Winn v Lynch Morgan Lawyers - [2019] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

Winn v Lynch Morgan Lawyers [2019] QCA 178

PARTIES:

JULENE WINN
(appellant)
v
LYNCH MORGAN LAWYERS
(respondent)

FILE NO/S:

Appeal No 8337 of 2018
QCAT No 221 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2018] QCAT 234 (Carmody J)

DELIVERED ON:

6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2019

JUDGES:

Fraser and Morrison and Philippides JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – LIABILITY OF PARTNERS – where the appellant entered a costs agreement with Lynch Morgan Lawyers – where a former partner who was working as a consultant with that firm at the time of the costs agreement later left that firm – where the appellant subsequently applied to the Queensland Civil and Administrative Tribunal to have the costs agreement set aside and sought a refund of money paid to Lynch Morgan Lawyers from the former partner and consultant – where the primary judge dismissed the appellant’s application – whether the Queensland Civil and Administrative Tribunal ought to have set aside the costs agreement and required the former partner and consultant to refund money paid by the appellant to Lynch Morgan Lawyers

Legal Profession Act 2007 (Qld), s 328, s 468
Partnership Act 1891 (Qld), s 5, s 17, s 39
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149

Lynch v Stiff (1943) 68 CLR 428; [1943] HCA 38, cited
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, cited

COUNSEL:

The appellant appeared on her own behalf
No appearance for the respondent

SOLICITORS:

The appellant appeared on her own behalf
No appearance for the respondent

FRASER JA: The appellant appeals against an order made by Carmody J as a judicial member in the Queensland Civil and Administrative Tribunal (“QCAT”) dismissing the appellant’s application to set aside a costs agreement pursuant to s 328 of the Legal Profession Act 2007 (Qld).
Upon the literal meaning of s 468 of that Act it confers a right of appeal, but that section is in a part of the Act concerning complaints and discipline. Section 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the right of appeal, with the result that s 149(3)(b) requires the Court’s leave to appeal if the appeal is made on a question of fact or of mixed law and fact. The appellant does not seek leave to appeal and contends that the grounds of her appeal raise questions of law.
Background
The appellant’s application had a long and complex history in QCAT. The appellant – who represented herself throughout this litigation and was the only party who appeared in this appeal – sought to attribute some responsibility to QCAT for the extraordinary delays in the finalisation of her application. Even the very limited chronology set out in this section of these reasons suggests…

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.

Continue reading Winn v Lynch Morgan Lawyers

Details

AGLC: Winn v Lynch Morgan Lawyers [2019] QCA 178
Case: [2019] QCA 178
Decision Date: 6 September 2019

CaseChat Overview and Summary

The case of Winn v Lynch Morgan Lawyers involved the appellant, who represented herself throughout the litigation, and Lynch Morgan Lawyers, a legal firm. The dispute arose from a costs agreement between the appellant and Lynch Morgan Lawyers, under which the appellant retained the firm for specified legal services. The appellant paid Lynch Morgan Lawyers $5,000, which was held in the firm's trust account. After terminating the retainer, Lynch Morgan Lawyers invoiced the appellant for $8,249.18, which the appellant disputed, seeking a refund of the $5,000 paid. The primary judge dismissed the appellant's application to have the costs agreement set aside and to recover the money from Lynch Morgan Lawyers.

The primary legal issue before the court was whether the Queensland Civil and Administrative Tribunal (QCAT) was correct in dismissing the appellant’s application to set aside the costs agreement and to seek a refund from Lynch Morgan Lawyers. The court had to consider the nature of the costs agreement, the conduct of Lynch Morgan Lawyers, and the evidence presented in the tribunal. Additionally, the court examined the procedural aspects of the appeal, particularly whether the appeal was correctly brought and the grounds of appeal appropriately framed.

The court reasoned that the appeal from QCAT was correctly brought under section 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and the grounds of appeal raised questions of law, not fact or mixed law and fact. The court found that QCAT had correctly dismissed the appellant’s application. The court examined the evidence and found that the appellant’s affidavits were contradicted by those of Mr. Morgan, a partner at Lynch Morgan Lawyers, and that the appellant had not provided a transcript of Mr. Morgan’s oral evidence, which would have been necessary to fully review the tribunal's decision. The court concluded that the tribunal had properly considered the evidence and that there was no basis to set aside its decision.

The appeal was dismissed, and no orders were made in favour of the appellant.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Upon the literal meaning of s 468 of that Act it confers a right of appeal, but that section is in a part of the Act concerning complaints and discipline. Section 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the right of appeal, with the result that s 149(3)(b) requires the Court’s leave to appeal if the appeal is made on a question of fact or of mixed law and fact. The appellant does not seek leave to appeal and contends that the grounds of her appeal raise questions of law.Background The appellant’s application had a long and complex history in QCAT. The appellant – who represented herself throughout this litigation and was the only party who appeared in this appeal – sought to attribute some responsibility to QCAT for the extraordinary delays in the finalisation of her application. Even the very limited chronology set out in this section of these reasons suggests that factors outside QCAT’s control at least contributed to the delay. It is not possible to reach any conclusion about this issue because of the paucity of the material in the Record Book. So far as the evidence adduced in QCAT is concerned, the Record Book comprises only three affidavits by the appellant and one affidavit by a manager at the Queensland Law Society (which establishes that Mr Morgan held a Queensland principal practising certificate for the practising certificate year 2012 – 2013). Yet the reasons for judgment given by the primary judge make it clear that statements in affidavits by the appellant were contradicted in affidavits by Mr Morgan. The appellant also acknowledged in a ground of her appeal and in her submissions that Mr Morgan gave oral evidence, but if the appellant ordered a transcript of that hearing it was not supplied to the Court. It is useful to give a brief chronology of some significant events, so far as it can be derived from the material that is in the Record Book. On 30 January 2013 the appellant entered into a cost agreement with “Lynch Morgan Lawyers”. By the costs agreement the appellant retained Lynch Morgan Lawyers to perform specified legal services in connection with litigation in which she was a party. The agreement was in the form of a letter from Lynch Morgan Lawyers to the appellant and standard terms referred to in the letter. The appellant paid Lynch Morgan Lawyers the total amount of $5,000 for legal work. That money was paid into Lynch Morgan Lawyers’ trust account. On 18 February 2013 Lynch Morgan Lawyers terminated the retainer and sent the appellant a tax invoice in the total amount of $8,249.18. Lynch Morgan Lawyers applied the money in its trust account in part payment of its invoiced costs. The appellant disputed the entire bill except for photocopying costs. She contended that nothing else had been achieved that progressed her litigation for which she had retained Lynch Morgan Lawyers and sought a refund of the $5,000 she had paid Lynch Morgan Lawyers. Lynch Morgan Lawyers denied the appellant’s allegations and refused to refund any of the money.

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:	Winn v Lynch Morgan Lawyers [2019] QCA 178
PARTIES:	JULENE WINN (appellant) v LYNCH MORGAN LAWYERS (respondent)
FILE NO/S:	Appeal No 8337 of 2018 QCAT No 221 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2018] QCAT 234 (Carmody J)
DELIVERED ON:	6 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2019
JUDGES:	Fraser and Morrison and Philippides JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – LIABILITY OF PARTNERS – where the appellant entered a costs agreement with Lynch Morgan Lawyers – where a former partner who was working as a consultant with that firm at the time of the costs agreement later left that firm – where the appellant subsequently applied to the Queensland Civil and Administrative Tribunal to have the costs agreement set aside and sought a refund of money paid to Lynch Morgan Lawyers from the former partner and consultant – where the primary judge dismissed the appellant’s application – whether the Queensland Civil and Administrative Tribunal ought to have set aside the costs agreement and required the former partner and consultant to refund money paid by the appellant to Lynch Morgan Lawyers Legal Profession Act 2007 (Qld), s 328, s 468 Partnership Act 1891 (Qld), s 5, s 17, s 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149 Lynch v Stiff (1943) 68 CLR 428; [1943] HCA 38, cited Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, cited
COUNSEL:	The appellant appeared on her own behalf No appearance for the respondent
SOLICITORS:	The appellant appeared on her own behalf No appearance for the respondent