Robertson v Boe Williams Lawyers - [2013] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Boe Williams Lawyers [2013] QCA 252

PARTIES:

GERALDINE FOOI-FONG ROBERTSON
(applicant)
v
BOE WILLIAMS LAWYERS
(respondent)

FILE NO/S:

Appeal No 2874 of 2013
DC No 2657 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2013

JUDGES:

Gotterson and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal is refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHERE APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where primary judge refused originating application, which sought an assessment of legal costs per a trust account statement, because this is not an appropriate document for this purpose – where Trevor Henry Croll took an assignment of all relevant choses in action from Robertson – where primary judge refused interlocutory application for Mr Croll to be substituted as applicant in proceedings, because the originating application was bound to fail – where primary judge refused interlocutory application for itemised bill, pursuant to s 332 of the Legal Profession Act 2007 (Qld), because it was out of time – where applicant applied, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), for leave to appeal – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)
Legal Profession Act 2007 (Qld), s 300, s 330(1), s 332, s 332(1), s 335, s 335(1), s 335(5), s 335(6)
Uniform Civil Procedure Rules 1999 (Qld), r 743A(5)

Graham & Ors v Welch[2012] QCA 282, cited
Hockley v Sowden[2000] QCA 9, cited
Horton & Anor v Keeley & Ors[2013] QCA 161, cited
Labaj v Brown & Anor [2006] 1 Qd R 416; [2005] QCA 54, cited
Pearson v Thuringowa City Council[2005] QCA 310, cited
Pickering v McArthur[2005] QCA 294, cited
Rigney v Littlehales & Ors[2005] QCA 252, cited

COUNSEL:

The applicants appeared on their own behalf
M J Liddy, with S B Robb, for the respondent

SOLICITORS:

The applicants appeared on their own behalf
Boe Williams Lawyers for the respondent

GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

MORRISON JA: The applicant Trevor Henry Croll, seeks leave to appeal from the decision of the learned primary judge, whereby his Honour refused two applications, namely an originating application filed 4 July 2012 and an interlocutory application filed 15 February 2013.

The originating application filed on 4 July 2012 was instituted in the…

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.

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Details

Case: [2013] QCA 252
Decision Date: 6 September 2013

CaseChat Overview and Summary

Robertson has appealed against the judgment of the District Court of Queensland, which refused an originating application for an assessment of legal costs. The application sought to determine costs based on a trust account statement. The applicant also sought to be substituted by Trevor Henry Croll, who had taken an assignment of all relevant choses in action from Robertson. Finally, Robertson sought an itemised bill under section 332 of the Legal Profession Act 2007 (Qld). The primary judge refused all three applications. Robertson now applies for leave to appeal, pursuant to section 118(3) of the District Court of Queensland Act 1967 (Qld). The court must determine whether an appeal is necessary to correct a substantial injustice or whether there is a reasonable argument that there is an error to be corrected.

The court found that the primary judge's refusal of the originating application was correct. The trust account statement was not an appropriate document for determining legal costs. The court also found that the refusal of the application to substitute Mr Croll as the applicant was correct, as the originating application was bound to fail. The court found that the refusal of the itemised bill application was also correct, as it was out of time. The court found that there was no substantial injustice caused by the primary judge's decisions, and that there was no reasonable argument that there was an error to be corrected.

Accordingly, the court dismissed Robertson's application for leave to appeal. The appeal is dismissed with costs.

Orders

Orders of the court

Application for leave to appeal is refused with costs.

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.

CITATION:	Robertson v Boe Williams Lawyers [2013] QCA 252
PARTIES:	GERALDINE FOOI-FONG ROBERTSON (applicant) v BOE WILLIAMS LAWYERS (respondent)
FILE NO/S:	Appeal No 2874 of 2013 DC No 2657 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2013
JUDGES:	Gotterson and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal is refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHERE APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where primary judge refused originating application, which sought an assessment of legal costs per a trust account statement, because this is not an appropriate document for this purpose – where Trevor Henry Croll took an assignment of all relevant choses in action from Robertson – where primary judge refused interlocutory application for Mr Croll to be substituted as applicant in proceedings, because the originating application was bound to fail – where primary judge refused interlocutory application for itemised bill, pursuant to s 332 of the Legal Profession Act 2007 (Qld), because it was out of time – where applicant applied, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), for leave to appeal – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118(3) Legal Profession Act 2007 (Qld), s 300, s 330(1), s 332, s 332(1), s 335, s 335(1), s 335(5), s 335(6) Uniform Civil Procedure Rules 1999 (Qld), r 743A(5) Graham & Ors v Welch[2012] QCA 282, cited Hockley v Sowden[2000] QCA 9, cited Horton & Anor v Keeley & Ors[2013] QCA 161, cited Labaj v Brown & Anor [2006] 1 Qd R 416; [2005] QCA 54, cited Pearson v Thuringowa City Council[2005] QCA 310, cited Pickering v McArthur[2005] QCA 294, cited Rigney v Littlehales & Ors[2005] QCA 252, cited
COUNSEL:	The applicants appeared on their own behalf M J Liddy, with S B Robb, for the respondent
SOLICITORS:	The applicants appeared on their own behalf Boe Williams Lawyers for the respondent