Elks v Aitken Whyte Lawyers Pty Ltd - [2024] QCAT 123

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123

PARTIES:

ALEXANDER JASON ELKS

(applicant)

v

AITKEN WHYTE LAWYERS PTY LTD

(respondent)

APPLICATION NO/S:

OCL069-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

25 March 2024

HEARING DATE:

30 November 2023

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President
Member Berry

ORDERS:

1.     Excluding any materials that the Respondent has previously provided to the Applicant, the Respondent is to produce to the Tribunal registry any materials in its possession which fall within the following description:

(a)     copies of all documents or records of communications between solicitors of the Respondent specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees; and

(b)     copies of all documents or records of communications between solicitors of the Respondent and Counsel specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees. This includes communications with Senior Counsel and Junior Counsel who were briefed on the matter, and communications with any other Counsel about their availability for, or potential engagement on, the matter.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS - PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS - Where an application for directions as to the production of documents, was made – whether the documents are relevant to the substantive proceeding – whether the documents are required to be produced

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62(3)

Cannon v Saunders [2017] QCATA 4

Uthmann v Ipswich City Council [1998] 1 Qd R
Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600

Stewart v Stephens & Tozer Solicitors [2022] QCAT 182

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Trewavas counsel for Aitken Whyte Lawyers

REASONS FOR DECISION

On 10 November 2022 Mr Alexander Jason Elks (the Applicant) filed an application against law firm Aitken Whyte Lawyers Pty Ltd (the Respondent). The application seeks relief including the setting aside of a costs agreement under s 328 of the Legal Profession Act 2007 (Qld) (the LP Act).
On 5 September 2023 the Applicant filed an application in that proceeding, seeking a direction from the Tribunal that the Respondent produce various materials relating to the engagement between himself and the Respondent.
After the filing of further affidavit materials and submissions, that application for a direction to produce was heard by the President of the Tribunal, Justice Mellifont, on 30 November 2023.
Following that hearing, and pursuant to s 168 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the Tribunal for this matter was reconstituted to include Member Berry.

The application for disclosure of documents

The Applicant seeks the following materials:[1]
(a)any…

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: [2024] QCAT 123
Decision Date: 25 March 2024

CaseChat Overview and Summary

The parties involved in this case were Elks, the Applicant, and Aitken Whyte Lawyers Pty Ltd, the Respondent. The dispute arose in the context of a legal proceeding where the Applicant sought directions regarding the production of certain documents. The matter was before the Administrative Appeals Tribunal. The Applicant sought to compel the Respondent to produce documents that were relevant to the engagement of counsel for the Applicant’s legal matters, specifically between the dates of 14 October 2021 and 30 November 2021. This included communications about the work to be performed by counsel, as well as their fees or estimated fees.

The legal issues the court needed to decide involved the relevance and necessity of the documents in question for the substantive proceeding. Specifically, the court had to determine whether the documents were relevant and required to be produced for the purposes of the proceeding. The Applicant argued that the documents were necessary for understanding the engagement of counsel and the associated fees. The Respondent, on the other hand, contested the relevance and necessity of the documents.

The court reasoned that the documents in question were indeed relevant and necessary for the proceeding. The court found that the documents related to the engagement of counsel and the associated fees, which were central to the matter. The court determined that these documents were crucial for a fair and effective resolution of the proceeding. Consequently, the court ordered the Respondent to produce the specified documents to the Tribunal registry, excluding any materials already provided to the Applicant. The order also detailed the specific types of documents required, including communications between the solicitors of the Respondent and the counsel, as well as communications between the solicitors and counsel regarding the engagement of counsel and related fees.

Orders

Orders of the court

1. Excluding any materials that the Respondent has previously provided to the Applicant, the Respondent is to produce to the Tribunal registry any materials in its possession which fall within the following description:

(a) copies of all documents or records of communications between solicitors of the Respondent specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees; and

(b) copies of all documents or records of communications between solicitors of the Respondent and Counsel specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees. This includes communications with Senior Counsel and Junior Counsel who were briefed on the matter, and communications with any other Counsel about their availability for, or potential engagement on, the matter.

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

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