Carroll v Nunis - [2006] QDC 386

DISTRICT COURT OF QUEENSLAND

CITATION:

Carroll v Nunis [2006] QDC 386

PARTIES:

FRANCIS EDWARD CARROLL
Plaintiff

v

NERIDA JANE NUNIS
Defendant

FILE NO/S:

BD 4338/05

DIVISION:

Civil

PROCEEDING:

Determination of question before trial

ORIGINATING COURT:

District Court

DELIVERED ON:

17 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2006, last correspondence received 6 November 2006

JUDGE:

Ryrie DCJ

ORDER:

Preliminary question answered – That even if the plaintiff’s claim is said to be governed by the Family Law Rules, the plaintiff’s failure to comply with those rules prohibits him from proceeding further with his claim at this point.

CATCHWORDS:

APPLICATION – Solicitor and Client – Recovery of outstanding fees

APPLICATION – DETERMINATION ON PRELIMINARY QUESTION - whether plaintiff’s claim is governed by Queensland Law Society Act 1952 (Qld), Family Law Rules 2004 (Cth) or Family Law Rules 1984 (Cth)

Uniform Civil Procedure Rules 1999 (Qld), r 483

Family Law Act 1975 (Cth), s123(1)(g)

Family Law Rules 2004 (Cth), Chapter 19 , r 19.03 & 19.13

Family Law Rules 1984 (Cth), O 38, r 36, 37 & 38

Queensland Law Society Act 1952 (Qld), s 48J

Legal Practitioners Act 1995 (Qld), ss 5 & 7 (repealed)

Costs Act 1867 (Qld), ss 22 & 24 (repealed)

COUNSEL:

Mr F Redmond for the defendant

SOLICITORS:

Mr F Carroll of Frank Carroll Solicitor for the plaintiff

Ohlson and Associates Solicitors for the plaintiff

Introduction

By application filed in this court on the 5^th May 2006, Francis Edward Carroll (‘the plaintiff’) asked the court to make certain orders pursuant to the Uniform Civil Procedure Rules (‘UCPR’)

That application was heard by His Honour Judge Forno on the 19^th May 2006 in chambers.

At that point, His Honour ordered that Nerida Jane Nunis (‘the defendant’) provide further and better particulars in respect of paragraph 13 of her defence.

His Honour also ordered, pursuant to Rule 483 of the UCPR, that the following question be determined (subsequently) as a preliminary issue:

“Whether the plaintiff’s claim is governed by (1) the Queensland Law Society Act 1952; (2) the Family Law Rules 1984; or (3) the Family Law Rules 2004”.

The determination of that question however, was then adjourned for hearing to a date to be fixed subsequently before another chamber judge.

The matter then came on before me as the Chamber Judge on the 13^th June 2006 for that purpose notwithstanding that this was a matter that ought to have been placed on the general civil list for hearing..

The matter was heard and I subsequently reserved my decision.

Correspondence from the plaintiff was however then received by me on the 4^thJuly 2006.

The plaintiff informed me that he intended to advise each of the relevant Attorney-Generals of the matter in order to see if any of the Attorney-Generals wished to intervene and be heard in the matter.

That step was taken notwithstanding that the matter had already been heard on the 13^th June 2006 before me in…

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 Carroll v Nunis

Details

AGLC: Carroll v Nunis [2006] QDC 386
Case: [2006] QDC 386
Decision Date: 17 November 2006

CaseChat Overview and Summary

In Carroll v Nunis, the applicant, Carroll, sought to recover outstanding fees from the respondent, Nunis. The dispute centred on whether Carroll's claim was governed by the Queensland Law Society Act 1952, the Family Law Rules 2004, or the Family Law Rules 1984. The court had to determine the applicable law and whether Carroll could proceed with his claim under the Family Law Rules despite not complying with certain procedural requirements.

The primary legal issue was whether the Family Law Rules governed the applicant's claim for outstanding fees and, if so, whether the applicant's non-compliance with those rules barred his claim. The court examined case law indicating that the Family Law Act and its Rules establish a procedural framework for recovering solicitor-client costs, but do not create a substantive right for lawyers to commence proceedings. The court noted that the Family Law Rules set out the necessary steps to be taken before recovery proceedings can be instigated. If a solicitor complies with these requirements, the Rules do not specify the method for recovering costs but provide no rights in the solicitor to take action in the Family Court, except as provided by a taxation of a disputed bill following a taxation of a disputed bill.

The court found that the Family Law Rules had some application to the situation, as the respondent did not object to the accounts within the prescribed time. Therefore, the applicant was entitled to seek recovery of his costs in the appropriate court of jurisdiction if he chose to do so, without reference to the requirements set out in section 48J of the Queensland Law Society Act 1952. However, the court also acknowledged that a solicitor’s right to remuneration for work performed has long been subject to statutory regulation under various State Acts. The court concluded that Carroll's failure to comply with the Family Law Rules prohibited him from proceeding further with his claim at that point.

The court answered the preliminary question by ruling that even if the plaintiff's claim was governed by the Family Law Rules, the plaintiff's failure to comply with those rules barred him from proceeding further with his claim at that stage.

Orders

Orders of the court

Preliminary question answered – That even if the plaintiff’s claim is said to be governed by the Family Law Rules, the plaintiff’s failure to comply with those rules prohibits him from proceeding further with his claim at this point.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While it is true that the letter does make such a request, it does appear however that the bill was only required to be delivered by the plaintiff at the conclusion of his work for the defendant (who also expressed an interest in continuing to retain the plaintiff as her solicitor at that stage in the same correspondence). That retainer remained on foot, as I understand it, until it was terminated by the defendant at a time (date unknown) shortly after the correspondence of the 15th March 2005. However, it does seem that the account dated 26th April 2005 indicates that work was still being performed by the plaintiff until at least April at which time the retainer came to an end. There does appear to be some case authority which supports the proposition that the Family Law Act and its Rules are a complete code relating to disputed (my emphasis added) solicitor-client costs (Re P’s Bill of Costs (1982) 8 Fam LR 489 at p 494) It is also true however that the Family Law Act and Rules do not create the substantive right for lawyers to commence proceedings to recover their costs, but rather the Rules set out the necessary steps to be taken before such recovery proceedings may be instigated. As Lindenmayer J stated in Strudwick v Baker Johnson (1996) 20 Fam LR 789 at page 797 line 20: As Lindenmayer J further observed, at lines 10 to 15, O38, r38(9), (10) and (11) the Rules merely establish the procedural requirements a solicitor must overcome before he or she can commence an action to recover their costs. Once a solicitor has complied with those requirements, the Rules are silent with respect to the method by which the solicitor may then seek to recover his or her costs and provide no rights in solicitor with respect to taking action in the Family Court, except as provided by O38 r42(4) following a taxation of a disputed bill. Those case authorities do however lend some support to the submission made by the plaintiff that the Family Law Rules have some application to the situation which has arisen here. The situation here being that because the defendant did not take any issue within the time prescribed under those Rules in respect of the accounts which had been rendered by the plaintiff and delivered to her, it follows that he was entitled to seek recovery of his costs in the appropriate (state) court of jurisdiction if he so chose without any reference to the requirements set out in s48J of the Queensland Law Society Act 1952. It is true, as observed by His Honour Judge McGill in Dibb v Hopgood Ganim [2001] QDC 153 at paras [32] and [33], that a solicitor’s right to remuneration for work performed has long been the subject of statutory regulation of the profession under the various State Acts. Under a former legislative regime, His Honour noted that a bill was required to be delivered prior to action by the solicitor to recover the fees, and that could be taxed on application of the party chargeable within one month. (Legal Practitioners Act 1995 s.5 and 7).

Ratio Decidendi

Legal Principle Established

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CITATION:	Carroll v Nunis [2006] QDC 386
PARTIES:	FRANCIS EDWARD CARROLL Plaintiff v NERIDA JANE NUNIS Defendant
FILE NO/S:	BD 4338/05
DIVISION:	Civil
PROCEEDING:	Determination of question before trial
ORIGINATING COURT:	District Court
DELIVERED ON:	17 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2006, last correspondence received 6 November 2006
JUDGE:	Ryrie DCJ
ORDER:	Preliminary question answered – That even if the plaintiff’s claim is said to be governed by the Family Law Rules, the plaintiff’s failure to comply with those rules prohibits him from proceeding further with his claim at this point.
CATCHWORDS:	APPLICATION – Solicitor and Client – Recovery of outstanding fees APPLICATION – DETERMINATION ON PRELIMINARY QUESTION - whether plaintiff’s claim is governed by Queensland Law Society Act 1952 (Qld), Family Law Rules 2004 (Cth) or Family Law Rules 1984 (Cth) Uniform Civil Procedure Rules 1999 (Qld), r 483 Family Law Act 1975 (Cth), s123(1)(g) Family Law Rules 2004 (Cth), Chapter 19 , r 19.03 & 19.13 Family Law Rules 1984 (Cth), O 38, r 36, 37 & 38 Queensland Law Society Act 1952 (Qld), s 48J Legal Practitioners Act 1995 (Qld), ss 5 & 7 (repealed) Costs Act 1867 (Qld), ss 22 & 24 (repealed)
COUNSEL:	Mr F Redmond for the defendant
SOLICITORS:	Mr F Carroll of Frank Carroll Solicitor for the plaintiff Ohlson and Associates Solicitors for the plaintiff