Miles v Senior
[2012] QCAT 468
•28 September 2012
| CITATION: | Miles v Senior [2012] QCAT 468 |
| PARTIES: | Shane Miles (Applicant) |
| v | |
| Geoffrey Hunter Senior of Corporate Property Lawyers (Respondent) |
| APPLICATION NUMBER: | OCL022-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to withdraw is granted. 2. Applicant must pay Respondent’s costs of and incidental to the proceedings, fixed at $3,205.00, within 28 days. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where parties entered into costs agreement – where lawyer alleged fees not paid – where costs assessor appointed by Magistrates Court – where assessment completed – where applicant commenced proceedings in Tribunal – whether proceedings are frivolous, vexatious or misconceived – where applicant should be granted leave to withdraw application – whether respondent would be prejudiced if leave to withdraw was granted – whether applicant should pay respondent’s costs Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 32, 46, 47, 100, 102, 103, 107 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 |
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
Mr Senior, a solicitor, acted for Mr Miles in some legal matters in 2010 (their precise nature is not disclosed) for which, he says, Mr Miles still owes him fees.
He brought proceedings in the Magistrates Court at Southport, and on 6 March 2012 a Magistrate ordered that an assessor be appointed to assess his costs. That procedure is available under s 337 of the Legal Profession Act 2007 (‘LPA’). Mr Miles was given, by the Magistrate, the right to lodge objections with the assessor about costs he disputed.[1]
[1]In accordance with the procedure set up under r 706 of the Uniform Civil Procedure Rules 1999.
The LPA contains other provisions about the ways and means by which lawyers may charge their clients. In particular, if lawyers wish to charge clients more than is allowed under the applicable scales of costs promulgated under Rules of Court, they may enter into a “costs agreement” with the client, specifying the basis upon which charges will be made.[2]
[2] Legal Profession Act 2007, s 322.
Under s 328 of the LPA, the Supreme Court or this Tribunal may order that a costs agreement of that kind should be set aside, if satisfied that the agreement is not fair or reasonable.
Later in March, after the learned Magistrate had made her order, new solicitors apparently instructed by Mr Miles (Nyst Lawyers) wrote to QCAT seeking to commence proceedings for a determination whether a costs agreement actually existed between Mr Miles and Mr Senior[3] or, if it did, for an order that it be set aside under s 328.
[3] See Legal Profession Act 2007, s 328(8).
Nyst Lawyers also applied to the learned Magistrate for an order staying the proceedings in the Magistrates Court and, in particular, the operation of the Magistrate’s earlier order for a costs assessment, pending the outcome of the proceedings in QCAT. The learned Magistrate refused to make that order and dismissed Mr Miles’ application, with costs against him.
Subsequently the costs assessment has gone ahead, the assessment has been completed and, I am told in written submissions from the parties, the time in which either may appeal the costs assessor’s decision expired on 30 July 2012.
QCAT has made three orders in the matter. The first order, made on 27 April 2012, directed that Mr Miles file an application, in the approved form, which clearly states the orders sought by him and the grounds of his application, and directed that if he wished to apply for interim orders he must do so promptly. Under the second order, both parties were granted leave to be legally represented in the Tribunal proceeding, and the parties were ordered to exchange written submissions. Under the third order, the parties were ordered to exchange further submissions including, in particular, Mr Senior’s submissions about the costs he was now also claiming in the QCAT proceedings whereafter the matter would, it was directed, be determined on the papers. Both parties have filed lengthy submissions.
The first question is whether or not, as Mr Senior has sought from the outset, Mr Miles’ proceedings ought to be struck out; the second is, if not, should he be given leave to withdraw; and the third whether, in any event, Mr Miles or his solicitors ought to be ordered to pay Mr Senior’s costs of the QCAT proceedings.
Should Mr Miles’ proceedings be struck out?
As I understand from the lengthy submissions made by Mr Senior’s solicitor, two grounds are advanced for striking out. First, it is contended that, in light of what happened in the Magistrates Court, the QCAT proceedings were frivolous and vexatious and an abuse of process. Secondly, it is said they should be struck out because of procedural defaults by Mr Miles or Nyst Lawyers in the course of the QCAT action.
The first involves allegations and counter-allegations about the history of relations between Mr Miles and Mr Senior and, in particular, the circumstances surrounding what Mr Senior alleged was a binding costs agreement – a proposition Mr Miles sought to dispute. In short, it is said for Mr Miles that this question remained alive and open to be determined in QCAT, despite the learned Magistrate’s order that a costs assessment be undertaken.
Under rule 743G of the Uniform Civil Procedure Rules 1999, however, the recipient of an application for a cost assessment may raise, before the Court, disputes it may have about its liability to pay costs, and whether any costs agreement is void, and seek orders from the Court that those questions be tried before the costs are assessed.
It is said, in the submissions for Mr Senior, that neither Mr Miles nor his lawyers sought to do those things before the Magistrate. It appears (but it is not clear) that Mr Miles may have sought to raise those issues later when he sought a stay from the Magistrate. Whatever occurred, it is not unreasonable to infer from the fact that the learned Magistrate refused that stay and also ordered that Mr Miles pay Mr Senior’s costs of the application for it, that she was unimpressed with any arguments Mr Miles may have been able to raise about the costs agreement.
That conclusion is strengthened by the fact that, in the submissions filed here for Mr Miles, it is said that he now wishes to withdraw his application to QCAT, “…on the basis that the costs assessment ultimately proceeded and a Cost Certificate was prepared”.
Of course it may also be the case that, in the events that have now occurred, Mr Miles has simply decided to accept the outcome of the costs assessment in the Magistrates Court and no longer wishes to proceed.
Under s 47 of the QCAT Act this Tribunal has wide power to strike out proceedings that are frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process. In the events that have happened here, the most likely explanation for the QCAT proceedings by Mr Miles was his dissatisfaction with the outcome of the Magistrates Court proceedings and an attempt, on his part, to circumvent them by commencing an action in QCAT. It is striking that his initial application to QCAT was made one day before the hearing of his stay application before the Magistrate.
As Deane J observed in Oceanic Sun Line,[4] the factors to be considered when questions of this kind arise will vary from case to case and are, to a significant extent, a matter of impression.
[4]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, at 242 and subsequent paragraphs.
I do not have the transcript of the proceedings before the learned Magistrate. In the circumstances described above in which a party was, in effect, seeking an arena in which to ventilate a putative dispute about the efficacy of a costs agreement under the LPA, I do not think it can be said that the commencement of the QCAT proceedings necessarily attracts the operation of s 47 of the QCAT Act. The proceedings may have been adventurous – and, as it happens, have not progressed – but it cannot be said they were manifestly superfluous, or mischievous or without any foundation in law.
Mr Senior’s second ground of attack concerns what has happened in the QCAT proceedings. Mr Miles’ initial application was not signed by him but was in the form of a letter from his solicitors. He, or they, have also failed to comply, in a timely way, with some of this Tribunal’s directions orders.
Under s 48 of the QCAT Act, proceedings can be dismissed or struck out if a party acts in a way that causes disadvantage to its opponent, eg by not complying with Tribunal orders, or with the Act; or, ‘vexatiously conducting the proceeding’. The rule is to be construed in the light of the statutory objects under the QCAT Act, which include an emphasis upon informality, the minimisation of costs to the parties, and expediting proceedings so far as is consistent with achieving justice.[5]
[5] Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 4(c).
It is not apparent that Mr Senior has suffered any manifest disadvantage, except for the continuance of the proceedings themselves. It is clear from his early response to the application that he was alert to the issues Mr Miles and his solicitors wished to raise, and that he has been able to address them appropriately. Again, I am not persuaded that the way Mr Miles or his solicitors have conducted the action ought to attract the sanction allowed by s 48 of the QCAT Act.
Should Mr Miles have leave to withdraw?
Section 46 of the QCAT Act allows a party to withdraw an application before the matter is heard and decided by the Tribunal, but only with leave. The Act is silent about the circumstances in which that discretion to grant leave might be exercised. As a matter of general principle, an applicant should not be forced to proceed unwillingly, and leave ought to be granted so long as the other parties to the proceeding are not prejudiced.
The only prejudice to Mr Senior, here and now in the QCAT proceedings, is in connection with his costs of those proceedings. That question may appropriately be dealt with separately, but in a way which encompasses the background to and history of the proceedings. Once that is appreciated, there is no reason Mr Miles ought not to have leave to withdraw.
Should Mr Miles (or Nyst Lawyers) be ordered to pay Mr Senior’s costs?
Parliament plainly intended that parties in QCAT proceedings ought to pay their own costs.[6] Unsurprisingly there is, however, discretion to award costs if the Tribunal considers this to be in the interests of justice.[7] The test to determine the circumstances in which costs might be awarded has been described in these terms:
Whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points so compellingly to a costs award that they overcome the strong contra-indication against costs orders.[8]
[6] Queensland Civil and Administrative Tribunal Act 2009, s 100.
[7] Queensland Civil and Administrative Tribunal Act 2009, s 102.
[8]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments(No 2) [2010] QCAT 412, [29].
Mr Senior now claims $3,205.00 for his costs of the QCAT proceedings, calculated by reference to the Magistrates Courts scales. It is material that, in the course of the QCAT proceedings, he made offers to settle on the basis that Mr Miles’ proceedings be dismissed and that his costs be paid, initially in the sum of $1,600.00 and, later, at a figure of $2,135.00. The offers were not accepted by Mr Miles, or his solicitors.
Under rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (‘QCAT Rules’) the Tribunal has an additional discretion to award the offering party its costs after the offer was made if the outcome of proceedings is not more favourable to the recipient of the offer than the offer itself.
In the present circumstances the rule adds a gloss to the Tribunal’s discretion, if Mr Senior ever had an entitlement to costs.
Nothing has happened in the course of the proceedings before QCAT that materially altered Mr Miles’ position after he lost his application to the Magistrate to stay the operation of her earlier order directing a costs assessment. Mr Miles hung on in the QCAT action, as it were, until he received the costs assessment – with which, it seems, he has decided to rest. The primary question is whether those circumstances are adverse to him under the test in s 102(1) of the QCAT Act – the ‘interests of justice’ test.
Although I have determined that his QCAT proceedings were not so plainly hopeless as to attract the operation of s 47 of the QCAT Act they were, on any view, adventurous. More particularly, there was no compelling reason to keep them on foot once the Magistrate had refused the stay. Mr Miles, however, kept them going until he had the costs assessment.
One of the factors the Tribunal may consider in deciding whether to award costs is the relative strengths of the claims by each of the parties to the proceeding. It is inescapable that Mr Miles’ QCAT proceedings were adventurous and speculative. In the events that have happened, in which Mr Senior has been put to expense through having a solicitor in his own firm represent him, the interests of justice dictate that he ought to have his costs. The operation of r 86 of the QCAT Rules only serves to strengthen that conclusion.
Under s 107 of the QCAT Act the Tribunal must, if possible, fix costs. The claim for $3,205.00, assessed under the Magistrates Court’s scales, appears entirely reasonable in light of the number of directions hearings, the nature of the issues, and the steps the parties were obliged to take up to the point where Mr Miles decided to withdraw his application.
Finally, Mr Senior argues that Nyst Lawyers ought to bear some or all responsibility for what has happened, and also be ordered to pay his costs. The Tribunal has power to do that, under s 103 of the QCAT Act, if it considers that a representative is responsible for unnecessarily disadvantaging another party.
There is, however, no evidence to suggest that Mr Miles’ lawyers were not acting on his instructions or in good faith. It also appears to be suggested that they should have known that the proceedings were hopeless and akin to an abuse of process. For the reasons discussed earlier, that conclusion is open but not compelling.
In the circumstances the appropriate orders are that Mr Miles have leave to withdraw his application; and, that he pay Mr Senior’s costs of and incidental to the proceedings, fixed at $3,205.00, within 28 days.
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