Hansch v Mollross & Ors Trading as Ogilvie Jennings

[2025] TASSC 3

[2025] TASSC 3

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hansch v Mollross & Ors Trading as Ogilvie Jennings [2025] TASSC 3
PARTIES:	HANSCH, Barry John
v
MOLLROSS, L
GRUEBER, R
TURNBULL, M
MACKEY, L
LANING, A
Trading as Ogilvie Jennings
FILE NO:	1772/2023
JUDGMENT
APPEALED FROM:	Magistrates Court of Tasmania
DELIVERED ON:	7 February 2025
DELIVERED AT:	Hobart
HEARING DATE:	3 February 2025
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Professions and trades – Lawyers – Duties and liabilities – Solicitor and client – Disclosure of information – Appeal against lower court decision which held appellant owed respondent $22,174.92 for provision of legal services – Respondent failed to comply with s 291(1)(f) of the Legal Profession Act 2007 by failing to disclose full range of likely costs in the event of winning or losing the case – Appeal allowed.

Aust Dig Professions and Trades [1158]
Legal Profession Act 2007 (Tas) ss 291(1)(f), 294, 300

Appeal and new trial – Points and objections not taken below – Particular cases – Self-represented appellant deemed an exception to general rule precluding reliance on appeal grounds not raised below – Respondent afforded opportunity to adduce evidence on ground not raised below as a matter of procedural fairness.

Aust Dig Appeal and New Trial [100]
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered

Doolan v Renkon [2011] TASFC 4, applied

REPRESENTATION:

Counsel:

Appellant:	Self-represented
Respondent:	C Street

Solicitors:

Appellant:  Self-represented

Respondent: Judgment Number: Number of paragraphs:	Ogilvie Jennings
[2025] TASSC 3
24

Serial No 3/2025

File No 1772/2023

BARRY JOHN HANSCH v L MOLLROSS, R GRUEBER, M TURNBULL,

L MACKEY and A LANING TRADING AS OGILVIE JENNINGS

REASONS FOR JUDGMENT MARSHALL AJ 7 February 2025

1             This matter is an appeal from the decision of Chief Magistrate Geason in which her Honour upheld the claim of the respondents, hereinafter referred to as "Ogilvie Jennings" or "the respondents", for a sum of money owing from the appellant for the provision of legal services. The sum claimed ultimately was $22,174.92. The appellant, in defending the claim of Ogilvie Jennings, asserted before her Honour that the firm did not act in his best interests, did not act in accordance with his instructions, and did not exercise reasonable care and skill. The appellant further claimed a right to set off any money owing to the firm in the nature of damages caused by having to retain new lawyers and for unrecoverable costs as a result of the firm's failure to join certain parties in a Supreme Court proceeding.

2             Her Honour allowed the claim of Ogilvie Jennings and dismissed the counter claim of the appellant. Given the nature of the grounds set out in the appellant's notice of appeal, it is unnecessary to traverse the matters contained in her Honour's decision. The grounds of appeal were drawn by lawyers then acting for the appellant at the time that he lodged his appeal. Once more, the appellant is unrepresented and has acted for himself during the course of the hearing of the appeal.

3            At the hearing of the appeal, the appellant abandoned two of his three grounds of appeal, being appeal grounds numbered one and three. He relied only on appeal ground two.

Ground 2

4   Ground 2 of the grounds of appeal states as follows:

"The learned Chief Magistrate erred in determining that the appellant, as a former client of the respondents, should pay the respondents' legal costs in the amount of $22,174.92 because:

a	prior to the commencement of the proceeding (or at all) the respondents failed to disclose to the appellant in writing those matters which must have been disclosed to him pursuant to s 291(1)(f) and 294 of the LPA; or
b	prior to 22 March 2017, the respondents failed to disclose to the appellant in writing a substantial change to the range of estimates of the total legal costs of the matter pursuant to s 291(1)(c) and 299 of the LPA,

with the consequence that, by reason of s 300(1) of the LPA, the appellant was under no obligation to pay the respondents' legal costs unless those costs had been assessed under Division 7 of the LPA."

5   The initialism "LPA" is reference to the Legal Profession Act 2007 ("the Act").

6 Section 291(1)(f) of the Act provides that:

"A law practice must disclose to a client in accordance with this division if the matter
is a litigious matter, an estimate of

(i) the range of costs that may be recovered if the client is successful in the litigation; and

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(ii)         the range of costs the client may be ordered to pay if the client is unsuccessful;…"

7 Section 294 of the Act deals with how and when disclosure is to be made. It provides disclosure must be made in writing before or as soon as practicable after the law practice is retained in the matter.

8 Section 300 of the Act is entitled "Effect of failure to disclose". Section 300(1) provides as follows:

"If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 7."

9 Section 321 of the Act is found in Division 7 of Part 3.3. That section provides that:

"(1) A law practice that has given a bill in accordance with Division 6 (Billing) may apply to a costs assessor for an assessment of the whole or any part of the legal costs to which the bill relates."

10 The main contention raised by ground 2 of the grounds of appeal is in ground 2(a). It is that the respondents failed to disclose to the appellant in a litigious matter, involving a building dispute, the range of costs that may be recovered if he was successful in litigation and/or the range of costs that he may be ordered to pay if he was unsuccessful in litigation. Consequently, in accordance with s 300(1), the appellant submitted that the respondents were not entitled to bill him without first applying to a costs assessor for an assessment of the legal costs to which the bill relates given their non-compliance with s 291(1)(f).

11 Ground 2(b) refers to a failure of the respondents to disclose to the appellant a substantial change to the range of estimates of the total legal costs of the matter pursuant to s 291(1)(c) and 299 of the Act. The argument in relation to ground 2(b) was not developed fully on appeal, the appellant appearing content to rely on ground 2(a). However, it is noteworthy that during the course of the proceeding before the Chief Magistrate on 3 February 2021, the appellant referred her Honour to s 291(1)(c) of the Act during the course of his cross-examination of a lawyer from Ogilvie Jennings who, at one stage, had carriage of his file. Later on in the cross-examination the appellant put a question to the lawyer regarding why the firm had taken action to recover legal costs against him when those costs had not been taxed. Although not directly raised in the context of submissions, or in pleadings, it appears the appellant did raise tangentially before her Honour this question of compliance by the respondents with s 291 of the Act. However, no criticism can be made of her Honour for not dealing squarely with this issue in submissions when it was not then raised by the appellant in the proceeding before her.

Permission to raise Ground 2 on the appeal

12 Counsel for Ogilvie Jennings contends that whether appropriate disclosure was made in accordance with the Act is a question of fact and that it was for the appellant, as the party contending that the section was a bar to the success of the respondents' claim, to present evidence going to that fact. Counsel notes that the appellant has not sought to adduce any further evidence before the court on appeal in relation to questions going to disclosure, in accordance with the Act.

13 The respondents complain that the appellant did not raise squarely the issue of s 300 of the Act before the Chief Magistrate. However, it must be borne in mind the appellant was not legally represented at the hearing before the Chief Magistrate. It was only when he engaged lawyers to consider any possible appeal ground that the issue was raised after the lawyers, engaged to draw the notice of appeal, considered that ground 2 ought to be ventilated.

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14           Counsel for Ogilvie Jennings contends that it is settled law that where a point is not taken in the court below, and evidence could have been given there by which any possibility could have prevented the point from succeeding, it cannot be taken afterwards. That submission is based on a passage in the joint judgment of Latham CJ, and Williams and Fullagar JJ in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, where the following is said:

"The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards."

15          Also, the respondents rely on the judgment of the Full Court of the Supreme Court of Tasmania in Doolan v Renkon [2011] TASFC 4 at 123, where the following was said:

"If a point is not taken at a trial and as a result, evidence is not led that could have
affected the outcome of the matter, as a general rule it cannot be taken on appeal."

16           Where a "general rule" is referred to, it must be accepted that there will be exceptions to the rule which prove the rule. Further, in the context of Suttor (above), it is unclear whether evidence could have been given before the Chief Magistrate by which any possibility could have prevented the new argument raised from succeeding. A simple answer to the claims of the appellant in his notice of appeal by the respondents would have been to say, "we did give such notice, we did comply with the Act". There is no such statement in the outline of argument compiled on behalf of the respondents. Nor was there any such submission made orally before the Court on the appeal.

17   In the respondents' outline of submissions, the following is stated:

"Had the matter been properly put in issue in the court below, the question of whether or not the respondents had complied with Division 7 of the LPA could possibly be met by further evidence. This matter, therefore, falls squarely within the type of matter where the court ought not entertain fresh argument on appeal."

The outline in terms provided by the respondents continues:

"In any event, even if the respondents' argument is not accepted, grounds two and three

must still fail as:

a	the appellant has not sought to adduce any further evidence before this court; or
b	identified anything within the materials before the learned Chief Magistrate at the hearing, or the evidence given at the hearing;

that could satisfy this court that there was a lack of compliance with Sections 291(1)(c) & (f) and 294 of the [Act] such that Section 300(1) or (2) of the [Act] might be engaged."

18           At the commencement of the hearing of the appeal, the court sought submissions regarding whether ground 2 ought to be permitted to be raised on the appeal. For the reasons largely explained in the preceding paragraphs, having regard to the appellant's position as a non-legally trained litigant in person, the court decided that it would permit the appellant to raise ground 2, albeit that it was not squarely raised before the Chief Magistrate. As a matter of procedural fairness to the respondents, the court then adjourned to enable the respondents' counsel to obtain instructions from them as to whether they would seek to adduce any evidence on appeal regarding the issues ventilated by ground 2. After an adjournment of approximately one hour, the parties returned to court and counsel for the respondents informed the Court the respondents did not wish to adduce any evidence on the appeal.

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Consideration

19          Counsel for the respondents submitted that there was insufficient material before the court for it to come to a determination favourable to the appellant on ground 2.

20 It is difficult for the appellant to prove a negative. He asserts that he was not provided with such an estimate. The respondents are in a unique position of being particularly able to inform the Court as to whether an estimate was provided in accordance with s 291(1)(f).

21 The appellant has asserted that prior to the commencement of the proceeding in which the respondents acted for him, they failed to disclose to him an estimate of the range of costs that may be recovered by him if he were successful in the litigation and/or the range of costs which he may be ordered to pay if he was unsuccessful in litigation. If there was such disclosure, the respondents would have a record of it. They have failed to produce any such record. The provisions of s 294 require that this disclosure be made in writing before or as soon as practicable after the law practice was retained in the matter. It would not have been difficult for the respondents to check their records within the time frame of before, or very soon after, they were retained to act for the appellant in his building dispute.

22 The appellant has asserted that he did not receive appropriate disclosure from the respondents in accordance with s 291(1)(f) of the Act. It was open to the respondents to show that they had made such disclosure. They were given the opportunity to do so and failed to do so. In the circumstances it is a reasonable inference for the court to draw that no such disclosure was made. In the circumstances, ground 2(a) of the grounds of appeal is made out. It is unnecessary to deal with ground 2(b). Failure to disclose in accordance with s 291(1)(f) of the Act is not fatal to the respondents' case if they could show evidence of having the bill they proposed to send to the appellant first assessed by an assessor. There is no evidence on the appeal that any such application was made by the respondents to a costs assessor. The bill presented to the appellant by the respondents was not one presented as having previously been the subject of a costs assessment. By reason of s 300(1) of the Act, the appellant was under no obligation to pay the respondents' legal costs unless those costs had been first assessed under Division 7 of the Act.

Conclusion

23   Having regard to the Court's views in relation to ground 2 of the grounds of appeal, the Court

will order as follows:

1            The appeal is allowed.

2            The judgment against the appellant in proceeding 2019/692 is set aside and that proceeding is dismissed.

3            The respondents pay the appellant's costs of the appeal in respect of any legal costs incurred by the appellant in preparation and filing of the notice of appeal, to be taxed in default of agreement.

24           The last order is made having regard to the fact that while the grounds of appeal were prepared by lawyers acting for the appellant, they appear to have had no further role in the conduct of the appeal and the appellant was self-represented at the hearing of the appeal.