Croton v Healy - [2013] QCAT 547

CITATION:

Croton v Healy [2013] QCAT 547

PARTIES:	Sarah Croton (Applicant)
v
Hartley Healy (Respondent)

APPLICATION NUMBER:

OCL030-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

10 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The matter is be set down for a hearing for one half day at a time and date to be advised by QCAT.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENT – APPLICATION TO SET ASIDE – QCAT – CONSTITUTION OF TRIBUNAL – where s 328(1) of the Legal Profession Act 2007 (Qld) provides that the Supreme Court or QCAT may order that a costs agreement be set aside if the agreement is not fair or reasonable – where for a proceeding QCAT is empowered to deal with under the Legal Profession Act 2007, the Tribunal must be constituted by a judicial member – where judicial member is defined to include a Supreme Court judge or a former Supreme Court judge who is nominated by the President of QCAT to constitute the Tribunal – where the application to set aside the costs agreement was refused by a QCAT Adjudicator – whether decision by Adjudicator null or void – whether QCAT has power to make a fresh decision

PRACTICE AND PROCEDURE – EVIDENCE – CREDIT – where applicant contends she was induced to enter the costs agreement because of misrepresentations made by employees of the respondent about the hourly rate – where the respondent denies the applicant’s contentions – where the Tribunal ordered that the matter be determined on the papers – where s 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding – where the credit of the parties involved in the conversation regarding the hourly rate is an issue that must be determined by the Tribunal – whether it is necessary for the fair conduct of the proceedings to allow the parties to present oral evidence

Legal Profession Act 2007 (Qld), s 322(1), s 328(1), s 328(2)(a), s 598
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62(1)

Minister for Immigration v Bhardwaj (2002) 209 CLR 597, applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

This matter has an unfortunate history. On 13 September 2013 the Tribunal, constituted by an Adjudicator, refused an application to set aside a costs agreement between a law practice, Hartley Healy, and its client, Sarah Croton.
Under s 322(1) of the Legal Profession Act 2007 (Qld) (‘LPA’) a costs agreement may be made between a client and a law practice retained by the client. Part 3.4 of the LPA sets out, amongst other matters, the…

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.

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Details

Case: [2013] QCAT 547
Decision Date

CaseChat Overview and Summary

In Croton v Healy, Sarah Croton sought to set aside a costs agreement between herself and the respondent, Hartley Healy, a law practice. The matter was initially heard and dismissed by a QCAT Adjudicator on 13 September 2013. Croton appealed, claiming that the Adjudicator's decision was void due to an administrative error in the constitution of the Tribunal. Specifically, the Adjudicator was not a 'judicial member' as required by the Legal Profession Act 2007 (Qld). Croton also argued that she was induced to enter the agreement due to misrepresentations about the hourly rate by the respondent's employees. The court was required to decide whether the Adjudicator's decision was null and void and if QCAT had the power to make a fresh decision. Additionally, the court needed to determine if oral evidence should be allowed to resolve the credit issue between the parties.

The court held that the Adjudicator's decision was indeed void due to jurisdictional error, as the Adjudicator was not a 'judicial member' as required by the Legal Profession Act 2007. The court cited Minister for Immigration v Bhardwaj, which held that decisions involving jurisdictional error are void and should be regarded as 'no decision at all.' Therefore, the decision of 13 September 2013 was set aside. Furthermore, the court found that the credit issue, involving conflicting versions of a conversation, required oral evidence and cross-examination to be fairly resolved. Under the Queensland Civil and Administrative Tribunal Act 2009, QCAT has the discretion to conduct proceedings in a manner that ensures a speedy and fair outcome, and the court concluded that an oral hearing was necessary to meet these requirements.

The court ordered the matter to be set down for a hearing for one half day at a time and date to be advised by QCAT, before the President (a Supreme Court Judge) or another Judicial Member of the Tribunal. This decision allowed for the proper determination of the credit issue and the reconsideration of Croton's application to set aside the costs agreement.

Orders