Wiley v Ross Lawyers

[2012] QCATA 22

CITATION: Willey v Ross Lawyers [2012] QCATA 22

PARTIES:	Valerie Jean Willey t/as Wotton Lodge
v
Ross Lawyers

APPLICATION NUMBER:            APL451-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON:   14 February 2012

DELIVERED AT:   Brisbane

ORDERS MADE:

[1] an affidavit exhibiting material which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007 by 27 February 2012. Mrs Willey must file in the tribunal and serve on Ross Lawyers

[2] does not file an affidavit which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007, the default decision will be set aside and the matter remitted for hearing by QCAT in Townsville. Ross LawyersIf

[3] file an affidavit which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007 doesRoss LawyersIf , the Application to set aside the decision in default will be dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – where decision in default of response – where claim for legal fees – whether compliance with Legal Profession Act 2007 – where delay in response not explained fully

Queensland Civil and Administrative Tribunal Act2009, s 61
Legal Profession Act 2007, ss 329, 331

Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mrs Willey engaged Ross Lawyers to assist in her negotiations for the lease of Wotton Lodge.  She signed a costs agreement.  Ross Lawyers carried out some work and rendered two bills: one on 28 February 2011 for $1,513.60 and a second on 31 March 2011 for $220.  In response to those bills, Mrs Willey has paid only $300.

1. Ross Lawyers filed an application for minor civil dispute – minor debt.  Mrs Willey did not file a response so, on 9 November 2011, the Registrar made a default decision that Mrs Willey pay Ross Lawyers $1,568.10.

1. Mrs Willey has appealed the Registrar’s decision on the grounds that she was ill for about two weeks around the time the response was due and that she lost track of time. In fact, instead of an application for leave to appeal, Mrs Willey should have applied to set aside the decision by default. Section 61 of the Queensland Civil and Administrative Tribunal Act2009 allows the tribunal to waive compliance with procedural requirements.  I am satisfied that Ross Lawyers does have notice of the true nature of the application and that no party will suffer any prejudice by proceeding on the basis that this is, in fact, an application to set aside the default decision.

1. There is no dispute that Mrs Willey received the application from Ross Lawyers or that she failed to file a response within time.  Ross Lawyers has filed an affidavit of service and the documents initiating this proceeding refer to the receipt of the application.

1. While, on the face it the file, Ross Lawyers may be entitled to a decision in default, the comments of Member Cullen Mandikos in Morales v Murray Lyons Solicitors (a firm)[1] are instructive: that is, that Ross Lawyers cannot recover its legal fees unless and until it has demonstrated compliance with the Legal Profession Act 2007. Member Cullen Mandikos went on to say[2]:

   [1] [2010] QCATA 87 at [32].

   [2] Supra at [35].

Minimally, a Minor Civil Dispute Application filed by a law firm in QCAT, seeking to recover legal fees as a debt or liquidated demand, will need to annex the following material:

A solicitor’s affidavit annexing:

1.     Any applicable costs agreement, or the relevant scale of costs, or the basis for calculation of fair and reasonable costs (s 319 LP Act);

2.     Evidence indicating that a legal costs bill has been served, and that at least 30 days have passed (s 329 LP Act);

3.     A copy of the legal costs bill, which complies with s330 of the LP Act; and

4.    Evidence indicating that a “Notification of client’s rights” has been served (s 331 LP Act).

1. Ms Ross of Ross Lawyers has filed an affidavit annexing a signed client agreement. She has annexed a copy of the statement of account but there is no copy of either bill and there is no evidence that Mrs Willey received a “notification of client’s rights”. Therefore, adopting Member Cullen Mandikos’ test of the minimum requirements to obtain a default judgment, I find that Ross Lawyers has not met the requirements of the tribunal. The Registrar was unable to assess whether the firm had complied with ss 329 and 331 of the Legal Profession Act 2007, and, therefore, should not have given a decision by default.

1. Member Cullen Mandikos’ decision was published some time ago.  Given its relevance to a lawyer’s ability to recover fees in the tribunal, I would have thought that it was a decision that should not have escaped the attention of the legal profession in Queensland.  I am reluctant to grant an indulgence to the firm to allow it to demonstrate its compliance with the Legal Profession Act 2007, when the tribunal has articulated its requirements clearly and Mrs Willey disputes the work done.

1. However, I am mindful that Mrs Willey has not properly explained why she did not file a response.  She has not provided a doctor’s certificate showing that she was ill around the time that the response was due and it is simply not enough to say “I lost track of time”.

1. In an effort to resolve this dispute in a timely way and with a minimum of cost, I propose to give Ross Lawyers an opportunity to demonstrate its compliance with the Legal Profession Act 2007.

Orders

1. Ross Lawyers must file in the tribunal and serve on Mrs Willey an affidavit exhibiting material which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007 by 27 February 2012.

1. If Ross Lawyers does not file an affidavit which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007, the default decision will be set aside and the matter remitted for hearing by QCAT in Townsville.

1. If Ross Lawyers does file an affidavit which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007, the Application to set aside the decision in default will be dismissed.