Simons v Dowd Lawyers Pty Ltd (No 3)
[2021] QCAT 6
•19 January 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Simons & Ors v Dowd Lawyers Pty Ltd (No 3) [2021] QCAT 6
PARTIES: ADAM MARK SIMONS (first applicant)
FIX CONSULTANTS PTY LTD (second applicant)
SPIEL GROUP PTY LTD (third applicant)
v
DOWD LAWYERS PTY LTD (respondent)
APPLICATION NO/S:
OCL047-19
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
19 January 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Hon Peter Lyons QC, Judicial Member
ORDERS: 1. Mr Stephen Hartwell of Level 7 Chambers, 420 George Street, be appointed to carry out an assessment of the respondent’s costs under the decision made by the Honourable Peter Lyons QC on 8 July 2020.
2. Mr Hartwell be paid $275.00 per hour (inclusive of GST) for carrying out the assessment.
3. Mr Hartwell apply the Supreme Court scale of costs in carrying out the assessment.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where s 107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) permits the Tribunal to make an order that costs be assessed in accordance with the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – where the Rules require that the assessor be appointed by the Tribunal – where the respondent has applied for an order for the appointment of a costs assessor – where there is evidence of service of the application, but no response has been received from the applicants – whether the application may be determined on the papers – whether the Tribunal should appoint the assessor nominated by the respondent in the application – whether costs should be assessed on the Supreme Court scale
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 32, s 107
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 87
REPRESENTATION:
First and Second Applicants:
No appearance
Respondent:
G Swan, solicitor for Dowd Lawyers Pty Ltd
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The respondent has applied for an order for the appointment of a costs assessor to assess costs awarded under an order of the Tribunal made on 8 July 2020.
The Tribunal then ordered that the first and second applicants (referred to in these reasons as “the applicants”) pay the respondent’s costs thrown away by reason of an adjournment of a hearing which was scheduled to occur on that date.
The respondent subsequently engaged Mr Adam Bloom, a costs assessor whose name is recorded on what appears to be a list of costs assessors maintained by the principal registrar pursuant to r 743N of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), to prepare a costs statement, apparently of the kind envisaged by r 705 of the UCPR, for the costs the subject of the order. Mr Bloom provided the costs statement on 21 August 2020. On 2 September 2020, the respondent’s solicitor sent a copy of the assessment by email and by Express Post to Mr Daniel McGirr, of McGirr Lawyers. McGirr Lawyers has been the solicitor for the applicants since at least 15 June 2020. The respondent’s solicitor did not receive a reply to either communication.
The respondent’s solicitor then sought the consent of Mr Stephen Hartwell, a barrister whose name also appears on the same list of costs assessors, to carry out an assessment of the costs. Mr Hartwell has provided his consent, and indicated that no conflict would arise from his appointment.
On 2 October 2020, the respondent filed an application for an order that Mr Hartwell be appointed to assess the costs, and for some related orders. The application was supported by an affidavit filed on the same day.
No affidavit of service of this material on the applicants has been filed. However, the Tribunal has been provided with an email enclosing the material, sent to Mr McGirr on 2 October 2020. The Tribunal’s Registry has advised that no material has been filed by the applicants in relation to the application.
Section 107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) provides that, when the Tribunal makes a costs order, and it is unable itself to fix the costs, it may make an order that the costs be assessed under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”). Rule 87 provides for the assessment of costs pursuant to an order under s 107 of the QCAT Act. The rule requires that the costs be assessed by an assessor appointed by the Tribunal. This appears to be an implied grant to the Tribunal of the power to appoint a person to assess costs.
Mr Hartwell appears to be an appropriate person to carry out the assessment. There is no reason to query the rate he proposes to charge for the assessment.
It seems appropriate to order that the costs be assessed on the Supreme Court scale. The matter is of some complexity; and the applicants have at times been represented by one of her Majesty’s Counsel.
The Tribunal is not bound by the rules of evidence,[1] and may inform itself in any way it considers appropriate.[2] The material before the Tribunal is sufficient to demonstrate service of the respondent’s application on the applicants, and that they do not wish to be heard in relation to it. That fact, and the nature of the application, make it appropriate for it to be dealt with without the parties or their representatives attending a hearing in person, under s 32 of the QCAT Act.
[1]See QCAT Act s 28(3)(b).
[2]See QCAT Act s 28(3)(c).
Accordingly, the Tribunal makes the following orders:
1. Mr Stephen Hartwell of Level 7 Chambers, 420 George Street, be appointed to carry out an assessment of the respondent’s costs under the decision made by the Honourable Peter Lyons QC on 8 July 2020;
2. Mr Hartwell be paid $275.00 per hour (inclusive of GST) for carrying out the assessment; and
3. Mr Hartwell apply the Supreme Court scale of costs in carrying out the assessment.
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