Gregg Lawyers Pty Ltd and Anor v Viki Maree Farrar (Formerly Sweeney)(No.2)

[2016] QDC 57

DISTRICT COURT OF QUEENSLAND

CITATION:

Gregg Lawyers Pty Ltd & Anor v Viki Maree Farrar (Formerly Sweeney)(No.2) [2016] QDC 57

PARTIES:

GREGG LAWYERS PTY LTD

First Applicant

and

ANGELA JULIAN-ARMITAGE

Second Applicant

v

VIKI MAREE FARRAR (FORMERLY SWEENEY)

Respondent

FILE NO:

D319/11

DIVISION:

Civil

PROCEEDING:

Application for an Indemnity Certificate

DELIVERED ON:

21 March, 2016

DELIVERED AT:

Southport

HEARING DATE:

11 March, 2016

JUDGE:

Judge C. F. Wall QC

ORDER:

Application refused.

LEGISLATION:

Appeal Costs Fund Act 1973, Sections 15, 16

Legal Profession Act 2007 Sections 315, 340, 342

CASES:

Paroz v Clifford Gouldson Lawyers [2012] QDC 125

Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72

Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526

Spencer v Burton [2015] QCA 145

Gregg Lawyers v Farrar [2014] QDC 194

Gregg Lawyers v Farrar [2015] QCA 289

Tabtill Pty Ltd v Creswick [2012] QCA 78

CATCHWORDS:

COSTS – Indemnity certificate – application for – relevant discretionary considerations.

COUNSEL:

First and Second Applicants:  Mr M.P. Amerena

Respondent: Mr D. Topp

SOLICITORS:

First and Second Applicants: Gregg Lawyers

Respondent: Lynn & Rowland Lawyers

Introduction

1. The client, the unsuccessful respondent to the application by the lawyers to review costs assessments by a costs assessor, has applied for an indemnity certificate under s 15(2) Appeal Costs Fund Act 1973. On 10 March 2016, I ordered the client to pay the costs of the lawyers of and incidental to the application to review the costs assessment. It is these costs that would be encompassed by the certificate should one be granted.

1. For present purposes and for the reasons referred to by Judge McGill in Paroz v Clifford Gouldson Lawyers [2014] QDC 125 at [45]-[65], I accept that this court can grant an indemnity certificate in this type of matter.

1. The grant of such a certificate is discretionary and is dependent on the application succeeding on a question of law.  In such a case the following have been said to be relevant considerations[1]:

1.          whether the submissions or arguments on the review application were reasonably advanced or were fairly arguable including the extent to which the respondent was unsuccessful on other issues raised by her?

2.          whether there was any proper basis for the decision of the costs assessor.  If there was not, did the respondent lead the costs assessor into error, e.g. by inviting a decision for which there is no legal warrant or which is inconsistent in some respect with settled legal principle?  Whether the respondent’s conduct and submissions contributed to the error/s of law made by the costs assessor, including any failure to give adequate reasons?

[1]Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 72 at [7]-[11]; Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [17]; Spencer v Burton [2015] QCA 145 at [22]-[24] and Paroz v Clifford Gouldson Lawyers [2014] QDC 125 at [64]

1. The issues of law upon which the lawyers succeeded involved whether the barrister was required to disclose the change in her estimated legal fees (s 315 Legal Profession Act 2007), the consequences of failure to disclose as soon as practicable (s 340), directors fees (s 342) and the inadequacy of the costs assessor’s reasons. The numerous other issues all involved questions of fact and, with the exception of whether an oral hearing should have been held and whether the costs assessor failed to appreciate that he did not have all of the solicitor’s file, the client failed on those issues[2].  The client’s arguments on the first three issues of law which I have referred to failed and were unsuccessfully repeated before me.  In my view, the arguments and submissions advanced by the client on each of the issues of law contributed to the inadequate reasoning of the costs assessor.  His reasons were inadequate because to a large extent they made no sense and that was in no small way contributed to by the arguments and contentions advanced by the client.

   [2] See Gregg Lawyers v Farrar [2014] QDC 194 and [2015] QCA 289

1. On the review hearing the client disputed that the costs assessor’s reasons were inadequate and submitted they were explicable by reference to the marked up bills[3].  That was not my view.  On appeal to the Court of Appeal the client argued (unsuccessfully again) that the costs assessor’s reasons were adequate.

   [3] See [2014] QDC 194 at [144], notwithstanding that the client’s counsel did have difficulty fathoming some of the costs assessor’s reasoning, see [150] and [2015] QCA 289 at [85]

1. The client relies on the “reasoning and methodologies” applied by the costs assessor but in my view she contributed to his inadequate reasons.  When I suggested to Mr Topp that the costs assessor effectively adopted everything put to him by the client, he submitted that the costs assessor “makes the decision… and the ball was in his court to not only do the job but to do it properly which he failed to do” and that the “defaults” by the costs assessor were out of the client’s control.  In my view, that overlooks the extent to which the client led the costs assessor to a decision about which he gave inadequate reasons relying on submissions made by the client.

1. Much of the time taken up on the review hearing concerned issues other than the adequacy of the costs assessor’s reasons.  The other errors of law made by the costs assessor were largely attributable to the arguments and submissions advanced to him by the client.  To this extent I agree with Mr Amerena that the client is “relevantly at fault” because she induced the costs assessor to make errors of law by the case she advanced to him. 

1. There seems to be no basis upon which a certificate limited to only part of the review hearing could be granted. Sections 15 and 16 seem to contemplate a certificate covering all of the costs of the hearing, not some of them.

1. For these reasons I do not consider the discretion to grant a certificate “should be exercised in favour of sanctioning the expenditure of public funds to indemnify” the client[4].

   [4]Tabtill Pty Ltd v Creswick [2012] QCA 78 at [11]

1. The application for an indemnity certificate is refused.