D. M. Wright and Associates v Murrell - [2020] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

D. M. Wright and Associates v Murrell [2020] QDC 110

PARTIES:

D M WRIGHT & ASSOCIATES

(appellant)

v

IAN GORDON MURRELL

(respondent)

FILE NO/S:
5251/2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate’s Court, Brisbane

DELIVERED ON:

10 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 May and further written submissions of 15 and 22 May 2020.

JUDGES:

Reid DCJ

ORDER:

1. Appeal allowed by deleting the words “on an indemnity basis” from the order of the Magistrates Court of 29 October 2019.

2. No order as to the costs of the Appeal.

CATCHWORDS:

PROCEDURE - APPEAL –ADJOURNMENT OF REVIEW OF COST ASSESSMENT– non-compliance with orders for filing summary of argument and list of authorities - where hearing to take longer then allotted time -where the learned Magistrate ordered the appellant pay the respondent’s cost thrown away by reason of the adjournment of the hearing on an indemnity basis – where the appellant seeks the orders be set aside – where the appellant further seeks an order that the costs of the adjournment of the review on that day be reserved – whether appellant had in fact filed a summary of argument–where allegations of bias made against cost assessor – whether the costs assessor should have been served with material– whether the appeal should be allowed

Legal Profession Act2007 (Qld) s 341

Livesey v New South Wales Bar Association (1983) 151 CLR 288 – referred to
R v Watson Ex parte Armstrong (1976) 136 CLR 248 – referred to
Re JRL; Ex parte CJL (1986) 161 CLR 342 – referred to
Vakauta v Kelly (1989) 167 CLR 568 – referred to
Johnson v Johnson (2000) 201 CLR 488 – referred to
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – referred to
Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 – referred to
Ivory v Telstra Corporation [2002] QCA 457 – referred to
Mann v Medical Practitioners Board of Victoria & Anor [2001] VSCA 51 – referred to
Fotis v Magistrates Court of Victoria [2001] VSC 301 – referred to

COUNSEL:
S Hartwell for the applicant

R P Dickson for the respondent

SOLICITORS:
D M Wright & Associates for the appellant

QBM Lawyers for the respondent

Introduction

This is an appeal from a decision of Magistrate Hay of 29 October 2019. I will for convenience refer to the parties by their role in this court. The appellant was the respondent below and the respondent was the applicant in that court. On that day, her Honour adjourned the review of a costs assessment and ordered that the appellant pay the respondent’s costs “thrown away by reason of the adjournment, of the hearing listed for 29 October 2019 on an indemnity basis.” The review related to the assessment of costs of three bills of the appellant on what are called the Gordon bill, Enid bill and Joyce bill. All three were estate matters in which the respondent engaged the appellant to…

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: [2020] QDC 110
Decision Date: 10 June 2020

CaseChat Overview and Summary

The case of D. M. Wright and Associates v Murrell involved an appeal against a decision made by a Magistrate in the Magistrates Court of Victoria. The appeal centred around the adjournment of a review of a costs assessment, with the appellant, D. M. Wright and Associates, contesting the Magistrate's order that they pay the respondent's costs on an indemnity basis due to non-compliance with orders for filing a summary of argument and a list of authorities. The appellant argued that the order should be set aside, and that the costs of the adjournment should be reserved. The appeal also questioned whether the appellant had filed a summary of argument, whether the costs assessor should have been served with relevant material, and whether the appeal should be allowed.

The court had to determine whether the appellant had substantially complied with the order of 23 August by filing a summary of argument and a list of authorities. The court also needed to decide whether the grounds of review and schedules of objection constituted a summary of argument, and whether the costs assessor should have been served with relevant material. Finally, the court had to determine whether the appeal should be allowed and if the order for the appellant to pay costs on an indemnity basis should be set aside.

The court found that the appellant had not complied with the order of 23 August by failing to file a summary of argument and a list of authorities. The court rejected the appellant's argument that the grounds of review and schedules of objection constituted a summary of argument, as neither document set out relevant legal principles relied on by the appellant. The court also found that the appellant had not properly disclosed any reason why the summary of argument and list of authorities were not prepared on time. In light of these findings, the court concluded that the Magistrate's order for the appellant to pay costs on an indemnity basis was justified.

ORDERS:
1. Appeal allowed by deleting the words “on an indemnity basis” from the order of the Magistrates Court of 29 October 2019.
2. No order as to the costs of the Appeal.

Orders

Orders of the court

1. Appeal allowed by deleting the words “on an indemnity basis” from the order of the Magistrates Court of 29 October 2019.

2. No order as to the costs of the Appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

More importantly, if such a decision not to file any named “summary of argument” despite the order of 23 August was made, one might have thought that fact would have been clearly communicated to the respondent. He, no doubt, was waiting for the summary of argument and list of authorities required by the terms of paragraph 3.2 of the order of 23 August. Counsel for the respondent submitted the appellant’s position, namely that the order had been complied with by the delivery of the schedules attached to the affidavit and the grounds of review, was never communicated to the respondent. And of course, the required list of authorities was not then produced in any case. Decision below The learned Magistrate commenced her decision on page 25 of the transcript. Her Honour noted the appellants had advised the court on 14 October that the appellant considered the matter would take more than the one day allotted, and that the respondent was not then agreeable to adjourning the matter. Her Honour noted the appellants’ non-compliance with the requirements of the order of 23 August, and the absence of any application seeking variation of that order. She found no summary of argument had been filed and that the list of authorities was served, but well past the allotted time-frame. She rejected the appellants’ arguments that the grounds of review and schedules of objection constituted a summary of argument. She specifically found neither document set out relevant legal principles relied on by the appellant. I shall deal more fulsomely with that issue in due course. Consequently, her Honour found the respondent, the applicant below, “was not in a position to understand the basis of the submission that the matter was going to take beyond one day” as it had no summary of the appellants’ argument or cases or legal principles to be relied on (see T1-27, l10 – 17). Her Honour also thought it of great relevance that the affidavit of Ms Wright was “tellingly silent” on steps the appellant had taken to communicate difficulties she may have had in complying with the Order of 23 August to the respondents solicitors, or with the court, or to explain why Ms Wright’s substantial input was indeed necessary when it was Mr Cunningham who had been dealing with the matter on behalf of the appellant in the Magistrates court. There was, her Honour observed, no explanation as to why Mr Cunningham could not have adequately instructed counsel with respect to the preparation of the summary of argument. In such circumstances, her Honour viewed the appellants’ request for an adjournment as a request for an indulgence due to non-compliance with the directions of the court. She was concerned about the lengthy delay in resolving the whole of the matter, which she noted had been commenced a year earlier. Ultimately, the learned Magistrate agreed to adjourn the application, subject to “strict supervision” by the court to ensure the matter was thereafter dealt with expeditiously.

Ratio Decidendi

Legal Principle Established

That it was this submission which influenced the learned Magistrate to make such an order is made clear, in my assessment, because after indicating the appellant should pay costs on an indemnity basis, the learned Magistrate said at the following page (T1-29) “I had heard Mr Dickson say that part of what he would be seeking from an adjournment today was indemnity costs”. She said she had it “noted”.Consideration Her Honour very properly considered the issues raised in Ms Wright’s affidavit, including the fact that the affidavit did not properly disclose any reason why the summary of argument and list of authorities were not prepared on time. Her Honour also in my view properly addressed the issue of whether the grounds of review attached to the application and the schedules of objection attached to the affidavit of Mr Cunningham together constituted a written summary of argument. Before me the appellant submitted that they did constitute a summary of argument such that, on the filing of Mr Cunningham’s affidavit 4 October, there had been substantial compliance with the court order of 23 August. In my view consideration of the material indicates that is not to. The schedules of objections to the Gordon bill are not extensive (see pages 13 – 14 of the exhibit to the affidavit). However the schedule of objections in relation to the Enid bill and the Joyce Bill are both voluminous, comprising pages 22 – 60 and 61-85 of the exhibits to Mr Cunningham’s affidavit. The costs assessor’s reasons are themselves lengthy and had been exhibited to an earlier affidavit of Mr Cunningham filed in the court below. The objections in the Enid bill alone comprise, by my unaudited calculation, 85 separate objections to 167 items. One of those is a compendious objection to Items 414 – 471. Most however deal with an individual item or a small number of consecutive items. The phrasing of the objections is often very general. By way of example, the first objection, to Item 5, asserts a claimed error of fact by the assessor but relies also on there having been a “misapplication of the assessment criteria in s 341 of the Legal Profession Act”. That objection, namely misapplication of the assessment criteria in s 341 of that Act, is repeated for Items 6 – 10, 15 – 16, 34, 57, 58, 59, 98, 99, 117, 121, 123, 124, 131, 133, 134, 135, 137, 139, 148, 149, 159, 160, 165, 172, 179, 184/5, 187, 200, 204, 208, 214, 215, 221, 224, 225, 227/8, 231, 237, 243/4, 245, 271/2, 274, 277, 279, 288/9, 290, 294/5, 308, 310, 318, 320/321, 324/326, 335, 336, 339, 340, 342, 355, 356, 357/358, 363, 366, 368/369, 383, 387, 399, 490, 47, 411 and 414-471. Perusal of the material provides no insight into how or why any such misapplication arises. If the respondent’s submission that the summary of argument relied on was the schedule of objections read with the grounds for review, then the legal basis of the subject objection should be clear. It is not. Section 341 itself is in these terms: “341 Criteria for assessment (1)In conducting a costs assessment, the costs assessor must consider—(a) whether or not it was reasonable to carry out the work to which the legal costs relate; and(b) whether or not the work was carried out in a reasonable way; and(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 340 applies to any disputed costs.(2)In considering what is a fair and reasonable amount of legal costs, the costs assessor may have regard to any or all of the following matters—(a) whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;(b) any disclosures made by the law practice under division 3;(c) any relevant advertisement as to—(i) the law practice’s costs; or(ii) the skills of the law practice, or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf;(d) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter;(e) the retainer and whether the work done was within the scope of the retainer;(f) the complexity, novelty or difficulty of the matter;(g) the quality of the work done;(h) the place where, and circumstances in which, the legal services were provided;(i) the time within which the work was required to be done;(j) any other relevant matter.(3)In conducting an assessment of legal costs payable by a non-associated third party payer, the costs assessor must also consider whether it is fair and reasonable in the circumstances for the non-associated third party payer to be charged the amount claimed.”

CITATION:	D. M. Wright and Associates v Murrell [2020] QDC 110
PARTIES:	D M WRIGHT & ASSOCIATES (appellant) v IAN GORDON MURRELL (respondent)
FILE NO/S:	5251/2019
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrate’s Court, Brisbane
DELIVERED ON:	10 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	11 May and further written submissions of 15 and 22 May 2020.
JUDGES:	Reid DCJ
ORDER:	1. Appeal allowed by deleting the words “on an indemnity basis” from the order of the Magistrates Court of 29 October 2019. 2. No order as to the costs of the Appeal.
CATCHWORDS:	PROCEDURE - APPEAL –ADJOURNMENT OF REVIEW OF COST ASSESSMENT– non-compliance with orders for filing summary of argument and list of authorities - where hearing to take longer then allotted time -where the learned Magistrate ordered the appellant pay the respondent’s cost thrown away by reason of the adjournment of the hearing on an indemnity basis – where the appellant seeks the orders be set aside – where the appellant further seeks an order that the costs of the adjournment of the review on that day be reserved – whether appellant had in fact filed a summary of argument–where allegations of bias made against cost assessor – whether the costs assessor should have been served with material– whether the appeal should be allowed Legal Profession Act2007 (Qld) s 341 Livesey v New South Wales Bar Association (1983) 151 CLR 288 – referred to R v Watson Ex parte Armstrong (1976) 136 CLR 248 – referred to Re JRL; Ex parte CJL (1986) 161 CLR 342 – referred to Vakauta v Kelly (1989) 167 CLR 568 – referred to Johnson v Johnson (2000) 201 CLR 488 – referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – referred to Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 – referred to Ivory v Telstra Corporation [2002] QCA 457 – referred to Mann v Medical Practitioners Board of Victoria & Anor [2001] VSCA 51 – referred to Fotis v Magistrates Court of Victoria [2001] VSC 301 – referred to
COUNSEL:	S Hartwell for the applicant R P Dickson for the respondent
SOLICITORS:	D M Wright & Associates for the appellant QBM Lawyers for the respondent