Tallon v Andrews

[2000] QCA 148

[2000] QCA 148
COURT OF APPEAL

McPHERSON JA
MACKENZIE J
FRYBERG J

[TALLON v ANDREWS]

No 7671 of 1999

STUART DUDLEY TALLON                      Appellant

v.

BEVAN ANDREWS  Respondent

BRISBANE

..DATE 28/04/2000

JUDGMENT

McPHERSON JA:  Over a period of time going back for some years now, the plaintiff Mr Tallon has been involved in litigation apparently over or concerning a building in Bundaberg.

The defendant Mr Andrews was the solicitor who was instructed to handle these matters on the plaintiff's behalf.  The plaintiff was, it seems, generally successful in the litigation and obtained orders for costs against his opponents.  The orders were successfully enforced to the extent that Mr Andrews ended up with the sum of $46,791.43 in his trust account that was referable to that source.

Of this amount it seems to have been agreed or accepted that some $35,604.74 was payable, and it was paid, to the plaintiff Mr Tallon by Mr Andrews from his trust account.  It is the balance of $11,186.69, together with what is claimed to be interest or the right to it on that sum, that has given rise to this dispute.

Mr Andrews asserted a lien over the sum in his possession in respect of costs or outlays which he claimed were or were likely to become owing.  One or more attempts it would appear were made to conduct a taxation of costs but they were not successful, and in mentioning that I am referring to a stage later than the point at which I am now about to come.

Mr Tallon commenced proceedings in Court to recover the sum in question together with damages for some negligence he has alleged have been committed by Mr Andrews in the course of handling his affairs.

The dispute was remitted by Justice de Jersey as he then was, to the Magistrates Court at Bundaberg where the Magistrate Mr Smith in due course, after hearing the matter, gave judgment for the defendant.  The plaintiff Mr Tallon then appealed to his Honour Judge Botting in the District Court.  The appeal was heard and dismissed by his Honour.  Now an application for leave to appeal to this Court has been made.

The claim for negligence is not one in respect of which the Court would be tempted to give leave to appeal.  The other point in the case, which has perhaps little more substance to it, is said to raise a question about the interpretation of rule 84 of the Queensland Law Society Rules.  The rule in question has on one view of it, been held to mean that if after a request has been made to a solicitor for delivery of a costs in taxation form, the solicitor fails for a month or more to comply with that request, he loses his lien over the money or as the case may be, documents in his possession.

In the present context the operation of that rule depends on whether or not a particular letter dated 1 April 1996 from the plaintiff to the defendant amounts to such a request or demand within the terms of the rule.  It is in fact couched not in the language of a request or a demand for such a bid of costs, but is put forward as a "proposal".  What it says is, "I propose the following..." and it is followed by a suggestion that Mr Monsour, costs assessor, draw up various bills that are identified in that letter.

It concludes by saying that, "All of the above are to be drawn up as soon as possible."  The question whether this particular form of words amounts to a request within the meaning of the Queensland Law Society rule that is at issue, is not one raising any question justifying the intervention of this Court.  It is not a matter which is likely to determine any future dispute of this general kind because it depends in the first place upon the form in which the letter or written request or whatever may be is given.

The problem is therefore not one that is likely to recur, nor one which, having regard to the relatively small amount involved in this case, should attract the intervention of three judges to see if they can find some error in the prior determination of two others who have already considered the matter.  I would refuse the application.

MACKENZIE J:  I agree with the reasons of the Presiding Judge and with the order he proposes.

FRYBERG J:  I agree and would add only that the only other basis advanced by the applicant for the grant of leave was an assertion that the Magistrate's finding was inconsistent with a finding earlier made by Mr Justice de Jersey (as he then was) in striking out proceedings before him in this Court.  That assertion is ill-founded.  There was no such finding made.  No basis for leave has been shown.

McPHERSON JA:  Well the order of the Court is that the application for leave to appeal to this Court is dismissed.  Are you seeking costs here?

...

McPHERSON JA:  The Court will order that the applicant, that is you, Mr Tallon, pay the costs to be taxed or assessed that are payable to the respondent, Mr Andrews.

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