Molloy v IMC Aviation Services Pty Ltd - [2012] QCAT 459

CITATION:

Molloy v IMC Aviation Services Pty Ltd and Anor [2012] QCAT 459

PARTIES:	Ian Robert Molloy (Applicant)
v
IMC Aviation Services Pty Ltd (First Respondent) G4S International Logistics (Aust) Pty Ltd (Second Respodnent)

APPLICATION NUMBER:

MCD042-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

17 August 2012

HEARD AT:

Brisbane

DECISION OF:

K Buxton, Adjudicator

DELIVERED ON:

21 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application dismissed.

CATCHWORDS:

Minor debt claim – legal profession fees – whether applicant engaged direct by respondent – Whether applicant complied with regulator’s requirements

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

In person

RESPONDENT:

Mr Lewis for the first respondent (by telephone)
Mr Patel for the second respondent (by leave of the Tribunal)

REASONS FOR DECISION

In this application Mr Molloy seeks to recover, as a debt, the amount of an unpaid invoice dated 6 June 2012 for professional services rendered to the respondents. The respondents refute any direct liability to pay Mr Molloy. They claim he was a barrister engaged by their law firm and for whose fees they do not have any direct liability.
The following facts are undisputed:
a)Mr Molloy is an Australian Legal Practitioner and a lawyer of the National Court of Papua New Guinea. He practices as a barrister in Brisbane and also carries out a significant portion of his practice in Papua New Guinea;
b)The first and second respondents had aviation business in Papua New Guinea and required legal representation when a matter relating to their business became litigious;
c)Both Mr Molloy and the law firm Blake Dawson Lawyers (now Ashurt Lawyers) through partner Mr Derek Wood undertook legal work as part of the required representation;
d)The invoice, dated 6 June 2010, is addressed to Blake Dawson Lawyers in Port Moresby;
e)The invoice was forwarded by Mr Wood of Blake Dawson to the respondents for payment;
f)The respondents have not paid the invoiced amount.
It also appears to be common ground that there was a fee sharing agreement between the respondents where they would each pay for half of the relevant legal fees.
Mr Molloy has not sought to recover his unpaid fees from Blake Dawson, but from the respondents directly. He says he is entitled to do so as he was engaged directly by them. This is the kernel of the dispute between the parties.
In support of his contention that he was directly engaged by the respondents, and is entitled to recover against them, Mr Molloy relies on the affidavit of Mr Wood, filed 30 March 2012, which states (in summary):
a)Blake Dawson were engaged by the respondents in about November 2010. Mr Wood understood that the respondents had already consulted with Mr Molloy in Brisbane who had informed them that they would need to engage a law firm in Port Moresby.
b)Mr Wood had passed an earlier fee note of Mr Molloy’s (also addressed to Blake Dawson and dated 27 November 2009) to Mr Lewis of the first respondent and he had paid that directly.
c)Mr Molloy carried out work which Mr Wood “was instructed to engage him to perform”[1].
d)That work was performed by Mr Molloy in accordance with the instructions Mr Wood received concerning his engagement by and on behalf of the respondents.
e)Mr Wood was specifically instructed to “engage Mr Molloy on (the respondent’s) behalf”.[2]
[1] Affidavit of Mr Derek Wood filed 30 March 2012 para 6.
[2] Affidavit of Mr Derek Wood filed 30 March 2012 para 7.
Mr Molloy also asserted that an email exchanged between Mr Wood and Mr Lewis demonstrated that he was directly retained by the Respondents. This email, dated 23 November 2009, from Mr Wood (“Derek”) to Mr Lewis (“Stewart”)[3] confirms that Blake Dawson could act for the respondents and recommended that Mr Molloy “should also be retained to act”. Mr Wood conveyed information about Mr Molloy’s charge-out rates and invited any further discussion about these to take place directly with Mr Molloy (there is no suggestion that this offer was taken up). Mr Wood then stated “I confirm that IMC Mining Solutions Pty Ltd will be responsible for the fees”.
[3] Exhibit 1, tab 1.
Mr Molloy relies upon the direct payment of the earlier fee note, on 1 December 2009, as further evidence of the direct retainer[4]. However, I note that this document is an email from Mr Lewis to Mr Wood confirming that payment had been made.
[4] Exhibit 1, tab 3.
Mr Molloy stated that a telephone conversation took place between Mr Lewis, Mr Wood and himself where his fees were discussed. Specifically, the amounts which he would charge were conveyed during this discussion.
The effect of this evidence, in Mr Molloy’s submission, is that it was “perfectly clear” that the respondents would be directly liable for his fees. He also stated that he was not obliged to provide a costs agreement to the parties or otherwise comply with the provisions of the Legal Profession Act 2007 as the proper law of the contract was Papua New Guinea Law. That jurisdiction, he submitted, had the closest connection to the subject matter of the contract and, in PNG, he could act as a member of the fused profession and be directly engaged by the respondents. I do not accept Mr Molloy’s submissions that the respondents’ obligations were “perfectly clear”.
In circumstances where the terms of an engagement such as this have not been reduced to clear written terms and signed by the parties, it is a matter for the Tribunal to determine the objective intent of the parties, having regard to the evidence.
The first respondent appeared through Mr Lewis, by telephone, at the hearing. He adopted the submissions made by Mr Patel, the second respondent’s legal representative who appeared by leave of the Tribunal, and added some points which I shall address below. In summary, the respondents jointly submitted that:
a)The evidence does not show that the respondents engaged Mr Molloy directly. The email and telephone calls were equivocal at best.
b)That equivocal communication is not sufficient to demonstrate the parties’ intention to depart from the usual practice in Australia of engaging a law firm who, in turn, engages counsel.
c)The evidence that Mr Molloy directly billed Blake Dawson is supportive of the conclusion that he was engaged directly by that firm.
d)If the proper law of the contract was in Australia (or more specifically either NSW or Queensland) then the requirement of a written costs agreement imposed by the Legal Profession Act 2007 had not been met.[5]
e)If the proper law of the contract was in PNG, then the PNG Lawyers Act 1986, s 62(4)(b) required the signed bill of costs to be delivered to the party to be charged personally, by registered post or by leaving it at (relevantly) their place of business.
[5]Legal Profession Act 2007, ss 308, 316, 322 and 329, imposed upon an “Australian Legal Practitioner” under s 6(1), including a sole practitioner.
Mr Lewis further submitted that Blake Dawson managed the proceeding and the “work product”. The respondents always and only corresponded with Blake Dawson in relation to the matter. There is an email exchange between Mr Molloy and Mr Wood, dated 6 June 2010,[6] which tends to support this. It is curious that Mr Molloy has not sent his memo of fees, together with an explanation of the way in which they were calculated to the respondents directly if he considered that they were directly liable for them.
[6] Exhibit 1, tab 8.
Mr Lewis also added some insight into why the fees had not been paid. Whilst not directly relevant to this matter, it appears that a portion of Blake Dawson’s fees are disputed and the respondents take the view that Mr Molloy should have been paid by Blake Dawson from a sum of money provided to them in partial satisfaction of that firm’s account.[7] That is consistent with the affidavit evidence of Mr Wood.
[7] Affidavit of Mr Lewis file 16 August 2012 paras 11-17.
On balance, the evidence does not support Mr Molloy’s contention that he was directly engaged by the respondents. The initial email upon which he relies is equivocal. Whilst the respondents are said to be responsible for Mr Molloy’s fees, it does not state to whom they would be responsible. This is not a document authored by Mr Molloy, but by Mr Wood. Mr Molloy’s actions thereafter are consistent only with his having been engaged directly by Blake Dawson. He bills them, corresponds with them and even provides them with an explanation for how his fees are calculated. Mr Molloy’s submission as to direct payment by the respondents does not advance matters one way or the other. There is nothing unusual about a law firm’s client paying counsel, or any other consultant, directly.
Further, Mr Molloy has not complied with the professional regulatory requirements of either jurisdiction. If he thought he was billing a client in accordance with PNG law as he asserts, then he ought to have delivered that bill to the client in the manner prescribed by PNG Lawyers Act, s 62(4). Mr Molloy relies, in response to this issue, upon the further affidavit of Mr Wood filed 24 August 2012, which deposes to the fact that the PNG postal service could not deliver locally by registered post or otherwise any document to anything other than a post office box. Of course, this is unresponsive. The relevant place of business, in Mr Molloy’s submission, would be the respondent’s places of business in Australia. Not only was no attempt made to deliver the bill to those addresses, but the bill was not even directed to those parties’ names. The substance of s 62(4) cannot be said to have been carried out.
During the hearing I called upon the parties to make written submissions about the proper law of the contract because I was concerned that the tribunal would need to make a determination on this issue. However, whilst I am grateful to the parties for the submissions which have been filed, on balance, Mr Molloy cannot comply with the laws of either jurisdiction, so this question becomes unnecessary to decide.
For completeness, however, I would add that far more would have been needed than the simple suggestion by Mr Molloy that he was to undertake work in PNG in order to infer into a contract entered into with a barrister from Brisbane, who was in Brisbane at the time, and clients based in Brisbane and New South Wales, and for work to be paid in local currency, a term that the proper law of the contract was that of PNG.
Mr Molloy has not satisfied the tribunal that he entered into a contract directly with the respondents for the provision of services. Even if he had, he has not complied with the regulatory requirements of either PNG or Queensland in the delivery of his bill. It would not therefore be recoverable in its current form in any event.
This application to recover against the respondents as a debt the unpaid amounts for professional services rendered by Mr Molloy must therefore be dismissed.