Campbell & Campbell v Quinn & Co [1992] QSC 74

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau; 4th Floor, The Law Courts, George Street, BRlSBANE. 0. 4000 Tel. {07) 227.4360 (Copyright in this transcript is vested in the Crovm. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE, Master IN THE MATTER OF GRAHAM JOHN CAMPBELL and CHRISTINE THERESE CAMPBELL V. MESSRS QUINN & CO (a firm) Brisbane .. DATE 9/3/92 JUDGMENT 1 r--~~=-;----.... . .__.-. ........... ~-"""" lRc.vlSt:u COPiES ISSUEn f. Court Reporting Bureau ~ -·~ate: I~ I 31 L~ .J Applicants Respondents -- 1 of 13 -- 090392 JUDGMENT MASTER: The applicants are Graham and Christine Campbell, former clients of the respondent firm. They seek by way of primary relief a bill of costs in taxable form relating to the whole of the work performed by the respondent for the 10 applicants in a certain District Court action. 10 Mrs Christine Campbell made submissions on behalf of the applicants. Occasionally she referred to matters not in her affidavit to which Mr Savage, who appeared for the 20 respondent, objected. I have endeavoured to disregard all 20 such observations and assertions. It is difficult, and particularly so in something as specialised as the Costs Act, for a litigant appearing in person to do justice to whatever case there might be. Mrs Campbell had a good 30 knowledge of the Act and referred me to relevant passages of 30 the appropriate case law. The material does not reveal the nature of the cause of action in which the applicants were defendants but I . ..1;"") understand that it concerned property owned by the applicants over which a lease had been granted. The detail really does not matter except to say that the action was commenced in the Supreme Court and subsequently remitted to ;the District Court and it would appear the action was settled on the eve or early into the trial. This may not be correct but nothing turns upon it. The respondent delivered to the applicants an account about once every 12 months or so from the time of receiving ~-::--'----instructions to defend on _3_l_g?_nuc:J,~y_J,_98_6 . _______ ':['b_~_r_e _a:r::e 2 -- 2 of 13 -- 090392 JUDGMENT accounts for six periods. They are all exhibited to Mrs Campbell's -affidavit. The account for the last period was first delivered dated 1 October 1991. The respondent sent another dated for the same period in substitution, dated 4 10 October 1991 in taxable form. This crossed in the post with a letter from the applicants requesting such a bill. After the respondent learnt that the applicants had made an appointment for taxation of that bill, the respondent sent a third bill under cover of a letter dated 13 November 1991 20 seeking to have it substituted for the second bill of 4 October 1991. The applicants paid the accounts generally promptly and without complaint when delivered. Not all correspondence 30 from after 4 October 1991 is before me, but the applicants' letter to the respondent dated 31 October 1991 indicates that they were most unhappy about the latest account in view of what had been paid to that time. On 7 November 1991 the applicants requested the respondent to provide them with a bill in taxable form for the duration of the whole retainer and that was further requested in a letter of 8 November. _An appointment for taxation of the last account was made for i26 February 1992. By letter dated 19 February 1992 the ~c applicants indicated to the respondent that they wished to 'adjourn the appointment until after this hearing. They also I ;demanded the return of money held against costs by the ! ;respondent. It seems that Mr David Lobbezoo, a solicitor 1 with the respondent, attended upon the Taxing Officer on the _!.:_·: ___ ~appointed day. ___ ';['l}e ~pplicar1t_.::; did not and t_be __ taxat ion _was _ 3 10 20 -- 3 of 13 -- 10 20 '": 090392 JUDGMENT adjourned. It is now necessary to consider the accounts. The first account dated 5 February 1987 for the period 31 January 1986 to 4 February 1987 sets out each item, together with the date, what seems to be the Supreme Court Scale number and where relevant the number of folios perused. Most telephone calls have the duration of the call indicated. At the end of 14 pages the amount of $3,821.38 appears, followed by details of disbursements. No separate charge for any item appears on the bill. In the second account for the period from 5 February 1987 to 17 November 1988 no dates or separate items appear, it merely sets out in a discursive fashion what has been done, including: "All correspondence consisting of 90 ordinary letters, 31 formal letters and 9 special letters; all telephone attendances - 96 in all, 17 of them lengthy." \That part of the bill occupies three pages, against which the sum of $10,151.65 appears. Then follows, as before, details of disbursements. The third account is for the period from 17 November 1988 to 12 December 1989. It is in similar form to the first account, with a little more detail as to time engaged. On the seventh page appears a lump sum of $4,754.31, followed ,thereafter by details of disbursements. The fourth account for the period 3 November 1989 to 17 4 10 20 -- 4 of 13 -- 10 20 30 40 50 090392 JUDGMENT August 1990 is of six pages. Dates and items are set out, but no time engaged or folios perused are given, nor charges per item. On the sixth page appears the lump sum of $6,056.40, plus disbursements. The fifth account is for the period 17 August 1990 to 8 January 1991 and is in the same form as the fourth account. It is of three pages and the lump sum is $1,446.30. The sixth account need not be described as it was finally delivered in taxable form. As I have observed, Mr and Mrs Campbell appeared in person before me and Mrs Campbell made submissions on behalf of them both. Accordingly, if what I say might appear simplistic, it is to enable them, I hope, to follow more easily the line of my reasoning. A brief useful history of the control by the legislature over the fees rendered by solicitors to their clients is to be found in the decision of the House of Lords in Harrison v Tew [1990] 2 WLR 210. That control began to be exercised in England in 1606 and successive Acts have developed that regulation. The Costs Act of 1867 regulates the position of solicitors' costs in Queensland. The scheme is such that a solicitor may not commence an action: "for the recovery of any fees charges or disbursements for any business done ... untilthe expiration of one month after [he] shall have delivered unto the party to be, charged therewith or sent by the post to ... 11 I a bill of such fees charges and disbursements60 ( s 2 2 --------·----------------' -~-r----- Go~!. P'lnter. Old. I 5 10 20 30 50 60 -- 5 of 13 -- 10 20 30 s.::; 090392 JUDGMENT A client may seek an appointment for taxation of the bill within a month of its delivery as of course (s 24). After expiration of a month and within 12 months the bill may, by leave of the Court, be referred to taxation (s 25) . After expiration of 12 months the client must show special circumstances before a Court will order a bill to be referred to taxation (s 25) . If, however, the client has paid the bill the Court must be satisfied that special circumstances exist to require that the bill be referred to taxation. The Court may not order a reference to taxation, even if there are special circumstances, if 12 months has elapsed since the payment of the bill (s 33) . The question here is whether the bills as delivered to Mr :and Mrs Campbell are bills of fees, charges and !disbursements within the meaning of the Costs Act. If they are not then the provisions of the Costs Act do not apply and they are in no way bound by the limitations in that Act to which I have just referred, see re Wilson v Hemming . [1913] StRQd 34 at 36. 1 I have set out above a detailed description of the several :bills. It was submitted by Mr Savage for the respondent that the bills were sufficient to enable Mr and Mrs Campbell •"on advice" to decide whether to seek taxation. He relied :upon certain passages in the decision of Dowsett J in re 1 Walsh Halligan Douglas' Bill of Costs [1990] 1 QdR 288 at p 6 10 20 30 -- 6 of 13 -- 10 20 30 090392 JUDGMENT 294 - 5. His Honour made it clear, however, that the adequacy of the bills must be considered in the light of the particular facts. The bills under consideration in that case indicated on their face the time spent on the work and the charge-out rate of the solicitor doing the work. Currie v Robinson [1968] QWN 25 was an application to set aside judgment entered in default of appearance. The only substantial ground raised by way of defence was that no bill of costs in proper form had been delivered. Douglas J described the bills thus at p 51: "The Bill of Costs was exhibited to the first defendant's affidavit and consists of a statement of account which contains a claim for various lumpsums in respect of individual matters dealt with by the plaintiffs on the defendant's behalf. It also contains an itemised account of outlays and shows various payments made by the defendants from time to time. The lump sum amounts shown in thestatement of account are further itemised in other sheets of the Bill of Costs, a sheet or sheets of the Bill of Costs being devoted to every such item. However, these sheets show the various services performed by the plaintiffs for thedefendants in an itemised manner factually butwithout any allocation of costs to any particular action taken by the plaintiffs. The lump sum shown in the first sheet of the statement ofaccount in every case appears opposite the itemised list in the further sheets of the Bill. This is not a Bill of fees, charges and disbursements such as is contemplated in s 22 of The Costs Act of 1867. A very similar matter was dealt with by Mann J in the case of Malleson, Stewart, Stawell and Nankivell v Williams [1930] VLR 410, and I can do no better than adopt hisphraseology: 'But, action having been brought upon this bill, the point is raised by Mr Duffy for the defendant that it is not such a bill of fees, charges and disbursements as is contemplated by sec 92 of The Supreme Court Act 1928, and he has referred me to several authorities supporting that position. These authorities show that the Courts have repeatedly held that a bill of costs must containsuch details ~s __ wi)l eJ:1able_th~ client __ to_make up 7 10 20 3G -- 7 of 13 -- 10 20 30 090392 JUDGMENT his mind on the subject of taxation and will enable those advising him to advise him effectively as to whether taxation is desirable or not. In the present bill, unlike some of the bills which formed the subject of the reported cases, the services rendered have been set out in complete detail; but what it lacks is the carrying out in to the money columns of the appropriatecharges for each of those details, the only sums which are carried out being the actual outgoings, and at the end of the items relating to the particular matter a lump sum of varying amounts as I have indicated. I have examined carefully the authorities cited to me, and also other cases, in particular the cases of In re Pomeroy and Tanner [1897] 1Ch 284, and In re Pomeroy and Tanner (No 2) (1897) 76 LT 149, to see whether the circumstances to which I have referred, the setting out the details of the services, will enable me to distinguish this case from those authorities; but I have come to theconclusion that it cannot be distinguished; having regard to the reasons by which those decisions have been supported. The result, I think, isthat, in accordance with the law as there laid down, this bill is not such a bill as is contemplated by sec 2, and is not thereforeapparently one on which the plaintiffs are entitled to sue.'" In re Pomeroy v Tanner [1897] 1 Ch 284, upon which Mann J relied, required a detailed bill of charges for each item set out in a running bill. It seems to me then that the bills dated 5 February 1987, 17 .November 1988, 12 December 1989, 23 August 1990 and 9 .January 1991 are not good bills within the meaning of s 22 ;of the Costs Act. For that matter, neither is the bill :delivered 1 October 1991, but it was replaced by a bill dated 4/10/1991 in which the charge for each item is set out :and is a proper bill. The respondent sought to substitute a 'further bill dated 13 November 1991 for the bill of 4 ,October 1991 after the applicants had notified the respondent that they had obtained an appointment for 8 10 20 30 -- 8 of 13 -- 10 20 30 090392 JUDGMENT taxation. That bill is in taxable form and comes to about half the bill delivered on 4 October 1991 (which was in the same amount as the bill delivered 1 October 1991) . As Ryan J held in re Flower & Hart's Bill of Costs [1991] 2 QdR 20, s 26 of the Costs Act empowers the Court to order delivery of a bill notwithstanding the provisions of s 25. I should mention that in Harrison v Tew (supra) the House of Lords held that the intention of Parliament was plainly to cover the field in the 1974 English Solicitors Act (the provisions of which are similar to the Queensland Costs Act) such as to exclude any scope for calling in aid the inherent jurisdiction of the Court. In re A Solicitor [1961] Ch 491, often referred to in this jurisdiction, was doubted by the House of Lords .I prefer to deal no further with this point,'. it not being ,necessary to my decision since an equivalent of s 26 was not in issue. !The question is then whether in the exercise of my .discretion the jurisdiction ought to be exercised. The first bill dated 5 February 1987 sets out for most items the ·time engaged, where relevant, or the number of folios perused. It has long since been paid and nothing in the material suggests that the applicants raised any objections to it or any part of it. It covers work done over a year 10 20 30 :and amounted to $3,907.43. It does not, on looking at the i. ::c bill as a whole, have an air of overcharge or overservicing. iAccordingly, I would not order that that bill need be delivered in taxable form. The bill of 17 November 19 8 8 was p_cl.id within a month of J t_s_ 9 -- 9 of 13 -- 10 20 30 090392 JUDGMENT delivery. It has been described above. It falls far short of an acceptable bill, offering the clients no yardstick by way of time spent on each item, an hourly charge rate or dates to make a proper judgment about it. It was for the period during which the interlocutory steps for the trial were occurring. The respondent has not put forward any material to suggest that it would be prejudiced if ordered to deliver a bill in taxable form. The correspondence of 130 letters seems more than might be expected, as do 96 telephone attendances. Notwithstanding the delay by the applicants in seeking relief, it is ordered that the respondents deliver a bill in taxable form for the period from 17 November 1988 to 17 November 1989. The third account dated 12 December 1989 is similar to the first account in form. It has no features about it which seem unusual and in the exercise of my discretion I would not order a further bill to be delivered. The fourth account dated 23 August 1990 for the period from 3 November 1989 and the fifth account dated 8 January 1991 sets out no time for any item nor numbers of folios. Whilst not as deficient as !the second bill, they call for an explanation and again no prejudice has been suggested by the respondents, notwithstanding the delay. It is ordered that the :respondent deliver a bill in taxable form for the period :3/11/1989 to 8 January 1991. The bill dated 4 October 1991 'is to proceed to taxation. If after the delivery of the :bills in taxable form the applicants are desirous of ;proceeding to have each or any of them taxed, they may do so :together with the final bill which awaits a further :appointment. 10 10 20 -- 10 of 13 -- lO 20 30 090392 JUDGMENT I do not consider that it is necessary for the applicants to have an order for a trust account reconciliation with respect to all moneys received and expended by the respondent on behalf of the applicants as is sought by them. The affidavit of David Anthony Lobbezoo filed on behalf of the respondent effectively does this by summarising the general account and trust account ledger cards which are exhibited to his affidavit. The applicants have relied upon r 84 made pursuant to s 5(9) (ii) of the Queensland Law Society Act 1952 for the delivery up of all funds and documents presently held on behalf of the applicants. R 84 provides: "(1) A practitioner shall within a 'reasonable time' after being so requested in writing by a client to render to the client a bill of costscovering all work for the client to which such request relates or for which he has not already rendered a bill of costs or been paid. (2) If such practitioner fails or neglects torender such bill of costs within one calender month after receiving such request or within such further period as the client in writing allows oras may in the circumstances be reasonable he shall if requested by the client forthwith pay to the client all moneys and if so requested shall deliver to the client all documents which he is holding on behalf of the client, notwithstanding that he might otherwise be entitled to a lien upon those moneys or documents for payment of his bill of costs." 1All except the last bill have been paid and the last was delivered within time after the request was made. The other bills do not fall to be considered, pursuant to r 84, having :already been rendered and paid. ' , ___ ,The amount retained is on accg_unt of_ the_ fee_~ _pot. yet paid. ___ 11 10 20 30 -- 11 of 13 -- 090392 JUDGMENT I do not consider that the respondent has lost its lien on the money or documents. In any event, the respondent will need the files to prepare the bills as ordered. The decision of re Wheldon & Associates of Thomas J of 5 July iO 1991, to which I was referred by the applicants, does not 10 assist. As to the costs of this application, Mr Savage had submitted that they ought to follow the event of the taxation, should 20 it be ordered, or the event, if not so ordered, he not being 20 present today to make submissions on costs. In view of the delay in bringing the action after all but one of the bills have been paid and that not all relief sought has been obtained, it is ordered that the costs of and incidental to 30 the summons, including costs reserved on 26 February 1992, 3G follow the event of the taxation. Should the applicants decide not to proceed to taxation after delivery of the bills, then the costs should lie where they fall. :The formal orders are: 1 That the respondent deliver to the applicants a bill or bills in taxable form for the periods covered by the Exhibits B, D and E to the affidavit of Christine Therese Campbell, filed herein on 24 February 1992, such bills to be delivered within 28 days from today; 2 That there be liberty to apply on the application of eithe:r par:tyonthe .gi.ving_of two __ clear_days 12 -- 12 of 13 -- 090392 10 20 30 notice in writing each to the other. out my orders with respect to costs. 13 / ( I have set 10 20 (: I -- 13 of 13 --