D.M. Wright & Associates v Murrell

Case [2021] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

D.M. Wright & Associates v Murrell [2021] QDC 93

PARTIES:

D.M. WRIGHT & ASSOCIATES
(Appellant)
v

MURRELL

(Respondent)

FILE NO/S:

BD 2586/2020

DIVISION:

Appeals

DELIVERED ON:

5 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2021

JUDGE:

Barlow QC DCJ

ORDERS:

The appeal be listed for further hearing on a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE – RELEVANT PRINCIPLES – GENERALLY – application made for assessment of costs by costs assessor pursuant to Legal Profession Act – costs assessor completed assessment – appellant sought review of costs assessor’s decision on various grounds, including bias and reasonable apprehension of bias – whether assessor was biased – whether assessor’s conduct gave rise to reasonable apprehension of bias.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – allegations of bias or an apprehension of bias made against costs assessor – basis of allegations include material published subsequent to the completion of assessor’s reasons – whether subsequent comments of costs assessor can be considered in determining questions of bias.

Legal Profession Act 2007, s 335
Uniform Civil Procedure Rules 1999, rr 720, 737, 738, 742, 765, 785

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, considered
Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied
Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224, cited
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, cited
Johnson v Johnson (2000) 201 CLR 488, cited
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, cited
Vakauta v Kelly (1989) 167 CLR 568, cited
Webb v The Queen (1994) 181 CLR 41, cited

COUNSEL:

SK Hartwell for the appellant

IG Murrell, respondent, self-represented

SOLICITORS:

D.M. Wright & Associates for the appellant

Introduction

  1. This is an appeal from the decision of a magistrate. The appellant (a solicitor practising under a firm name) at first instance applied for a review of the decision of a costs assessor pursuant to rule 742 of the Uniform Civil Procedure Rules 1999. The assessment was of costs charged by the appellant to the respondent while he was the appellant’s client. That application was dismissed.

  2. The appeal is made on a number of grounds.  Grounds 4 to 9, which are the subjects of these reasons, concern whether the magistrate erred in failing to find there was actual bias, or a reasonable apprehension of bias, on the part of the assessor in carrying out the assessment.  As this is a serious allegation against the assessor, for which the appropriate remedy would be to order a new assessment, it is appropriate that…

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Details
AGLC
D.M. Wright & Associates v Murrell [2021] QDC 93
Case
[2021] QDC 93
Decision Date

CaseChat Overview and Summary

D.M. Wright & Associates sought to appeal a decision of Acting Magistrate Swan which dismissed their claims of bias on the part of a costs assessor, Mr Hallam. The assessment had been made pursuant to the Legal Profession Act 2007. The appeal was against the Acting Magistrate’s decision to reject the appellant’s claims of bias and apprehension of bias against Mr Hallam. The appellants argued that certain comments made by Mr Hallam in his assessment and correspondence subsequent to the delivery of the assessment gave rise to (at least) a reasonable apprehension of bias on his part. The respondent rejected this on the bases that the alleged acts indicating apprehended bias were ‘manufactured’ by the appellant and that the appellant had failed to demonstrate a connection between the acts and a conclusion of apprehended bias.

The court considered whether the subsequent comments of the costs assessor could be considered in determining questions of bias. The court concluded that such comments could be considered, and proceeded to review Mr Hallam’s comments in the context of the entirety of his assessment and correspondence. The court found that there was no element of apprehended bias emanating from the assessor’s comments. The court found that the assessor clearly disagreed with the appellant and was very clear that he had not conducted his duties in the manner so described by the appellant. The court also found that Mr Hallam’s response to correspondence from the appellant was fair and reasonable in the circumstances.

The court dismissed the appeal and confirmed the costs assessor’s decision. The court held that there was no evidence of bias or apprehension of bias on the part of the costs assessor. The court found that Mr Hallam’s comments were reasonable and did not indicate any fixation or irrelevant preoccupation with the appellant. The court held that the appellant had failed to demonstrate a connection between the acts and a conclusion of apprehended bias.

Orders

Orders of the court

The appeal be listed for further hearing on a date to be fixed.

Background

Background to the litigation

The appellant, in summary, contends that certain comments made by the costs assessor in his reasons and in other correspondence subsequent to the delivery of the assessment give rise to (at least) a reasonable apprehension of bias on his part. The respondent rejects this on the bases that the alleged acts indicating apprehended bias were ‘manufactured’ by the appellant and that the appellant has failed to demonstrate a connection between the acts and a conclusion of apprehended bias.Background For ease of reference, I shall refer to the parties by their roles in this appeal. I am grateful to each of them for their assistance in condensing the overwhelming amount of material into a more manageable form. This summary, by comparison, is very brief and is, I hope, relatively uncontroversial. The appellant was engaged by the respondent in 2015 to provide legal services concerning the estates, respectively, of the respondent’s father, sister and mother. By the end of that year, the respondent had terminated those engagements. In early 2016, the appellant provided bills for costs (pursuant, in two cases, to a costs agreement). These were paid.[2] [2]Through indirect means, but the method by which the bills were satisfied is not relevantly in issue. In February 2017, the respondent applied for an assessment of those costs pursuant to section 335 of the Legal Profession Act 2007. An assessment was ordered on 24 February 2017. The initial costs assessor appointed by that order was subsequently removed (on the appellant’s application, for apprehended bias) and replaced by a second costs assessor, a Mr Hallam, on 29 January 2018. Mr Hallam, the costs assessor whose decision was the subject of the magistrate’s decision that, in turn, is the subject of this appeal, filed a costs assessor’s certificate[3] on 30 October 2018, setting out the results of his assessment. In short, he reduced the appellant’s costs by some $13,707 or approximately 30%. The result was that the appellant was required to pay the respondent’s costs of the assessment and therefore to refund to the respondent the amount of $29,328.24. The appellant was also required to pay the costs assessor’s fees of $13,950. The certificate attached a schedule (called a ‘schedule of disallowances’) which particularised the deductions made against each account item and provided brief reasons for them.[3]Pursuant to Uniform Civil Procedure Rules 1999, r 737. Mr Hallam also provided a response to some written material that the appellant had provided to him in the course of the assessment. He attached that response to the certificate. This material and the response are discussed below. The appellant, nonetheless, requested reasons pursuant to rule 738 on 28 November 2018. Mr Hallam advised the parties that those reasons were ready on 10 December 2018. Prior to Mr Hallam providing those reasons to the parties, there was a dispute about his fees and Mr Hallam refused to provide the reasons until he was paid. Eventually he was ordered to do so by Magistrate Nunan on 15 April 2019. Mr Hallam provided his reasons to the parties on 18 April 2019.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Hartwell submitted that the statements made in the 13 December, 31 December and 25 February letters demonstrate that Mr Hallam felt some sort of offence from statements made in correspondence to him, that may have affected his judgment in the assessment.Decision at first instance In reference to the reasons on the costs agreement, Acting Magistrate Swan held that no element of bias, actual or apparent, emanated from Mr Hallam’s comments regarding the reasonableness of the costs agreements and Ms Tonkin’s affidavit. Initially, it appears that Acting Magistrate Swan referred to a separate part of the appellant’s submissions, which were on the misapplication of section 341 of the Legal Profession Act 2007. However, the reasons do indicate that her Honour did consider the questions of bias arising from Mr Hallam’s comments in the reasons on the costs agreement. Her Honour wrote, at page 6 of her 13 August 2020 reasons:The Solicitor submitted that the assessor’s views were unnecessarily provided by him. Even had that been the case, it does not of itself in any way lean towards a conclusion of apprehended bias/bias against the assessor.The Client also added that at no time during this course of alleged apprehended bias/bias on the assessor’s part, was there any formal attempt made by the Solicitor to challenge the assessor in the performance of his duties other than by a number of references in correspondence to the assessor. The Client added that the first occasion upon which the Solicitor had claimed apprehended bias/bias against the assessor occurred on 10 July 2018.[23]On either claim of apprehended bias, having read the pages in question, the only conclusion I can draw is that the assessor clearly disagreed with the Solicitor and was very clear that he had not conducted his duties in the manner so described by the Solicitor…In my view, there is no element of apprehended bias/bias emanating from the assessor’s comments.[23]It appears that her Honour was referring here to a letter from the appellant to Mr Hallam dated 10 July 2018, which contained extensive submissions on various issues in the assessment. Similar comments were made by her Honour with regard to Mr Hallam’s views on Ms Tonkin’s affidavit. It was held that Mr Hallam’s response was ‘fair and reasonable in the circumstances’[24] and that the relevant test for apprehended bias (‘discussed below’) was not satisfied here.[24]Reasons (13 August 2020), p8. Regarding Mr Hallam’s comments about Mr Hartwell, her Honour found:[25]The references to Mr Hartwell’s name do not suggest to me that the assessor was fixated on or had an irrelevant preoccupation with Mr Hartwell. The references appeared to be sporatic [sic]. Considering the unusually large volume of documents involved, the references do not indicate a pattern that would suggest “fixation” or an “irrelevant preoccupation” by the assessor towards Mr Hartwell. It is telling that when advised that Mr Hartwell had not made submissions to the assessor, the matter was quickly rectified by the assessor.[25]Reasons (13 August 2020), p9.

Ratio Decidendi

Legal Principle Established

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