Legal Research
Cases
Colbron v Freeman

Colbron v Freeman

Case [2014] NSWSC 1210 18 August 2014

Type to search within this case.

Supreme Court

New South Wales

Case Title: Colbron v Freeman

Medium Neutral Citation: [2014] NSWSC 1210

Hearing Date(s): 14 August 2014

Decision Date: 18 August 2014

Before: McCallum J

Decision:
Appeal allowed; judgment entered against Mr Colbron in the Local Court set aside

Catchwords: APPEALS - appeal against judgment entered in the Local Court - proceedings brought in the Local Court by a barrister against a solicitor for unpaid fees - where barrister had already made an application to have the fees assessed under the Legal Profession Act 2004 - where assessor returned the file without making an assessment - whether assessment "complete" within the meaning of the statute - whether solicitor immune from suit in the Local Court

Legislation Cited: Legal Profession Act 2004
Legal Profession Reform Act 1993

Cases Cited: Coburn v Colledge [1897] 1 QB 702
Coshott v Barry [2012] NSWSC 850
Doyle v Chadwick [2007] NSWCA 159
Griffith v ABC [2013] NSWSC 750
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474

Category: Principal judgment

Parties: Warwick Archibald John Colbron (plaintiff)
Rodney Paul Freeman (defendant)

Representation

- Counsel: Counsel:
RD Marshall (plaintiff)
R Carey (defendant)

- Solicitors: Solicitors:
Colbron & Associates (plaintiff)
Photos Legal (defendant)

File Number(s): 2014/195872

Publication Restriction: None

JUDGMENT

HER HONOUR: This is an appeal against a decision of the Local Court in a dispute arising between a barrister and solicitor over payment of the barrister's fees. For reasons that were not clear, the appeal came before me as duty judge.
The plaintiff in the proceedings below was Mr Rodney Freeman, the barrister, who is the respondent to the appeal. The defendant in the proceedings below was the solicitor, Mr Warwick Colbron, who is the appellant. In order to avoid confusion, it is convenient to refer to the parties by their names.
The amount involved in the proceedings below was approximately $20,000 in legal costs rendered in fee notes issued by Mr Freeman to Mr Colbron. The proceedings were commenced in the Local Court by statement of claim filed by Mr Freeman on 27 February 2013. By an amended defence filed on 21 May 2013 Mr Colbron contended, amongst other things, that since Mr Freeman had made an application to have his fees assessed pursuant to division 11 of part 3.2 of the Legal Profession Act 2004, and since the assessment was not yet "completed", Mr Freeman was not entitled to proceed with the claim in the Local Court.
Mr Colbron's defence invoked s 355(b) of the Legal Profession Act, which provides:
355 Consequences of application
If an application for a costs assessment is made in accordance with this Division:
(a) .....
(b) the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed.
The Magistrate did not determine that issue. His Honour found that there was a valid costs agreement in place when the services charged for in the disputed accounts were undertaken. In light of that…

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 Colbron v Freeman

Details

AGLC: Colbron v Freeman [2014] NSWSC 1210
Case: [2014] NSWSC 1210
Decision Date: 18 August 2014

CaseChat Overview and Summary

In this case, the appellant, Colbron, sought to recover unpaid fees from the respondent, Freeman, through an action in the Local Court. Freeman, a solicitor, had engaged Colbron, a barrister, for legal services. Following the completion of the engagement, Colbron pursued Freeman for the outstanding fees. To determine the amount owed, Colbron had previously applied to have the fees assessed under the Legal Profession Act 2004. The assessor, however, returned the file without making an assessment, prompting Colbron to seek a judicial determination of the fees in the Local Court.

The court had to address two primary legal issues: whether the assessment process was "complete" under the statute and whether Freeman, as a solicitor, was immune from being sued in the Local Court. The first issue centred on the interpretation of the term "complete" in the context of the assessment procedure outlined in the Legal Profession Act 2004. The second issue involved the scope of immunity afforded to solicitors under the act, specifically whether it precluded them from being sued in the Local Court for unpaid fees.

In resolving these issues, the court found that the assessment process was not "complete" as the assessor had not made an assessment of the fees. The court reasoned that for an assessment to be deemed complete, it must result in a determination of the fees owed. As the assessor had returned the file without making an assessment, the process was incomplete. Consequently, Colbron was entitled to seek a judicial determination of the fees in the Local Court. Regarding immunity, the court concluded that the immunity provisions in the Legal Profession Act 2004 did not extend to preclude a solicitor from being sued in the Local Court for unpaid fees. The court held that Freeman was not immune from suit in the Local Court in this matter.

The court allowed the appeal, quashed the judgment of the Local Court, and remitted the matter to the Local Court for a determination of the unpaid fees. The court's decision affirmed that the assessment process must be completed for it to preclude a party from seeking judicial determination of fees, and that immunity provisions in the act do not extend to bar actions in the Local Court for unpaid fees.

Orders