Stubberfield v Whitman

[2002] QDC 346

DISTRICT COURT OF QUEENSLAND

CITATION:

Stubberfield and Anor v Whitman [2002] QDC 346

PARTIES:

JOHN RICHARD STUBBERFIELD
First Appellant
And

DOROTHY MAY STUBBERFIELD
Second Appellant
v

PAUL FRANCIS WHITMAN
Respondent

FILE NO:

Appeal D5337/01

M17376/00

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

20 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2002

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, judgment of Magistrates Court set aside; in lieu thereof plaintiff’s claim dismissed with costs, defendant’s counterclaim dismissed for want of jurisdiction; respondent to pay appellants’ costs of the appeal to be assessed.

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client – action to recover fees – significance of unassessed account – whether costs within retainer – whether solicitor validly retained – effect of absence of written agreement of retainer – whether claim proved – Queensland Law Society Act 1952 s.48.

PRACTICE – Notice to admit facts – effect of failure to respond when delivered late before trial – UCPR r 189(2).

Campbell v Jones [2002] QCA 332 – applied.

Dibb v Hopgood & Ganim [2001] QDC 153 – followed.

COUNSEL:

Mr. Stubberfield appeared in person.

H J Zillman for the respondent

SOLICITORS:

Mr. Stubberfield appeared in person.

Whitman & Co. for the respondent.

1. This an appeal from a decision by a magistrate at Brisbane on 29 October 2001 to give judgment in favour of the plaintiff respondent in the plaintiff’s claim against the defendants (appellants), and to dismiss the defendants’ counterclaim.  The plaintiff is a solicitor who was suing for legal work done for the defendants.  The solicitor had delivered an account for fees and costs which had not been referred to an assessor under s.6ZA of the Queensland Law Society Act 1952 (“the Act”).

1. The magistrate found that there had been some dealings between the defendants and an employee of the solicitor, but that the defendants had refused to enter into the usual client agreement, and that no client agreement was ever entered into.  The magistrate held that that did not mean that the costs were not recoverable; pursuant to s 48I(1)(b) of the Act, the solicitor was entitled to an amount calculated in accordance with an applicable scale.  He held that there were two scales applicable, one of the Federal Court and one of the Supreme Court.

An error by the magistrate

1. On p 4 of his reasons he referred to a bill of costs having been sent by the solicitor and that “no response was received from that bill within the prescribed time such that no challenge to the bill was made as to the amount and in my judgment no challenge to that can be made now.”  In my opinion however this involved a misinterpretation of the effect of the Act.  I considered the effect of the failure of a client to refer an account to the tribunal for assessment under s 6ZA in Dibb v Hopgood & Ganim [2001] QDC 153. I will not repeat in detail what I said there. In effect,…