Hardy v Foyle Legal Pty Ltd t/as Foyle Legal - [2023] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HARDY -v- FOYLE LEGAL PTY LTD t/as FOYLE LEGAL [2023] WADC 32
CORAM:   MACLEAN DCJ
HEARD:   11 AUGUST 2021
DELIVERED          :   28 MARCH 2023
FILE NO/S:   APP 24 of 2021
BETWEEN:   KATHRYN ANNE HARDY
Appellant
AND
FOYLE LEGAL PTY LTD t/as FOYLE LEGAL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M CRAWFORD
File Number            :   PER/GCLM/2526/2020

Catchwords:

Procedural fairness - Legal professional privilege - Application to file further documents in an appeal

Legislation:

District Court Rules 2005 (WA), r 50(1), r 50(2), r 50(3)
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 7

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr N G Siegwart

Solicitors:

Appellant	:	Not applicable
Respondent	:	Birman & Ride

Case(s) referred to in decision(s):

O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
Shilkin v Taylor [2011] WASCA 255

MACLEAN DCJ:

This appeal arises from a Magistrates Court decision made 6 April 2021 to order Ms Hardy to pay Foyle Legal, $20,606.
Foyle Legal is a law firm. Their claim was for payment of costs charged arising from an agreement described as a no win no fee agreement.
Following the appeal hearing in this court, Ms Hardy made an application for leave to file a further application dated 29 September 2021, seeking orders for leave for the application and supporting affidavit to be accepted into evidence and for the following orders:
1.Foyle Legal to destroy various documents obtained by subpoena leaving only that which was filed into evidence during the Magistrates Court matter which cannot be undone.
2.To release Ms Hardy from liability of payment of any further monies to Foyle Legal.
3.To release Ms Hardy from liability of payment of any of Foyle Legal's legal fees or costs associated with both the Magistrates Court and District Court proceedings/matters.
To succeed in the appeal, Ms Hardy must demonstrate a legal, factual or discretionary error by the learned magistrate. Only then may this court substitute its decision for that of the learned magistrate. The capacity to substitute the decision does not extend to destroying documents obtained by subpoena in the Magistrates Court.
The third and fourth orders sought are repetitive of the effective relief sought by the appeal and are redundant.
The application to file the further application is refused.
The trial established these facts:
1.Ms Hardy made a claim with WorkCover, for compensation arising from an event in the course of her employment.
2.Ms Hardy's claim was not accepted.
3.Foyle Legal was an incorporated law firm which offered representation in workers' compensation matters.
4.On 31 August 2017, Foyle Legal agreed to provide legal services to Ms Hardy regarding her claim for compensation on terms it would only charge Ms Hardy for its services in specific circumstances including:
(a)if there were a successful outcome to her claim (a successful outcome included an interim payment); and
(b)if Foyle Legal stopped acting for Ms Hardy before the claim was finalised.
5.Ms Hardy terminated the agreement with Foyle Legal.
6.The month following that termination Foyle Legal received an offer on her behalf to settle her claim for an amount of $50,000 together with costs.
7.Ms Hardy engaged another law firm to represent her at a cost of $8,000.
8.Ms Hardy's claim was settled on the basis she received $65,000 plus an amount of $16,500 toward her legal costs.
9.Ms Hardy's position at the trial was Foyle Legal did not provide the service it agreed to and that there was a breach of the agreement.
10.The court found the work was done and done on terms of the agreement and that Ms Hardy was liable to pay the amount claimed by Foyle Legal.

General principles relating to the appeal

The District Court's appeal jurisdiction is found in pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). The District Court must decide the appeal on the material and evidence that were before the Magistrates Court and any other evidence that it gives leave to be admitted. Such leave may only be given in exceptional circumstances.
Rule 50(1), r 50(2) and r 50(3) of the District Court Rules 2005 (WA) (DCR) provide that:
(1)An appeal to the Court must be by way of reconsideration of the evidence that was before the primary court unless the parties agree otherwise.
(2)At the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the Court.
(3)The Court is not to grant such leave unless satisfied there are special grounds for doing so.
In Shilkin v Taylor,[1] the Court of Appeal said the following in relation to the court's discretion to give leave to admit evidence that was not before the Magistrates Court and the term 'exceptional circumstances':
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [116]. Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): see CDJ v VAJ [111].
[1] Shilkin v Taylor [2011] WASCA 255 [67].
The appeal is to be undertaken by way of a rehearing.
As a rehearing, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the learned magistrate, the subject of the appeal, was the result of some legal, factual or discretionary error. A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law. The onus is on the appellant to demonstrate this error.
To succeed Ms Hardy must demonstrate a legal, factual or discretionary error by the learned magistrate.
If such an error has been made, the court may substitute its decision for that of the learned magistrate.
The appeal notice contained 33 grounds of appeal. I have not recited them but address them in these reasons.
Ms Hardy complained variously that she:
(a)was unrepresented during the proceedings;
(b)had been declined legal aid;
(c)could not comply with discovery and the failure to adjourn the trial meant that she was denied procedural fairness;
(d)was treated unfairly as Foyle Legal was able to obtain documents Ms Hardy considered should not have been available to Foyle Legal on the basis that they were legally privileged;
(e)Foyle Legal breached its professional obligations to her; and
(f)Ms Hardy also recorded her intention to file further submissions and documentation to support grounds in her appeal notice.
Ms Hardy also complained that the learned magistrate made an error of law in:
(a)allowing evidence to be led which was legally privileged;
(b)failing to properly consider her case;
(c)accepting Foyle Legal's case; and
(d)not allowing Ms Hardy to lead evidence about a conversation between her and her general practitioner.
None of the complaints raised by the grounds of appeal individually or collectively demonstrate a legal, factual or discretionary error by the learned magistrate.
The learned magistrate did not breach the duty to act judicially or in accordance with the rules of procedural fairness. Ms Hardy has not demonstrated any error on the part of the learned magistrate.

Remaining issues

Did Ms Hardy's decision to represent herself cause the learned magistrate to make a legal or factual or discretionary error?

Ms Hardy's complaints arose from the conduct of the trial and from the fact that she represented herself. Whether the decision to represent herself was by choice or exigency, the fact remains that throughout the trial the learned magistrate properly sought to assist Ms Hardy to best present her position. Self‑representation is a right. Exercise of the right does create a privilege.

Has Ms Hardy demonstrated a legal, factual or discretionary error by the learned magistrate arising from the decision not to adjourn the trial?

At the outset of the trial the learned magistrate carefully explored with Ms Hardy whether the application for an adjournment, filed with the court ex parte, was maintained, and observed respectfully that 'I must admit I'm still struggling to see precisely what her position is'.[2] The court carefully considered the issue of whether the application justified the adjournment of the trial and decided that it did not. In deciding that the application to adjourn the trial should not be granted, the learned magistrate made no legal, factual or discretionary error.
[2] Magistrates Court ts 10.
The matter had been listed for trial on 15 February 2021 and the application was heard on 6 April 2021. At the time of the listing the learned magistrate suggested that Ms Hardy seek legal advice.
Ms Hardy has not demonstrated a legal, factual or discretionary error by the learned magistrate denying her procedural fairness. As a matter of fact, the learned magistrate did not deny Ms Hardy procedural fairness and was meticulous in his approach. This was demonstrated, as one of many instances, in the way in which his Honour declined the application to adjourn the trial:[3]
… If she has other documents that she wants to produce, I will allow her to produce them if she wishes to. She hasn't disclosed them. …
[3] Magistrates Court ts 11.
Following that his Honour gave careful direction as to how the trial would be conducted including how she might challenge the claimant's witnesses in cross-examination and the potential consequences of failing to challenge witnesses.
His Honour carefully explained the difference between evidence and submissions.
Prior to Ms Hardy commencing her cross-examination, his Honour recapped, for each parties' benefit, the material that had been tendered in the claimant's case and invited Ms Hardy to take time to consider her questions and gather her thoughts.
His Honour gave direction and assistance as to how Ms Hardy may use her documents in cross-examination of the claimant and gave direction when Ms Hardy was exercising her right to cross‑examine as to how she might put a permissible question. His Honour did so with courtesy and without criticism. His Honour courteously and carefully explained to her how she may or may not respond to an objection.
His Honour was careful to ensure Ms Hardy was able to make the application to adjourn, if that was her position, and was careful to ensure that she understood the manner in which the trial would be conducted and that she could present her defence.
At the outset of the trial, his Honour asked whether Ms Hardy had had sufficient time to compose herself. Ms Hardy confirmed this was so.
With respect to Ms Hardy's application for an adjournment, his Honour set out the issues for resolution as he understood them and invited Ms Hardy to respond. Ms Hardy made submissions to his Honour.
In the course of declining her application for an adjournment, his Honour expressly gave permission for Ms Hardy to take time should she need to locate anything held electronically. He invited her to ask any questions about the procedure.
There is no basis for concluding that Ms Hardy did not have an opportunity to ask for an adjournment, nor is there a basis for concluding that Ms Hardy's application was not properly considered by his Honour nor is there a basis for concluding that the adjournment should have been granted or that the grant of an adjournment would have produced a different outcome.

Legal professional privilege

Ms Hardy's complaint is that his Honour permitted Foyle Legal to source legally privileged documents from WorkCover WA.
The documents appear to include a deed of settlement to which Ms Hardy was a party. There is no basis to Ms Hardy's claim that she had not seen the documentation prior to its production. Ms Hardy was a party to the document. The complaint really is that the document was produced. There is no reasonable basis for either complaint.
Privilege prevents the unauthorised disclosure of confidential communications between the client and the legal adviser.[4]
[4] O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1, 22-3.
The settlement deed was an agreement between Ms Hardy and a third party. Its existence was fundamental to the issues in dispute in the trial. Namely, one of the events that might engage her liability to pay Foyle Legal's costs. It was not legally privileged. It was material to the matters in issue before the learned magistrate and was properly produced.

Ms Hardy's complaint that her case was not properly presented and that the settlement took place as a result of her efforts and the effort of a solicitor she retained following terminating Foyle Legal

Ms Hardy complained that Foyle Legal had not filed responsive statements with WorkCover. The time for filing the statements had expired and leave was required. Foyle Legal was waiting for Ms Hardy to provide all of the responsive statements prior to making an application for permission to file them.
Foyle Legal's evidence was that Ms Hardy experienced difficulty in completing the responsive statements and warned her that it would be less likely that the statements would be allowed closer in time to the arbitration.
Foyle Legal's view, as reflected in Mr Foyle's evidence, was that they would do one comprehensive statement which reflected all of Ms Hardy's responses.
When Foyle Legal learned from Ms Hardy that her position was that separate statements should be filed, Foyle Legal invited the solicitor representing the insurer to agree to the separate statements being filed. The insurer's solicitor declined to agree.
Foyle Legal recommended that Ms Hardy bring an application for permission to file the documents, although on the basis that all statements were available, and around that time Foyle Legal ceased to act for Ms Hardy.
Mr Foyle's evidence was that he had written to Ms Hardy advising that the responsive statements were required and that the later they were available the less likely they were to be successful in the application to file them.
Foyle Legal gave evidence that they were trying to prepare one statement from the statements Ms Hardy had provided.
Ms Hardy's question to Foyle Legal was:[5]
… What is preventing five statements from being lodged at WorkCover? --- You can't because the order has already passed for the filing of those documents. An order had been made on the - that you file those documents by 13 September 2018. You didn't file those documents.
…
[5] Magistrates Court ts 36.
The learned magistrate clearly identified that the central plank of Ms Hardy's defence at the trial was that Foyle Legal did not lodge the documents.
His Honour asked:[6]
… Sorry for interrupting, but I just wanted to understand what he was saying. That kind of makes sense because the way it was expressed is it might be five different people, but it's all of the responsive statements were from you responding to five different things, and the proposition, as I understand it, is the claimant was waiting for all of that and then putting it into one before it could submit an entire responsive statement as one document. …
[6] Magistrates Court ts 38.
And later, in the course of exploring the issue, the learned magistrate asked:[7]
… So the nine people who were opposing you, you provided responsive statements - or you provided five of the nine. You still had another four to go. And you've heard the response. The response is, 'I was working on what you had given me, but obviously I couldn't finish it because you didn't give me the remaining four, and obviously we're going to put in just the one because you're the only witness and you were just responding to the nine opposing statements of which you had only responded to just over half'.
[7] Magistrates Court ts 42.
The learned magistrate further described his understanding and identification of the issue and offered Ms Hardy the opportunity to continue to question Foyle Legal about the issue.
Following the identification, the learned magistrate explained to Ms Hardy how to challenge Foyle Legal's evidence.[8]
[8] Magistrates Court ts 38.
The learned magistrate identified the issue for Ms Hardy.
Mr Foyle gave a reasoned reply in so far as preparing one responsive document. He said:[9]
We put them all in one statement. As close as possible - we prepare that statement as contemporaneously as possible so that we can think about all the things that you've got in there, make sure that the things you've got in one statement don't contradict the things that you have in another statement …
Sorry. Can I just ask - yes. Why would you think that something that I put in a statement would contradict something in another statement? Why would you think that? Because that commonly happens.
And further:[10]
… I think that good professional practice for us, at least, would be to view all of them, have the opportunity to point out to you any issues that arise from your statement and then you sign one statement ...
[9] Magistrates Court ts 42 - ts 43.
[10] Magistrates Court ts 44.
The learned magistrate accepted Mr Foyle's evidence. There is no demonstrated factual or legal error demonstrated by the learned magistrate's acceptance of Mr Foyle's evidence.
And further, for example, as demonstrated in an objection to a further question Ms Hardy put on the issue of the risk of contradicting herself, she demonstrated, again without meaning disrespect, that she did not understand the process; however, the learned magistrate provided her the opportunity to be heard and to press the point she wished an answer to.[11]
[11] Magistrates Court ts 43.
His Honour extended every courtesy and opportunity to Ms Hardy to present her case. By way of an incomplete example his Honour:
(a)demonstrated latitude to Ms Hardy's repetitive questioning;[12]
(b)provided guidance as to how to put questions,[13] assisted Ms Hardy by identifying his understanding of the issues;[14]
(c)encouraged her to tailor the exploration of issues in cross‑examination economically to best limit her exposure to costs,[15] allowed considerable opportunity to allow Ms Hardy to pursue irrelevant questions;[16]
(d)gave guidance;[17]
(e)attempted to direct Ms Hardy to address the relevant issue in the case,[18] that is 'whether the amount has fallen due for payment and what the amount should be?';
(f)encouraged and gave guidance;[19]
(g)attempted again to explain the issue;[20]
(h)gave further encouragement to Ms Hardy;[21] tried to give further guidance to Ms Hardy regarding the time limit for her cross‑examination and specifically decided that the question Ms Hardy was putting at that time did not have to be the last;[22] and
(i)at the conclusion of Ms Hardy's cross-examination confirmed that she had finished.[23]
[12] Magistrates Court ts 52.
[13] Magistrates Court ts 57.
[14] Magistrates Court ts 58, ts 67.
[15] Magistrates Court ts 68.
[16] Magistrates Court ts 72.
[17] Magistrates Court ts 80 - ts 81.
[18] Magistrates Court ts 83.
[19] Magistrates Court ts 84.
[20] Magistrates Court ts 89.
[21] Magistrates Court ts 89 - ts 90.
[22] Magistrates Court ts 94.
[23] Magistrates Court ts 99.

His Honour carefully explained the procedure in cross‑examination;[24] and his Honour:
(a)explained what an objection was;[25] and
(b)explained the procedure following upheld objection and right to give evidence about that matter.[26]
[24] Magistrates Court ts 55.
[25] Magistrates Court ts 56 - ts 57.
[26] Magistrates Court ts 66.
His Honour showed great latitude in allowing irrelevant cross‑examination, for example, a series of entirely irrelevant questions as to the relationships between insurers and practitioners exchanging pleasantries with insurance solicitors and those in practice with an insurance background.[27]
[27] Magistrates Court ts 72.
The learned magistrate gave Ms Hardy a gentle reminder and invitation to complete cross‑examination by 3.00 pm together with an invitation to her to ask for more time if required.[28]
[28] Magistrates Court ts 87.
In the course of cross-examination Ms Hardy asked Mr Foyle about his advice not to make an application for an interim payment order. His advice was not to proceed. She did. She was successful.[29]
[29] Magistrates Court ts 86.
Mr Foyle gave an explanation as to why he did not consider an interim payment application was likely to succeed. He also confirmed that it was applied for and that it was successful.[30]
[30] Magistrates Court ts 87.
The proceedings comprehensively demonstrated that the learned magistrate assisted Ms Hardy with regard to putting questions and making an argument or a submission.
Ms Hardy asked a series of questions and raised arguments relating to the issue of what service Foyle Legal provided to Ms Hardy. It is clear that she was given an opportunity to put her case. Her complaint in the proceedings was that it was her instruction, against legal advice, to press her claim for interim payments. These were initially refused, and it appears her solicitor counselled against pressing for them. It appears that it was Ms Hardy's effort and direction that caused an application for interim payments to be made and granted and in so far as the offer of settlement made in early 2019, that occurred only after responsive witness statements were provided to the other party. Ms Hardy's position was she would have been better able to further the case herself. However, Ms Hardy engaged Foyle Legal on terms and the learned magistrate made no error in finding Ms Hardy was bound by those terms and that her liability to pay arose under the terms of the agreement.
Ms Hardy's complaint also was an appeal to fairness, on her terms as:[31]
After 15 months approximately of taking time off work so I could try and recover, it's pretty - I don't have anything. Why are you pursuing this legal case against me?
[31] Magistrates Court ts 89.
The submission did not have any merit having regard to the facts that - Ms Hardy engaged Foyle Legal to represent her; on terms that included the triggers to pay, activated by:
(a)the interim payment;
(b)the termination of Foyle Legal's retainer; and
(c)the settlement of her claim on payment of an amount of $65,000 plus $16,500 for legal costs plus an amount for disbursements.
The learned magistrate kindly sought to explain why that line of questioning was irrelevant. He explained, with regard to the claim:[32]
… It might be that they say they want to pursue it on principle, that they think they should get a judgment because they did the work and they haven't been paid and you've collected $65,000 plus costs, plus disbursements in circumstances where the lead-up was they got an offer of 50 grand for you which you chose not to reply to. Their motivations are irrelevant to whether they're owed the money.
[32] Magistrates Court ts 89.
On the transcript it appeared that Ms Hardy understood and accepted this description.
The learned magistrate extended every fairness to Ms Hardy. For example, his Honour praised her and asked whether there were more questions, allowed her a moment to consider and allowed more questions.[33]
[33] Magistrates Court ts 90.
The learned magistrate alerted her to the tentative deadline with regard to cross‑examination and invited her to ask for more time.
The learned magistrate was careful to check that Ms Hardy's cross‑examination was complete. He was courteous and careful.[34]
[34] Magistrates Court ts 99.

Ms Hardy's defence in the trial

Ms Hardy gave evidence. She did so after being invited to consider making an opening statement and being informed that she could make a closing submission.
Ms Hardy relied on her witness statement which was filed with the court and received as an exhibit.
Foyle Legal objected to the admissibility of a sentence appearing in the witness statement. The sentence was:[35]
I learned several days later when I attended the GP to collect a report that Mr Foyle had discussed the settlement offer with the GP, advising her that I should accept it.
[35] Magistrates Court ts 106.
The learned magistrate upheld the objection on the basis that it was hearsay. The learned magistrate gave Ms Hardy the opportunity to respond to the objection.
The learned magistrate found that:[36]
… the GP is not giving evidence so what the GP may or may not have said to you is not something that I can test. Similarly, that's not something that, you know, you heard directly from Mr Foyle. So the objection is that that's entirely hearsays so it shouldn't be allowed in so I should delete that sentence. What do you say to that?
[36] Magistrates Court ts 107.
The learned magistrate decided that the material was hearsay and struck it out from the statement.
No legal or factual discretionary error has been demonstrated in this decision. It had no impact on the ultimate decision of the learned magistrate in any event.
After Ms Hardy had been cross examined, his Honour explained re‑examination to her.[37]
[37] Magistrates Court ts 128.
His Honour also explained and gave notice to Ms Hardy of her right to make submissions and a right to reply to Foyle Legal's submissions.[38]
[38] Magistrates Court ts 133.
In summary her evidence was:
1.No amount of money would have addressed the position she was in.
2.She was left to plead her own case at conciliation.
3.She was left to do the documentation.
4.Nothing was done and that was harmful.
In cross-examination Ms Hardy agreed that:
1.In February 2019 Mr Foyle obtained an offer of $50,000 plus costs.
2.She did not want to accept that offer.
3.She, in her words, disengaged Foyle Legal on 8 March 2019.
4.She later engaged another law firm to act on her behalf.
5.She paid that firm $8,000.
6.Although she did not want to sign it, she did sign a settlement agreement on 21 August 2019.
7.The settlement agreed to included terms of a $65,000 payment to her plus costs of $16,500 plus disbursements of $3,345.
8.The total amount was approximately $85,000.
9.The settlement amount included $16,500 toward legal costs.
10.She paid $8,000 to her new solicitors.
11.She did not pay anything to Foyle Legal.
12.Her position was that she disputed that anything should go to Foyle Legal. Her position was she asked for reasons as to why they think they should be paid and she got nothing truthful other than they sent emails and that she was after legal advice.
13.In March 2019, before she disengaged Foyle Legal from acting for her, she instructed her general practitioner to stop providing information to Foyle Legal, and at the time she did this an arbitration was listed.
14.She applied to adjourn the arbitration on grounds which included she had recently become unrepresented.
The use of the word 'disengaged' was clearly selective. The learned magistrate was correct to focus on that word in his findings that Ms Hardy was evasive. Demonstrably, Ms Hardy terminated Foyle Legal's retainer and did so at a time where an offer had been made. Where she declined to instruct them to make a further offer and where she shortly after engaged another firm to represent her, settled the claim and received a significant amount by way of $16,500 toward legal fees only $8,000 of which was incurred and paid toward the solicitors who ultimately represented her at settlement. The learned magistrate was entirely sound in relying on these undisputed facts to describe Ms Hardy as evasive.
Following cross-examination, the learned magistrate carefully explained Ms Hardy's opportunity to clarify, explain or give further evidence about matters that arose in cross-examination.
Ms Hardy gave evidence in re-examination. During the course of her re‑examination, and in the course of upholding an objection, the learned magistrate explained the difference between giving evidence and making a submission.
Ms Hardy's position was that she 'would rather have her health than any money'.[39]
[39] Magistrates Court ts 130.
The learned magistrate explained to her the right to make a closing submission and how that might be presented.[40]
[40] Magistrates Court ts 130.
Ms Hardy's submission was that it would be utterly unfair that anything was paid to Foyle Legal.[41]
[41] Magistrates Court ts 131.
Foyle Legal's position was that:
1.It was a reasonably straightforward debt recovery case.
2.There was evidence of:
(a)an agreement;
(b)terms that included no win no fee;
(c)terms that included a responsibility to pay including the interim payment, the accepted settlement and cl 2.2 which provided that Foyle Legal's fees become due and payable at the time they cease acting;
(d)the quantum of the fees charged was established by Mr Foyle and unchallenged by Ms Hardy;
(e)Ms Hardy had not sought to have the fees assessed. This was notwithstanding an earlier suggestion made to Ms Hardy at a status conference that an assessment was an option under the provisions of the Legal Profession Act 2008 (WA);
(f)there was no doubt Ms Hardy believed that she did not have to pay the fees but that did not amount to a defence;
(g)Ms Hardy received a settlement far in excess of the fees being sought by Foyle Legal; and
(h)there was no evidence of any actionable loss arising from any deficiency by Foyle Legal.
Ms Hardy's position was that her intention was to never settle. She was never after anything to pocket from. She did not think:[42]
… that a person should get paid for what the work that another person did, and especially when they haven't actually provided any legal advice that has actually been helpful or contributed to any benefit. ...
[42] Magistrates Court ts 134.
Ms Hardy's position was impossible to reconcile with:
(a)her retaining an amount of $8,000 which had been paid as part of the compromise toward legal fees; and
(b)the fact an offer was made to settle the claim when Foyle Legal were representing her.
The learned magistrate issued judgment for Foyle Legal in the sum of $20,606 together with interest in the amount of $1,152.48 and made an order that Ms Hardy was to pay Foyle Legal costs to be assessed if not agreed.
After identifying the basis of Ms Hardy's defences, his Honour issued judgment in favour of Foyle Legal finding as facts:
1.Ms Hardy received a preliminary payment during the currency of the arrangement with Foyle Legal.
2.Later she received a full settlement agreement.
3.Accordingly, under the terms of the agreement her liability to pay Foyle Legal fees was triggered.
4.Additionally, the learned magistrate found that Ms Hardy terminated Foyle Legal's services and that her liability to pay their costs was triggered.
His Honour found:[43]
…
It is agreed that the claimant's services were terminated by the defendant. It's common cause that that is the case. It is also common cause that an interim payment order was made and payment was received from that. It is also common cause that subsequently, and importantly prior to these proceedings, an overall settlement was reached and the claimant has been paid under that as well.
Therefore, it follows that payment ought to be made. As to the amount claimed, I'm satisfied that the amount claimed was charged in accordance with the agreement for work done under the agreement. …
[43] Magistrates Court ts 135 - ts 136.
Each of these findings of fact was supported by the evidence. There is no basis for a conclusion that any of these findings were the result of some legal, factual or discretionary error.
The learned magistrate made further detailed findings of fact as to:[44]
[44] Magistrates Court ts 136, ts 137.
1.The incorporation of the claimant.
2.The existence of the agreement entered into on 31 August 2017, which included a term that Foyle Legal provide legal services to Ms Hardy.
3.That it was clear that Mr Foyle did undertake work in the terms of the agreement in accordance with Ms Hardy's instruction.
4.That the fees charged were fair and reasonable.
5.Foyle Legal agreed to provide Ms Hardy with the services in respect of her workers' compensation claim.
6.It was a condition of the agreement that Foyle Legal would only charge Ms Hardy if there was a successful outcome or if Foyle Legal stopped acting.
7.Ms Hardy terminated Foyle Legal's services 'at a time when the claimant had just the month before relayed an offer of $50,000 plus reasonable costs'.[45]
8.Ms Hardy chose not to make a counter proposal through Foyle Legal to that offer but rather engaged another law firm and incurred a further $8,000 in that endeavour.
9.Subsequently Ms Hardy reached an agreement to settle her claim.
10.Ms Hardy received a preliminary outcome, a final outcome and she terminated Foyle Legal's services.
11.Ms Hardy obtained an order for a preliminary outcome on 11 April 2018 and as such this triggered the liability to pay.
12.Between September 2017 and March 2019 Foyle Legal provided legal services to Ms Hardy and incurred disbursements of $23,851.30.
[45] Magistrates Court ts 137.
The learned magistrate gave detailed reasons as to why he accepted Mr Foyle's evidence and gave careful reasons with regard to Ms Hardy's evidence. The learned magistrate found that Ms Hardy was evasive in so far as refusing to concede that she wanted money,[46] noting that Ms Hardy received an amount of $8,500 for legal fees greater than the amount she actually paid. The learned magistrate found that Ms Hardy was argumentative in addition to being evasive and contrasted her position with Mr Foyle's evidence which he accepted.
[46] Magistrates Court ts 140.
Although there was no counterclaim, the learned magistrate carefully considered Ms Hardy's arguments and found that there was no breach of the agreement by Foyle Legal and that Ms Hardy suffered no loss. His Honour also noted that Ms Hardy had not sought an assessment of Foyle Legal's account.
Ms Hardy has not demonstrated that any aspect of the learned magistrate's decision was the result of some legal, factual or discretionary error.
The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge MacLean
27 MARCH 2023