Broadley Rees Hogan Lawyers v Kallis [2013] QCATA 296

CITATION: Broadley Rees Hogan Lawyers v Kallis [2013] QCATA 296 PARTIES: Broadley Rees Hogan Lawyers (Applicant) V Mr William Kallis (Respondent) APPLICATION NUMBER: APL318 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 29 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 11 June 2013 is set aside. 4. William Kallis shall pay Broadley Rees Hogan Lawyers $1,709.06 by 19 November 2013 CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where applicant delivered costs agreement – where costs agreement not signed – where respondent gave applicant instructions after receipt of client agreement – whether respondent liable for costs PROCEDURE – where tribunal asked leading questions of respondent – whether a breach of procedural fairness PROCEDURE – where tribunal made order different from that requested by respondent – where order made without hearing submissions – whether a breach of procedural fairness -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(c), 13, 28, 29 Legal Profession Act 2007 (Qld) s 322(3) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Kallis was a director of KB Nut Holdings Pty Ltd. KB Nut held the management rights for Bonaparte‟s Apartments in Fortitude Valley. In June 2010, KB Nut engaged Broadley Rees Hogan Lawyers to give advice about a dispute with the body corporate and a possible sale of the management rights. [2] Broadley Rees Hogan sent KB Nut a client agreement. Mr Kallis was named as an “Associate” which meant that he was personally liable for the fees if KB Nut did not pay. KB Nut did not return the signed client agreement but it did give Broadley Rees Hogan instructions after it received the client agreement. [3] Broadley Rees Hogan did work and rendered bills. KB Nut “does not exist any more”1 so Broadley Rees Hogan sent the accounts to Mr Kallis. He did not pay, so Broadley Rees Hogan filed a minor debt application in the tribunal. The tribunal, constituted by a JP panel, dismissed the claim and extinguished the debt. [4] Broadley Rees Hogan wants to appeal that decision. It says that the tribunal erred in finding that the firm did not have a binding client agreement. It says that the facts do not support the decision. It says that the tribunal made a decision that Mr Kallis did not ask for. It says the tribunal exceeded its powers in extinguishing the debt. It says that the tribunal‟s decision is not justified in fact or law. 1 Transcript page 1-7, line 23. -- 2 of 4 -- 3 [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?5 [6] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.6 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.7 However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.8 [7] Broadley Rees Hogan filed a copy of its costs agreement and the disclosure notice that it sent to Mr Kallis. The covering letter dated 1 June 2010 informed Mr Kallis that he could accept the client agreement in one of three ways. He could sign and return a copy of the agreement, he could give instructions after receiving the documents or he could accept the agreement orally. Those options are repeated in clause 3 of the agreement itself. [8] The Legal Profession Act 2007 (Qld) contemplates that a client can accept a client agreement by conduct9. The learned JPs erred in finding that Mr Kallis was not bound by the client agreement unless he signed it. [9] I accept the submission from Broadley Rees Hogan that the facts do not support the decision. Mr Kallis told the learned JPs that he never received the client agreement10. The documentary evidence suggests that Mr Kallis was mistaken in giving this evidence. The tax invoice of 30 July 2010 includes this statement: “07/06/10 Attending to review of correspondence from Kerrie-Ann re payment of fees”. Mr Kallis also suggested to the 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 9 S 322(3). 10 Transcript page 1-12, line 21. -- 3 of 4 -- 4 learned JPs that the body corporate was responsible for the fees. Again, Mr Kallis seems to have been mistaken. The scope of works in the client agreement refers to a dispute between the body corporate and KB Nut. It is unlikely that the body corporate would pick up the fees of its opponent. [10] Although it is not necessary to decide the remaining grounds of Broadley Rees Hogan‟s application, it is appropriate to address some of the other submissions. [11] Broadley Rees Hogan takes issue with the learned JPs asking Mr Kallis leading questions. The tribunal must deal with matters in a way that is accessible, fair, just, economical and quick11. It must conduct proceedings in an informal way that minimises costs and is as quick as is consistent with achieving justice12. It must ensure that the parties understand the practices and procedures of the tribunal and nature of the case13. The minor civil disputes jurisdiction is a busy one and the tribunal often must get to the heart of a dispute quickly. Mr Kallis was not represented so it was appropriate that the learned JPs assisted him in providing relevant evidence. The tribunal is not bound by the rules of evidence14. Broadley Rees Hogan was not disadvantaged by the learned JPs‟ questions of Mr Kallis and I do not consider that their questions were an error that would give rise to a ground for leave to appeal. [12] Broadley Rees Hogan rightly says that the learned JPs gave Mr Kallis relief – the extinguishment of the debt – that he did not ask for. It is not correct to say that the learned JPs exceeded their powers. In a minor civil dispute, the tribunal can order that a stated amount is not due and owing15. However, the tribunal should not make an “unusual” order without giving the parties the opportunity to make submissions about the proposed course of action. The learned JPs did not give Broadley Rees Hogan the opportunity to make submissions about their proposed order. The tribunal must observe the principles of natural justice16. A decision without submission is a breach of these principles and, therefore, an error of law. [13] Leave to appeal is granted. The appeal is allowed. The decision of 11 June is set aside. [14] I have considered the evidence filed before the learned JPs. I am satisfied that Mr Kallis is responsible for the debt to Broadley Rees Hogan Lawyers and I order accordingly. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b). 12 Ibid s 4(c). 13 Ibid s29. 14 Ibid s28(3)(b). 15 Ibid s 13(2)(a)(iii). 16 Ibid s 28(3)(a). -- 4 of 4 --