Galbally and O'Bryan Lawyers (a firm) v Awadallah
[2016] VSC 68
•2 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2014 06018
| GALBALLY & O’BRYAN LAWYERS (a firm) | Applicant |
| v | |
| HASSAN AWADALLAH | Respondent |
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JUDGE: | CAMERON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2015 |
DATE OF JUDGMENT: | 2 March 2016 |
CASE MAY BE CITED AS: | Galbally & O’Bryan Lawyers (a firm) v Awadallah |
MEDIUM NEUTRAL CITATION: | [2016] VSC 68 |
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PRACTICE AND PROCEDURE – Costs – Appeal from Costs Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Wilson (solicitor) | Galbally & O’Bryan Lawyers |
| For the Respondent | In person |
HER HONOUR:
Overview
The respondent, Hassan Awadallah, is a former client of the law firm, Galbally & O’Bryan (‘the firm’). The firm, who is the applicant in this proceeding, represented Mr Awadallah in a negligence proceeding against his former solicitors, who acted for him in a Family Court proceeding.[1]
[1]Proceeding no. S CI 2014 00781 Hassan Awadallah v Davis Zucco (‘negligence proceeding’). The proceeding settled, and consent orders were made by Riordan J on 9 November 2015 dismissing the proceeding with no order as to costs.
Mr Awadallah refuses to pay the firm’s total costs for acting for him in the negligence proceeding. He principally alleges that the firm overcharged him, and was negligent in its advice and the conduct of his case.
On 12 November 2014, the firm filed a summons for taxation of costs under s 3.4.40 of the Legal Profession Act 2004 (‘the Act’)[2] to review its own costs incurred while acting for Mr Awadallah in the negligence proceeding.
[2]The Legal Profession Act 2004 was repealed on 1 July 2015 by s 157 of the Legal Profession Uniform Law Application Act 2014, which Act now governs the legal profession.
On 16 April 2015, Wood AsJ upheld certain objections in relation to the bill of costs. His Honour handed down his decision on 17 April 2015 (‘the first costs hearing’). This review resulted in the amount of $4,698.83 being taxed off the bill. So, from the original amount claimed of $56,346.58, his Honour ordered that the sum of $51,647.75 be allowed. His Honour’s decision followed a consideration of file notes and documents that were produced and the cross-examination of two witnesses. Ultimately, his Honour concluded that the evidence of Mr Wilson, a solicitor employed by the firm, ought be preferred over that of Mr Awadallah.
On 6 May 2015, Mr Awadallah filed a Notice of Appeal in relation to his Honour’s reasons. This appeal was dismissed by Cavanough J on the basis that a reconsideration of Wood AsJ’s decision needed to occur before a judge could conduct a review.
Mr Awadallah subsequently filed a notice of review out of time, but the time was extended so the reconsideration by Wood AsJ proceeded.
On 10 September 2015, on reconsideration of his earlier decision dated 17 April 2015, Wood AsJ (sitting as the Costs Judge) ordered that Mr Awadallah pay the firm’s bill of costs to be taxed in the sum of $51,177.87.
On 18 September 2015, Mr Awadallah filed a notice of appeal against his Honour’s order.
For the reasons that follow, the appeal is dismissed.
Background
In support of its summons for taxation, the firm relied upon:
(a)an itemised bill of costs in which it claimed the sum of $56,346.58;
(b) cost disclosure documents filed 16 February 2015;
(c)the affidavit of Andrew Peter O’Bryan sworn 28 May 2015; and
(d)the affidavit of Carl Robert Wilson dated 7 December 2015.
Mr Awadallah filed the following documents, which the Court considered:
(a)affidavits sworn 27 January 2015 and 1 December 2015;
(b)notices of defence filed 27 January 2015 and 29 May 2015;
(c)notice of objection filed 4 March 2015;
(d)notice of review filed 11 June 2015;
(e)submissions filed 1 October 2015.
At the first costs hearing, Mr Awadallah primarily took issue with a number of items on the bill of costs:
(a)firstly, a conference between Carl Wilson, a solicitor of the firm, and Mr Awadallah on 14 February 2014 for 1 hour and 20 minutes;
(b)secondly, work performed by the firm on an unsuccessful legal privilege application heard and determined by Daly AsJ on 21 August 2014 (‘the privilege application’);[3] and
(c)finally, certain work performed by the firm after 22 August 2014.
[3]Hassan Awadallah v Davis Zucco (unreported, Supreme Court of Victoria, S CI 2014 00781, Daly AsJ, 26 August 2014).
Mr Awadallah initially submitted that the conference on 14 February did not occur and later conceded that the conference had indeed taken place. Further, Mr Awadallah’s evidence was that he gave instructions to the firm after the unsuccessful privilege claim on 21 August 2014 to stop work ‘and put everything on hold’.
Mr Wilson gave evidence which contradicted that of Mr Awadallah. Ultimately, and as I have said, Wood AsJ preferred the evidence of Mr Wilson, and reduced the firm’s bill of costs in the amount of $4,698.83, taking the firm’s bill to $51,647.75.
Again, as I have said in my introductory remarks, on 6 May 2015, Mr Awadallah filed a notice of appeal against Wood AsJ’s order.
On 25 May 2015, Mr Awadallah’s appeal came before Cavanough J sitting in the Practice Court. His Honour dismissed Mr Awadallah’s appeal as incompetent. His Honour noted (in other matters):
1.Today’s hearing relates to a purported appeal from an order made by the Honourable Associate Justice Wood on 17 April 2015. The order was made by his Honour in his capacity as a Costs Judge taxing a bill of costs under Rule 63.56 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). There has been no application for reconsideration of the order under Rule 63.56.1 and thus no order has been made under Rule 63.56.1(6). In these circumstances, the Court holds that the combined effect of section 3.4.47 of the Legal Profession Act 2004, section 17I of the Supreme Court Act 1986 (read in the context of Division 2B of Part 2 of that Act as a whole), and Rules 63.37(2), 63.56 to 63.57 (inclusive) and 63.63 is that no appeal lies from the order made by Associate Justice Wood on 17 April 2015. Accordingly, the purported appeal must be dismissed as incompetent.
2.The point on which this purported appeal must be dismissed as incompetent was raised by the Court, not by the plaintiff/respondent. The defendant/appellant, who is not legally represented, did not argue against the point. Ultimately, the plaintiff/respondent indicated agreement with the point. In the circumstances, having regard to the fact that the defendant/appellant is not legally represented, it is appropriate to order that there be no order as to costs.
3.The defendant/appellant has been referred to the time limit prescribed by Rule 63.56.1(5), namely that an objecting party has 14 days from the making of the relevant order to apply for reconsideration. (In this case, the relevant order was made by the Honourable Associate Justice Wood on 17 April 2015.) The defendant/appellant has also been referred to the general powers of the Court to extend time under the Rules.[4]
[4]Orders of the Honourable Justice Cavanough (25 May 2015).
On 11 June 2015, Mr Awadallah filed a notice of review requesting that Wood AsJ reconsider his order made on 17 April 2015 in the first costs hearing. The notice of review comprised some 12 pages of purported grounds of review, submissions and general commentary, along with six pages of ‘exhibits’.
On 4 September 2015, Mr Awadallah’s notice of review came on for hearing before Wood AsJ (‘the second costs hearing’).[5]
[5]Galbally & O’Bryan Lawyers (a firm) v Hassan Awadallah (unreported, Supreme Court of Victoria, SCI 2014 06018, Wood AsJ, 10 September 2015) (‘Second reasons’).
Mr Awadallah’s submissions before Wood AsJ may, in general terms, be summarised as follows:
(a)The legal services agreement between him and the firm dated 6 November 2013 (‘the agreement’) should be set aside on the grounds that it was not ‘fair and reasonable’ and that a qualified assessor ought to be appointed to assess the work performed;
(b)As the agreement was a ‘no win no fee’ agreement, and as the negligence proceeding was unsuccessful, he was not liable for any costs incurred under it. His Honour noted that under clauses 1.4 and 1.5 of the agreement, the firm was entitled to recover its costs if the retainer was terminated by the client. That is what occurred in this case;
(c)Mr Awadallah maintained that he should not have to pay the costs for which he is liable under the agreement, as the firm’s advice was negligent, or amounted to misconduct. However, in an email dated 18 June 2014 Mr Awadallah instructed the firm to pursue an argument in relation to legal privilege. This argument was ultimately unsuccessful. In his Honour’s words:
It does not necessarily follow that the running of unsuccessful arguments or cases means there was negligence on the part of the legal practitioners. A client is not automatically excused from paying lawyers on the basis that an argument was unsuccessful. In every trial there are successful and unsuccessful arguments run both in the trial and along the course of the case leading up to trial;[6] and
(d)He was affected by medication at the time when he signed the agreement. This, it is said, had an impact on his mental capacity, and therefore the agreement ought not be enforced against him. I note that his Honour held that there was no evidence of Mr Awadallah’s mental capacity at the time of signing the agreement.
[6]Second reasons, [11].
On 10 September 2015, Wood AsJ ordered a further minor reduction in the bill of costs as follows:
1. Pursuant to r 63.56.1(6)(b), the taxation result of 17 April 2015 is reduced by $469.88 to $51,177.87.[7]
2. The Notice for Reconsideration dated 11 June 2015 is dismissed.
3. The Respondent pay the Applicant’s costs of the reconsideration.
[7]His Honour deducted $469.88 off the original taxed sum due to the incorrect calculation of GST at the first hearing.
On 18 September 2015, Mr Awadallah filed a notice of appeal against the order of Wood AsJ made 10 September 2015. The notice of appeal contained four grounds of appeal to which I will refer later.
On 12 October 2015, I heard the notice of appeal.
Legal principles
Under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), an appeal may be brought against a decision of an Associate Judge.
Mr Awadallah’s notice of appeal did not specify which provision or rule upon which he relied as the basis for his appeal.
The process of appealing the decision of an associate judge constituting the Costs Court, to a judge of the Trial Division,[8] was considered by Emerton J in Gadens Lawyers v Beba Enterprises Pty Ltd.[9] Her Honour said:
[8]For a concise summary of the process for appealing costs decisions, see the recent decision of the Court of Appeal in AJH Lawyers v Mathieson Nominees Pty Ltd Ian Mathieson [2015] VSCA 227, [11]-[23].
[9][2012] VSC 519. Affirmed on appeal: Beba Enterprises Pty Ltd v Gadens Lawyers (2013) 41 VR 590.
There was some discussion as to the form of an appeal from the Costs Court to a judge of the Trial Division. The right to appeal from the decision of the Costs Judge in the present proceedings is conferred by s 3.4.47 of the Legal Profession Act, which provides:
A person may appeal from a decision of the Costs Court in accordance with the Supreme Court Act 1986 and the Rules of the Supreme Court.
More generally, s 17I of the Supreme Court Act 1986 (Vic) provides:
Unless otherwise expressly provided for by this Act or any other Act or the Rules, an appeal lies to the Trial Division constituted by a Judge of the Court from a determination of the Costs Court constituted by a Costs Judge.
These provisions do not describe the nature of the appeal in question. However, r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (the “Rules”) provides for appeals to a judge of the court from orders made by an associate judge under any Chapter of the Rules. Rule 77.06(7) provides that “[t]he appeal shall be by re-hearing de novo of the application to the Associate Judge”.[10]
[10]Ibid [11]-[13].
Rule 63.57 of the Rules allows for a ‘review’ by a judge of the Court of a decision of the Costs Court. This rule provides:
63.57 Review by Judge of the Court
(1)An order of the Costs Court under Rule 63.56.1(5) or Rule 63.56.4(7) may be reviewed by a Judge of the Court.
(2)If any party interested objects to an order of the Costs Court under Rule 63.56.1(5) or Rule 63.56.4(7), a Judge of the Court, on the application of that party, may review the order if the Costs Court has given reasons under Rule 63.56.1(7) or Rule 63.56.4(8).[11]
[11]Rule 63.57 has been described as ‘in substance relevantly the same as r 63.56.4’ which makes provision for the review by the Costs Judge of a decision of a judicial registrar within the Costs Court: AJH Lawyers v Mathieson Nominees Pty Ltd Ian Mathieson [2015] VSCA 227, [23].
In my view, it is appropriate that this appeal proceed under r 77.06 of the Rules.[12] As McDonald J stated in AJH Lawyers v Mathieson Nominees Pty Ltd:[13]
An appeal under s 17I of the Act from a review by a Costs Judge under s 17HA is subject to the same test which applies to an appeal from an Associate Judge under r 77.06 of the Rules. In order for the appeal to be successful, it must be established that the decision of the Costs Judge is attended by legal, factual or discretionary error.[14]
[12]See GLS v Goodman Group Pty Ltd (t/a Goodman Group Lawyers) [2015] VSC 627, [4]; AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 37 [29], [118]; Gadens Lawyers v Beba Enterprises [2012] VSC 519, [14].
[13][2015] VSC 37. Affirmed on appeal: AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227.
[14]Ibid [118].
The operation of r 77.06 was considered by Ferguson J (as her Honour then was):
Such appeals [under r 77] are no longer by way of rehearing de novo. Instead, they are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised. In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure (as the orders in this case do), an appellate court will exercise particular caution in reviewing the decision.[15]
[15]Oswal v Carson [2013] VSC 355, [11]. See also GLS v Goodman Group Pty Ltd (t/a Goodman Group Lawyers) [2015] VSC 627, [4].
Similarly, in GLS v Goodman Group Pty Ltd, Macaulay J held:
In the absence of further evidence or a change in the law, ordinarily an appellant must show error on the part of the associate judge before appellate power may be exercised.[16]
[16]Ibid [4].
What does Mr Awadallah say?
Mr Awadallah does not dispute that he signed and entered into the agreement with the firm.[17] However, he says that he was under the influence of medication at the time when he signed the agreement, which affected his mental capacity, and therefore the agreement ought not be enforced against him.[18] Mr Awadallah, in his written submissions, states that he handed medical certificates to Wood AsJ, but that his Honour was ‘not interested to look at it’. However, Mr Awadallah seemed to later admit, in oral submissions, that his Honour did view the medical certificates. As the firm points out, there is no basis for the assertion that his Honour refused to examine medical certificates, either in his Honour’s judgment or in the transcript of proceedings.
[17]Transcript 16.
[18]Ibid 9.
On appeal, Mr Awadallah made some submissions, which do not align with the grounds set out in the notice of appeal and no substantive evidence was led in support of these submissions. In my opinion, the submissions did not generally rise above the level of mere assertion and were conclusive in nature.
I will deal with the specific grounds of appeal later in this judgment.
However, for present purposes, the submissions made were:
(a)That he had an oral agreement with the firm, that if the firm made any mistakes or ‘wrong doing’,[19] he would take over the conduct of the litigation, and would not be liable for his legal fees. Mr Awadallah repeatedly stated that he ‘warned’ the firm several times that he would not pay for their ‘mistakes’;[20]
(b)Mr O’Bryan told Mr Awadallah that he would not be charged for ‘anything extra’ unless it is necessary and reasonable;[21]
(c)He had agreed that he would not be charged more than $5,500 for his statement of claim to be drawn, but he was charged $18,000 in contravention of the agreement;[22] and
(d)The firm conducted the negligence proceeding against his former solicitors ‘negligently’.[23] In relation to this mater, I note that, in an email dated 16 June 2014, Mr Awadallah ‘totally agreed’ with counsel’s advice to go ahead with the legal privilege application. Mr Awadallah, however, submits that, as a result of his mental capacity at the time, his agreement to pursuing the legal privilege argument may have been given under compromising circumstances.[24]
[19]Transcript of Proceedings, Galbally & O’Bryan Lawyers (a firm) v Awadallah (Supreme Court of Victoria, S CI S CI 2014 06018, Cameron J, 12 October 2015) 4 (‘Transcript’).
[20]Ibid 8, 10, 11.
[21]Ibid 6.
[22]Ibid 7.
[23]Ibid 8.
[24]Ibid 10.
With the exception of the issue concerning legal privilege, referred to in sub-paragraph (a) above, it does not appear that these matters formed the basis of the decisions of Wood AsJ.
The firm relies on the observations of Wood AsJ that the fact that an application or case was lost, does not mean that the legal representatives must have been negligent. This proposition is beyond doubt. The firm also submitted that the issue of whether or not the legal privilege application ought to have been made has been decided twice by Wood AsJ and Mr Awadallah’s argument has no merit.[25]
[25]Ibid 13.
Mr Awadallah made several complaints about the legal fees charged. He complained that the bill was ‘too high’ but, notably, generally did not point to specific errors in the bill.[26] Some individual items on the bill of costs to which Mr Awadallah highlighted were:
(a)The firm agreed to charge him only $7,700 for disbursements (including counsel’s fees) but ultimately charged him $15,000;
(b)The firm charged him three times for a conference conducted on 19 September 2014;[27]
(c)He was charged a $6,600 mediation fee which was to hire the mediation venue, the fees for the mediator and legal fees for counsel and solicitors, however, this mediation never took place;[28] and
(d)He was charged for the drafting of an amended statement of claim, where he never gave authority to do so.[29]
[26]Ibid 14, 16.
[27] Ibid 11.
[28]Ibid 13.
[29]Ibid 13.
For points (a), (c) and (d), I noted that these points were neither argued in front of Wood AsJ on the first costs hearing nor the second costs hearing. On appeal before me, Mr Awadallah did not put any evidence before me to support these submissions.
In respect of the charge for the conference on 19 September 2014, the firm points out that it is usual practice for both a partner, and the solicitor who has conduct of the matter, to meet with a client when the client wants to terminate the retainer. On this basis, there were two attendance charges. A further attendance charge related to dealing with case management issues. In my opinion, these attendances reflect common legal practice in order to ensure proper case management and, accordingly, are unremarkable.
This conference was the subject of cross examination by Mr Awadallah before Wood AsJ. By way of observation, the evidence in relation to this conference was not entirely clear. It appears that Mr O’Bryan was not in attendance for the entirety of the conference. However, His Honour had regard to this evidence, quite properly, in determining the quantum of the bill and I see no reason to re-visit this issue.
The firm points to what is said by his Honour in respect of the fee estimates:
There was no misleading conduct or deception. The actual costs were within the range of estimated total costs even when the actual costs were inflated by the contested interlocutory hearing about privilege which was not one of the component parts of the estimate. The complaint is now made that there were no updated estimates. There was no need to update as the initial estimates and actual costs, when they arose, were closely aligned.[30]
[30]Second reasons [24]-[25].
At one point, Mr Awadallah seemed to suggest that the firm acted without instructions, however, he did not persist with that argument[31] and I did not hear any persuasive evidence in support of it.
[31]Transcript 12.
Analysis
In oral submissions, Mr Awadallah’s arguments, in large part, did not align with his grounds of appeal.
In the recent case of Braham v ACN 101 482 580(No 2),[32] Macaulay J held:
It was not in dispute that the appellants needed to establish that the associate judge was in error and that it was not simply sufficient to persuade me that different orders should have been made.
Appeals under r 77.06 of the Rules are no longer hearings de novo. Mr De Young, appearing for the first defendant (respondent to the appeals), rightly submitted that there is a strong presumption in favour of the correctness of a decision where that decision involved discretionary judgment. An appellate court will not interfere with the exercise of discretion in the absence of strong reasons, such as where there was an error of principle in the exercise of discretion, or where the associate judge was guided or affected by irrelevant matters or made some other manifest mistake.[33]
[32][2015] VSC 492.
[33]Ibid [10]-[11] [Citations omitted].
I will now specifically address Mr Awadallah’s four grounds of appeal, which were:
GROUND 1 There has been an error in law, in that, the trial Judge failed to apply the principal of law and equity as it should be and the relevant principle grounds of The legal professional act 2004 to determine that the total amount of the legal cost in dispute should have been $16,500 not $51,177.87 which the trial Judge had made His judgement on the total amount of $5177.87 whereas His Honour should have made His judgement on the total amount of $16,500.
GROUND 2 His Honour was in error in finding the defendant was not forcibly instructed by Galbally & O’Bryan’s firm while the defendant was under the influence of his medication and his state of health impacted upon his capacity to give proper instructions to his former solicitors to agree in relation to the hearing of maintaining his professional privilege.
GROUND 3 His Honour was in error in finding that, the firm of Galbally & O’Bryan were acting reasonably in relation to the legal issues of the professional privilege. His Honour should’ve found that, the firm of Galbally & O’Bryan were negligent and incompetent to handle this legal issues according to the law of negligence act 2003 (it was a solicitor’s penumbral duty of care).
GROUND 4 The learned trial judge erred in finding that Galbally & O’Bryan’s firm was providing their legal service in accordance with requirement of The Legal Professional Act 2004, His Honour should have found that Galbally & O’Bryan’s firm was not acting in accordance with the requirement of the Legal Professional Act 2004 as is made clear that the legal fees must be fair, justice and reasonable according to The Legal Professional Act 2004. Regardless if there is a cost agreement or there is no cost agreement.
Ground 1
There is no evidence upon which I am able to decide that Wood AsJ failed to apply any statute or principle of law in reaching his decision. To the contrary, his Honour carefully considered the evidence before him which informed his decision to reduce the bill of costs from $56,346.58 to $51,647.75.
In my opinion, there is no proper basis for this ground of appeal which does not rise above mere assertion.
Ground 2
The evidence in relation to Mr Awadallah’s medical condition, and the state of the evidence about it, is troubling.
Before me on appeal, Mr Awadallah said that his medical certificates were shown to Wood AsJ. Mr Awadallah then alleged that his Honour was not interested in looking at this medical evidence and, in Mr Awadallah’s words, ‘[h]e was more defending them’. However, as his Honour noted, there was no medical or other evidence put before the Court about Mr Awadallah’s mental capacity at the time.
Mr Awadallah’s evidence in relation to his mental capacity was incomplete, inconsistent and, to my mind, not credible.
I do not consider that there is any sufficient basis upon which to conclude that Mr Awadallah was forcibly instructed by the firm to brief counsel in relation to a claim for legal privilege. Quite the contrary, the exchanges between Mr Awadallah and the firm demonstrate that Mr Awadallah endorsed the strategy of taking the point about legal privilege.
As noted in the 17 April 2015 decision of his Honour, Mr Wilson of the firm sent an email dated 16 June 2014 to Mr Awadallah endorsing Mr Segal’s opinion in relation to the legal privilege point. Mr Segal was the counsel engaged by the firm on behalf of Mr Awadallah. The advice was to the effect that the point ought be taken. Mr Awadallah agreed. Indeed, Mr Awadallah sent an email agreeing to the strategy on 18 June 2014, providing instructions to proceed. He ‘totally agreed’ with Mr Segal’s advice.
In the absence of compelling medical evidence and in light of the unequivocal terms of the instructions provided by Mr Awadallah, this ground of appeal cannot be upheld.
Ground 3
There was no evidence advanced by Mr Awadallah that the firm was ‘negligent’ or ‘incompetent’ in relation to the legal privilege claim.
I find no reason to draw this conclusion.
In relation to this matter, Mr Awadallah’s arguments did not appear to amount to anything more than a level of dissatisfaction about an adverse result. As I have said, this forms no basis for his claims.
Ground 4
Wood AsJ carefully considered the fees charged by the firm to Mr Awadallah.
That review, and the subsequent reconsideration, resulted in a reduction in the bill of costs.
The analysis conducted by his Honour was, in my opinion, considered and comprehensive.
The amount of legal fees that litigants incur are often in excess of what they would prefer. That is not to say, however, that those fees are inappropriately charged or not fair, just or reasonable.
The firm’s fees, in my opinion, were fair, just and reasonable. They have (albeit modestly) been reduced. Careful consideration has been given to the amount of those fees on two separate occasions by his Honour, Wood AsJ. I see no reason, and have heard no compelling argument, to disturb his Honour’s findings in relation to this ground of appeal.
I am satisfied that Wood AsJ carefully considered the evidence before him. His Honour had the benefit of directly hearing evidence from witnesses whose evidence was tested on cross-examination and he examined documents.
Further, and it is not a necessary basis for my decision, I am satisfied that Mr Awadallah has had every opportunity to put all his arguments before his Honour. Mr Awadallah argued his case comprehensively. The mere fact that he thought that the bill was ‘too high’ is not a sufficient reason for this appeal to succeed.
Finally, in respect of Mr Awadallah’s claim that the firm acted negligently, I fully endorse what was said by Wood AsJ. A legal practitioner is not negligent merely because she or he lost a point, an application or indeed a whole trial.
On the basis of the matters set out in this judgment, I do not consider that there has been any legal, factual or discretionary error in the decision of Wood AsJ. In my opinion, there is no evidence to suggest that his Honour’s decision displayed an error of principle in the exercise of his discretion. Further, there is no basis whatsoever to conclude that his Honour was guided or affected by irrelevant matters or made a manifest mistake.
Accordingly, I order that:
(a)The respondent’s notice of appeal filed 18 September 2015 is dismissed.
(b)Further to the Order of the Honourable Associate Justice Lansdowne, made 7 December 2015, the proceeding is listed for further directions before her Honour on a date to be fixed.
In relation to the question of costs, in my opinion, costs should, in the normal course, follow the event and Mr Awadallah ought pay the costs of the firm. However, some adjustment may be required, given his Honour’s decision to modestly reduce the bill of costs in the first instance.
I will hear the parties on the form of orders and the question of costs.
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