Hurst-Meyers v Aulich Civil Law Pty Ltd

[2021] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: 

Hurst-Meyers v Aulich Civil Law Pty Ltd

Citation: 

[2021] ACTSC 16

Hearing Dates: 

2, 4 February 2021

Decision Date: 

4 February 2021

Before: 

Mossop J

Decision: 

See [32]

Catchwords: 

APPEAL – PRACTICE AND PROCEDURE – Application for

leave to appeal a decision of the ACT Civil and Administrative

Tribunal – no reasonably arguable error of fact or law identified in the Tribunal’s reasoning – no reasonable prospects of success on

appeal – application for leave to appeal dismissed practice acting for itself in proceeding – whether legal practice

entitled to costs order in respect of work by director and employee

solicitor – no costs order made

Legislation Cited: 

ACT Civil and Administrative Appeals Tribunal Act 2008 (ACT),
s 86
Legal Profession Act 2006 (ACT), s 282
Civil Law (Property) Act 2006 (ACT), s 201(2)

Cases Cited: 

Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst Meyers (Civil

Dispute) [2020] ACAT 26
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007
Clarkson v St Vincent De Paul Samaritan Services [2016] ACTSC
235
D A Starke Pty Ltd v Yard (No 2) [2020] SASC 81
Eastman v Commissioner for Social Housing [2011] ACTCA 12;
252 FLR 278
Guneser v Aitken Partners Pty Ltd [2020] VSC 329
Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR
315
Hurst-Myers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020]
ACAT 93
Hurst-Meyers v Public Trustee and Guardian for the ACT [2018]
ACTSC 61

United Petroleum Australia Pty Ltd v Herbert Smith Freehills

[2020] VSCA 15

Parties: 

Ralph Hurst-Meyers (Applicant)

Aulich Civil Law Pty Ltd (Respondent)

Representation: 

Counsel

Self-represented (Applicant)

E Taylor (2 February 2021), C Holloway (4 February 2021)
(Respondent)

Solicitors

Self-represented (Applicant)
Aulich Civil Law (Respondent)

File Number: 

SCA 57 of 2020

Decision under appeal: 

Tribunal:	ACT Civil and Administrative Tribunal
Before:	President G Neate

Senior Member K Katavic

Date of Decision:	13 November 2020
Case Title:	Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 (Appeal)
Citation:	[2020] ACAT 93

MOSSOP J:

Introduction

1.    The applicant, Ralph Hurst-Meyers, has made an application for leave to appeal against an order of the ACT Civil and Administrative Tribunal made on 13 November 2020. That includes an application for leave to appeal out of time. The application for leave to appeal was filed on 16 December 2020.

2.    The decision from which the applicant seeks leave to appeal is a decision of the appeal Tribunal of the ACAT (the Appeal Tribunal): see Hurst-Myers v Aulich Civil Law Pty Ltd ACN 155 746 777 (Appeal) [2020] ACAT 93. That in turn was an appeal from the Tribunal (the Original Tribunal): see Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst Meyers (Civil Dispute) [2020] ACAT 26.

3.    In summary, the circumstances giving rise to the proceedings were that the applicant was

the client of the respondent solicitors. The solicitors’ practice was an incorporated legal

practice. The solicitors acted for him in relation to a claim that a house registered in his

mother’s name was beneficially owned by him (or by him and his ex-wife). The matter

proceeded from being one involving the provision of advice, to commencement of proceedings, to contested proceedings involving the Public Trustee and Guardian acting on behalf of his mother. There was evidence of four different costs agreements with the company through which the incorporated legal practice was conducted, two of which were signed by the applicant and two of which were not. There was also evidence that at various points in December 2016 and early 2017 the applicant had requested that his fees be capped or that further fees not be incurred. Ultimately the solicitors terminated their retainer because of non-payment of fees and the applicant acted for himself in the court proceedings. The solicitors declined to provide the documents prepared in the course of his retainer until their fees were paid. The applicant was ultimately successful in the Supreme Court proceedings: Hurst-Meyers v Public Trustee and Guardian for the ACT [2018] ACTSC 61. The respondent then brought proceedings in the ACAT to recover the unpaid component of its fees, totalling $24,258.32. It was successful both before the Original Tribunal and before the Appeal Tribunal. A counterclaim alleging negligence on the part of the solicitors was dismissed.

4. Section 86(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) provides that a

party may appeal to the Supreme Court on “a question of fact or law” from a decision of

the Appeal Tribunal of the ACAT. Section 86(4) provides that such an appeal may only be
brought with the leave of the Supreme Court.

5.    The order of the Appeal Tribunal was made on 13 November 2020, 28 days after that date ended on 11 December 2020. The application for leave to appeal and affidavit in support are shown as having been lodged for filing on 11 December 2020 but only filed on 16 December 2020. The respondent to the application did not oppose the granting of an extension of time if that was necessary in order to permit a grant of leave to appeal. As a consequence, the fact that the documents were shown as being filed out of time may be put to one side.

Proposed grounds of appeal

6.    The draft notice of appeal filed by the applicant appears to relate to a different decision of the Tribunal made on 25 August 2020. However at the hearing of the application the applicant agreed that the issues that he wished to raise on appeal were appropriately articulated in the reasons given by the Appeal Tribunal on 13 November 2020 at [9]:

(a) In relation to the whether there was a fee limit set, including a requirement that the respondent seek written approval from the appellant to exceed any limit set, the Original Tribunal:

(i) failed to consider properly or at all, the appellant’s evidence that a fees limit was set,

including the appellant’s request that the respondent seek written approval from the

appellant to exceed the limit;

(ii)  erroneously rejected the appellant’s evidence which, he contends expressly

provided instructions regarding the fee limit and the consent that was required;

(iii) incorrectly concluded on the evidence before it that the appellant’s express

instructions were overridden by his conduct.

(b)	The Original Tribunal erroneously considered and applied section 282 of the Legal Profession Act 2006 (the LPA).
(c)	The Original Tribunal wrongly concluded that the respondent had not been negligent in respect of any advice given regarding the Supreme Court Proceedings.

7.    Clearly if these grounds are to be treated as proposed grounds of appeal they need to be adjusted so that the assertion is of error on the part of the Appeal Tribunal. I will refer to them as proposed grounds of appeal in the reasons that follow.

8.   The affidavit in support of the application for leave to appeal also asserted that the

respondent should compensate the applicant “for improperly withholding [the applicant’s] property for the cost in time and materials to reproduce this evidence”. As to this issue the

Appeal Tribunal was not satisfied that the claim for compensation was before the Original Tribunal: see Appeal Tribunal at [14]. Having regard to the fact that the appeal proceeded as a review of the original decision: Appeal Tribunal [6], the Appeal Tribunal was not obliged to consider claims which were not made before the Original Tribunal. It therefore did not err in failing to consider the claim for compensation. The attempt to reopen that issue in the Supreme Court should not be permitted and I would refuse leave insofar as it related to that issue.

9. I have assumed for the purposes of this application that each of the proposed grounds of appeal raises a “question of fact or law” within the meaning of s 86(1) of the ACT Civil and

Administrative Tribunal Act. It is not necessary for the purposes of this application to consider the issues raised by the Full Court of the Federal Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315.

Applicant’s approach to application for leave to appeal

10. In support of the application for leave to appeal the applicant relied upon his affidavit as well as a folder of documents which were before the Original Tribunal. His submissions involved going through those documents and essentially repeating the arguments that he had put below which were not accepted by the Original Tribunal or the Appeal Tribunal. There was no attempt made to point to specific error in the reasons of either the Original Tribunal or the Appeal Tribunal. There was no specific challenge to any of the underlying findings of fact made by the Original Tribunal. The documents did not include a transcript of the proceedings before the Original Tribunal. As a consequence the Court did not have access to any oral evidence given by the witnesses called by the applicant in the Original Tribunal.

11. While the applicant made detailed submissions in the application for leave to appeal, he said that in the event that leave to appeal was granted he would seek to tender on the appeal some further evidence and make additional submissions. For that reason, it is necessary to deal with the application for leave as a discrete step.

12. Because of the thorough manner in which the Original Tribunal and the Appeal Tribunal dealt with the matter, these reasons may be relatively brief.

Proposed ground (a)

13. The Appeal Tribunal dealt with grounds (a)(i) and (ii) together. The reasons of the Original Tribunal contained a very detailed chronological history of the dealings between the applicant and the representatives of the respondent. Such detailed findings by the Tribunal are of significant assistance in the case like this. The reasons also included a careful analysis of the evidence given and reached conclusions which, on critical issues, rejected evidence given by the applicant (for example at [135], [149]-[150]). The Appeal Tribunal

referred to the Original Tribunal’s “meticulous approach to the history” and said that it was

apparent that the Tribunal “paid close attention to the various documents and exchanges

between the appellant and the respondent over the course of its retainer”. It outlined the

four costs agreements (or proposed costs agreements) which may be summarised as
follows:

Agreement	Date	Scope of work	Estimate	Signed?
CA 1	25 November 2016	“Review documents provided;	$1500-2000 plus	Signed

and Advise in conference”	GST	plus
disbursements

CA 2	29 November 2016	“Prepare brief to counsel;	From $10,000-	Signed
Correspond with the Public	$20,000 plus
Trustee; Draft originating	GST plus
application; and Appear in	disbursements
the ACT Supreme Court (if
necessary)”
CA 3	9 December 2016	“Act in ACT Supreme Court	$30,000 plus	Not
proceedings to declare the	GST plus	signed
existence of a trust; and	disbursements
Advise generally”	(this estimate includes work completed to date)
CA 4	12 December 2016	“Act in ACT Supreme Court	$53,373 plus	Not
proceedings to declare the	GST	signed
existence of a trust; and
Advise generally”

14. The Appeal Tribunal referred to the Original Tribunal’s conclusion that because the

applicant continued to give instructions for many months after he received the fourth costs offer on 12 December 2016, his conduct amounted to unqualified acceptance of the fourth costs offer and gave rise to an agreement which was not subject to a $20,000 cap. The Appeal Tribunal saw no basis upon which to form a different conclusion. It explained its

reasons by reference to some of the history of the applicant’s conduct after the fourth costs

agreement was provided:

39. The appellant submitted that, based on his emails at 12:04pm on 8 December 2016 and at 3:03pm on 18 January 2017, the Original Tribunal should have accepted that he had instructed the respondent he was only paying a total of $21,000 and that amount was only to be exceeded with his approval. He says he gave no such approval.

40. However, as at 18 January 2017 the appellant knew the respondent was continuing to work on preparing the evidence which was due on 13 February 2017. He expressly

inquired as to the status of that work on 18 January 2017. Further, the PTG’s position as

at 23 January 2017, a copy of which was sent to the appellant on 23 January 2017 made

it clear the evidence was required. What followed was the respondent’s preparation of

that evidence including affidavits and briefing counsel. This is supported by emails from the solicitor to the appellant on 30 January 2017, and between 3 and 9 February 2017. On 7 February 2017, a file note of a telephone call with the appellant records:

Ralph will amend words slightly email to DD then DD will amend + Ralph in to swear.

Invoices – Ralph will have $8k w[ith] in a week to pay.

Then will have access to “$1.5mil” w[ith] in a month it will be no problem.

41. This was not the last promise to pay. Similar statements to payment being made by the

appellant and a ‘big pay out’ were made on 3 March 2017, 5 April 2017, and 1 June

2017.

42. There were also further exchanges regarding the evidence and preparation for hearing after 27 March 2017 when the PTG filed its evidence. These occurred on 30 March 2017, 31 March 2017, 5 April 2017, and 31 May 2017.

43. The combined effect of the exchanges set out at paragraphs [40] to [42] above is that the appellant instructed the respondent to do things which were all encompassed by the scope of CA4.

44. The appellant’s argument is, in essence, that he expected to obtain a wide range of legal

services for no more than $21,000 and that he could do so by not signing CA4.

45. Realistically, and given the terms of CA4, that was not possible. The respondent had set out the work to be performed in CA4, and the estimated cost of such work encompassed

by CA4. The appellant’s ongoing instructions and promises to pay were consistent with

CA4. CA4 did not have to be signed by the appellant. It could be accepted by the

appellant continuing to provide instructions. Consequently, the appellant’s argument

must fail. Whether he considered he had rejected CA4 by reason of his instruction that

fees be ‘capped’ at $20,000 or regarded it to be a counter-offer to the scope of CA4 is

irrelevant. The terms upon which the respondent offered to provide legal services and the means by which that offer might be accepted were clear. This is discussed further below.

46. We therefore agree with the conclusions reached by the Original Tribunal and do not find

that the Original Tribunal failed to properly consider the appellant’s evidence or

erroneously rejected it. (Footnotes omitted)

15. There is nothing in the submissions made by the applicant that would indicate that there was any error in the conclusion reached. Having regard to the fact that the appeal to the Appeal Tribunal proceeded by way of a rehearing and the comprehensive reasons given by the Original Tribunal, it is clear that there was no error in the conclusion reached by the Appeal Tribunal.

16. On ground (a)(iii) the Appeal Tribunal concluded that any instruction to cap fees was overridden by the appellant continuing to give instructions to perform the work covered by CA4 well after he gave such instructions and after he was, or should have been aware,

that the amount he owed the respondent exceeded $20,000. It said: “any notion that the

work under CA4 was to be performed for no more than $21,000 was inconsistent with the terms on which the respondent offered to provide the services and the history of the

services provided previously”.

17. The submissions made by the applicant provide no basis upon which to reach a different conclusion from that identified by the Appeal Tribunal. Although, having regard to his

ultimate success in the Supreme Court proceedings, achieved despite the respondent’s

refusal to release his documents without payment, the applicant considers that he got no value from his dealings with the respondent. That is a separate issue from whether or not he was contractually obliged to pay the fees in question. Much of his submissions were directed to that dissatisfaction. However, those submissions do not demonstrate any error on the part of the Appeal Tribunal or the Original Tribunal in dealing with the relationship between his requests to cap fees, the costs agreement, the statements made on behalf of the respondent and the work done upon his instructions.

18. In relation to proposed ground (a) I am not satisfied that this is a reasonably arguable ground of appeal.

Proposed ground (b)

19. The issue of s 282 of the Legal Profession Act 2006 (ACT) was not pursued with any vigour before the Original Tribunal: see [125]. In relation to proposed ground (b) the applicant did not identify any specific error in the reasoning of the Appeal Tribunal set out in its decision at [52]-[58]. Each of the costs agreements indicated that it could be accepted by giving the respondent, or continuing to give the respondent instructions, in relation to the matter after the offer was received. The Appeal Tribunal concluded that the language of the costs agreement complied with s 282(4) of the Legal Profession Act which required that the offer state the kind of conduct that will constitute acceptance. The Appeal Tribunal indicated that the applicant continued to provide instructions to the respondent to progress the matter and that he promised payment of the outstanding invoices. There is no error disclosed in

the Appeal Tribunal’s reasons.

20. Proposed ground (b) is not a reasonably arguable ground of appeal.

Proposed ground (c)

21. The essential contention of the applicant was that he was entitled to a refund of the fees paid to the respondent for work performed in relation to the Supreme Court proceedings because he was advised incorrectly that he would not succeed and yet he ultimately succeeded without legal representation. This was an issue which had been before the Original Tribunal. The Original Tribunal considered it at [159]-[181]. The argument before

the Original Tribunal was described as “vague”. The Tribunal appears to have understood

it as being an allegation that the respondent should have recognised from the outset that his mother’s affidavit satisfied the requirements of s 201 (2) of the Civil Law (Property)

Act 2006 (ACT) when the matter was initially before the court and then all the time, trouble and expense of pursuing evidentiary issues could have been avoided.

22. The manner in which the matter was argued before the Appeal Tribunal appears to have included the allegation that particular advice given about the prospects of the proceedings was incorrect. The Appeal Tribunal considered that issue at [59]-[65].

23. The Original Tribunal accepted the statement in the originating application in the Supreme

Court proceedings that there was “no other written record” for the trust was in error: see

Original Tribunal at [170]. It concluded that the error was without consequence because it was nevertheless necessary to establish that the statements in the affidavit of his mother were true and that obliged the applicant to obtain supporting evidence which was the process undertaken by the solicitors: see Original Tribunal at [172]. The Original Tribunal found that the specific advice given by email indicating the necessity of obtaining documentary evidence and the risk of failing in the proceedings if that documentary

evidence was not provided was “plainly sound”: see Original Tribunal at [175]. The Original

Tribunal was not persuaded that the case would have been run differently if the solicitors

had identified from the outset that the applicant’s mother’s affidavit satisfied the technical

requirement of writing for the creation of an express trust: Original Tribunal at [178].

24. While that was enough to deal with the counterclaim, the Original Tribunal indicated that there was no evidence of any loss because the work done was not wasted or unnecessary: Original Tribunal at [181].

25. The Appeal Tribunal rejected the submission that only the applicant’s mother’s affidavit

was sufficient, rejected the submission that the advice about the necessity to obtain additional documentary and other evidence was incorrect and therefore was not satisfied of any error on the part of the Original Tribunal.

26. In oral submissions on the application for leave, in addition to the matters referred to in the reasons of the Original Tribunal and the Appeal Tribunal, the applicant placed considerable emphasis on the propositions that the solicitors had wrongly believed that an affidavit that had been executed by one of his sisters and which did not support his claim for the existence of a trust was true. That was an affidavit which was ultimately not relied upon by the Public Trustee and Guardian. He submitted that after this affidavit was received the respondent gave him advice that he should give up proceedings because he was going to lose. Such a contention is inconsistent with the documentary material which was put before the court. It is a contention which was rejected by the Original Tribunal. The argument does not demonstrate any error on the part of the Appeal Tribunal or the Original Tribunal. I consider that the applicant would have negligible prospects of establishing the factual basis for the claim and negligible prospects of doing so in a way that could lead to his counterclaim being successful. In particular any new argument would still be faced with the same causation problem identified by the Original Tribunal, namely that the work actually done was not wasted and would not have been avoided if the alleged negligence had not occurred.

27. In my view, the decision of the Appeal Tribunal was clearly correct. To say more about this issue would be to simply repeat what has already been said by the Appeal Tribunal or the Original Tribunal. Ground (c) does not disclose any arguable ground of appeal.

Conclusion

28. I am not satisfied that the applicant has any reasonably arguable grounds of appeal in the sense that the answer to any question of fact or law (or for that matter question of mixed fact and law) raised by the proposed grounds of appeal does not have reasonable prospects of being answered favourably to the applicant or would not, if so answered, alter the outcome of the proceedings. Insofar as he suggested that there might be further evidence that could be put forward on an appeal, I consider that the prospects of having such evidence admitted is remote as is the possibility that it would affect the outcome of an appeal.

29. The requirement to obtain leave is intended as a filter on appeals to this court: see Eastman v Commissioner for Social Housing [2011] ACTCA 12; 252 FLR 278 at [58]; Clarkson v St Vincent De Paul Samaritan Services [2016] ACTSC 235 at [85]. In circumstances in which detailed submissions have been made as to the merits of the appeal and the court is in a position to conclude that the prospects of any appeal are remote and there are no other reasons why leave to appeal should be granted, I consider that leave to appeal should be refused.

30. The application for leave to appeal will be dismissed. Having regard to the fact that the respondent solicitors were an incorporated legal practice and were represented in the proceedings by an employed solicitor and a director and the decisions in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007 (Bell Lawyers), United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15, Guneser v Aitken Partners Pty Ltd [2020] VSC 329, D A Starke Pty Ltd v Yard (No 2) [2020] SASC 81, my tentative view is that there should be no order as to costs. However I will hear any submissions that the parties have to make.

[The parties were heard on costs]

31. Although Ms Holloway referred to the relevant portions of the decision in Bell Lawyers in

the respondent’s oral submissions on costs, the issue of incorporated legal practices acting

by their employed solicitors has been addressed in the subsequent cases to which I have referred. In my view, it is appropriate to follow the approach taken in those decisions which treats an incorporated legal practice acting by its employed solicitors in the same way as an individual solicitor is treated. Adopting that approach no order as to costs should be made in favour of the incorporated legal practice.

Orders

32. The orders of the Court are:

1.       The application for leave to appeal filed 16 December 2020 is dismissed.

2.       There is no order as to costs of the application.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 12 February 2021