Theden v Nominal Defendant - [2008] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

Theden v Nominal Defendant & Anor [2008] QCA 71

PARTIES:

THEKLA CHARLOTTE THEDEN
(first plaintiff/not party to appeal)
ULRICH THEDEN
(second plaintiff/respondent)
v
NOMINAL DEFENDANT
(first defendant/appellant)
STATE OF QUEENSLAND
(second defendant/second appellant)
THE COUNCIL OF THE SHIRE OF COOK
(third defendant/not party to appeal)

FILE NO/S:

Appeal No 7610 of 2007
SC No 63 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

28 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.

Defendants to pay the plaintiff's costs of the appeal assessed on the standard basis 2.

Ex tempore orders of Holmes JA:

Vacate costs order of published judgment3.

Parties to make written submissions as to costs as per Practice Direction 2 of 20044.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION OF COSTS AND FEES – GENERAL PRINCIPLES – OTHER MATTERS – where orders were made at trial in favour of the plaintiff for the recovery of his costs of the proceedings from the defendants – where the plaintiff sought to recover costs in respect of work done by a solicitor based in New South Wales – where the solicitor does not hold a Queensland practising certificate – whether the costs related to work occurring solely in New South Wales in anticipation of and preparation for the Queensland proceedings – whether the recovery of costs is prohibited by s 209(2) of the Supreme Court Act 1995 (Qld)

PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – RETAINER – IN GENERAL – where the plaintiff sought to recover costs in respect of work done by a solicitor based in New South Wales – where the solicitor does not hold a Queensland practising certificate – whether the performance of work under the retainer is rendered illegal by the operation of s 38 and s 39 of the Queensland Law Society Act 1952 (Qld)

PROCEDURE – COSTS – TAXATION – REVIEW – where defendants sought a review of the Registrar's costs assessment pursuant to r 742 of the Uniform Civil Procedure Rules 1999 (Qld) – whether a successful party can recover professional charges and outlays of a solicitor based outside of Queensland

Queensland Law Society Act 1952 (Qld), s 38, s 39, s 44
Supreme Court Act 1995 (Qld), s 209
Uniform Civil Procedure Rules 1999 (Qld), r 742

Cannon Street Pty Ltd v Karedis [2007] 1 Qd R 505; [2006] QCA 541, cited
Maggbury Pty Ltd v Hafele Australia Pty Ltd (No 2) [2002] 1 Qd R 183; [2001] QSC 78, followed
Re D [1962] QWN 16, applied
Yango Pastoral Company Pty Limited & Ors v First Chicago Australia Limited & Ors (1978) 139 CLR 410; [1978] HCA 42, cited

COUNSEL:

R G Bain QC, with G J Robinson, for…

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: [2008] QCA 71
Decision Date: 28 March 2008

CaseChat Overview and Summary

The case of Theden v Nominal Defendant involved a dispute over the recovery of legal costs from a defendant by a plaintiff who had engaged a solicitor based in New South Wales. The plaintiff sought to recover these costs as part of the proceedings, which were being heard in Queensland. The key issues before the court were whether the costs incurred by the plaintiff, who employed a New South Wales-based solicitor without a Queensland practising certificate, could be recovered and if the work done by the solicitor was rendered illegal under Queensland law. Specifically, the court had to determine whether section 209(2) of the Supreme Court Act 1995 (Qld) prohibited the recovery of these costs and whether sections 38 and 39 of the Queensland Law Society Act 1952 (Qld) made the performance of legal services by the New South Wales solicitor illegal.

The court considered the provisions of the relevant statutes and the nature of the work done by the New South Wales solicitor. The court held that the costs related to work performed in New South Wales in anticipation of and preparation for the Queensland proceedings. Consequently, the court found that the recovery of these costs did not contravene section 209(2) of the Supreme Court Act 1995 (Qld). Regarding the legality of the work performed by the New South Wales solicitor, the court concluded that it did not breach sections 38 and 39 of the Queensland Law Society Act 1952 (Qld) since the work was preparatory and not part of the actual proceedings in Queensland.

The appeal was dismissed by the court, and the defendants were ordered to pay the plaintiff's costs of the appeal. Additionally, the court vacated the costs order from the earlier judgment and directed the parties to submit written arguments regarding the costs, in accordance with Practice Direction 2 of 2004.

Orders

Orders of the court

Appeal dismissed1.

Defendants to pay the plaintiff's costs of the appeal assessed on the standard basis 2.

Ex tempore orders of Holmes JA:

Vacate costs order of published judgment3.

Parties to make written submissions as to costs as per Practice Direction 2 of 20044.

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:	Theden v Nominal Defendant & Anor [2008] QCA 71
PARTIES:	THEKLA CHARLOTTE THEDEN (first plaintiff/not party to appeal) ULRICH THEDEN (second plaintiff/respondent) v NOMINAL DEFENDANT (first defendant/appellant) STATE OF QUEENSLAND (second defendant/second appellant) THE COUNCIL OF THE SHIRE OF COOK (third defendant/not party to appeal)
FILE NO/S:	Appeal No 7610 of 2007 SC No 63 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	28 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2008
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed1. Defendants to pay the plaintiff's costs of the appeal assessed on the standard basis 2. Ex tempore orders of Holmes JA: Vacate costs order of published judgment3. Parties to make written submissions as to costs as per Practice Direction 2 of 20044.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION OF COSTS AND FEES – GENERAL PRINCIPLES – OTHER MATTERS – where orders were made at trial in favour of the plaintiff for the recovery of his costs of the proceedings from the defendants – where the plaintiff sought to recover costs in respect of work done by a solicitor based in New South Wales – where the solicitor does not hold a Queensland practising certificate – whether the costs related to work occurring solely in New South Wales in anticipation of and preparation for the Queensland proceedings – whether the recovery of costs is prohibited by s 209(2) of the Supreme Court Act 1995 (Qld) PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – RETAINER – IN GENERAL – where the plaintiff sought to recover costs in respect of work done by a solicitor based in New South Wales – where the solicitor does not hold a Queensland practising certificate – whether the performance of work under the retainer is rendered illegal by the operation of s 38 and s 39 of the Queensland Law Society Act 1952 (Qld) PROCEDURE – COSTS – TAXATION – REVIEW – where defendants sought a review of the Registrar's costs assessment pursuant to r 742 of the Uniform Civil Procedure Rules 1999 (Qld) – whether a successful party can recover professional charges and outlays of a solicitor based outside of Queensland Queensland Law Society Act 1952 (Qld), s 38, s 39, s 44 Supreme Court Act 1995 (Qld), s 209 Uniform Civil Procedure Rules 1999 (Qld), r 742 Cannon Street Pty Ltd v Karedis [2007] 1 Qd R 505; [2006] QCA 541, cited Maggbury Pty Ltd v Hafele Australia Pty Ltd (No 2) [2002] 1 Qd R 183; [2001] QSC 78, followed Re D [1962] QWN 16, applied Yango Pastoral Company Pty Limited & Ors v First Chicago Australia Limited & Ors (1978) 139 CLR 410; [1978] HCA 42, cited
COUNSEL:	R G Bain QC, with G J Robinson, for…