Bannerot v Waddington - [2008] QDC 332

DISTRICT COURT OF QUEENSLAND

CITATION:

Bannerot v Garland Waddington [2008] QDC 332

PARTIES:

WENDY BANNEROT

Applicant

AND

GARLAND WADDINGTON

Respondent

FILE NO/S:

BD515/08

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2008

JUDGE:

McGill DCJ

ORDER:

Order that the whole of the legal costs charged by the respondent to the applicant in respect of the respondent’s acting for the applicant in the proceedings in the Federal Magistrates Court be assessed pursuant to the Legal Profession Act 2007 by Mr Michael A Graham. Direct that the costs be assessed under s 48I(1)(c) of the Queensland Law Society Act 1952. Costs reserved.

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client – costs – assessment – where no client agreement – whether any scale for the work under an Act – whether interim bills assessable.

Legal Profession Act 2007 s 333, s 335.

Queensland Law Society Act 1952 s 6ZA, s 48I(1).

Acts Interpretation Act 1954 s 6(1).

UCPR r 678.

ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 – cited.
Baker v Legal Services Commissioner [2006] QCA 145 – cited.
Gilbert v Kozicki [2007] QSC 268 – considered.
Herald v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd R 263 – considered.
Re: Macdonnell, Henchman and Hannam [1910] St R Qd 324 – cited.
D. G. Ogle Pty Ltd v Bowdens [1979] Qd R 507 – cited.
Re P’s Bill of Costs (1982) FLC 91-255 – cited.

COUNSEL:

G. J. Robinson for the applicant

J. B. Rolls for the respondent

SOLICITORS:

Hartwell Lawyers for the applicant

The respondent represented itself

This is an application for assessment of legal costs as between a law practice and a client pursuant to s 335 of the Legal Profession Act 2007 (the 2007 Act). Although the 2007 Act applies to the application for assessment, the legislation applicable at the time the relevant legal work was done was the Queensland Law Society Act 1952 (the 1952 Act). The application, which has been properly made in accordance with the applicable provisions of the UCPR, has given rise to an interesting question about the application of s 48I of the 1952 Act. The current equivalent provision, s 319 of the 2007 Act, is in similar but not identical terms.

There was no dispute that the applicant as client retained the respondent law practice to provide legal services in connection with a proceeding in the Federal Magistrates Court to which the applicant was a party, involving custody of children. The material refers to a dispute that existed at one time between the parties as to whether there was a client agreement under the 1952 Act in existence between the applicant and the respondent, but the respondent has now conceded before me that this proceeding and any assessment of costs have to be resolved on the basis that there was no applicable client agreement in respect of the legal services provided. Accordingly, under s 48I(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bannerot v Waddington

Details

AGLC: Bannerot v Waddington [2008] QDC 332
Case: [2008] QDC 332
Decision Date: 25 July 2008

CaseChat Overview and Summary

Bannerot sued Waddington for recovery of legal costs incurred in proceedings before the Federal Magistrates Court. The primary issue was whether the legal costs could be assessed under the Legal Profession Act 2007 due to the absence of a written agreement between the solicitor and client, and if there was a scale of costs applicable under the Queensland Law Society Act 1952. Additionally, the court had to determine if interim bills could be assessed under the circumstances.

The court first considered whether a written client agreement existed. As none was found, the court turned to the Legal Profession Act 2007 for guidance on assessing costs in the absence of such an agreement. The court also examined whether the interim bills were assessable under the Queensland Law Society Act 1952. The court found that, in the absence of a client agreement, the costs could indeed be assessed pursuant to the Legal Profession Act 2007, and that the interim bills were assessable under the Queensland Law Society Act 1952.

In conclusion, the court ordered that the costs be assessed by Mr Michael A Graham under section 48I(1)(c) of the Queensland Law Society Act 1952. Costs were reserved pending the assessment. The court's decision clarified the applicability of the Legal Profession Act 2007 and the Queensland Law Society Act 1952 in the context of assessing legal costs in the absence of a written client agreement.

Orders

Orders of the court

Order that the whole of the legal costs charged by the respondent to the applicant in respect of the respondent’s acting for the applicant in the proceedings in the Federal Magistrates Court be assessed pursuant to the Legal Profession Act 2007 by Mr Michael A Graham. Direct that the costs be assessed under s 48I(1)(c) of the Queensland Law Society Act 1952. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bannerot v Garland Waddington [2008] QDC 332
PARTIES:	WENDY BANNEROT Applicant AND GARLAND WADDINGTON Respondent
FILE NO/S:	BD515/08
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	25 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2008
JUDGE:	McGill DCJ
ORDER:	Order that the whole of the legal costs charged by the respondent to the applicant in respect of the respondent’s acting for the applicant in the proceedings in the Federal Magistrates Court be assessed pursuant to the Legal Profession Act 2007 by Mr Michael A Graham. Direct that the costs be assessed under s 48I(1)(c) of the Queensland Law Society Act 1952. Costs reserved.
CATCHWORDS:	LEGAL PRACTITIONERS – Solicitor and Client – costs – assessment – where no client agreement – whether any scale for the work under an Act – whether interim bills assessable. Legal Profession Act 2007 s 333, s 335. Queensland Law Society Act 1952 s 6ZA, s 48I(1). Acts Interpretation Act 1954 s 6(1). UCPR r 678. ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 – cited. Baker v Legal Services Commissioner [2006] QCA 145 – cited. Gilbert v Kozicki [2007] QSC 268 – considered. Herald v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd R 263 – considered. Re: Macdonnell, Henchman and Hannam [1910] St R Qd 324 – cited. D. G. Ogle Pty Ltd v Bowdens [1979] Qd R 507 – cited. Re P’s Bill of Costs (1982) FLC 91-255 – cited.
COUNSEL:	G. J. Robinson for the applicant J. B. Rolls for the respondent
SOLICITORS:	Hartwell Lawyers for the applicant The respondent represented itself