Jones v Litchfield
[2011] SADC 102
•8 July 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
JONES v LITCHFIELD
[2011] SADC 102
Judgment of His Honour Judge Tilmouth
8 July 2011
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - NEGLIGENCE OF PRACTITIONER
The applicant applied for a review for a decision of a Magistrate giving judgment against him for the payment of legal fees for services rendered to him by the respondent.
Held: It was open to the trial Magistrate to decline to enter judgment for legal fees on account of negligence by a legal practitioner, but no such negligence or professional impropriety was demonstrated on the facts.
Legal Practitioners Act 1981 (SA) s77A; Baker v Legal Services Commissioner [2006] 2 Qd R 249; Attard v James Legal Pty Ltd (No 2) [2010] NSWCA 363; Re Baker Jonson's Bill of Costs [1995] 2 Qd R 234; Minerals Corporation Ltd v Abbot [2004] NSWSC 246, referred to.
Re Massey & Carey (1884) 26 ChD 459; Cachia v Isaacs (1985) 3 NSWLR 366, applied.
Abrahams v Ryan [1999] 1 VR 102, discussed.
PROCEDURE - COSTS - AGREEMENTS AS TO COSTS
Held: Section 42(6) of the Legal Practitioners Act is facultative and did not require a fees agreement to be in place before an account for legal fees could be enforced.
Magistrates Court Act 1981 (SA) ss38(6) and (7); s38(7)(d); s38(7)(d)(ii); s42(6); s42(7); District Court Act 1991 (SA) s42E; Supreme Court Civil Rules 2006 Schedule 1 Rule 264; Hunter v Transport Accident Commission (2005) 43 MVR 130; Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241; Conroy's Smallgoods Pty Ltd and Another v Channel Seven Adelaide Pty Ltd (2007) 97 SASR 14; McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129, referred to.
McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, discussed.
JONES v LITCHFIELD
[2011] SADC 102A minor civil claim review
Solicitor and family law specialist Susan Litchfield was approached by Andrew Jones to assist him. He was detained in the Adelaide Remand Centre on a contempt charge. After advising and representing him, she rendered an account which he refused to pay. Ms Litchfield successfully sued for recovery of her fees by way of a minor civil action.
It is from this judgment that Mr Jones seeks review, pursuant to ss 38(6) and (7) of the Magistrates Court Act 1991 (SA). He maintains he is not liable for the fees on the basis that the representation and advice was incompetent. He further claims the account is unenforceable as there was no fees agreement and the charges were rendered on an inappropriate scale.
The retainer
A handwritten note addressed to Ms Litchfield from Mr Jones dated 30 March 2010 read:
My name is Andrew Jones. I am detained in the Adelaide Remand Centre. I need legal help please come and see me.
Evidently she tried to visit him that very day but was unable to, as the Remand Centre was already in lock-down when she first made contact. She sent him a facsimile at the Remand Centre later that afternoon:
I confirm receipt of your instructions today.
I have telephoned the Remand Centre and I am unfortunately unable to meet with you today.
Your matter is before Federal Magistrate Lindsay in the Federal Magistrates Court at Adelaide at 10am tomorrow.
I am currently trying to make arrangements to see you prior to the hearing.
She managed to take instructions the following morning, in the holding cells of the Federal Magistrates Court in the Mitchell Building, here in Adelaide.
The hearing in the Federal Magistrates Court
Proceedings commenced before the Federal Magistrate exercising Commonwealth jurisdiction under the Family Law Act 1975 (Cth), just after 10.00 am on Wednesday 31 March 2010. By that time Mr Jones had spent six days in custody under the contempt order. A number of issues not relevant to these proceedings were canvassed before the issue of contempt arose. Shortly after 11.53 am that morning Ms Litchfield appeared to represent Mr Jones. The gist of the contempt charge related to his refusal to inform the court of the whereabouts of his son, over whom there was an intense custody battle.
What then transpired is revealed in the transcript:[1]
HIS HONOUR: But before we do that, this hearing is an opportunity as I said on the last occasion the matter was before the court that these opportunities would be provided to your client to purge his contempt. He is in custody at the moment because he was convicted of a contempt in the face of the court on 26 March in that he didn’t give a responsive answer to a question relating to the whereabouts of the child. I don’t want to waste my time or anyone else’s time but, if the question is put to him – if that same question is put to him this morning, through you, would he propose to give a responsive answer? And I should say implicit in that exercise, of course, is that the answer will be a true one. I take a responsive answer to be one that responds to the question but it is also a truthful response to the question. So, does he want me to ask him that question again so as to provide him with the opportunity or purging his contempt?
Ms Litchfield, I might give you the chance to do this out of court because it may take some time. Just so we’re crystal clear about all of this, if we’re going to go down that path, the mechanism he has for purging his contempt, as I understand it, would be this” I’ll ask him to tell me truthfully the question in relation to the whereabouts of the child today. If he answers those two questions and if he answers them truthfully, that may constitute a set of circumstances that would see him having purged his contempt. But I’ll give you the chance to speak to him out of court about that. So, I’ll just stand the matter down briefly.
[1] P34 L42-35 L17
Proceedings were adjourned for just under half an hour, during which Ms Litchfield gave further advice to Mr Jones. Upon resuming Mr Jones went into the witness box:[2]
[2] P35 L36-38 L41
RESUMED [12.25 pm]
HIS HONOUR: Ms Litchfield?
MS LITCHFIELD: May it please the court, I’ve given my client certain information and advice and my client will go into the witness box and I’m afraid I ---
HIS HONOUR: He is prepared to go into the witness box?
MS LITCHFIELD: Yes, he’s prepared to go into the witness box but I’m ---
HIS HONOUR: Good.
MS LITCHFIELD: But I can’t ---
HIS HONOUR: To be responsive to my questions?
MS LITCHFIELD: To be responsive, your Honour. I’ve given him certain advice, and I hope he takes that advice.
HIS HONOUR: All right. Thank you, Ms Litchfield. Yes, come forward, Mr Jones.
ANDREW JONES, SWORN [12.26 pm]
HIS HONOUR: Just have a seat, Mr Jones. So, Mr Jones, on 26 March which was Friday of last week, I asked you some questions then that were relevant to the orders I was proposing to make? ---Correct, your Honour.
In relation to the child and I asked you the whereabouts of the child on that day. Do you remember me asking you that?---I do recall, your Honour and ---
Well, just ---?--- since then I’ve been in a place that’s been less desirable.
Sorry, that’s the answer to my question. Just be responsive to my questions will be the best way for you to approach this, Mr Jones?---Yes, I do, your Honour.
Thank you. So I didn’t get a responsive answer from you on that date. Can I ask you now what was the whereabouts of the child when I asked you that question on 26 March? ---What you are asking me to do is give up my son and I won’t betray my son, your Honour.
All right. You can leave the witness box. Thank you.
THE WITNESS WITHDREW [12.28 pm]
HIS HONOUR: All right. So there was an opportunity being provided to purge the contempt, Ms Litchfield. It hasn’t been taken. So that leaves us with the 112AP application, and is there anything you want to put to me about that? I’ve taken his plea in relation to it. We’re here to proceed with that today.
MS LITCHFIELD: Well, your Honour, I would be seeking leave to withdraw in relation to that. I don’t think I can proceed. I have no instructions and, in relation to that ---
HIS HONOUR: It’s not the case of you seeking an adjournment of it or ---
MS LITCHFIELD: Well, I’m happy, your Honour if your Honour is minded to adjourn it.
HIS HONOUR: Well, I’m not trying to encourage or elicit any application.
MS LITCHFIELD: No.
HIS HONOUR: I’m just asking you.
MS LITCHFIELD: Well, your Honour, if your Honour is minded to adjourn it, I would make an application to adjourn so that I can ---
HIS HONOUR: But why would I be adjourning it? For what purpose?
MS LITCHFIELD: Well, only that I could have further discussions with my client about some of the information that he’s provided to the court. But ---
HIS HONOUR: And the reasons why you’re seeking leave to withdraw, how does that arise?
MS LITCHFIELD: Well, your Honour, I’ve given my client certain advice with respect to the whereabouts of the child and, in light of that, your Honour, and his answer, I don’t believe, in the current circumstances, that I can continue to act.
HIS HONOUR: No, I understand that.
MS LITCHFIELD: Yes.
HIS HONOUR: And it’s not for me to assess those methods. I accept what ---
MS LITCHFIELD: If it was to proceed at this point.
HIS HONOUR: But how is that related to an adjournment? I mean, the matters you’re putting on me ---
MS LITCHFIELD: Well, only, your Honour, if I was to have some more time to spend more time with my client.
HIS HONOUR: To persuade him, you mean?
MS LITCHFIELD: Yes. Try and make him see reason, your Honour.
HIS HONOUR: I see. No, look that’s all right. I appreciate you’re being candid with me Ms Litchfield. So if you’re assessment of your position with respect to the discharge of your professional responsibilities is that you need to seek the leave of the court to withdraw, I’m certainly happy to allow you to do that. Did you want to be heard on that, Ms Hurley?
MS HURLEY: Sorry, your Honour, I was taking some instructions. Your Honour, I understand that – and I needed to slightly clarify it, but I understand that my friend’s position is, your Honour, currently she needs to get off the file if she hasn’t got time to speak with her client.
HIS HONOUR: No, no, I just took her to be saying ---
MS HURLEY: Sorry.
HIS HONOUR: --- that she’s given some advice, she’s had some discussions with him. In her assessment of her position is that she needs leave to withdraw.
MS HURLEY: So it’s at the leave to – it’s not the adjournment? Sorry, right.
MS LITCHFIELD: Well, your Honour, unless I’m granted some more time to speak to my client ---
HIS HONOUR: Well, I asked you about that. I don’t want to be going around in circles. This hearing is disruptive enough to my list, counsel. You indicated to me you had a certain position with respect to your professional responsibilities. I asked you about the adjournment and you told me the purpose of the adjournment would be to try to persuade your client to accept the advice you were giving him. That’s not a matter that’s going to persuade me to grant an adjournment, Ms Litchfield.
MS LITCHFIELD: Thank you, your Honour.
HIS HONOUR: For example, if the adjournment were being pursued on other bases such as no time to secure Legal Aid or – but none of that has been put to me. I’m just accepting your own assessment of your position with respect to your professional responsibilities and ---
MS LITCHFIELD: Well, your Honour ---
HIS HONOUR: --- acceding to your request that I release you.
MS LITCHFIELD: There are no other matters that I need to put before the court in relation to those issues.
HIS HONOUR: All right. Thank you. So I give you leave to withdraw.
Ms Litchfield thereupon withdrew. This was at about 12.30 pm. The matter continued without her assistance. As it transpired, the boy was delivered into the custody of the court sometime later that afternoon and as a consequence Mr Jones was released from custody, by order made at around 5.00pm.
Proceedings before the State Magistrate
A number of matters were agitated in the Adelaide Magistrates Court during a hearing on 19 November 2010. Mr Jones confirmed that he instructed Ms Litchfield to act for him. He maintained however that this was at a time when he was emotional and in tears. He produced a letter his son had written for Ms Litchfield to hand up to the Court. He instructed her to read the letter into the transcript. This read:
My dad is in court today. Tomorrow is my birthday, then it is Easter. Will you let me spend my birthday and Easter with my dad? You know how much I want to go to Morwell.
Mr Jones asserted that Ms Litchfield’s performance was “fundamentally and fatally flawed” and that her “approach was shallow, simplistic and disinterested”. He confirmed she advised him to tell the Federal Magistrate where his son was. He maintained that he was in no fit condition to testify at that time, that she should have appreciated his incapacity, compounded as it was by the fact that he was escorted into court in handcuffs, in front of his wife.
He further maintained that in the circumstances, Ms Litchfield was obligated to seek an adjournment in the first instance and that the letter from his son was never presented to the Court, contrary to his specific instructions. He made a subsidiary complaint that as he had not signed a retainer agreement, the account for legal services was unenforceable, or alternatively charged on an inappropriate scale.
For her part, Ms Litchfield said that it became clear to her when she spoke to Mr Jones that he knew the whereabouts of his son, but repeatedly refused to reveal it. She was concerned that if an adjournment was sought, the necessary consequence would be further return into custody. She recognised that he was distressed. Nevertheless she formed the view he was capable of taking her advice, but wilfully chose not to. She told the Magistrates Court she had sought an adjournment to take further instructions and that she provided further advice which he refused to accept. It should be mentioned that the State Magistrate did not have the benefit of the transcript taken in the Federal Magistrates Court, which I insisted be produced in this review.
As can be seen from the extracts quoted above, Ms Litchfield did in fact seek an adjournment. As to the letter, she acknowledged that it was not tendered before the Federal Magistrate, simply because “that wasn’t the issue … the issue would be dealt with once he purged his contempt …”.
During the course of the hearing the State Magistrate made a number of comments to the parties to the following general effect:
·The correct way of dealing with the services provided by the practitioner was by placing the matter before the Legal Practitioners Conduct Board.
·There was really no option before the Federal Magistrate other than for Mr Jones to provide the information, or remain in custody.
·Mr Jones engaged a solicitor, she discharged her duty and there was nothing else she could have done in the circumstances, given the attitude of the Magistrate.
·The letter from the child was irrelevant on the issue of contempt.
At the conclusion of the hearing he delivered the following extempore judgement:
I will enter judgment for the amount of $1000.
I have indicated through the course of this trial what my thoughts have been so I do not propose to make any separate formal comments, other than to say again that I am satisfied that the plaintiff has proved her case. I appreciate the fact that in Mr Jones’ opinion, the plaintiff’s performance was pretty bad, but the reality is the plaintiff was engaged to do the work. She spent time doing the work and in the circumstances that have been put to this court, I do not see that she has done anything wrong. In fact, I do not see that she could have done anything more. I appreciate that there was this question of the letter from the son but I have already canvassed that.
The application for review
Much the same matters were agitated by the parties before this court. Although at times expressed somewhat differently, they boil down to identical issues as those ventilated in the court below.
It is not possible to isolate precisely what influenced the Magistrate to come to the conclusion he reached. It is tolerably clear he formed the view there was nothing else the solicitor could have done in the circumstances. Unfortunately his Honour did not deal at all with the conceptual basis upon which Mr Jones might defeat the action. Nor did he deal with the issues related to quantum. Just how he fixed the judgment at $1,000, is not explained.
So far as the question of referral to the Legal Conduct Board is concerned, that was an irrelevant consideration. That body exercises a quite different specialised disciplinary jurisdiction over professional misconduct, under the Legal Practitioners Ac 1981 (SA). It has no power to make adjudications or orders such as those sought here for the recovery of legal fees. The Board does have the limited statutory capacity to investigation allegations of overcharging under s 77A of the Legal Practitioners Act, and it can recommend legal practitioners reduce charges or refund an amount to a claimant: s 77A(5)(b), but that is all. And for reasons that will become evident, there is no reason to suppose the conduct of the practitioner substantially violated or fell short of the standard of professional conduct observed or approved of by members of the profession of good repute and competency: In Re a Practitioner of the Supreme Court,[3] In Re a Practitioner.[4]
[3] [1927] SASR 58
[4] (1975) 12 SASR 166 at 170
The brief reasons delivered by the Magistrate leave the parties, as well as this court, to speculate as to which of a number of possible "routes have been taken to the conclusion expressed": Hunter v Transport Accident Commission,[5] Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd,[6] Conroy's Smallgoods Pty Ltd and Another v Channel Seven Adelaide Pty Ltd.[7] Accordingly by one means or another, Mr Jones has demonstrated appellable error and it must follow ‘cogent reason’ to interfere with the decision made below: s 42E District Court Act 1991 (SA).
[5] (2005) 43 MVR 130 at [35]
[6] (2006) 234 ALR 241 at [44]
[7] (2007) 97 SASR 14 at [367]
As there is no power of remission supplied by s 38(7)(d) of the Magistrates Court Act (other than arising from a default or summary judgment), the only course now open is to review the matter on the merits, that is by rescinding ‘the judgment’ and substituting ‘a judgment that the Court considers appropriate’: s 38(7)(d)(ii) Magistrates Court Act.
A question of principle
Ordinarily questions relating to the disallowance of costs on account of negligence by a solicitor, are determined on taxation: Re Massey & Carey.[8] Bowen LJ wrote in that case:[9]
It is true that at Common Law the Taxing Master has not the power to decide the question of negligence in all cases. If the negligence goes to the loss of the whole action he cannot entertain the question; but if it relates only to certain proceedings in the action he can. Otherwise the unfortunate result would be that if there was a question as to the propriety of a particular step in the action, as to which no man is better able to decide than the Taxing Master, you place the client in the position that he would have to pay the charge and then bring an action to get it back from the solicitor. It seems to me that the Taxing Master has the power to decide, and that he ought to decide such questions without prejudice to the right of the client to bring an action.
This decision was applied in Abrahams v Ryan.[10] Brooking JA (with the concurrence of Winneke P and Phillips JA), discussed the principle in these terms:[11]
Quite apart from negligence, it is a principle of law - or perhaps one should say a consequence of the application of a principle of law - that a solicitor may not recover from the client payment for work that is useless. The decision cited as establishing the rule with regard to solicitors is Hill v Featherstonhaugh (1831) 7 Bing 570; 131 ER 220. The rule was laid down that an attorney could not recover his costs where the work could not possibly be of use to the client.
[8] (1884) 26 ChD 459 at 461-462 and 463-464
[9] At 463-464
[10] [1999] 1 VR 102
[11] At 116
The guiding principle is nowadays regarded as that stated by Kirby J in Cachia v Isaacs:[12]
The result of the authorities (which are reviewed by Hope JA) and of the principles of contract law of which this is but a special species is that a solicitor, who has been found to be negligent, may nonetheless recover from his client those costs which are severable, untainted by negligence and which relate to matters distinct from those upon which the solicitor has been found negligent. He may not recover fees in respect of the very proceedings in which he has been found negligent, unless he can show (the onus being on him) that, despite the negligence, some real advantage has accrued to the client from those services, or some of them, which would render it unjust for the client to escape liability for those fees or part of those fees.
Thus, if a solicitor were acting both in a damages action and in proceedings in the Family Court, negligence in the former would not disentitle the solicitor to his fees in respect of the latter. Similarly in the case of a separate retainer to act in the conveyance of real property. But where the whole point of the retention of the solicitors has been the conduct of a particular legal proceeding, the mere fact that the solicitor has acted courteously and correctly will not entitle him to fees in respect of that proceeding if he fundamentally misadvises the client or overlooks a limitation period or is otherwise negligent, thereby making his courtesy and attendances entirely futile from the point of view of his client's relevant interests.
This decision was cited with approval in Baker v Legal Services Commissioner,[13] and refer to Attard v James Legal Pty Ltd (No 2),[14] Re Baker Johnson’s Bill of Costs[15] and Minerals Corporation Ltd v Abbot.[16]
[12] (1985) 3 NSWLR 366 at 371
[13] [2006] 2 Qd R 249 at [10] and [30]
[14] [2010] NSWCA 363
[15] [1995] 2 Qd R 234 at 240-241
[16] [2004] NSWSC 246 at [49-52]
Analysis of the merits
Following an urgent request for assistance, Ms Litchfield took instructions in difficult and pressing circumstances from Mr Jones. It proved impossible to see him immediately, but she attended him as soon as she could the following morning. The transcript quoted above demonstrates the predominant first consideration was that of giving Mr Jones the opportunity to purge his contempt. Until that issue was resolved, clearly the Federal Magistrate was not minded to proceed to the questions of custody or access.
The transcript before the Federal Magistrate confirms Ms Litchfield duly applied for an adjournment, which the Federal Magistrate promptly refused. It is equally clear that he would have been completely disinterested in the son’s letter, until the preliminary issue was determined.
In any case tender of the letter was likely to be completely counter-productive to his interests, so far as contempt was concerned. As the letter came from his son, it demonstrated direct knowledge of his whereabouts, so its production could only have served to inflame matters. This might well have resulted in more time in prison. Ms Litchfield’s failure to produce the letter was therefore, of no detrimental affect to the interests of Mr Jones. In any case, Mr Jones could have redeemed the situation by producing it himself after Ms Litchfield withdrew, had he wished to.
The transcript also reveals that Ms Litchfield remained in the vicinity of the court for some time during an adjournment in an endeavour to generate a solution, one which Mr Jones declined to take. In the end she effectively had no option other than to withdraw. There was nothing else of practical utility she could have achieved, given the circumstances.
The final complaint made by Mr Jones related to the contention that he was in no fit state to proceed on that day. Given the objective facts, his condition would have been self-evident. This was appreciated by Ms Litchfield. His responses to the questions posed by the Federal Magistrate were wilful and deliberative. The only remedy apart from abandoning him, was to seek an adjournment. That she did. No store can be placed on a psychiatric report submitted by Mr Jones in this court, for the very reason that an adjournment was refused. In those circumstances it is impossible to identify the slightest degree of negligence on her part, and certainly none serving to reduce or defeat the account for legal fees, according to the principles stated in Cachia v Isaacs.[17]
[17] Above
Quantum
Attention can now be directed of the quantum of the charges. Apart from generating written materials, Ms Litchfield spent no less than three hours attempting to assist Mr Jones. The actual account rendered by her was this:
DATE UNITS DETAILS AMOUNT 8/04/10 30 To take instructions, to attend at the Federal Magistrates Court on 31 March 2010, facsimile to the Remand Centre, letter to client, telephone attendances to Mr Neville Jordan and Ms Trudy Jones. $975.00
The 30 units referred to therein amounts to three hours, so there was no or little other charge for the paperwork, before and afterwards.
First it is claimed there was no proper retainer agreement as was required by the Legal Practitioners Act. Section 42(6) provides:
A legal practitioner may make an agreement in writing with a client for—
(a) payment of a specified amount by way of legal costs (which may—but need not—consist of a daily, hourly or other time-related rate for professional work carried out by the legal practitioner on the client's behalf); or
(b) payment of legal costs in accordance with a specified scale; or
(c) subject to any limitations imposed by the Society's professional conduct rules or the regulations—payment of a contingency fee to be calculated on a basis set out in the agreement on fulfilment of a condition stated in the agreement.
The submission appeared to be that before being entitled to charge, a compliant costs agreement had to be in place as between them.
If it was, the submission misunderstands the purpose and effect of s 42(6). The provision is facultative rather than mandatory. So much is clear from the use of the word “may”. The section imposes no obligation to enter into a fees agreement before liability arises for the payment of the fess of a legal practitioner for services rendered. In McNamara Business & Property Law v Kasmeridis,[18] Gray, Sulan and Layton JJ explained the operation of the section in their joint judgment:
[47] Section 42(6) is to be interpreted against the background that its terms were designed to promote sound and reasonable regulation of a profession that owes fiduciary duties to clients. The subsection, by its very terms, acknowledges that it is addressing an aspect of the relationship of solicitor and client. That relationship carries accepted obligations of confidence, trust and dependence. The section is not to be construed as taking away the protection provided to a client by the common law.
[18] (2005) 92 SASR 382
Nothing was said by the Full Court later in McNamara Business & Property Law v Kasmeridis[19] to qualify that view. It may well be that if a practitioner proposes to charge more than scale rates, it would be advisable to have a fees agreement in place, otherwise the solicitor is only entitled to be paid according to the scale Steicke v Donaldson Walsh Lawyers.[20] The section serves to regulate the content of a fees agreement if one is entered into. It does not go so far as to require that one be in place.
[19] (2007) 97 SASR 129
[20] [2010] SASC 188 at [5]
To the extent that Mr Jones contended the fees charged were excessive, he referred to the jurisdiction of the Supreme Court under s 42(7) of the Legal Practitioners Act, to rescind or vary an agreement that is not fair and reasonable. This point must fail at the threshold, simply because there was no fees agreement in writing in existence, to attract the operation of the provision in the first place.
As to the contention that the fees were charged at an inappropriate rate, Ms Litchfield claimed to have based her charges on what she understood to be the prevailing Supreme Court Scale of $288.51. Schedule 1 to the Supreme Court Civil Rules 2006, fixes the scales of costs for the purposes of costs orders made under Rule 264. Item 7(c) thereof, provides for attendances requiring ‘the exercise of special legal skill or legal knowledge’ at the rate of $263 per hour. This rate was increased by 9.7 per cent for work after 1 October 2009 to 30 September 2010, bringing it to $288.51 per hour. The subject legal work was performed within this period.
Three hours at that rate produces $865.53. By adding 10 per cent for GST, that yields $952.08, some $23 less than the actual charge. Mr Jones contends the applicable rate was just ‘$207 or so’, however as explained already, the Rules of Court do not support that view. In any case, it was the practitioner’s position that $325 per hour was her standard fee at the time and that it was well within the ‘very middle of the range’ so far as the going rate for professional work in this area was concerned. That being so, together with the fact that the Supreme Court scale is indicative of costs as between litigants, there was nothing excessive in the rate charged, judged from any perspective. As the solicitor spent at least three hours attending in and about the Federal Magistrates Court and only purported to charge for three hours, and as no fees agreement was in place to authorise charges for more than scale costs, she was entitled to enforce her charges to the extent of $952.08. The points raised as to the unreasonableness of the costs charged must therefore fail.
Conclusion and orders
For the reasons mentioned earlier, the applicant has demonstrated error by the State Magistrate, so that the judgment entered against the applicant on 19 November 2010 is rescinded. For the above reasons, having reviewed the proceedings on the merits, the court considers the appropriate order should be the entry of judgment in favour of the respondent for $952.08. There will be an order accordingly, however there will be no order as to costs: s 42G District Court Act.
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