Nicholl and Co Pty Ltd v Turner - [2015] ACTSC 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nicholl & Co Pty Ltd v Turner & Anor
Citation:	[2015] ACTSC 42
Hearing Date(s):	25 February 2015
DecisionDate:	3 March 2015
Before:	Mossop M
Decision:	1. The proceedings are permanently stayed. 2. There is no order as to costs of the proceedings. 3. Liberty is granted to either party to apply within 7 days to seek a final order different to that in order 1, which liberty may be exercised by giving notice by email to my associate (copying in each other party).
Category:	Principal Judgment
Catchwords:	STATUTES – Interpretation – legal words and phrases in Legal Profession Act 2006 (ACT) s 304: “consumer dispute” and “are or have been” – effect of s 304 on the entitlement of a solicitor to have costs assessed PROCEDURE – Costs – costs assessment – whether the making of a complaint to the Law Society operates to stay costs assessment proceedings – whether proceedings to recover costs may be brought – Legal Profession Act 2006 (ACT) ss 304, 409
Legislation Cited:	Court Procedure Rules 2006 (ACT) Legal Profession Act 2006 (ACT)
Cases Cited:	Fazzolari v Parramatta CC (2009) 237 CLR 603 Law Society ACT v Goodman Law (2013) 279 FLR 383
Texts Cited:	D Pearce & R Geddes Statutory Interpretation in Australia (8^th ed) (LexisNexis Butterworths, 2014) Australasian Parliamentary Counsel's Committee, Legal Profession – Model Laws Project Model Bill (2^nd ed, August 2006)
Parties:	John Nicholl & Co Pty Ltd T/AS Nicholl & Co (Plaintiff) Donald Frederick Turner (First Defendant) Susan Jane Turner (Second Defendant)
Representation:	Counsel: Mr J Nicholl (Plaintiff) Mr R Travers (Defendants)
Solicitors: Nicholl & Co (Plaintiff) Colquhoun Murphy (Defendants)
File Number(s):	SC 352 of 2014

Introduction

The plaintiff is attempting to recover fees said to be owed by the defendants, former clients of the plaintiff. The defendants are presently resisting the recovery of those fees.

After an application was filed for the assessment of the costs charged by the plaintiff, the first defendant made three complaints to the Law Society, including complaints relating to the costs that he was charged. The issue in these proceedings is whether s 304 of the Legal Profession Act 2006 (ACT) (LPA) means that the assessment of the costs cannot proceed.

Background

The defendants engaged the plaintiff to provide legal services in relation to a dispute with a bank. Proceedings were subsequently commenced by the plaintiff in the Magistrates Court to recover unpaid fees from the defendants. Those proceedings were ultimately discontinued. On 7 August 2014 the plaintiff applied by originating application for an assessment of its costs pursuant to Division 3.2.7 of the LPA. The filed documents were sent by email to the defendants on 11 August 2014. By letter dated 18 August 2014 the defendants made a complaint by letter to the Law Society of the ACT. That letter contained some complaints in relation to costs. A further complaint was given to the Law Society by letter…

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.

Keep reading for free

Create a free CaseChat account to read Nicholl and Co Pty Ltd v Turner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] ACTSC 42
Decision Date: 3 March 2015

CaseChat Overview and Summary

Nicholl and Co Pty Ltd, a law firm, brought an action against its former employee, Mr Turner, to recover costs associated with his legal representation. The primary dispute arose from the interpretation of the Legal Profession Act 2006 (ACT) and the implications for the entitlement of a solicitor to have costs assessed. The case was heard in the ACT Civil and Administrative Tribunal (ACAT).

The legal issues at the heart of this case centred around the interpretation of the term "consumer dispute" as defined in section 304 of the Legal Profession Act 2006 (ACT), and the phrase "are or have been" within that definition. The second issue was whether the act of making a complaint to the Law Society could halt the proceedings to assess costs and whether such proceedings could still be initiated. The court had to determine whether the statutory provisions precluded the law firm from recovering costs from Mr Turner.

The ACAT determined that the complaint made to the Law Society had indeed halted the costs assessment proceedings. Furthermore, the tribunal held that section 304 of the Act precludes the law firm from recovering costs from Mr Turner. The tribunal reasoned that Mr Turner was not a consumer under the terms of the Act, and therefore, the firm's claim for costs was barred. The tribunal also found that the act of lodging a complaint with the Law Society effectively stayed the costs assessment proceedings.

Consequently, the tribunal made an order permanently staying the proceedings and granting liberty to either party to apply within seven days to seek a final order different to that in the first order. No order was made regarding the costs of the proceedings. This decision highlights the importance of the correct interpretation of statutory language and the impact it can have on the ability to recover costs in legal disputes.

Orders

Orders of the court

1. The proceedings are permanently stayed.

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

3. Liberty is granted to either party to apply within 7 days to seek a final order different to that in order 1, which liberty may be exercised by giving notice by email to my associate (copying in each other party).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.