Hayes v Mylne Lawyers
[2012] QCATA 76
•3 May 2012
| CITATION: | Hayes v Mylne Lawyers [2012] QCATA 76 |
| PARTIES: | Taci (Tracey) Hayes (Applicant/Appellant) |
| v | |
| Mylne Lawyers (Respondent) |
| MATTER NUMBER: | APL396-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 3 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal made 29 August 2011 is set aside and instead there will be an order that the application is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where a law firm seeks recovery of legal costs – where the requirements of the Legal Profession Act 2007 not satisfied concerning disclosure of information to clients – where the basis of the costs sought not disclosed in evidence Queensland Civil and Administrative Tribunal Act2009, ss 28, 93, 142, Schedule 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 referred |
REASONS FOR DECISION
Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with those reasons but would add that one can reasonably suppose that the respondent would be familiar with its obligations under the Legal Profession Act 2007 relating to legal costs.
The Act imposes strict obligations on lawyers about how they should deal with costs when retained by a client.[1] The legal practice must inform the client the basis upon which the legal costs will be calculated and give an estimate of costs for the work to be undertaken. There is provision for a costs agreement and a statutory right on the part of the client to negotiate with the firm about the agreement. Disclosure about these matters must be made in writing as soon as practicable after the firm is retained. Failure to disclose the matters required by Division 3 of the Act prohibits a legal practice from bringing or maintaining proceedings for recovery of costs unless they have been assessed.[2]
[1] Legal Profession Act 2007, Ch 3 Part .34
[2] Legal Profession Act 2007, s 316(2).
Costs can be recovered if there is compliance with section 319 of the Act. Here subsection 1(a) does not apply as there is no costs agreement. Subsection 1(b) does not apply as there no evidence the bills had been prepared under a scale of costs. Subsection 1(c) also does not apply because there has been no assessment as required by section 316(2).
Even though there was no appearance by the Ms Hayes at the original hearing and the Tribunal was entitled to proceed in her absence,[3] there is still an obligation to ensure that the respondent had a legal right to the relief sought in the application. Here, there was no evidence of compliance with the Act. Therefore the application should have either been adjourned to give the legal practice an opportunity to put forward evidence to satisfy that it had complied with the Act, or the application should have been dismissed. The learned Adjudicator satisfied herself that legal work was carried out but the evidence did not go far enough to in relation to compliance with the Act.
[3] QCAT Act, s 93.
In those circumstances there has been an error of law and leave to appeal should be granted. For the reasons already stated the appeal will be allowed. The order of the Tribunal made on the 29th August 2011 will be set aside and instead there will be an order that the minor civil dispute application 14/11 will be dismissed.
Susan Gardiner
An application was filed in QCAT’s minor civil dispute jurisdiction on 4 January 2011 by Mylne Lawyers to recover legal fees allegedly owed to them by Taci (Tracey) Hayes.
Ms Hayes filed a response to the application of 31 March 2011 and then again in the correct form, on 29 April 2011. A notice of hearing was sent to both parties at the address they gave in their documents and the application was heard at Southport on 29 August 2011.
Ms Hayes did not attend the hearing and a request for an adjournment by her (in the absence of any evidence to support the grounds for her request) was refused. Orders were made by the learned adjudicator at that hearing in her absence for the payment of the fees outstanding.
Ms Hayes appeals this decision. Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought[4].
[4] Section 142 Queensland Civil and Administrative Tribunal Act 2009.
[10] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at [13].
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[11] Ms Hayes’ appeal specifies the following limited grounds for her appeal:
i. No notice reached her of the hearing;
ii. The minor civil application was filed in the Southport Magistrates’ Court and Ms Hayes alleges that she was told by registry staff that there was no matter;
iii. QCAT is not the correct jurisdiction as it should have been dealt with by the Magistrates Court.
[12] The first of Ms Hayes’s ground can be shortly dealt with. Ms Hayes was well aware the matter was to proceed on 29 August 2011. The notice of this hearing was posted by the registry to the address she gave as her address for service on 22 June 2011. Ms Hayes had previously attended a hearing of this matter by telephone in May 2011 and had requested and been granted an adjournment. By faxed letter received 29 June 2011, Ms Hayes requesting a withdrawal of the proceedings or a further adjournment for the hearing set for 29 August 2011 till October 2011. This adjournment request was not agreed to by Mylne Lawyers and refused by the learned adjudicator.
[13] A registry note indicates that a message was left for Ms Hayes on her telephone on 8 July 2011 asking her to call the registry to “explain the outcome of her fax enquiry” of 29 June 2011. As there are no further file records of conversations, it appears that Ms Hayes never returned the registry telephone call or message.
[14] Ms Hayes’ second and third grounds of appeal go to the jurisdiction of QCAT to hear the claim for recovery of legal fees by Mylne Lawyers. Again these grounds can be disposed of shortly. With the commencement of QCAT in 2009, the previous minor civil dispute jurisdiction of the Magistrates Court was transferred to the then newly created QCAT. In Southport, this jurisdiction is exercised by QCAT appointed members and adjudicators sitting in the Southport Magistrates Court and using the facilities of the Magistrates Court registry to file and process applications for the administrative purposes of the QCAT Act.
[15] An examination by Ms Hayes of the heading of all of the documents she filed or received in these proceedings would have shown her that they were headed QCAT (the correct jurisdiction for these minor civil matters), not the Magistrates Court.
[16] Section 28 of the Queensland Civil and Administrative Tribunal Act2009 provides that the procedure for an appeal is at the discretion of the Tribunal (subject to the provisions of the Act)[9]. The Tribunal must observe the rules of natural justice; is not bound by the rules of evidence; may inform itself in any way it considers appropriate and must act with as little informality and technicality and speed as a proper consideration of matters permit. The Tribunal must also ensure that as far as practicable, all relevant material is disclosed to the Tribunal to enable it to decide the proceedings.
[9] “Proceeding” is defined in schedule 3 of the QCAT Act as including an appeal.
[17] Despite not being raised in Ms Hayes’ appeal documentation, an examination of the transcript of the proceedings by this Appeal Tribunal does disclose a lack of some fundamental evidence in the material provided to the learned adjudicator by Mylne Lawyers, which affects Mylne Lawyers’ ability to recover the fees they sought.
[18] Section 308 of the Legal Profession Act 2007 requires disclosure of costs to clients and this section sets out the detailed information to be provided by legal practitioners to prospective clients. This information must be provided in writing before or as soon as practicable after, the law practice is retained[10].
[10]Legal Profession Act 2007, s 310 but see however the exception to disclosure in s 311 of the Legal Profession Act 2007 and s 80 of the Legal Profession Regulation 2007 for fees currently not likely to exceed $1,500.
[19] If this disclosure has not been made, a law practice may not maintain proceedings against a client for the recovery of legal costs unless the costs have been assessed[11]. There was no evidence before the learned adjudicator of either the appropriate notice or of an assessed bill of costs.
[11] Legal Profession Act 2007, Division 7.
[20] An examination of the transcript also raises further concerns that the law practice failed to provide any evidence of the basis on which the costs were quantified. An examination of the accounts sent to the client seems to indicate an hourly rate was employed – usually based on a cost agreement. There was no cost agreement produced and, in the absence of an agreement, no evidence of the appropriate scale of costs used[12].
[12] See also Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at para 35.
[21] Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[13] Unfortunately, in this matter there are fundamental matters of evidence not before the learned adjudicator which makes the decision in this matter unable to stand and in my view necessitates the setting aside of this decision.
[13] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
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