Harris v Dianne Grace Law
[2013] QCATA 148
•10 May 2013
| CITATION: | Harris v Dianne Grace Law [2013] QCATA 148 |
| PARTIES: | Gregory Phillip Harris (Applicant/Appellant) |
| v | |
| Dianne Grace Law Pty Ltd t/as Grace Law (Respondent) |
| APPLICATION NUMBER: | APL436-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 10 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent filed a claim for monies due for legal services provided to the applicant – where the applicant disputed rates charged in the amount claimed – where the tribunal at first instance made ordered the applicant to pay the respondent – where the applicant appealed the tribunal’s decision – where the applicant claimed the tribunal failed to give a reasonable opportunity to cross-examine – where the applicant claimed the tribunal failed to provide adequate reasons – where the applicant claimed the tribunal failed to consider relevant factors – where the applicant claimed the tribunal exhibited bias – whether leave to appeal should be granted Legal Profession Act 2007, s 328 Cachia v Green [2009] NSWCA 232 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
REASONS FOR DECISION
On 19 November 2012, at the conclusion of a hearing conducted by an ordinary member who was a Magistrate, the Tribunal allowed a claim in its Minor Civil Dispute jurisdiction brought by Grace Law Pty Ltd (“Grace Law”) against Mr Gregory Harris. The claim related to unpaid legal fees allegedly owed by Mr Harris to Grace Law.
The Tribunal ordered Mr Harris to pay Grace Law the sum of $19,909.10.
Mr Harris wishes to appeal against that decision. The Appeal Tribunal’s leave is required.[1]
[1]Section 142(3)(a) QCAT Act.
Separately, Mr Harris sought a stay of the Tribunal’s decision. The stay has been refused.
In his application for leave to appeal, Mr Harris raises the following grounds for appeal:
1.That the Tribunal breached section 95(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 by failing to allow the cross-examination of Dianne Grace;
2.That the Tribunal breached section 95(1)(b) of the Act by improperly restricting cross-examination of Annabelle Jacob;
3.The Tribunal failed to give adequate or proper reasons by failing to take into account:
(a)The relative inexperience of Annabelle Jacob in allowing the reasonableness of the charge out rate of $350.00 per hour;
(b)The uncontradicted evidence in the Affidavit of John Harris sworn 6 November 2012; of Mathew Mason sworn 19 November 2012 and conceded 19 November 2012; of Gregory Harris sworn 19 November 2012 and conceded 19 November 2012; the extent of the claimed work of the applicant challenged by the respondent/appellant with reference to the particular work and time claimed by the applicant;
4.Failing to properly or at all consider the alleged work and time claimed by the applicant including both out of chambers fees of counsel and counsel’s accommodation, airfares and travel expenses;
5.Exhibiting bias against the respondent by not considering the evidence and submissions of the respondent dated 8 September, 1 and 19 November 1992 (sic).
The question of whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[5]
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41.
[3]Cachia v Grech [2009] NSWCA 232 at [13].
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 QdR 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Member’s reasons for decision, delivered orally after a short adjournment at the conclusion of the hearing, clearly disclose his reasoning in resolving the application as he did.
First, he found that the costs to be paid by Mr Harris to Grace Law were governed by the costs agreement between the parties which was signed by Mr Harris, a solicitor and conveyancer in New South Wales, on 15 March 2012. In reaching that conclusion, the Member found that the rate to be charged for work performed by Ms Annabelle Jacob, namely $350.00 per hour, was disclosed and agreed upon in the costs agreement.[6]
[6]See Exhibit DBG01 to the Affidavit of Dianne Arber Grace filed 14 November 2012.
Secondly, the Member rejected the contention of Mr Harris that it had been agreed that the costs would not exceed $40,000.00. Rather, he accepted Ms Grace’s evidence that the firm had, initially, required $40,000.00 to be deposited into the trust account of the firm, although, in the event, only $33,500.00 was deposited. That finding by the Member was unremarkable. The written costs agreement provided an estimate of total fees of between $46,000.00 and $91,000.00.
In support of his contention that it had been agreed that the fees would be capped, Mr Harris relies upon the affidavit of his brother, Mr John Harris. The affidavit of Mr John Harris is not inconsistent with the evidence of Ms Grace. It refers to a conversation between Mr John Harris and Ms Grace wherein she said that she required $40,000.00 to be placed in her trust account before she could act. Mr John Harris also refers to having sent a text message to Ms Grace on 15 March 2012 which read ‘do u need $40,000.00 in total? Yes or no’. However, Mr John Harris does not depose to having received any reply from Ms Grace. Nor does he depose to any communication between himself and Mr Greg Harris informing the latter to the effect that the fees were to be capped at $40,000.00.
Thirdly, although Mr Harris had not made an application pursuant to s 328 of the Legal Profession Act 2007 to set aside the cost agreement, the Member took that to be Mr Harris’s intention and thus looked to s 328 to determine whether there was any basis upon which the cost agreement could be set aside as being not fair or reasonable. Treating the matter in that way was very fair to Mr Harris. Whilst he had not made a formal application, he had said in the course of his submissions:
The cost agreement is set based on limit of (sic) knowledge at the time and it’s entered into between the parties. The cost agreement is not sacrosanct. The Tribunal has the power to override it or set it aside or vary it if it forms a view that any particular hourly rate, either generally or specifically, on individual items is not fair or reasonable. In other words, in the Tribunal’s view it’s what could be seen as overcharging for specific items.[7]
[7]Transcript of proceedings page 39.
After considering the factors set out in s 328 of the Legal Profession Act, the member concluded that it was not appropriate to set aside the agreement.
Fourthly, having reached that view, the Member went on to consider individual items which had been identified by Mr Harris as particular matters which he contested in the itemised bill which had been provided by Grace Law. The Tribunal Member considered each and every one of those items. On a number of occasions he disallowed, or varied, the items charged. In total, he disallowed $815.00 charged in the itemised account.
The Tribunal Member’s reasoning as disclosed was entirely unexceptional. The proceedings were not conducted in a manner which denied procedural fairness to Mr Harris. A perusal of the transcript demonstrates that the Tribunal Member facilitated an identification of the basis for Mr Harris’ objection to the itemised bill, both at a general level concerning the hourly rate charged for Ms Jacobs’ work, and in respect of particular items. Mr Harris was heard at length in respect of those matters.
There is no substance to his complaint that he was denied natural justice.
Mr Harris’ complaint that the Tribunal breached s 95(1)(b) of the QCAT Act by failing to allow him to cross-examine Dianne Grace is without substance. Mr Harris did not seek to cross-examine Ms Grace.
Prior to the lunch adjournment there was a discussion between the parties and the Member as to whom, of those who had provided affidavits, were required for cross-examination. At page 12 of the transcript Mr Harris said that he would seek to cross-examine Ms Jacobs on her affidavit. The Member indicated that this would be permitted.
Mr Harris then sought an indication from Ms Grace as to whether she required Mr John Harris, his brother, for cross-examination. She indicated that she did not.
The Tribunal then adjourned for lunch.
Upon the recommencement of proceedings, each of Ms Grace and Mr Harris were sworn.[8] The proceedings then continued with both Ms Grace and Mr Harris providing evidence, but not in sequence, and answering questions posed by the Member. The issues in dispute were identified.
[8]Transcript of proceedings, page 13.
At the conclusion of that process, Mr Harris stated that he still wanted to cross-examine Ms Jacobs on her affidavit; as he had identified prior to lunch. He made no mention of cross-examining Ms Grace.
Ms Jacobs was then cross-examined. At the conclusion of that cross-examination Mr Harris made his submissions.
Mr Harris’ complaint that he was improperly restricted in his cross-examination of Ms Jacobs is also without substance. The cross-examination concluded as follows:
ADJUDICATOR: We’ve already covered that territory. There’s no need to do it again.
MR HARRIS: Okay, thank you, your honour. That’s cross-examination.
This demonstrates that Mr Harris was not restricted as he suggests.
Similarly, the transcript demonstrates that there is also no substance to Mr Harris’ complaint that the Member exhibited bias against him. As set out above, the Member in fact facilitated a hearing which was favourable to Mr Harris.
There is no identifiable error in the decision made by the Member which, as I have said, was unexceptional in the circumstances. There is no reasonable prospect that Mr Harris would obtain substantive relief if the appeal were heard. There is no question of general importance; it is a case restricted to its own facts. There is no substantial injustice which will result if leave is not granted.
Leave to appeal is refused.