Saeed v Patinos Lawyers

[2019] QDC 123

DISTRICT COURT OF QUEENSLAND

CITATION:

Saeed v Patinos Lawyers & Anor [2019] QDC 123

PARTIES:

MIAN AMIR SAEED
(applicant)

v

PATINOS PERSONAL LAWYERS
(first respondent)

CARTER CAPNER LAW
(second respondent)

FILE NO/S:

1631 of 2019

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

28 June 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2019

JUDGE:

Porter QC DCJ

ORDER:

Application filed 17 June 2019

1.   Paragraphs 1, 3 and 5(a) of the application filed 10 May 2019 to the extent they relate to the second respondent be struck out.

2.   No order as to costs of the application.

Application filed 10 May 2019

1.   Strike out the whole of the application and dismiss the proceedings.

2.   Reserve costs of the application in respect of the first respondent to the trial judge in BD 1095/19.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where applicant brings application against former legal representatives for various relief – whether the application fails to disclose a reasonable course of action or is otherwise an abuse of process

Legal Profession Act 2007 (Qld) s. 339(1), s. 328(1), s. 343

COUNSEL:

The applicant appeared on his own behalf

SOLICITORS:

The applicant appeared on his own behalf
CJ Patino for the first respondent
PB Carter for the second respondent

Second Respondent’s application filed 17 June 2019

1. This is an application by Carter Capner Law (Carter Capner) to strike out paragraphs of Mr Saeed’s application seemingly filed under rule 743A Uniform Civil Procedure Rules 1999 (Qld) on 10 May 2019. Mr Saeed’s application is for costs assessment directed to both Carter Capner and the first respondent, Patinos Personal Lawyers (Patinos).  Carter Capner seeks to strike out the paragraphs that relate to it on the basis they disclose no reasonable course of action or are otherwise an abuse of process.

1. Carter Capner also seeks orders for the appointment of a cost assessor.  Carter Capner’s application was supported by two affidavits and an outline of argument.  It was said by Mr Saeed when this matter was called on that he had not been served with the application but had been served with the other material.  Mr Carter asserted that service of the application has occurred.  It seems to me that in this particular case that point does not need to be determined.  That is because the outline, and material had been served, and frankly it is impossible to see how the relief sought in Mr Saeed’s application could be justified. 

1. In the course of submissions, I sought to extract from Mr Saeed what his real complaint with Carter Capner was.  As I understood his response, he did not seek to contend they had been negligent in their work.  I note that the complaints that are made about the conduct of the case seem to relate more to issues that occurred during the period that Patinos represented Mr Saeed in any event. 

1. Rather, Mr Saeed was not satisfied that he had had success such that the pre-condition to an entitlement to fees under the speculative fee agreement, which Mr Carter for Carter Capner agrees is the nature of the agreement, had not been met.  At one level that complaint is flagged in section 5(a) of Mr Saeed’s application, though not in a clear manner.

1. It seems to me that in those circumstances, where the relief sought does not seem properly to arise or indeed properly to be the basis of the true complaint by Mr Saeed, it is appropriate for me to strike out paragraphs 1, 3 and 5(a) of the application filed 10 May 2019.

1. Mr Carter does not press paragraph 1(b) of his application, striking out the cost statement, as it is unnecessary. 

1. Paragraph 2 of Carter Capner’s application is for the matter to be referred for costs assessment.  It seems to me that Mr Carter’s proposal in that regard tried to predict what was intended by the application.  However, as I understand it from Mr Saeed, his initial and real complaint is that there is no entitlement under the speculative fee agreement because of the lack of success.  It seems to me in those circumstances that I ought not to order the matter to be referred to costs assessment as that may well result in the incurring of costs that are unnecessary. 

1. In those circumstances, I order that paragraphs 1, 3 and 5(a) of the application filed 10 May 2019 to the extent they relate to Carter Capner in this proceeding be struck out.

1. Mr Carter seeks costs in respect of this matter.  There is a good argument for that, I accept.  Another view of it might be that this is just part of the swings and roundabouts of acting for clients who, albeit ineffectively, are trying to assert what might be genuine claims.  In the circumstances, I am going to make no order as to costs of the application.

Applicant’s application filed 10 May 2019

1. I also have before me an application filed 10 May 2019 by Mr Saeed, in respect of Patinos, for various relief.  Mr Patino for Patinos submits that the application must be dismissed because it does not raise any arguable cause of action and is an abuse of process.

1. He is correct. Paragraph 1 seeks a declaration that the costs of an injury claim was excessively increased. Such a declaration is plainly not proper to make, particularly where there has been no assessment of costs nor any application for assessment of costs, and indeed that paragraph of the application invokes s. 339(1) Legal Profession Act 2007 (Qld) (LPA), which itself deals with an application for costs assessment.  It is notable that there has never been an application for costs assessment by Mr Saeed of Patinos’ costs or indeed the costs of Carter Capner. 

1. Paragraph 2 seeks that the Court exercise jurisdiction under s. 328(1) LPA to set aside the costs agreement. This Court does not have any jurisdiction to make such an order. Paragraph 2 must be dismissed.

1. Paragraph 3 asks me to refer a matter to the Legal Services Commission under s. 343 LPA. That power only arises after an assessment of costs in this Court. I have no such power because that has not occurred. That application must be dismissed.

1. Paragraph 4 seeks declarations about various matters, which are the matters that are in issue in other proceedings in negligence against the first defendant.  It is an abuse of process to raise them also in this proceeding, especially in a summary way.  Paragraph 4 must be dismissed as an abuse of process.

1. Paragraph 5(a) has already been struck out.  It applies to Carter Capner.  Paragraph 5(b), which seeks an order for costs, is not justified.  In the circumstances, given that Carter Capner’s aspects have already been struck out, I strike out the whole of the application and dismiss the proceedings. 

1. The first defendant seeks his costs of the proceeding on a standard basis.  It is true that he has succeeded on this application.  However, in the circumstances of this particular case, where much of the agitation relates to the underlying issues in the negligence proceedings, I am going to reserve the first defendant’s costs of this application to the trial judge in proceedings BD1095 of 2019.