Theden v Nominal Defendant & Ors - [2007] QSC 316

SUPREME COURT OF QUEENSLAND

CITATION:

Theden v Nominal Defendant & Ors [2007] QSC 316

PARTIES:

THEKLA CHARLOTTE THEDEN
(First Plaintiff)
ULRICH THEDEN
(Second Plaintiff)
v
NOMINAL DEFENDANT
(First Defendant)
STATE OF QUEENSLAND
(Second Defendant)
THE COUNCIL OF THE SHIRE OF COOK
(Third Defendant)

FILE NO/S:

63 of 1999

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme court, Cairns

DELIVERED ON:

6 August 2007

DELIVERED AT:

Cairns

HEARING DATE:

2 March 2007

JUDGE:

Jones J

ORDER:

1. The disallowance by the Registrar of items of the Costs Statement relating to the application of s 209 of the Supreme Court Act 1995 be set aside.
2. The assessment of costs is remitted to the Registrar for further consideration in accordance with the directions and reasons of the Court.
3. Unless otherwise ordered within 21 days from the date hereof, I order that the defendants pay 80% of the applicant’s costs of and incidental to this application to be assessed on the standard basis.
4. Parties shall have liberty to apply.

CATCHWORDS:

COSTS – TAXATION – APPLICATION FOR REVIEW - SOLICITORS – QUALIFICATIONS AND ADMISSION – PRACTICING CERTIFICATES – RIGHTS AND PRIVILIGES – RIGHT OF AUDIENCE – Whether practitioner with a practicing certificate in another State can recover costs in a Queensland action – Principal solicitor acting through Queensland agent

COUNSEL:

Mr T Quinn for the applicant (second plaintiff)
Mr Bain QC with Mr G Robinson for the respondent (first and second defendants)

SOLICITORS:

Stacks Goudkamp for the applicant
Broadley Rees for the respondents

The second plaintiff applies, pursuant to R 742 of the Uniform Civil Procedure Rules (“UCPR”), for a review by the Court of the Registrar’s reconsidered decision on the assessment of costs payable to him by the first and second defendants (“the defendants”).

By his action, the second plaintiff and his wife, the first plaintiff, sought damages for negligence against the defendants. The quantum of the second plaintiff’s claim was settled on the second day of the hearing. His entitlement to recover however remained subject to the first plaintiff establishing liability in the defendants to pay damages.

On 10 March 2005 I entered judgment in the sum of $55,000 with costs “to be assessed on the standard basis on the District Court scale applicable to such judgment sum” in favour of the second plaintiff (“the applicant”). An appeal against the decision on the issue of liability was dismissed on 28 June 2005.[1]
[1]See (2005) QCA 236

The applicant presented three Cost Statements. The first related to the fees of the solicitor initially retained and the second to fees of Queensland solicitors acting as agents for the New South Wales solicitors who were directly retained by the applicant. The remaining, and contentious, Cost Statement is that of the New South Wales solicitors. By it, they claimed the sum of $17,128.35. On taxation the amount allowed was $13,883.80.

The defendants sought a Registrar’s reconsideration of the assessment pursuant to R 741 of UCPR, particularly to contend that the second plaintiff was not entitled…

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: [2007] QSC 316
Decision Date: 6 August 2007

CaseChat Overview and Summary

Theden, a plaintiff, filed an application for review of costs in the Supreme Court of Queensland against Nominal Defendant and others. The central issue in the case was whether a practitioner holding a practicing certificate from another state could recover costs in a Queensland proceeding. Additionally, the case examined whether the principal solicitor could act through a Queensland agent. The court was tasked with determining the qualifications and admission requirements for solicitors, the rights and privileges associated with practicing certificates, and the right of audience in the context of the case.

The court's reasoning focused on the qualifications and admission requirements for solicitors and the rights and privileges associated with practicing certificates. It was established that the practitioner in question was not admitted to practice in Queensland, but held a practicing certificate in another state. The court examined the legal framework governing the right of audience and the implications for cost recovery. Ultimately, the court found that the practitioner was not entitled to recover costs in the Queensland action, as they were not admitted to practice in the state. However, the court also noted that the principal solicitor could act through a Queensland agent, provided that the agent met the necessary qualifications and admission requirements.

The court's decision resulted in the disallowance by the Registrar of items of the Costs Statement relating to the application of section 209 of the Supreme Court Act 1995 being set aside. The assessment of costs was remitted to the Registrar for further consideration in accordance with the directions and reasons of the Court. The defendants were ordered to pay 80% of the applicant’s costs of and incidental to this application to be assessed on the standard basis, unless otherwise ordered within 21 days from the date of the judgment. The parties were granted liberty to apply.

This case highlights the importance of understanding the qualifications and admission requirements for solicitors, as well as the rights and privileges associated with practicing certificates, in the context of cost recovery in Queensland actions. It also demonstrates the flexibility of the court in allowing principal solicitors to act through Queensland agents, provided that the necessary requirements are met.

Orders

Orders of the court

1. The disallowance by the Registrar of items of the Costs Statement relating to the application of s 209 of the Supreme Court Act 1995 be set aside.

2. The assessment of costs is remitted to the Registrar for further consideration in accordance with the directions and reasons of the Court.

3. Unless otherwise ordered within 21 days from the date hereof, I order that the defendants pay 80% of the applicant’s costs of and incidental to this application to be assessed on the standard basis.

4. Parties shall have liberty to apply.

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 & Ors [2007] QSC 316
PARTIES:	THEKLA CHARLOTTE THEDEN (First Plaintiff) ULRICH THEDEN (Second Plaintiff) v NOMINAL DEFENDANT (First Defendant) STATE OF QUEENSLAND (Second Defendant) THE COUNCIL OF THE SHIRE OF COOK (Third Defendant)
FILE NO/S:	63 of 1999
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme court, Cairns
DELIVERED ON:	6 August 2007
DELIVERED AT:	Cairns
HEARING DATE:	2 March 2007
JUDGE:	Jones J
ORDER:	1. The disallowance by the Registrar of items of the Costs Statement relating to the application of s 209 of the Supreme Court Act 1995 be set aside. 2. The assessment of costs is remitted to the Registrar for further consideration in accordance with the directions and reasons of the Court. 3. Unless otherwise ordered within 21 days from the date hereof, I order that the defendants pay 80% of the applicant’s costs of and incidental to this application to be assessed on the standard basis. 4. Parties shall have liberty to apply.
CATCHWORDS:	COSTS – TAXATION – APPLICATION FOR REVIEW - SOLICITORS – QUALIFICATIONS AND ADMISSION – PRACTICING CERTIFICATES – RIGHTS AND PRIVILIGES – RIGHT OF AUDIENCE – Whether practitioner with a practicing certificate in another State can recover costs in a Queensland action – Principal solicitor acting through Queensland agent
COUNSEL:	Mr T Quinn for the applicant (second plaintiff) Mr Bain QC with Mr G Robinson for the respondent (first and second defendants)
SOLICITORS:	Stacks Goudkamp for the applicant Broadley Rees for the respondents