Marshall v Cooper Grace Ward - [2013] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Marshall v Cooper Grace Ward [2013] QDC 205

PARTIES:

MELVILLE ROBERT MARSHALL
(applicant)

v

COOPER GRACE WARD (a firm)
(respondent)

FILE NO:

233/2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

6 September 2013

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

19^th April 2013

JUDGE:

Long SC, DCJ

ORDER:

Pursuant to r 223 of the UCPR, within 21 days, the respondent provide access to the applicant and/or the applicant’s representative to inspect the respondent’s files relevant to the costs to be assessed pursuant to the orders of Long SC, DCJ dated 11 January 2013 and paragraph 1 hereof for the purpose of enabling the applicant to make further submissions in accordance with the directions made by the Costs Assessor on 28 January 2013

CATCHWORDS:

PROCEDURE – COSTS – COSTS ASSESSMENT – where costs assessment is to occur pursuant to s 341 of the Legal Profession Act 2007 (Qld) - whether disclosure should be allowed by inspection of solicitor’s files – whether special circumstances and interests of justice established pursuant to UCPR 223(4) – consideration of significance of existence of solicitor’s lien over the files – consideration of the requirements of natural justice or procedural fairness

Legal Profession Act 2007 (Qld), chp 3, s 340, s 341

Uniform Civil Procedure Rules 1999 (Qld), r 209(1)(c), r 223, r 706, r 742, r 743

Company Solutions (Aust) Pty Ltd v Keppel Cairncross Shipyard Ltd (in liq) [2004] QSC 379

Julstar Pty Ltd and Anor v Lynch Morgan Lawyers [2012] QDC 272

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural and Indigenous affairs (2005) 215 ALR 162

Russell v Duke of Norfolk [1949] 1 All E R 109 at [118]

Southwell v Jackson [2012] QDC 65 at [15], [27], [28]

COUNSEL:

G Barr for the applicant

G Robinson for the respondent

SOLICITORS:

Butler McDermott Lawyers for the applicant

Cooper Grace Ward for the respondent

Introduction

The applicant seeks a number of orders in respect of a costs assessment to be conducted pursuant to Division 7 of Part 3.4 of Chapter 3 of the Legal Profession Act 2007 (“the LPA”). Contentiously, that includes application for an order for disclosure pursuant to r 223 of the Uniform Civil Procedure Rules (“UCPR”).

The costs assessment is to occur as a result of an earlier application made to this court and an order made on 11 January 2013. On that earlier application, the only issue that remained in contention was as to the selection of the costs assessor. However and pursuant to the directions of the court as to the mechanism by which that selection was to be effected, the order was made in terms of appointing Mr Michael Robert Hogan, as the assessor.

That earlier order was also made expressly in reference to seventeen identified tax invoices of the respondent, issued in relation to legal work undertaken for and on behalf of the applicant. As explained in the affidavit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marshall v Cooper Grace Ward

Details

AGLC: Marshall v Cooper Grace Ward [2013] QDC 205
Case: [2013] QDC 205
Decision Date: 6 September 2013

CaseChat Overview and Summary

In the matter of Marshall v Cooper Grace Ward, the applicant sought to inspect the respondent's files to enable them to make further submissions in relation to a costs assessment. The application was made pursuant to section 341 of the Legal Profession Act 2007 (Qld) and rule 223 of the Uniform Civil Procedure Rules 1999 (Qld). The primary legal issue before the court was whether the applicant should be allowed to inspect the respondent's files and if the special circumstances and interests of justice required such disclosure, as stipulated in rule 223(4) of the Uniform Civil Procedure Rules 1999 (Qld). The court also considered the existence of a solicitor's lien over the files and the requirements of natural justice or procedural fairness.

The court found that the existence of a solicitor's lien over the files did not prevent the disclosure of the files for the purposes of the costs assessment. The court emphasised the importance of ensuring that the interests of justice were served and that procedural fairness was upheld. The court was satisfied that the special circumstances and interests of justice were established, as the applicant's ability to make further submissions in relation to the costs assessment was significantly hindered without access to the relevant files. The court also noted the importance of enabling the applicant to effectively participate in the costs assessment process. Accordingly, the court ordered the respondent to provide access to the applicant and/or their representative to inspect the relevant files within 21 days for the purpose of enabling the applicant to make further submissions in accordance with the directions made by the Costs Assessor.

Orders

Orders of the court

Pursuant to r 223 of the UCPR, within 21 days, the respondent provide access to the applicant and/or the applicant’s representative to inspect the respondent’s files relevant to the costs to be assessed pursuant to the orders of Long SC, DCJ dated 11 January 2013 and paragraph 1 hereof for the purpose of enabling the applicant to make further submissions in accordance with the directions made by the Costs Assessor on 28 January 2013

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Marshall v Cooper Grace Ward [2013] QDC 205
PARTIES:	MELVILLE ROBERT MARSHALL (applicant) v COOPER GRACE WARD (a firm) (respondent)
FILE NO:	233/2012
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	6 September 2013
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	19^th April 2013
JUDGE:	Long SC, DCJ
ORDER:	Pursuant to r 223 of the UCPR, within 21 days, the respondent provide access to the applicant and/or the applicant’s representative to inspect the respondent’s files relevant to the costs to be assessed pursuant to the orders of Long SC, DCJ dated 11 January 2013 and paragraph 1 hereof for the purpose of enabling the applicant to make further submissions in accordance with the directions made by the Costs Assessor on 28 January 2013
CATCHWORDS:	PROCEDURE – COSTS – COSTS ASSESSMENT – where costs assessment is to occur pursuant to s 341 of the Legal Profession Act 2007 (Qld) - whether disclosure should be allowed by inspection of solicitor’s files – whether special circumstances and interests of justice established pursuant to UCPR 223(4) – consideration of significance of existence of solicitor’s lien over the files – consideration of the requirements of natural justice or procedural fairness Legal Profession Act 2007 (Qld), chp 3, s 340, s 341 Uniform Civil Procedure Rules 1999 (Qld), r 209(1)(c), r 223, r 706, r 742, r 743 Company Solutions (Aust) Pty Ltd v Keppel Cairncross Shipyard Ltd (in liq) [2004] QSC 379 Julstar Pty Ltd and Anor v Lynch Morgan Lawyers [2012] QDC 272 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural and Indigenous affairs (2005) 215 ALR 162 Russell v Duke of Norfolk [1949] 1 All E R 109 at [118] Southwell v Jackson [2012] QDC 65 at [15], [27], [28]
COUNSEL:	G Barr for the applicant G Robinson for the respondent
SOLICITORS:	Butler McDermott Lawyers for the applicant Cooper Grace Ward for the respondent