Von Risefer v Smith
[2000] QDC 32
•10 March 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Von Risefer v Smith [2000] QDC 032 PARTIES: ELIZABETH VON RISEFER (Appellant)
v
GALL STANDFIELD & SMITH (Respondent)FILE NO/S: Appeal No. 102/98 DIVISION: District Court PROCEEDING: Appeal ORIGINATING COURT: Magistrate’s Court, Southport DELIVERED ON: 10 March 2000 DELIVERED AT: Brisbane HEARING DATE: 31 January 2000 JUDGE: P.D. Robin, Q.C., D.C.J. ORDER: Appeal dismissed CATCHWORDS: Appeal from Magistrate to District Court – Magistrate granted summary judgment in solicitors’ action to recover costs - defence pleaded asserted a different costs agreement and breach of duty by solicitors – only after judgment did appellant raise arguments that the solicitors’ bills must be delivered in taxable form and that action must be delayed for one month thereafter – while ordinarily an appellant is bound by the conduct of proceedings at first instance, it was considered that on this appeal it was proper to examine allege statutory inhibitions upon solicitors suing for costs – appellant’s points, including those pleaded, were unsuccessful – appeal dismissed – Legal Practitioners Act 1995, s.5 and 24. SOLICITORS: Mrs E Von Risefer (in person) for appellant
Mr J Smith (of Gall Stanfield & Smith) for respondent
The appellant represented herself in this appeal against the entry of summary judgment pursuant to a Magistrate’s order on 21 January 1998. The respondents are solicitors and their successful proceedings were commenced on 7 November 1997 in respect of three bills of costs for separate items of work done in litigation, the last of which is dated and may be presumed to have been delivered about 18 September 1997. (This one was accompanied by a Memorandum of Counsel’s fees.)
The Magistrate’s endorsement on the court file, which is all this court has to go on from the point of view of understanding his reasoning, is:
“I read the material and hear the parties.
I am satisfied the defendant has not raised a defence to the action.
I grant leave to the plaintiffs to enter judgment for their claim and costs.
I allow costs of $112.00 in relation to this application in favour of the plaintiffs.”
The appellant represented herself on that occasion. Her original defence filed 27 November 1997 contained a denial “that they owe the plaintiffs the full amount claimed or any amount close to that sum”; there is an acknowledgment that legal services were provided “as stated”. The final informative part of the document is:
“The defendants deny liability for the amount claimed having negotiated fees at the outset of the instructions. The fees claimed are far in excess of the amount negotiated”.
On the eve of the summary judgment application, a new defence was filed which includes, “I will like please to have an interpreter in Greek language”. There is a little more information, including a reference to engaging “a barrister from Brisbane for small fee”. A further point raised was that the action was against Mrs. Von Risefer alone, whereas the costs agreement had included her husband as well. There was a claim that a payment of $900 had not been acknowledged properly and that a payment by cheque of $1,500 was to be “on hold”. (That cheque was dishonoured and the respondents claimed on the appeal that, if it succeeded, they ought at least to have a judgment for that amount, which the appellant’s actions seemed to demonstrate she acknowledged liability to pay.) The new defence asserts that the agreed amount for costs was $2,400. A claim was made that the plaintiff in the litigation (in which the respondents acted as the appellant’s and her husband’s second set of solicitors) “used” certain documents and also that the appellant and her husband did not have documents for the trial on 10 December 1997, in consequence of which “we suffer great losses”. No particulars of those losses were given, nor was any counterclaim made. Finally, the amended defence complains that the respondent solicitors withdrew (with the court’s leave) without notifying the appellant.
The respondents’ material was, on the face of things, in order, so that it was unsurprising judgment was entered. I assume (although this was not shown) that the allegations made in the “amended defence” were in some way supported by evidence. The appellant appears to have expanded her case considerably after judgment. Both in the appeal and on an application in the Magistrate’s Court for a stay (unsuccessful), Mrs. Von Risefer asserted that “Under s.5 of the Legal Practitioners Act 1995 a lawyer cannot commence any action for the recovery of any fee until one month after he delivers a bill. A bill in this section has been defined by case law as a bill in taxable or itemised form.” On the appeal, Reprint No. 1 of the Act (as in force on 8.12.95, and incorporating amendments up to Act No. 58 of 1995) was used.
Mr. J. Smith, who appeared for the respondents, correctly submitted that the appellant could not have a hearing de novo in the District Court, but was limited to a rehearing on the record. I think the principles which he extracted from the somewhat obscurely reported De Martini v. Johnson Bros (1935) 29 QJPR 40, 48-49 indicate the approach to be adopted, namely that, by and large, the parties are bound by the way in which they conduct proceedings, and limited to the points which were raised by them at first instance. Macrossan SPJ said at 49:
“A special defence was sought to be set up before us based upon the Statute of Limitations. No such defence was sought to be raised at the trial, and without deciding its effect if properly raised we refused to allow it to be raised here on the principle that a party is bound by the way he conducts his case at the trial.”
However, I think it would be completely wrong for the court to overlook a statutory prohibition of the kind set out in s.5 simply because a lay litigant or a Magistrate overlooked it. In this case the one month limitation does not embarrass the respondents. The bills were not in taxable form. Mr. Smith made an argument based on Walsh Halligan Douglas’ Bill of Costs (1990) 1 Qd.R. 288 to the effect that a bill was sufficient for purposes of s.5 if it gave the client sufficient information to enable her to determine whether or not to request taxation. I think the present bills (which contained a generous discount on the face of it, having regard to the costs agreement which the parties signed) were sufficient for this purpose. Each contained a reservation of the right to withdraw and substitute a (possibly higher) bill as in Re: Lippiatt’s Bill of Costs (1998) 1 Qd.R. 69.
Mrs. Von Risefer made no request for taxation. She asserts that she did so in a letter after judgment, a copy of which was tendered on the appeal. As I read the letter, it contains no more than an assertion that a bill for purposes of s.5 must be in taxable form. The authorities Mrs. Von Risefer placed before the court do not establish her proposition. These were:
Halletts’ Bill of Costs (1997) 1 Qd.R.
Baker Johnson Bill of Costs (1995) 2 Qd.R. 234
Crouch & Lyndon’s Bill of Costs (1998) 2 Qd.R. 228
Lippiatt’s Bill of Costs (1998) 1 Qd.R. 69
Any suggestion the bills (or any of them) ought to be taxed comes too late. It seems
to me the respondents complied with s.5 of the Legal Practitioners Act 1995.
It was argued that s.24 of the Act precluded the respondents’ recovering anything under the costs agreement until the taxing officer has examined and approved the agreement. The short answer to this contention is that the inhibition of the section refers only to work done in the Supreme Court – which was not the case here.
The appellant’s other point is that the solicitors ought not to recover their costs because they were negligent in the conduct of litigious business for the appellant, her husband and their company. Judge Wolfe rejected their appeal against the outcome of that litigation in Appeal No. 37/1997, Sator (Australia) Pty Ltd & Ors v. Thurecht Timbers Pty Ltd (Southport) 2/10/98. The allegation was made to her Honour that the respondents had given “all (the defendants’) private material” to the solicitor for the plaintiff. Her Honour at p.5 of her reasons said:
“It seems that this allegation, which in my view is an extremely serious one to make about a practicing solicitor is without substance and must have been made out of pure ignorance about the court processes”
Mrs. Von Risefer has misunderstood her Honour’s comment as a criticism of the solicitors for their “ignorance about the court processes”, whereas, plainly, it is the appellant’s ignorance (and consequential presumed misunderstanding) that her Honour was referring to. The explanation seems to be that the solicitors (as often happens) placed before the court a good deal of potentially embarrassing material in the course of seeking leave to withdraw when the appellant and her husband (and their company) failed to provide requested funds. Mrs. Von Risefer tendered on the appeal the documents which she said had got to the plaintiff (Thurecht). It seems to me likely that this happened as a consequence of the solicitors’ application for leave to withdraw. It would obviously be a salutory practice if care were taken by those involved in applications for leave to withdraw (including Magistrates and Judges) to have regard to protecting the interests of litigants who are left to fight on as best they can without their former legal assistance. This might be done by an order that material relevant to whether or not the solicitor ought to withdraw be sealed up in such a way that the adverse party can have no access to it. I must say it has not been demonstrated just how these unfortunate events may have prejudiced the appellant in the end in the Thurecht litigation.
A further claim of negligence and/or breach of duty by the solicitors, only recently raised, is that they ought to have appreciated that the Magistrates Court lacked jurisdiction to entertain the Thurecht claim and taken some step to have it removed to the Queensland Building Tribunal. It may be noted that the appellant had other solicitors acting before the respondents came into the matter, who presumably were equally delinquent in failing to take this step, which the appellant contends is one that is glaringly obvious. The point she makes is that in the Queensland Building Tribunal she would have been spared exposure to significant costs, either because the Tribunal might not have ordered costs or because it would have directed mediation procedures which could have resolved the matter inexpensively. All of this, it seems to me, is pure speculation. If there is a promising claim for negligence either on this new basis or on the basis of what was done with the documents, it seems to me Mrs Von Risefer is free to pursue it in other proceedings. She would not yet be statute barred. It is difficult to think she would be confronted with a claim that she ought to have raised these matters in the Magistrates Court action, given that, with the plaintiff’s approval, it was decided on their summary judgment application. Mrs. Von Risefer asserted that “next week” such proceedings would be instituted. They can conveniently be regarded as separate from the fee-collecting exercise which the plaintiff firm embarked on. The plaintiff got itself ready for litigation much more promptly and I would not be inclined to deprive it of the benefit of that by allowing the plaintiff time to pursue her counterclaim which, plainly, she could have begun in the Magistrates Court.
I state for the record that there was no evidence whatsoever to support Mrs. Von Risefer’s claims made on the appeal that the costs agreement was signed by her or by her husband under duress. I infer that the “duress” was constituted by anxiety to retain the solicitors’ services.
I am not persuaded that the Magistrate succumbed to any error. While it is obscure what was argued before him, nothing was shown on the appeal which raises a triable issue. Accordingly, the appeal is dismissed with costs.
0
0
0