Bickford t/a Bickfords Solicitors v Briley

[2006] QDC 187

[2006] QDC 187

DISTRICT COURT
CIVIL JURISDICTION

JUDGE McGILL SC

Appeal No 4316 of 2005
JOHN LINDSAY BICKFORD
(trading under the firm name
or style of Bickfords Solicitors

and Bickfords Lawyers)	Applicant/Appellant
and
SANDRA ANN BRILEY	Respondent
BRISBANE ..DATE 01/03/2006
ORDER

01032006 T21/IRK36 M/T 3/2006 (McGill DCJ)

HIS HONOUR: This is an application to extend time within	1
which to appeal from a judgment given in the Magistrate's judgment for the defendant in an action by a solicitor to recover what was said to be unpaid fees.

10

That action had been commenced in the Magistrate's Court in has now managed to accumulate a burden of legal costs which
March 2002 and claimed an amount of a little over $16,000.

20

would, I think, substantially dwarf the amount of that claim,
and the appellant, in effect, seeks the opportunity to add

further to those legal costs.

I should say something about the basis of the claim. The

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plaintiff, who is the appellant before me, had pleaded that
the defendant retained the plaintiff to act in the provision
of legal services and advice pursuant to a cost agreement
entered into between them. It was alleged that at the request

of the defendant the plaintiff provided legal services and

40

advice to the defendant's satisfaction, and that it was a term
of the cost agreement that the defendant would pay all
reasonable professional costs and outlays expended during the

course of the retainer.

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It was alleged that bills were sent and that these had not been paid and that "Pursuant to the agreement the plaintiff claims a total daily rate of accommodation charge and interest 01032006 T21/IRK36 M/T 3/2006 (McGill DCJ) 2 ORDER 60

charge" in a particular amount in addition to the amount	1
claimed in the bill.
On the face of it, it is an action to enforce the cost agreement. There was a cost agreement but it was one which

10

the Magistrate found was void under section 48F of the agreement did not comply with section 48 of the Act. Relevantly, the agreement did not contain an estimate of the total fees and costs likely to be payable for the work or a

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range of estimates likely to be payable and an explanation of
the significant variables that would affect the calculation of

the amount.

Clause 11 of the form of notice in the schedule to the Act

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states that the client agreement must state this and it
follows that if the client agreement does not do so there has
been a failure to comply with section 48(5) of the Act which
provides that the client agreement must not be inconsistent

with the notice in the schedule. On the face of it,

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therefore, the Magistrate found correctly that the client
agreement did not comply with section 48, and it was therefore

void under section 48F.

I think it necessarily follows that it was not open to the

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appellant to sue in the Magistrate's Court on the client
agreement. That does not mean that the appellant could not
sue at all but it did mean that he could not sue on the client
agreement.
01032006 T21/IRK36 M/T 3/2006 (McGill DCJ) 3 ORDER 60

1

The proceeding seems to have gone rather slowly and the Magistrate, at one point, later in his reasons, commented on some difficulty in obtaining disclosure from the appellant, but was said to have been virtually ready for trial when the

10

defendant's application for summary judgment was filed, and it
was that application which came on before the Magistrate on
12 August 2004. The Magistrate gave summary judgment for the
defendant and also ordered the defendant to pay the costs of

the action including that application to be assessed on the

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indemnity basis.

There were no reasons recorded apparently and there is certainly no transcript of reasons or any note of the reasons with the Magistrate's Court file. It does appear, however,

30

from an affidavit of Mr McNeil that there were reasons given. agreement was void and, therefore, could not be sued on and that the existing proceeding was one suing on the client agreement. He decided, therefore, that it followed that the

40

existing proceeding must fail and, accordingly, gave judgment
under Rule 293.

The appellant would seek to challenge that judgment on three grounds. Firstly, the Magistrate erred in determining that

50

the agreement was void. For the reasons that I have already
given, I think there is no substance to that ground. The
second was that the Magistrate erred in entering judgment
rather than, in effect, giving leave to amend the claim or
01032006 T21/IRK36 M/T 3/2006 (McGill DCJ) 4 ORDER 60

rather the statement of claim so that the appellant could	1
recover fees on the alternative basis contemplated by section 48I of the Act.
Section 48I provides relevantly that if there is no client

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agreement and there is a scale for the work provided under an firm may charge and recover is an amount calculated in accordance with the scale, and that if there is no client agreement and no scale the maximum amount of fees and costs

20

the practitioner may charge and recover is an amount assessed
as reasonable for the work by a Tribunal costs assessor.

The appellant submits that even if the costs agreement is void there is still a right to a restitutionary claim to recover

30

reasonable remuneration for the work done, and that that right
could be quantified in the manner specified in section 48 to

comply as I have indicated.

Indeed, counsel for the appellant submitted that the existing

40

pleading was wide enough to cover that alternative claim. Even if it is not correct to say that the existing pleading is wide enough to cover that claim, there is no particular reason why an application for summary judgment should be determined

50

by reference to the existing pleadings.

An application to strike out a pleading, under Rule 171, does
turn on the content of the pleadings and if there is something
01032006 T23/PMD20 M/T 3/2006 (McGill DCJ) 5 ORDER 60

defective in the pleading it can be struck out, although	1
ordinarily leave would be given to re-plead unless the situation arose where it was clear that no claim could properly be pleaded at all.

10

But an application for summary judgment looks to the outcome of a future trial and in doing so ought to take into account the possibility that, before the trial, or even at the trial,
the pleading might be amended. It is not, in my opinion,

strictly confined to the cause of action currently expressed

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in the pleading.

Accordingly, if it was open in the alternative notwithstanding the voidness of the costs agreement for the appellant to pursue a restitutionary claim for some amount against the

30

respondent, then that is something which, it would seem to me,
it might be difficult for a Magistrate dealing with a summary

judgment application to determine summarily.

The approach to a summary judgment application is not the same

40

as the approach to a strike out application, but nevertheless
it is a serious matter to give summary judgment. There have
been some different views expressed as to the correct
approach, but the matter has now been clarified by the

decision of the Court of Appeal in Deputy Commissioner of

50

Taxation v Salcedo [2005] 2QdR 232.

It was also submitted that the Magistrate erred in exercising the discretion to award indemnity costs. As to this an order 01032006 T23/PMD20 M/T 3/2006 (McGill DCJ) 6 ORDER 60

for costs was made as a matter of discretion. The Magistrate	1
was conscious of and expressly referred to the reasons of the Court of Appeal in Di Carlo v Dubois, [2002] QCA 225 which is I think the leading Queensland authority on the subject, and
on the face of it I think that it might be difficult to say

10

that there were good prospects of success in relation to a
challenge to the discretion in relation to costs, though of
course if summary judgment ought not to have been given the

costs order would necessarily fall with it.

20

The crucial question in relation to the merits of the matter is whether the Magistrate, having concluded the agreement was void, ought to have gone on to give summary judgment or whether he ought to have allowed the appellant to amend to claim an amount on a restitutionary basis from the defendant.

30

On the face of it therefore it seems to me in relation to the merits at the moment, and I must say without the benefit of having heard full argument from the respondent, the appellant has reasonably good prospects in relation to the merits.

40

The appellant immediately after the judgment had some discussion with the counsel who then appeared and gave some consideration to the question of appealing. This appears in the appellant's affidavit, filed on the 15th of December. He

50

was informed of the decision promptly and asked counsel
whether he had any prospects of appealing against the
decision.
01032006 T23/PMD20 M/T 3/2006 (McGill DCJ) 7 ORDER 60

Initially counsel thought the order for indemnity costs was	1
wrong, but cautioned, as he put it:

"He went on to caution me about appearing as a party
before the Court given that I was a solicitor suing for

unpaid fees."

10

It was his view that the appellant would be better advised to take a commercial approach to the matter.

There as also reference to the expression of the belief that

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the costs ordered would not be significant, and there was also
apparently a suggestion that it would still be open to pursue
separately a restitutionary claim. In my opinion that was

clearly not right.

30

The appellant says he considered the matter further and sought written advice from counsel. That advice has not been exhibited to the affidavit material, but it is said to have been to the effect that there were no prospects of success of an appeal from the summary judgment order made by the

40

Magistrate. The appellant says that

"As a result of receiving that advice I did not believe

that there was any basis to appeal the decision."

It seems to me that the possibility of appeal was clearly 50

alive to the appellant at the relevant time and that it was
one that he considered and, having given it consideration to
the point of taking counsel's opinion on it, made a deliberate
01032006 T23/PMD20 M/T 3/2006 (McGill DCJ) 8 ORDER 60

decision not to appeal. He would have known about the time	1
limits for appealing, and that in my opinion amounts to a clear decision not to exercise his right to appeal.
Essentially this application has been made because, about a

10

year after the decision was given, the appellant has changed
his mind. That follows it seems indirectly from a decision of
mine in an unrelated matter, although my involvement has been

entirely coincidental.

20

The judgment, as I said, carried with it an order for costs on an indemnity basis. Some months after the judgment was given the defendant claimed an amount of just under $10,000 pursuant to that costs order. There were then some discussions, but that was not resolved and in July 2005 the respondent sought

30

leave from the Magistrates Court to withdraw that costs
statement.

That was apparently as a result, at least in part, of a decision of mine last year on the question of whether there

40

was such a thing as indemnity costs in the Magistrates Court,
a matter which had been ventilated before me. For reasons I
gave in that matter, I concluded that there were indemnity

costs in the Magistrates Court.

50

This may have come as a surprise to some people. It certainly came as a surprise to whoever drafted the respondent's bill of costs because after leave was given to withdraw that bill a

bill for over $20,000 was substituted. I gather that has now
01032006 T23/PMD20 M/T 3/2006 (McGill DCJ) 9 ORDER 60

been assessed, but I do not know what amount was finally	1
allowed when it was assessed. I suppose it appears somewhere in the file.
In any event, the claim of a much larger amount led the

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appellant to engage a costs assessor with a view to defending
the assessment. The costs assessor suggested that the
appellant might like to obtain advice from other counsel in
relation to the prospects of appeal. I think perhaps the

costs assessor ought to confine his advice to the subject of

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costs in the future.

However, the appellant took that advice and obtained advice,
which has also not been disclosed, from other counsel in late

September 2005. Subsequently, I gather soon after that advice

30

was given, the possibility of an appeal was foreshadowed to

the respondent's solicitor.

The notice of appeal subject to leave was filed on the 23rd of

November 2005, almost two months after the advice was

40

received. It came on on the 19th of December before another

Judge when it was simply adjourned to a date to be fixed.

...

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It has finally come on before me at the beginning of March.
The appeal overall, even after there was a decision to attempt
to appeal, has not been proceeded with expeditiously.
01032006 T24/JB27 M/T 3/2006 (McGill DCJ) 10 ORDER 60

Obviously the appellant requires a substantial extension of	1
time within which to appeal and that is the first issue to be determined, the first hurdle, so to speak, and in my opinion it is the hurdle at which the appellant falls.

10

Ultimately the question is whether it is just to extend the time, and that involves a consideration of a number of factors, the merits of the appeal, to which I have already referred, the explanation for the delay or reason for the delay and whether it was a satisfactory reason, whether it

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really amounts to an excuse for the delay, whether there has
been any prejudice to the respondent as a result of the delay
and also, I think, consideration such as the significance of
the matter, whether it has any public interest consideration,

which in the present case, in my view, apparently it does not.

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I think also it is relevant to consider the fact that it is only quite a small claim in the first place, as I say about $16,000.

In relation to the explanations for the delay, I accept that

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there can be an appeal by leave even after a very long time. the Privy Council granted special leave to appeal from a decision of the Full Court of New South Wales which had been given 39 years earlier. That, of course, involved very

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special circumstances.

11 ORDER 60

01032006 T25/KZM35 M/T 3/2006 (McGill DCJ)

An issue had arisen in relation an estate which had really	1
only emerged as an issue once some life tenancies had fallen in, in 1957. At that point it emerged that there was some real issue flowing from the decision in 1919 and the privy counsel gave leave. There is, of course, nothing remotely

10

like that in the present case. That decision was referred to
in Queensland Trustees Limited v Faulkner [1964] QdR 153, a
case which has some parallels with the present, where there
was an application to extend time for appealing from a

decision in relation to an order for costs which was given on

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a judgment in default of defence. The application was for an
extension of time to appeal to the Full Court, but the
application came on before a single judge who considered the
merits of the matter and concluded that the order for costs

was wrong, but, nevertheless, dismissed the application for an

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extension of time in which to appeal.

Almost 15 months had elapsed since the judgment had been pronounced and there was in that case no explanation as to the reason for the delay. Also in that case things had moved on

40

in the sense that the judgment, which was a judgment to wind
up a partnership, had otherwise progressed and indeed the
point had been reached where it would have been difficult to
make the order for costs which in his Honour's opinion ought

to have been made. I will not read them into the record, but

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I think some of the matters said at page 160 by his Honour are
instructive, and to some extent also apply in the present
case.
01032006 T25/KZM35 M/T 3/2006 (McGill DCJ) 12 60

There are distinguishing features, in that of course under	1
this judgment there was nothing more for the respondent to do except to proceed to enforce the order for costs. That the respondent has done, including obviously having bills of costs prepared and having the costs assessed, and costs would have

10

been incurred in relation to that. It was submitted that
this prejudice was one that could be met by an order for
costs, and that may be possible, although, again, it just
demonstrates the extent to which this litigation has turned it

from an argument over a relatively small amount of fees into,

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in substance now, really, an argument about costs.

I think that it is of some significance that things have been done under the existing judgment. I accept that an order for costs, perhaps on the indemnity basis, could largely overcome

30

that prejudice, but not entirely, there still would be a
certain amount of effort and so on. And, I also think,
frankly, that there is an importance in ordinary people being
able to accept that matters have been resolved and that they

are entitled to go about their business without being further

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troubled by litigation which is, on the face of it, over and
done with. I think that is a consideration of some
significance. I also think, frankly, that the appellant as a
practising solicitor has perhaps less reason to have a good

excuse for calling on the Court's indulgence in relation to

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something like the time limit for appeal.

13   60

01032006 T26/PMD20 M/T 3/2006 (McGill DCJ)

I think that if anybody is to be expected to litigate properly	1
it is the officers of the Court, and they ought to be able to get their appeals sorted out and bring their appeals within the appropriate time limit, if anybody should.

10

But the real point it seems to me is that this is simply a case where somebody decided not to appeal but has changed his mind, and indeed has changed his mind perhaps in part because of what may have been not so much a change in the law, but a change in the way the law was understood and administered in

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relation to indemnity costs.

I am very wary about the notion that some decision later in other proceedings about the implications of an order for indemnity costs should be in any sense a justification for an

30

extension of time to appeal against an order for indemnity
costs which had been made earlier and in respect of which a

decision had been taken not to appeal.

I think that the notion that a decision like that provides

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some justification for extending time for appeal which had
otherwise expired is one which could give rise to great
uncertainty and would be thoroughly unsatisfactory. I think
that the position here really is that the appellant is not

entitled, about a year after the judgment, to change his mind

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about appealing, and I think that that is the dominant
consideration, and particularly for that reason I will not
give an extension of time within which to appeal, so the
application is dismissed with costs.
01032006 T26/PMD20 M/T 3/2006 (McGill DCJ) 14 ORDER 60

1

...

HIS HONOUR: In relation to the indemnity costs at this stage, although the application was unsuccessful, it was not one

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where it could be said that there was nothing that could be
said in its favour; there were some factors favouring an
extension of time, though I thought on balance it was not

justified.

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So in those circumstances I think it was something that did not amount to anything like misconduct to pursue. I fairly rarely order indemnity costs other than when they are required
under the rules, and I do not think in the present case that

the pursuit of this application was one which involved

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anything in the nature of misconduct or anything like that
which justified an order for indemnity costs.

So the application will be dismissed with costs, including reserved costs, but they will be assessed on the standard

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basis.

...

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15 ORDER 60