Dibb v Hopgood Ganim - [2001] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION: Dibb v. Hopgood Ganim [2001] QDC 153

PARTIES: RAYMOND JOSEPH DIBB (Appellant)
v.
HOPGOOD GANIM (Respondent)

FILE NO/S: Appeal D486/2001
M 22273/99

DIVISION:

PROCEEDING: Appeal

ORIGINATING COURT: Magistrates Court Brisbane

DELIVERED ON: 9 March 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 February 2001

JUDGE: McGill D.C.J.

ORDER: Appeal allowed with costs; judgment of 31 January 2001 set aside; order that there be a new trial of the claim and counterclaim before a different magistrate; respondent to have indemnity certificate

CATCHWORDS:
LEGAL PRACTITIONERS – solicitor and client – action to recover fees – significance of certificate of assessor – Queensland Law Society Act 1952, ss.48K, 48L

INFERIOR COURTS – Magistrates Court – whether appropriate to dispense with record at trial – whether summary judgment appropriate – whether matters raised going to defence of claim – Uniform Civil Procedure Rules r.519

Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 - cited
Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 – cited
Re: Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd.R. 228 – cited
Re: Feez Ruthning’s Bill of Costs [1989] 1 Qd.R. 55 – cited
Re: Baker Johnson’s Bill of Costs [1995] 2 Qd.R. 234 – followed
Re: Hallett’s Bill of Costs [1997] 1 Qd.R. 164 – followed
Australian National Industries Ltd v. Spedley Securities Ltd (1992) 26 NSWLR 411 - distinguished
R v. Masters (1992) 26 NSWLR 450 – cited
Quadra Pacific (Aust) Co. Pty Ltd v. Mercantile Credits Ltd [2000] QCA 284 – cited

COUNSEL: Appellant in person
C.F.C. Wilson for the respondent

SOLICITORS: Hopgood Ganim for the respondent

This is an appeal from a decision in the Magistrates Court on 31 January 2001 by which it was ordered that there be judgment on the claim for the plaintiff against the defendant in the sum of $4,792.10 plus interest of $638.05 and costs of $3,810.00, a total of $9,240.15, and that the defendant’s counterclaim be dismissed. One of the grounds of the appeal was that the Magistrate who made this order erred by failing to disqualify himself from proceeding with the matter when the defendant had applied to him to do so. In order to understand why this application was made, and provide some context for what occurred on 31 January, it is necessary to say something about the history of the action.

History Of The Action

The action was commenced by a claim filed on 30 November 1999 seeking the sum of $7,210.05 for breach of contract, together with interest and costs. The attached statement of claim alleged that the plaintiff was a firm of solicitors suing on a client agreement made, in accordance with s.48 of the Queensland Law Society Act 1952, with the defendant on or about 11 September 1998. It alleged that the plaintiff performed professional services for the defendant who incurred costs and disbursements in accordance with the client agreement, and the amount claimed was owing after making…

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 Dibb v Hopgood Ganim

Details

AGLC: Dibb v Hopgood Ganim [2001] QDC 153
Case: [2001] QDC 153
Decision Date: 9 March 2001

CaseChat Overview and Summary

In the case of Dibb v Hopgood Ganim, the plaintiff, Dibb, sought to recover legal fees from the defendant, Hopgood Ganim. The dispute was heard in the Magistrates Court of Queensland. The plaintiff, a solicitor, had provided legal services to the defendant and subsequently issued a bill for the services rendered. The defendant did not pay the full amount and contested the reasonableness of the charges. The case was appealed to a higher court, which examined the procedural and substantive aspects of the original decision.

The central legal issues in this case revolved around the procedural correctness of the original trial and the substantive evaluation of the legal fees. Specifically, the court needed to determine whether the magistrate was correct in dispensing with a record at the trial, whether a summary judgment was appropriate, and whether the matters raised were pertinent to the defence of the claim. Furthermore, the court had to assess whether the certificate of assessment provided by the costs assessor was sufficient for the court to make an informed decision on the reasonableness of the fees charged.

The court found that the magistrate had erred by not considering the counterclaim and by not ensuring that the defendant had a proper opportunity to have his defence and counterclaim evaluated. The court held that the certificate of assessment provided by the costs assessor was insufficient for the court to adequately exercise its expertise in determining the reasonableness of the fees. Consequently, the judgment on the counterclaim was set aside, and a new trial was ordered. The court also highlighted that the defendant's failure to proceed with the counterclaim did not preclude the court from rectifying the procedural errors. The appeal was successful, and the original judgment was set aside with costs awarded to the appellant.

In conclusion, the court ordered that the judgment dated 31 January 2001 be set aside and that there be a new trial of both the claim and counterclaim before a different magistrate. The respondent was directed to provide an indemnity certificate.

Orders

Orders of the court

Appeal allowed with costs; judgment of 31 January 2001 set aside; order that there be a new trial of the claim and counterclaim before a different magistrate; respondent to have indemnity certificate

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It has always been recognised, of course, that taxing officers have a degree of special expertise in determining things such as whether it was reasonable to undertake particular work in particular circumstances, and what is a reasonable amount to charge for a particular piece of work (in circumstance where the amount to be charged is not fixed by a scale) and accordingly courts limit their interference with such matters on appeal to consideration of whether there has been some error in principle in the taxation: Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627-8. Part of the justification for this approach lay in the circumstance that the taxing officer was an officer of the court, which is not the case with a costs assessor, but the terms of the legislation suggest that there was an intention that, to a significant extent, this approach should be transferred to litigation about costs under the Queensland Law Society Act. However, a court hearing an appeal from a decision of the taxing officer always has the benefit of the outcome of the detailed taxation item by item of the solicitor’s bill, and indeed, the benefit of reasons from the taxing officer on the review of the taxation in relation to particular objections directed to relevant items in the bill. It is impossible for a court to have any particular regard to any exercise of expertise on the part of the costs assessor as to the appropriate amount to be allowed as a reasonable amount for a particular task included within the solicitor’s account when provided merely with the certificate of assessment used in the present case. There is also the consideration that it is by no means clear to what extent the costs assessor has purported to decide any questions of whether, for example, particular work was or was not included within the retainer. To some extent at least a taxing officer used to have (and therefore presumably a costs assessor now has) jurisdiction to decide questions as to the scope of the retainer in order to determine whether particular items in the account are matters in respect of which a solicitor may properly charge: Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412. It was always recognised that it was appropriate for a taxing officer to determine whether a particular item of work for which the solicitor claims remuneration was work that was appropriate for the solicitor to do in the circumstances. But given what has occurred in the present case, and the form of the assessment certificate, it is difficult to see how that certificate can be of much assistance in the trial. Accordingly, the magistrate erred in giving judgment on the claim without determining the counterclaim. Because of this error, and the procedural errors referred to earlier, the defendant was deprived of the opportunity to have his defence and counterclaim properly considered. In these circumstances it is not conclusive that he chose not to proceed with the counterclaim. This was not an election which prevents my setting aside the judgment on the counterclaim and ordering a new trial, since at worst he was electing to appeal, which he has done, successfully.

CITATION:	Dibb v. Hopgood Ganim [2001] QDC 153
PARTIES:	RAYMOND JOSEPH DIBB (Appellant) v. HOPGOOD GANIM (Respondent)
FILE NO/S:	Appeal D486/2001 M 22273/99
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Brisbane
DELIVERED ON:	9 March 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2001
JUDGE:	McGill D.C.J.
ORDER:	Appeal allowed with costs; judgment of 31 January 2001 set aside; order that there be a new trial of the claim and counterclaim before a different magistrate; respondent to have indemnity certificate
CATCHWORDS:	LEGAL PRACTITIONERS – solicitor and client – action to recover fees – significance of certificate of assessor – Queensland Law Society Act 1952, ss.48K, 48L INFERIOR COURTS – Magistrates Court – whether appropriate to dispense with record at trial – whether summary judgment appropriate – whether matters raised going to defence of claim – Uniform Civil Procedure Rules r.519 Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 - cited Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 – cited Re: Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd.R. 228 – cited Re: Feez Ruthning’s Bill of Costs [1989] 1 Qd.R. 55 – cited Re: Baker Johnson’s Bill of Costs [1995] 2 Qd.R. 234 – followed Re: Hallett’s Bill of Costs [1997] 1 Qd.R. 164 – followed Australian National Industries Ltd v. Spedley Securities Ltd (1992) 26 NSWLR 411 - distinguished R v. Masters (1992) 26 NSWLR 450 – cited Quadra Pacific (Aust) Co. Pty Ltd v. Mercantile Credits Ltd [2000] QCA 284 – cited
COUNSEL:	Appellant in person C.F.C. Wilson for the respondent
SOLICITORS:	Hopgood Ganim for the respondent