Amos v Walter [2021] QCATA 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Amos v Walter [2021] QCATA 105 PARTIES: EDWARD AMOS (applicant) v GLENN WALTER (respondent) APPLICATION NO: APL323-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 23 August 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – Small Claims Act 1973 (repealed) - where action between consumer and alleged trader – where transactions between solicitor and costs assessor - whether claim a liquidated claim – whether costs assessor a trader within meaning of legislation cited – whether costs assessment excepted from category of trade as an occupation not ordinarily regarded as being within the field of trade or commerce – where costs assessor not engaged in trade Civil Proceedings Act 2011 (Qld) s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 271, 3rd Schedule Small Claims Tribunal Act 1973 (Qld) (repealed) s 4(1), s 4(2) Uniform Civil Procedure Rules 1999 (Qld) rr 678-743S Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Amos v Walter [2020] QCAT 360 Aquilar v Egnalig [2014] QCATA 219 Balabel v Air India [1988] Ch 317 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 -- 1 of 6 -- 2 Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 Carr v Inland Revenue Commissioners [1944] 2 All ER 163 Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 Edward Amos v Monsour Legal Costs Pty Ltd [2006] QDC 485 Gall & Anor v Lakatoi Pty Ltd (t/a Maritime Solutions Most Thing Nautical [2014] QCAT 557 Grommen v Hawes [2018] QCATA 49 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2011] NSWSC 453 Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Szintseva v Berowra Mansions Periodontal Specialist Centre [2014] QCATA 249 W (an infant), In Re [1971] AC 682 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] As long ago as May 2009 the applicant solicitor (`Amos’) complained to the former Small Claims Tribunal1 that the respondent (`Walter’) had grossly overcharged him for services as a legal costs assessor. [2] While Walter delivered bills for a total of $3,650. Amos, equipped with affidavits of three other solicitors, claimed a refund of $2,462.50. [3] This was not Amos’ first clash of arms with cost assessors. The Adjudicator succinctly describes a chequered history that need not now be retraced.2 1 Established by the Small Claims Tribunal Act 1973 (Qld) (repealed) (`the SCT’) and subsequently merged in QCAT. 2 A curious reader may refer to Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235, Edward Amos v Monsour Legal Costs Pty Ltd 2006] QDC 485 and Amos v Walter [2020] QCAT 360 at [15] – [22]. -- 2 of 6 -- 3 [4] On 9 July 20093 the SCT dismissed the subject claim for want of jurisdiction. However, a few weeks later a rehearing was granted.4 The primary decision [5] In December 2009 the matter formally joined the list of cases for trial in the new QCAT tribunal.5 There it lay dormant for years. Finally, in September 2020, it was closely examined by the learned Adjudicator, who dismissed it on two jurisdictional grounds: (i) it is not a claim for a debt or liquidated money claim; and (ii) the respondent Walter is not a trader within the meaning of section 4(2) of the Small Claims Tribunal Act 1973.6 A liquidated claim? [6] I respectfully agree that the amount in dispute is not a liquidated claim.7 As it stands, it is based on opinions of Amos’ expert witnesses. It is not crystallised in a judicial order, or in the form of an agreed price for services. Nor is it ascertainable by a simple mathematical calculation.8 Until a judicial authority adopts, modifies or rejects the claim it is not liquidated. An action in which the amount to be recovered depends upon a judicial determination so that `no one can say positively beforehand whether the plaintiff will recover a farthing, or forty shillings or a hundred pounds’9 is an unliquidated claim.10 [7] I reject the submission that Amos’ present claim is liquidated. A transaction with a `trader’? [8] The SCT had11, and QCAT now has12 jurisdiction, subject to monetary limits, to determine disputes between consumers and traders. Amos invokes that jurisdiction; Walter contends that it is unavailable because he (Walter) is not relevantly a trader. 3 The SCT was merged in QCAT on 1 December 2009. 4 Letter SCT to Amos 29 July 2009. 5 In fact the SCT file was mislaid in Magistrates Court records, and did not reach QCAT until 12 May 2020: Primary decision (`PD’) [45]. 6 Amos v Walter [2020] QCAT 360 at [124]. 7 See PD [120]. 8 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142 per Knox CJ and Starke J; Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [11]. 9 Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [12], quoting with approval Odgers Pleading and Practice 5th ed, p 41; Alexander v Ajax Insurance Co Ltd [1956] VLR 436. 10 This point is encapsulated in PD [120]. 11 Definition of `small claim’ SCT s 4(1). 12 QCAT Act s 271(3)(b). -- 3 of 6 -- 4 [9] In his defence Walter relies on the exception to the definition of `trader’ in section 4(2) of the SCT Act (reproduced in Schedule 3 of the QCAT Act.) In the Adjudicator’s words the application of that subsection is the `gravamen’ or the `pivotal issue’ in this case.13 The legislation [10] Materially section 4(1) of the SCT Act and its modern equivalent provide14: ... trader means a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who regularly holds himself or herself out as ready to supply goods or to provide services of a similar nature ... [11] However, section 4(2) excludes from that definition – ... a person who in respect of goods supplied or services provided by the person would be a trader, but for this subsection, shall not be a trader in respect of those goods or services if in supplying those goods or providing those services — (a) the person acts in the exercise of a discipline that is not ordinarily regarded as being within the field of trade or commerce.15 An open category [12] However, the legislation offers no list – exhaustive or non-exhaustive – of occupations that are `not ordinarily regarded as ... trade or commerce’. [13] The Act speaks not of `professions’ but of `disciplines’. Possibly the descriptor `discipline’ was chosen in order to sidestep status-conscious demarcation disputes.16 And perhaps, too, the draftsman felt that it would be invidious to distinguish the non-trader sheep from the tribe of traders, and so discreetly left that function to the courts. So far, it seems, the discipline/trade dichotomy has escaped hypersensitive disapproval of `elitism’. [14] The position, then, is that identification of non-trader disciplines is matter of ordinary language, common experience, comparative cases and contemporary social circumstances. [15] Conceivably there are `disciplines’ that are not `professions,’ but that question need not be pursued here. The concept of a profession, in the sense of a collective possessing and offering special knowledge or experience, is not a closed category. As an English judge observed almost 70 years ago: `There are professions today which nobody would have considered to be professions in times past.’17 Earlier still, a member of the High Court declared: 13 PD [70] and [93]-[94]. 14 See now QCAT Act Schedule 3, definition of `trader’. 15 Emphasis added. 16 Cf the comment of French J in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219, referring to T J Johnson Professions and Power (1972) at page 22. 17 Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ. -- 4 of 6 -- 5 [Profession] is an expression which I agree is not capable of exact definition ... that depends] on the general understanding of the community. The word ... is not one which is rigid or static ... it is undoubtedly progressive with the general progress of the community.18 [16] With respect, the Adjudicator’s distinction between lawyers and legal cost assessors may be unduly sharp.19 An assessor’s application of the law of costs, the rules of court and appreciation of legal realities may well overlap the work of lawyers. After all, `legal advice is not confined to telling the client the law; it may include advice as to what should prudently and sensibly be done in the relevant legal context’20 – such as the implementation or elaboration of judicial orders for costs. [17] Be that as it may, the decision emphasises that cost assessment requires `special expertise’21 and `a high level of knowledge or skill’.22 It notes that only qualified lawyers may practise the discipline, and that assessors are comprehensively regulated in the code of forensic practice known as the Uniform Civil Procedure Rules.23 Furthermore, assessors, in the course of their duties, enjoy the protections and immunities of Supreme Court judges.24 [18] The decision helpfully reveals a wide-ranging miscellany of occupations that have been treated as `disciplines’ for the purposes of section 4(2) of the SCT Act (and its QCAT Act equivalent), including accountants,25 marine surveyors,26 migration agents27 and periodontists.28 If real estate agents are to be included29 in this list it would be a courageous decision to exclude legally qualified persons acting as cost assessors. Conclusion [19] In the light of the authorities and examples above, it was well within the Adjudicator’s discretion to hold that costs assessors are not traders, but rather practitioners of a discipline not ordinarily regarded as being within the field of trade or commerce. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one 18 Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J, cited in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219. 19 PD [[65(l) and (m)]. The distinction is counterbalanced by several fulsome tributes to the unique skills of cost assessors. 20 Balabel v Air India [1988] Ch 317 at 330; Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2011] NSWSC 453 at [26] 21 PD [104]. 22 PD [105]. 23 PD and [104], [111]; UCPR rr 678-743S. 24 Civil Proceedings Act 2011 (Qld) s 77. 25 Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36. 26 Gall & Anor v Lakatoi Pty Ltd (t/a Maritime Solutions Most Thing Nautical [2014] QCAT 557. 27 Aquilar v Egnalig [2014] QCATA 219. 28 Szintseva v Berowra Mansions Periodontal Specialist Centre [2014] QCATA 249. 29 As they were in Grommen v Hawes [2018] QCATA 49 at [10]. -- 5 of 6 -- 6 conclusion has been preferred to another possible view.30 I respectfully agree that the submission that cost assessors are `traders’ for present purposes should be rejected. [20] It follows that the issue of jurisdiction has correctly been resolved. [21] Accordingly the application for leave to appeal must be dismissed. ORDER The application for leave to appeal is dismissed. 30 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. -- 6 of 6 --