Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123 PARTIES: ALEXANDER JASON ELKS (applicant) v AITKEN WHYTE LAWYERS PTY LTD (respondent) APPLICATION NO/S: OCL069-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 25 March 2024 HEARING DATE: 30 November 2023 HEARD AT: Brisbane DECISION OF: Justice Mellifont, President Member Berry ORDERS: Excluding any materials that the Respondent has previously provided to the Applicant, the Respondent is to produce to the Tribunal registry any materials in its possession which fall within the following description: (a) copies of all documents or records of communications between solicitors of the Respondent specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees; and (b) copies of all documents or records of communications between solicitors of the Respondent and Counsel specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees. This includes communications with Senior Counsel and Junior Counsel who were briefed on the matter, and communications with any other -- 1 of 7 -- 2 Counsel about their availability for, or potential engagement on, the matter. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS - PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS - Where an application for directions as to the production of documents, was made – whether the documents are relevant to the substantive proceeding – whether the documents are required to be produced Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62(3) Cannon v Saunders [2017] QCATA 4 Uthmann v Ipswich City Council [1998] 1 Qd R Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600 Stewart v Stephens & Tozer Solicitors [2022] QCAT 182 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: S Trewavas counsel for Aitken Whyte Lawyers REASONS FOR DECISION [1] On 10 November 2022 Mr Alexander Jason Elks (the Applicant) filed an application against law firm Aitken Whyte Lawyers Pty Ltd (the Respondent). The application seeks relief including the setting aside of a costs agreement under s 328 of the Legal Profession Act 2007 (Qld) (the LP Act). [2] On 5 September 2023 the Applicant filed an application in that proceeding, seeking a direction from the Tribunal that the Respondent produce various materials relating to the engagement between himself and the Respondent. [3] After the filing of further affidavit materials and submissions, that application for a direction to produce was heard by the President of the Tribunal, Justice Mellifont, on 30 November 2023. [4] Following that hearing, and pursuant to s 168 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the Tribunal for this matter was reconstituted to include Member Berry. The application for disclosure of documents [5] The Applicant seeks the following materials:1 1 Applicant’s Submissions dated 25 November 2023, [21]; Transcript of proceedings dated 30 November 2023 p8l48 – p10l21; Respondent’s Submissions dated 30 November 2023, [7]. -- 2 of 7 -- 3 (a) any and all internal notes, documents, records of meetings or interactions between Robert Cook Aitken and Lachlan Rieck specifically relating to the engagement, potential engagement or ongoing engagement of Counsel for the matters of Alexander Jason Elks between the dates of 11 October 2022 and 30 November 2022; (b) all records and documents pertaining to the taking on of the engagement of Alexander Jason Elks between the dates of 10 October 2022 to 30 October 2022, held by Aitken Whyte Lawyers Pty Ltd, including negotiations or determining Counsel scope of work, engagement and costings at the time of engagement or subsequent for such works; and (c) all emails, notes, records, documents (including phone records) that pertain to the interactions with any of the following, regarding the matters of Alexander Jason Elks engagement, potential engagement and ongoing engagement between 11 October to 30 November 2022: (i) Senior Counsel briefed on the matter; (ii) Junior Counsel briefed on the matter; and (iii) attempted engagements or enquiries with any other barristers to assist with the matters of Alexander Jason Elks. [6] Although the materials are sought for stated dates in 2022, the relevant events between the Applicant and the Respondent occurred in 2021. It is clear that the references to 2022 are in error, and the Applicant is seeking materials for the stated dates in the year 2021. [7] The Respondent has previously provided the Applicant with a copy of the file held in relation to the Respondent’s engagement with the Applicant.2 [8] The Respondent opposes this application on the basis that the materials sought by the Applicant are not relevant to the substantive proceeding.3 Relevant law [9] Section 62 of the QCAT Act provides for the making of directions by the Tribunal.4 The Tribunal may give a direction at any time in a proceeding, and do whatever is necessary for the speedy and fair conduct of the proceeding.5 The Tribunal may give a direction requiring a party to the proceeding to produce a document or another thing, or provide information, to the tribunal or to another party to the proceeding.6 [10] Materials sought pursuant to an application under s 62(3) will only be directed to be produced where they are described with particularity and have demonstrated direct 2 Affidavit of Lachlan Rieck dated 10 November 2023, [64]-[69]. 3 Transcript of proceedings dated 30 November 2023, p22l21-24. 4 The Applicant’s application is purportedly made pursuant to s 97 of the QCAT Act; however, the proper characterisation of the application is that of an application for a direction pursuant to s 62. 5 Section 62(1). 6 Section 62(3). This is subject to an exception for materials for which there is a valid claim to privilege from disclosure (s 62(5)). -- 3 of 7 -- 4 relevance to the issues in the dispute.7 The application must not be used to engage in a “fishing expedition”.8 [11] The exercise of the power to order disclosure must occur in the context of what is necessary for a speedy and fair conduct of the proceeding in question.9 [12] With respect to the nature of the substantive proceeding, an application to set aside a costs agreement under s 328 of the LP Act involves a determination of whether a Court or tribunal is satisfied that the agreement is not fair or reasonable.10 In deciding whether or not a costs agreement is fair or reasonable, there are a number of non- exhaustive matters specified in the LP Act to which the Court or tribunal may have regard.11 [13] Post-agreement circumstances are potentially relevant when deciding whether a costs agreement was not fair or reasonable for the purposes of s 328.12 Issues in dispute in the substantive proceeding [14] The question arising in this application concerns the relevance of the requested materials, if any, to the issues in the substantive proceeding. It is therefore necessary to identify any pertinent issues in the substantive proceeding. [15] One matter that is raised by the Applicant on the material before the Tribunal relates to the engagement of Counsel by the Respondent. In essence, what the Applicant seeks to establish is that particular circumstances of that engagement had the consequence that the costs agreement was unfair or unreasonable. [16] The original costs agreement contained an estimate of Counsel’s fees, based upon the anticipated scope of work at that time.13 [17] Shortly after the date of that original costs agreement, the Respondent proceeded to engage Counsel. [18] The Applicant asserts that there was no attempt by the Respondent to engage Counsel whose fees would be capable of remaining within the estimate given in the costs agreement.14 The Applicant seeks to support that assertion by reference to the timeframe between the original costs agreement and the engagement of Counsel, the daily rate of Counsel engaged (referring to the rates of both Junior and Senior Counsel) and an alleged absence of attempts by the Respondent to contact or engage alternative Counsel.15 The Applicant appears to assert that both Junior and Senior Counsel were engaged at the same time, but that he was not told about the date upon 7 Cannon v Saunders [2017] QCATA 4 at [27]-[28], referring to Gogolka v Queensland Building Services Authority [2012] QCAT 308 and Uthmann v Ipswich City Council [1998] 1 Qd R 435 at 450. 8 Ibid. 9 Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600, [29]. 10 LP Act, s 328(1). 11 LP Act, s 328(2)(a)-(g). 12 Stewart v Stephens & Tozer Solicitors [2022] QCAT 182, [18]. 13 Exhibit AJE-007 to the affidavit of Alexander Jason Elks dated 13 October 2023, p 33; Applicant’s Submissions on application for direction to produce dated 25 November 2023, [9(d)i-ii]; Transcript of proceedings dated 30 November 2023, p7l40-45. 14 Applicant’s Submissions on application for direction to produce dated 25 November 2023, [12]; Transcript of proceedings dated 30 November 2023, p7l40-45. 15 Applicant’s Submissions on application for direction to produce dated 25 November 2023, [9]-[13]; Transcript of proceedings dated 30 November 2023, p7l47-p8l13. -- 4 of 7 -- 5 which Junior Counsel was engaged until a later time.16 The Applicant appears to base that assertion, in part, upon his understanding of a conversation with a solicitor employed by the Respondent which occurred on 11 November 2021.17 [19] The Respondent asserts that the engagement of Senior Counsel occurred in circumstances where the Respondent had provided the Applicant with Senior Counsel’s costs disclosure letter, and had understood that the Applicant had provided instructions to brief that Counsel.18 The Respondent refers to the conversation between its solicitor and the Applicant on 11 November 2021, but asserts that the engagement of Junior Counsel occurred at a point in time after the engagement of Senior Counsel, and following a conference with Senior Counsel. The Respondent asserts that this occurred in circumstances where the Respondent had been of the understanding that the Applicant had agreed to the engagement of Junior Counsel and had been provided with Junior Counsel’s costs disclosure letter.19 [20] The Respondent refers to correspondence with the Applicant about potentially briefing alternative Counsel in late November 2021.20 There is also some further reference in the Respondent’s material to communications about potential engagement of other Counsel in the period shortly following the original costs agreement, which is outlined further below.21 Relevance of materials sought to issues in dispute in the substantive proceeding [21] The Applicant’s submission is, in essence, that the materials he seeks are relevant to the issues raised by him in the substantive proceeding, particularly with respect to the circumstances of engagement of Counsel, and any consequential effect on an assessment of the fairness or reasonableness of the original costs agreement. [22] The Respondent points to the fact that the Applicant has been provided with a copy of the Respondent’s file with respect to his matter, and also points to the materials already filed in this matter which go to demonstrating the chronology of the Applicant’s dealings with the Respondent, including the engagement and involvement of Counsel. The Respondent asserts that the scope of work changed subsequent to the original costs agreement, and that the Respondent provided appropriate disclosures to, and obtained instructions from, the Applicant with respect to the engagement of Counsel and the incurring of Counsel’s fees. The Respondent objects to the production of materials on the basis that they are not relevant to the issues to be determined in the substantive matter. [23] During the oral hearing of this application, the Respondent’s Counsel initially submitted, with reference to sections 308 and 309 of the LP Act, that the original costs agreement was a solicitor’s costs agreement, which was separate to, and did not have to deal with, any Counsel costs agreement.22 However, the Respondent’s Counsel then acknowledged that the issue of whether or not the solicitor’s costs agreement was 16 Applicant’s Submissions on application for direction to produce dated 25 November 2023, [9(d) vi], [11], [13]; Transcript of proceedings dated 30 November 2023, p7l47-p8l9. 17 Affidavit of Alexander Jason Elks dated 13 October 2023, [29]; Applicant’s Submissions on application for direction to produce dated 25 November 2023, [9(d) vi]. 18 Affidavit of Lachlan Rieck dated 10 November 2023, [28]-[30]. 19 Affidavit of Lachlan Rieck dated 10 November 2023, [23], [31]-[34]. 20 Affidavit of Lachlan Rieck dated 10 November 2023, [56] and Exhibit LJR24, p. 118. 21 Exhibit LRJ22 to the affidavit of Lachlan Rieck dated 10 November 2023, p. 111. 22 Transcript of proceedings dated 30 November 2023, p11l16-36; p14l10 – p16l43. -- 5 of 7 -- 6 required to incorporate an estimate of Counsel’s costs may have been “more philosophical than real” in this matter23 given the original costs agreement in this particular matter had, in fact, provided an estimate of Counsel’s costs within the scope of work at that time.24 As such, that argument was not specifically pressed. [24] The Applicant has placed in issue the circumstances of the engagement of Counsel, and particularly the timing of the engagement, the daily rates of Counsel engaged and whether they could have performed the work outlined in the original costs agreement within the estimate provided. He has also asserted that no attempt was made by the Respondent to source alternative Counsel who could remain within that estimate. Contemporaneous records of the circumstances of the engagement of Counsel are relevant to a determination of what occurred, the details of which are challenged by the Applicant and remain in issue between the parties. [25] As submitted by the Respondent, some materials relevant to these issues are contained in the materials already before the Tribunal, for example, correspondence between the Applicant, Respondent and/or Counsel, including attached costs disclosure letters. It is apparent, however, that other records would be relevant in informing the matters in issue outlined above. This would include any further materials held by the Respondent about the engagement of Counsel, including communications with Counsel who were briefed in the matter, and other Counsel who may have been contacted with respect to an inquiry about, or potential engagement in, the Applicant’s matter. [26] Although not exhaustive, there are some references in the material before the Tribunal to such communications with Counsel briefed in the matter, and to potential contact with one other Counsel at the relevant time, and for which contemporaneous records may be available.25 [27] Given the relevance of such materials to the issues outlined above, a direction should be made for their production. [28] The Respondent has provided the Applicant with a copy of the file held in relation to its engagement with the Applicant, and the Applicant does not seek those materials already provided to him. The Respondent should not be required to produce materials that it has already provided to the Applicant. Orders [29] Accordingly, the Tribunal orders that: Excluding any materials that the Respondent has previously provided to the Applicant, the Respondent is to produce to the Tribunal registry any materials in its possession which fall within the following description: (a) copies of all documents or records of communications between solicitors of the Respondent specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 23 Transcript of proceedings dated 30 November 2023, p16l45-47. 24 Transcript of proceedings dated 30 November 2023, p16l45-47. 25 See, for example, a number of references to communications between the Respondent and Counsel contained in the dates and descriptions in the itemised invoices sent by the Respondent to the Applicant over the duration of their engagement (Exhibit LRJ31 to the affidavit of Lachlan Rieck dated 10 November 2023, pp. 164-215). -- 6 of 7 -- 7 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees; and (b) copies of all documents or records of communications between solicitors of the Respondent and Counsel specifically relating to the engagement of Counsel for the Applicant’s legal matters between the dates of 14 October 2021 and 30 November 2021, and including communications about the work to be performed by Counsel, and Counsel’s fees or estimated fees. This includes communications with Senior Counsel and Junior Counsel who were briefed on the matter, and communications with any other Counsel about their availability for, or potential engagement on, the matter. -- 7 of 7 --