule of the Supreme Court Rules such costs were thus confined to fees payable to certified practitioners.  Two members of the Court (Burt CJ and Kennedy J) were not prepared to rely upon ss 76 and 77 of the Act because conduct in breach of those sections could result in sanctions for what effectively was work of a non-curial nature.  That same reservation does not apply in the circumstances here where the work in question is clearly both of a curial nature and within the scope of s 39 of QLSA.

24. The respondents also rely upon the analysis by Belby J in Santos Ltd v Delhi Petroleum Pty Ltd^[11] in circumstances where a Victorian firm of solicitors “in effect conducted the action drawing pleadings, briefing counsel and appearing on trial”.^[12]  In this instance a South Australian firm was engaged as agent and provided an address for service and undertook what little work had to be done in South Australia.  In that sense the circumstances were quite similar to those with which I am concerned.  On taxation the South Australian firm claiming for itself $34,335 sought as disbursements to fees of the Victorian solicitors in the sum in excess of $1.9 million.  His Honour expressed the view (at p 12/17):-

“It is understandable that interstate solicitors, not registered in this State when such registration was necessary, acting as principals of solicitors who were, should not have been entitled to claim their costs on taxation in this State.  They were not legal practitioners with any standing in this State.  They were not officers of the court and were not subject to any disciplinary or other control by the court.  The interstate practitioners, so far as the law of this State were concerned, were in no better position than a lay client.”

And concluded (at p 13/17):-

“For the purpose of conducting the litigation and at all material times, (the Victorian firm) Middletons were acting as the principals of (the South Australian firm) Maitland.  It follows from the discussion above that, if Middletons or the counsel they briefed were not registered in South Australia under the Mutual Recognition Act prior to 16 September 1999, I would, with some reluctance, be constrained to hold that this court has no power to award costs as between party and party, their costs and fees for work performed during that period…The charges do not fall within the notion that costs can be allowed.”

25. By contrast, the applicant relies upon the decision of the Court of Appeal of the Northern Territory in Elders Trustee and Executor Company Ltd v Estate of Herbert.^[13]  There the Court of Appeal of the Northern Territory was concerned with the recovery of costs by litigants who engaged a firm of solicitors in South Australia to act on their behalf in a claim in the Northern Territory.  The South Australian firm instructed solicitors in the Northern Territory to act as their agents.  During the course of the proceedings (in fact on the first day of the trial), the members of the South Australian firm were admitted to practise in the Northern Territory.  The appeal concerned the claimant’s entitlement to recover the fees of the South Australian solicitors charged before the date of that admission but as the fees had already been paid by the party entitled to costs they were recoverable on party and party taxation.  The relationship between the two firms was similar to the circumstances before me.  The South Australian firm received the initial instructions, provided advice, briefed counsel, attended to the gathering of evidence and drafted documents.  The Northern Territory solicitors attended to the filing of documents but also performed legal work in the collation of material for some of the litigious steps.  The Northern Territory solicitors were regarded by the Northern Territory Court as the principal solicitors despite the fact that the South Australian firm played a “primary and major role”.  However in the course of his reasons Gallop J (with whom Thomas J agreed) found (at p 30 l 35):-

“For the purpose of deciding whether Morgans’ (the South Australian firm) fees were recoverable on taxation, it is not strictly necessary, in my opinion, to categorise them as the principals or as Cridlands’ (the Northern Territory firm) agents.  In so far as it is necessary to do so, however, it is perfectly plain on the whole of the evidence that they were in fact the principals and that Cridlands were their agents… Such an arrangement is absolutely common place, not only in the Northern Territory but in other parts of the Australian judicial system where it is necessary to engage local practitioners having the right to practise in the particular jurisdiction and an address for service which will be within the geographical limits prescribed by the particular rules of court.”

His Honour discussed the application of O 63.41-42 of the Northern Territory Rules of Court which are in terms relevantly indistinguishable from R 714 of UCPR detailing that fees for work done by a practitioner outside the jurisdiction are to be presented as a disbursement.

26. The Court of Appeal held that this rule applied in the circumstances under consideration, and found there was no statutory prohibition on the recovery of fees.^[14]  He concluded (at p 35 l 35:-

“In my opinion the common place situation of Darwin solicitors conducting litigation as solicitors on the record for solicitors throughout Australia or elsewhere who have not been admitted to practise in the Territory is not to be impeded in any way by the spectre of substantial litigation being conducted in the Territory pursuant to such an arrangement, and the un-admitted solicitor being at risk about proper recovery on behalf of the client of that solicitor’s fees.  Provided the fees are properly incurred and reasonable, they are always recoverable on taxation pursuant to an order for costs in the proceedings.”

Kearney J agreed with this approach distinguishing his earlier decision in TNT Bulkships Ltd v Hopkins^[15] on the facts.  His Honour said (at p 38 l 10):-

“Cridlands are the solicitors on the record and the Bill of Costs shows that they carried directly a substantial part of the litigious work.  In that situation I consider it is not open on taxation to inquire into whether in fact the solicitors on the record had the conduct of the litigation.  As far as other parties to the litigation are concerned, absent express admission to the contrary, it is to be taken on taxation that the solicitors on the record have the conduct of the litigation…

When a territory solicitor acts for a party to litigation in Territory courts under instructions from that party’s interstate solicitors, who are not entitled to practise in the Territory, he is not acting in that litigation as the interstate solicitor’s agent in the sense that they are the “principal solicitors” and he is their “town agent”.  In these circumstances the Territory solicitor on the record is the solicitor responsible for the Territory litigation, as a professional legal agent for the interstate client.  In such a case there is a contractual relationship between the client and the Territory solicitor, the instructions being transmitted by the interstate solicitor (not entitled to practise in the Territory) as the client’s agent for that purpose.”^[16]

27. None of these decisions are binding upon me and each of them was made in different statutory regimes and with different rules. On their face the decisions appear to be irreconcilable. As far as I am aware it has never been the case that a non-Queensland solicitor was unable to accept a retainer to act in relation to a Queensland cause of action, nor to undertake preparatory work to pursue that cause of action whilst acting as a solicitor within the jurisdiction for which the solicitor was certified to practise.  The appointment of agents to the file documents, provide an address for service and make inquiries was indeed “commonplace”, to adopt the term used by Gallop J.  The rule regime at the time (O 9 r 2) provided for this arrangement without distinction between Queensland and interstate practitioners.

28. The remarks in some of the cases suggest that the issue of whether an interstate practitioner acts contrary to the prohibition turns upon the proportion of the legal work done by that practitioner. In other words, the determination may turn on a question of degree. For my part, I have some difficulty with the concept that a breach of such a statutory prohibition which attracts penal sanctions might be established only after the event. In many circumstances the work may be shared with the solicitors in both jurisdictions having direct contact with the litigant. In my view the question that needs to be posed ought to be couched in the terms of the section which identifies actions which are properly characterised as “act or practise as a solicitor” in Queensland.  In some cases as for example the arbitration case in Australian Dredging, the intention at the outset was for non-certified practitioners to act.  In other cases the proper employment of an agent who is certified in order to comply with the statutory prohibition should, in principle, neither attracts sanctions nor result in the loss of remuneration.

29. The Rules of the Supreme Court at the time of the institution of the proceeding required that the Writ of Summons be physically presented to the Registry for its issue. O 7 r 3. That rule also required that the Writ be signed by the solicitor described as “the plaintiff’s solicitor”. There was a requirement that the address for service be the solicitor’s place of business or an alternative address for service if the business address was more than 10 kilometres from the Registry. O 2 r 9. Among the changes effected by the introduction of UCPR was the permitting of the filing of documents including a claim, by mailing the document to the Registry. If the plaintiff or applicant was represented by a non-Queensland solicitor, then r 17 required only that an address for service be in Queensland. Nonetheless, the UCPR still contemplates the use of agents though the need to do so has been reduced.  Under the earlier rule regime it was necessary for a non-Queensland solicitor to have an agent.  This may, in part, explain why the firm of Pescott Reaston became solicitors on the record, a status that firm had at least until 3 February 2003 when the firm Stacks The Law Firm with Tom Goudkamp attended to the filing of a document signed by Mr Goudkamp in its own right.  That document may or not have been effected to bring about a change of solicitors given the obvious lack of compliance with Rules 987-993 of the UCPR, but that is not the issue before me.  The question is whether Mr Goudkamp was acting as a solicitor in Queensland. 

30. It seems to me to be beyond doubt from that very act and his conduct thereafter he was purporting to act as a solicitor. As it is admitted that he did not hold the required practising certificate, he was in breach of the provisions of the QLSA. At least from that point in the conduct of these proceedings he was not capable of taking action to recover any fees or disbursements in respect of the action. It is not possible for me by looking at the Costs Statement to make a judgment as to when circumstances so changed that I would have to conclude that Mr Goudkamp was acting or practising as a solicitor in Queensland at some earlier time. If not, I would adopt the approach of the Court of Appeal in the Northern Territory and hold that the solicitors on the record were responsible to the Court and to the Queensland Law Society for the proper conduct of the proceedings.

31. As it happens any breach of the provisions by Mr Goudkamp is of little moment since the applicant has already paid the fees to Mr Goudkamp for the work. In those circumstances, the authorities seem clear that the applicant is entitled to recover those fees paid on party and party taxation under the indemnity principle. See Elders (at p 33 l 10):  Maggbury paras [19]-[22].  The defendants before me did not seek to argue otherwise.

Proper allowance for New South Wales work

32. A further issue raised by the applicant is his claim to be entitled to fees for work done in New South Wales on the basis of a costs agreement entered into with his solicitor in that State. The Registrar disallowed the costs on that basis and assessed them by reference to the District Court Scale applicable to the level of the judgment.

33. The applicant’s submission is based upon remarks in the Court of Appeal decision of Cannon Street where the Court determined that costs were to be assessed in accordance with the contractual arrangements entered into with the solicitors in New South Wales.  Rule 714(4) is to the same effect. The point was addressed by Williams JA at para 33 holding that “the client agreement and costs agreement is between the solicitor and client in New South Wales, and New South Wales law is the proper law of the contract”.

34. In Cannon Street costs were being assessed in the Supreme Court where the solicitors were entitled to work entirely within the State where the retainer and costs agreements were entered into.  That is not the situation here.  The costs ordered to be paid were party and party costs to be assessed according to a fixed scale relating to proceedings in Queensland.  That scale is the only guide for the assessment of costs and not any other basis arising because of the New South Wales connection.  The Registrar was clearly correct in making the assessing according to the relevant scale in compliance with the court’s order.

Conclusions

35. It follows that the disallowance by the Registrar of some of the items was in error. The parties do not require me to identify which of those items are affected. The parties have indicated they may be able to agree upon those and adjust the assessment accordingly. In the light of this indication the course that I propose is formally to remit the matter to the Registrar for further consideration in accordance with these reasons.

Costs

36. On the question of costs of the application, the applicant appears to have been successful on the main point of contention but has failed on the lesser issue. I will deal with the issue of costs on the basis that the operation of my order will be delayed to allow the parties to make written submissions for different orders if they are so advised. I propose to allow the applicant 80% of the costs of and incidental to the application to be assessed on the standard basis.

Orders

37. 1. The disallowance by the Registrar of items of the Costs Statement relating to the application of s 209 of the Supreme Court Act 1995 be set aside.

2. The assessment of costs is remitted to the Registrar for further consideration in accordance with the directions and reasons of the Court.

3. Unless otherwise ordered within 21 days from the date hereof, I order that the defendants pay 80% of the applicant’s costs of and incidental to this application to be assessed on the standard basis.

4. Parties shall have liberty to apply.