D.M. Wright & Associates v Murrell (No 3) [2021] QDC 167

DISTRICT COURT OF QUEENSLAND CITATION: PARTIES: FILE NOS: DIVISION: DELIVERED ON: DELIVERED AT: HEARING DATE: JUDGE: ORDERS: D.M. Wright & Associates v Murrell (No 3) [2021] QDC 167 D.M. WRIGHT & ASSOCIATES (Appellant) v MURRELL (Respondent) BD 2586/2020 Appeals 5 August 2021 Brisbane 29 March 2021, 17 May 2021 (and additional written submissions, 23 July 2021 and 30 July 2021) Barlow QC DCJ 1 Each party bear his or her own costs of the appeal. 2 Proceeding M454 of 2017 in the Magistrates Court at Brisbane (the “Magistrates Court proceeding”) be transferred to this Court (the “transfer”) and the following directions apply in that proceeding after the transfer has been completed. 3 A copy of this order be placed on the court file in the Magistrates Court proceeding. 4 The application for judgment filed on 27 February 2019 in the Magistrates Court proceeding, including the respondent’s application for interest, be listed for hearing and determination on the papers before Judge Barlow QC on a date to be fixed. 5 The respondent, within 7 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any further affidavits and written submissions on which he relies in support of that application and email a copy of those documents to the associate for Judge Barlow QC. 6 The appellant, within 14 days of being informed of the transfer, as respondent in the Magistrates Court proceeding file and serve any affidavits and written submissions on which she relies in respect -- 1 of 6 -- 2 of that application and email a copy of those documents to the associate for Judge Barlow QC. 7 The respondent, within 21 days of being informed of the transfer, as applicant in the Magistrates Court proceeding file and serve any written submission in reply and email a copy of that document to the associate for Judge Barlow QC. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – appellant appealed decision of magistrate for a review of a costs assessment – appellant failed on first part of appeal but was partially successful on second part – whether general rule that costs follow the event should be applied. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – GENERALLY – respondent applied for costs assessment in the Magistrates Court – costs reduced on assessment – respondent applied in same Magistrates Court proceeding for judgment, including interest, on the certificate of the assessment – whether respondent entitled to pre-judgment interest pursuant to s 58 of Civil Proceedings Act 2011. COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURTS AND BETWEEN COURTS – TO HIGHER COURT – application for judgment in Magistrates Court adjourned pending determination of appeal – appeal has been heard and finalised – whether to transfer whole proceeding to this court for final determination of that application. Civil Proceedings Act 2011, ss 26, 58 Uniform Civil Procedure Rules 1999, r 743H Allen v Ruddy Tomlins & Baker (2019) 1 QR 225, cited COUNSEL: SK Hartwell for the appellant IG Murrell, respondent, self-represented SOLICITORS: D.M. Wright & Associates for the appellant [1] This is the third part of an appeal from a magistrate’s decision by which she dismissed the appellant’s application for review of a costs assessment. -- 2 of 6 -- 3 [2] On 5 May 2021, I delivered my decision on the first part of the appeal, dismissing the appellant’s submission that the magistrate erred in finding that the costs assessor was not biased and there was no reasonable apprehension that he might have been biased.1 [3] On 16 July 2021, I delivered my decision on the second part of the appeal, dealing with the substantive issues.2 By that decision, I allowed the appeal, set aside the magistrate’s decision and ordered that the certificate of assessment be altered. The alterations were in favour of the appellant (the solicitor), in that the amount refundable by the solicitor to the respondent (the client) was reduced. [4] In this decision, I determine how the costs of the appeal should be paid and consider the client respondent’s application for interest on the amount owed to him under the amended certificate. Costs of the appeal [5] The solicitor submits that she was successful in the appeal and therefore I should order that the client pay her costs of the appeal. She also submits that the client should pay the costs of an application she made to stay the magistrate’s order pending the determination of this appeal. (That order was made and the costs of the application were reserved.) [6] The client submits that, although the amount repayable to him was reduced, many of the solicitor’s submissions were rejected by me and the appropriate order is, in effect, that each party bear his or her own costs of the appeal. [7] Each of the first and second parts of the appeal was heard on a separate day, with the parties making separate oral submissions to the court, resulting in separate judgments. The solicitor lost the first part and ordinarily it would, in my view, be appropriate to order that she pay the client’s costs of that part of the appeal. However, the client represented himself at the appeal and does not seek such an order. [8] In the substantive part of the appeal, I found against the solicitor in many respects. In some cases, I disagreed with both her submissions and the approach taken by the costs assessor. My findings on a number of issues meant that it became necessary for me to assess many of the items of costs claimed by the solicitor. I allowed some that had been disallowed and I disallowed, reduced or increased others. The net result was that the bills were reduced by less than the costs assessor had ordered. However, the reductions still amounted to considerably more than 15% of the amounts charged by the solicitor. I ordered that the solicitor remain liable to pay the costs of the assessment. [9] The solicitor submits that, as she was successful in increasing the amount by which her bills were assessed, resulting in the appeal being granted, it is appropriate to order that the client pay the costs of the appeal. I should not make separate orders for the costs of the separate issues that I decided. Also, the amount by which her costs were reduced by the costs assessor was $13,707.84, while on the appeal that amount was reduced to $7,463.40. The assessor therefore made significant errors and the client did not concede any error in the appeal. Having regard to the parties’ relative success 1 DM Wright & Associates v Murrell [2021] QDC 93. 2 DM Wright & Associates v Murrell (No 2) [2021] QDC 141. -- 3 of 6 -- 4 on the separate issues, there are no circumstances warranting departure from the usual rule that costs of the appeal follow the event. [10] Furthermore, the solicitor submits that there was a public interest in having the legal issues with which I dealt determined by this court. That interest in pursuing the appeal, even on issues on which she was unsuccessful, is relevant to the determination of costs. [11] Although I found a number of errors in the assessment process and reasoning, which necessitated allowing the appeal and varying the costs certificate, the solicitor failed in many of her submissions. I am also deeply concerned by the extent of the costs incurred by the solicitor, as well as by the client, in the assessment itself as well as in the review and on this appeal. The total of the solicitor’s bills the subject of the assessment and the appeal was $44,817.49. It is incredible that the parties have spent so much effort, time and costs, as well as so much of the time of the assessor, the Magistrates Court and this court, in debating over that amount. In the review and the appeal, indeed, they were debating not only over the amount by which the bills had been reduced but also over who should pay the costs of the assessment which, together with the assessor’s reasons, totalled $34,585. [12] The result of the substantive part of the appeal was mixed, although the final result favoured the solicitor. In my view, the appropriate order is that each party pay his or her own costs of the appeal. That reflects the client’s success in opposing the first part of the appeal and the solicitor’s mixed success in the second part. [13] I do not accept that there was any greater public interest in determining the issues in this proceeding than there is in most other litigation. But, even if there were such a public interest, it too would mitigate in favour of each party bearing its own costs. [14] As for the costs of the application for a stay, I agree with the client’s submission that the solicitor sought and obtained the indulgence of the court and therefore she should pay the costs of seeking that indulgence, absent any unreasonable conduct by the client. Therefore, the solicitor should not be awarded the costs of the application. The client des not seek an order in his favour. [15] I agree with the client’s submission. In the absence of the order sought, the solicitor was obliged to pay to the client the amount provided in the costs assessment certificate. She sought and obtained a special order to avoid that consequence pending the appeal. In the circumstances it is appropriate that each party bear his or her own costs of that application. [16] The appropriate order in respect of all the costs of the appeal is therefore that each party bear his or her costs of the appeal. Interest [17] The client also seeks an order that the solicitor pay interest, under s 58(1) of the Civil Proceedings Act 2011 (CPA), on the amount which, under the costs assessment certificate as amended pursuant to my order, the solicitor owes to him. The client seeks interest, either from the date on which the solicitor paid herself the amounts of her bills from funds held in trust, or from the date of the costs certificate. -- 4 of 6 -- 5 [18] The solicitor opposes the grant of interest, contending that s 58 does not apply because the proceeding in the Magistrates Court was not “a proceeding in court for the payment of money”, but rather was a proceeding for an order for an assessment of the solicitor’s costs and the appointment of a costs assessor. Once appointed, the assessor conducted an administrative procedure for the determination of the dispute as to the amount of the debt. The client does not, by the application, seek relief as to the recovery of money.3 Nor does the issue of the costs assessor’s certificate impose an obligation on a party to pay money. That requires an ensuing hearing seeking judgment under r 743H of the Uniform Civil Procedure Rules 1999 which is an incidental proceeding to the application for a costs assessment.4 [19] It is correct that the proceeding in the Magistrates Court was commenced by an originating application5 seeking orders that included the appointment of a costs assessor. As I said in my earlier reasons, two orders to that effect were made. But that was not the end of the proceeding. With respect, the solicitor’s submission elides important steps that occurred later in that proceeding. [20] The solicitor is incorrect in her submission that the issue of the costs assessor’s certificate did not have the result that she had an obligation to pay the client the amount stated in the certificate. Under UCPR r 737, a certificate of assessment must specify “the amount or amounts payable by whom and to whom in relation to the application.” The effect of the certificate was to determine who owed whom and how much. The certificate determined that the solicitor owed the client the sum stated in it. [21] From the date of the certificate (subject to any appeal), the solicitor was indebted to the client in the sum stated in the certificate. It was only if the solicitor did not pay the client the assessed amount that it became necessary for the client to file an application to enforce the payment of the debt owed to him. [22] That is what happened. The solicitor did not pay the amount she owed and the client applied to the Magistrates Court for judgment based on that certificate.6 The solicitor, in that proceeding, later filed a cross-application for a stay of the application for judgment and for review of the certificate.7 Pending the determination of that review (and subsequently this appeal), the client’s application for judgment was adjourned to the Registry. [23] The application for judgment, which is still extant in the Magistrates Court, is a proceeding for the payment of money. It was brought under r 743H incidentally to and in the course of, or in connection with, the proceeding commenced by the originating application. Unless the solicitor now pays the amount that she owes to the client, together with any agreed sum for interest, in order to obtain judgment, the client will need to pursue the application that has been adjourned, seeking judgment for the amount provided under the certificate as amended pursuant to this court’s order and (if he chooses) interest. On the hearing of that application, the client will need to demonstrate that there is a proper factual and legal foundation for the giving of judgment. He will probably be able to do so by swearing an affidavit exhibiting the 3 Allen v Ruddy Tomlins & Baker (2019) 1 QR 225, [46]-[47], [65], [103]-[104]. 4 Allen v Ruddy Tomlins & Baker, [107]-[111]. 5 Document 1 on the Magistrates Court file. 6 Document 25 on the Magistrates Court file, filed on 27 February 2019. 7 Document 35 on the Magistrates Court file, filed on 24 May 2019. -- 5 of 6 -- 6 amended certificate of assessment (or the original plus this court’s order altering it), filing that in support of the application for judgment, deposing that the debt and interest on it have not been paid and arranging for his application for judgment to be relisted for hearing. If he satisfies the court that there is a proper factual and legal foundation for the giving of judgment, then the court would give him judgment for the amount owed to him. [24] If the court were to do that, then it could also include, in the amount of the judgment, pre-judgment interest under s 58 of the CPA. That would ordinarily be from the date of the original certificate to the date of judgment, but that decision (and the rate or rates of any interest) will be within the court’s discretion. [25] Of course, all those steps would ordinarily have to be undertaken in the Magistrates Court, being the court in which the application for judgment was filed. However, given the long and expensive history of this whole process, I consider that it would be contrary to the interests of justice and would be likely to bring the court process and the administration of justice into disrepute if the parties were required to return to the Magistrates Court in order for the client to seek to enforce the amended costs certificate. This court is now fully apprised of the matter and should do whatever it can to finalise it promptly and cost-efficiently. [26] Under the CPA, s 26, this court may order that a proceeding pending in the Magistrates Court be transferred to this court. I consider that, in order to bring the proceeding between the parties to an end and in the interests of doing justice between the parties in a timely and cost-efficient manner, it is appropriate for me to make such an order. It is unnecessary to hear from the parties before making such an order, as it does not affect their rights in any way. Such a tranfer will enable me to make directions for the client’s application for judgment on the certificate, including interest, to be brought on for prompt determination by this court. [27] However, again given the long and expensive history of this whole process, as well as the amount of interest that would, at most, be due if ordered, I urge the parties to agree on the amount to be allowed for interest. If such an agreement can be reached, then the solicitor should pay the agreed amount without the need for court enforcement. If that occurs, then the parties should inform my associate and seek a consent order, either dismissing the application or giving consent judgment. -- 6 of 6 --