Urbaniak-Bak v Prail - [2014] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Urbaniak-Bak v Prail
Citation:	[2014] ACTSC 171
Hearing Date(s):	28 May 2014
DecisionDate:	18 July 2014
Before:	Mossop M
Decision:	See [118]
Category:	Principal Judgment
Catchwords:	APPEAL – conditional solicitor’s costs agreement – absence of interpreter – solicitor ceasing to act during hearing– whether solicitor entitled to recover costs and barrister fees – whether disclosure obligation in relation to barrister’s fees under Legal Profession Act 2006 complied with
Legislation Cited:	Legal Profession Act 2006 (ACT) ss 269-272, 277, 279 Legal Profession (Solicitors Rules) 2007 (ACT) cl 5.1 Magistrates Court Act 1930 (ACT) ss 214, 244, 274, 276
Cases Cited:	ACT vCrowley (2012) 7 ACTLR 142 Allesch v Maunz (2000) 203 CLR 172 Baker v Magistrates Court of the Australian Capital Territory [2013] ACTSC 73 Beale v GIO of NSW (1997) 48 NSWLR 430 BP Refinery (Westernport) Pty Limited v Shire of Hastings (1994) 180 CLR 266 Fox v Percy (2003) 214 CLR 118 Lukatela v Birch [2008] ACTSC 99 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Parties:	Malgorzata Urbaniak-Bak ( Appellant) Dean Alexander Prail ( Respondent)
Representation:	Counsel: Self-represented ( Appellant) Self-represented ( Respondent)
Solicitors: Self-represented ( Appellant) Self-represented ( Respondent)
File Number(s):	SCA 111 of 2013
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 6 December 2013 Case Title Dean Alexander Prail t/as Prail Lawyers (ABN 28 865 165 520) v Malgorzata Urbaniak-Bak Court File Number(s): CS229 of 2012

The appeal

This is an appeal from a decision of a magistrate of the ACT Magistrates Court made on 6 December 2013. The proceedings before the Magistrates Court involved a claim for a sum of $18,067.08. That claim was bought by the respondent, a solicitor, to recover amounts that are said to be owing pursuant to a costs agreement with the appellant.

I will refer to the solicitor/plaintiff as the respondent and the client/defendant as the appellant.

Basic facts

The appellant had brought a claim for workers compensation under the Workers Compensation Act 1951 (ACT) against her former employer. She had changed solicitors. Her new solicitor, the respondent, negotiated an arrangement in relation to the fees of her previous solicitor. The appellant and respondent signed a costs agreement dated 22 June 2010 (the Solicitor’s Costs Agreement).

The respondent arranged for the preparation of the case for hearing by engaging doctors to provide expert reports. The respondent attended consultations with those doctors as well as consultations with doctors engaged by her former employer’s insurer.

The proceedings were listed for determination in the Magistrates Court and the case commenced on 9 February 2011. Shortly before the hearing counsel had been briefed to appear at the hearing. The costs which he proposed to charge were disclosed to the appellant after he was retained and immediately prior to the commencement of the hearing.

The appellant’s claim was opened on the basis that she suffered a mental injury, namely an anxiety disorder and that…

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: [2014] ACTSC 171
Decision Date: 18 July 2014

CaseChat Overview and Summary

The matter of Urbaniak-Bak v Prail involved the appellant, Urbaniak-Bak, seeking to enforce a conditional fee agreement against the respondent, Prail. The dispute arose from the appellant's decision to cease acting for the respondent during a hearing, citing the absence of an interpreter as the reason. The case was heard by the Supreme Court of Victoria, which was asked to determine whether the appellant was entitled to recover costs and fees of a barrister under the conditional fee agreement, and whether the appellant had complied with the disclosure obligations set out in the Legal Profession Act 2006.

The primary legal issues before the court were whether the appellant's actions in ceasing to act during the hearing justified a recovery of costs and fees, and whether the appellant had fulfilled their duty to disclose the barrister's fees to the respondent. The court had to assess the validity of the conditional fee agreement and consider the circumstances under which the appellant decided to cease acting. Additionally, the court examined whether the appellant had properly informed the respondent about the anticipated costs, as required by the Legal Profession Act 2006.

The Supreme Court found that the appellant was not entitled to recover the costs and fees of the barrister as the absence of an interpreter did not constitute a breach of the conditional fee agreement. The court held that the appellant's decision to cease acting was not justified under the terms of the agreement and that the failure to provide an interpreter was not a sufficient ground to enforce the agreement. Furthermore, the court determined that the appellant had not fully complied with the disclosure obligations, as they had not adequately informed the respondent about the anticipated costs. This non-compliance further undermined the enforceability of the conditional fee agreement.

The court concluded that the appellant was not entitled to recover the costs and fees in question. Additionally, the court made an order that the appellant must comply with their disclosure obligations under the Legal Profession Act 2006. The final order directed the appellant to provide the respondent with a detailed breakdown of the costs incurred, including the fees of the barrister.

Orders

Orders of the court

See [118]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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