Amos v Walter [2020] QCAT 360

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

• [1] Questions of jurisdiction of this Tribunal frequently arise for adjudication in the arena of minor civil disputes.
• [2] This case illustrates how complex minor civil disputes can become when, as sometimes occurs, a litigant decides to test jurisdictional boundaries.
• [3] On 25 May 2020, Senior Member Howard of this Tribunal directed that:

(a) the Tribunal intended to consider whether an Application filed by Mr Amos in the Small Claims Tribunal should be dismissed pursuant to s 47 of the QCAT Act on the basis that it is not within jurisdiction and therefore misconceived.

(b) the parties file and exchange written submissions by 4:00pm on 12 June 2020 and that, unless otherwise ordered, the Tribunal decide on the papers and without an oral hearing whether the Application should be dismissed.

• [4] Upon the Senior Member's referral, the matter subsequently came before me for an on the papers hearing on 6 July 2020 and a decision.
• [5] On that date, I dismissed the Form 1 Claim filed by Edward Amos (Mr Amos) in the Small Claims Tribunal (the SCT) on 22 May 2009 for lack of jurisdiction on the stated basis that:

(a) It is not a claim for a debt or liquidated demand for money; and

(b) The Respondent is and was not a trader as defined in section 5(2) of the Small Claims Tribunal Act 1973 (Qld).

• [6] There is a typographical error in subparagraph (b) (above) of the dismissal order. It should correctly refer to section 4(2), not section 5(2), of the Small Claims Tribunals Act 1973 (Qld) (SCT Act).
• [7] I will rectify that by amending subparagraph (b) of the decision pursuant to section 135(1) (b) and (2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) to refer to s 4(2).

• [8] Mr Amos has asked for reasons for my decision.
• [9] Though the basis of my dismissal of Mr Amos' claim is succinctly stated in the decision, I will take the opportunity to elaborate comprehensively in view of the history of disputation between the parties.

• [10] Mr Amos filed a Form 1 Claim on 22 May 2009 in what was then known as the Small Claims Tribunal (SCT) at Brisbane. A Registry official endorsed the face page of the Claim as having been filed on Mr Amos' insistence, which suggests to me that the Registrar was alert to a potential issue of jurisdiction.
• [11] In it, Mr Amos claimed $2,462.50 for alleged overcharging by the Respondent, Mr Walter, a cost assessor, for costs assessments carried out and reasons given by him at Mr Amos' request.
• [12] Mr Amos stated that he should only have been charged $500.00, not $2,000.00 which Mr Walter certified as payable for assessor's fees, and claimed the difference of $1,500 allegedly overcharged.
• [13] Mr Amos stated that he was charged $1,650.00 by Mr Walter for giving reasons for the disallowance of certain of his objections to items in a bill of costs. He said that a reasonable fee for preparing reasons would have been $687.50 inclusive of GST.
• [14] He claimed a refund of $962.50 for the difference between the two figures or, alternatively, relief from the obligation to pay some of that amount.
• [15] It is contextually relevant that Mr Amos had previously, though unsuccessfully, brought proceedings against another Costs Assessor, Monsour Legal Costs Pty Ltd (Monsour), in the Court of Appeal of the Supreme Court of Queensland.
• [16] The Court of Appeal had ordered that he pay Mounsour's costs which, ultimately, Mr Amos did.
• [17] A chronological summary of Mr Amos' attritional litigation from 2004 onwards against Monsour in the Magistrates Court, the District Court, and the Supreme Court of Queensland, concerning his costs liability to that company and the assessment of it, is summarised in Amos v Monsour Legal Costs P/L [2007] QCA 235 at paragraphs [1] and following, but unnecessary to repeat here.
• [18] See also Edward Amos v Monsour Legal Costs Pty Ltd [2006] QDC 485 at paragraphs [1] to [5].
• [19] In a Costs Certificate dated 6 June 2008 filed in the matter of Edward Amos v Monsour Legal Costs Pty Ltd CA 9984/06 (the same QCA proceeding), Mr Walter had certified that:

(a) He was an approved costs assessor appointed under the Uniform Civil Procedure Rules 1999 (Qld).

(b) He was appointed to assess the costs in the matter pursuant to the Order of Justice McMurdo P dated 4 February 2008.

(c) He had assessed the costs payable by Mr Amos to Monsour Legal Costs Pty Ltd pursuant to the Order of the Court of Appeal dated 24 July 2007 in the amount of $17,201.60 made up of professional fees of $7,201.20 and disbursements of $10,000.40 which included his fees payable by Mr Amos.

• [20] The Certificate itself was not disputed by Mr Amos in the SCT and QCAT proceedings.
• [21] In controversy, however, was whether Mr Walter was an "approved" costs assessor when he accepted an appointment to assess costs in the Monsour matter. I will refer to submissions of Counsel for Mr Amos and Mr Walter's submissions in that regard later in these reasons.
• [22] Mr Walter denied Mr Amos' allegations of overcharging and misrepresentation and said that the SCT and this Tribunal had no jurisdiction to entertain the proceedings.

• [23] Mr Amos filed affidavits of three experienced solicitors of long standing, a Mr Collinson of Keller Nall and Brown, a Mr Keller, apparently of the same firm, and a Mr Milani, with the Claim in these proceedings.
• [24] As solicitors, those witnesses gave their estimates of lesser fees that, in their opinion, ought reasonably to have been charged by Mr Walter for the costs assessment work done, rather than the fees which he in fact charged.
• [25] Mr Amos himself swore an affidavit which exhibited an advertisement by Mr Walter in the December 2007 edition of Proctor stating his qualifications as BA Dip Ed LLB and that he was at the time a solicitor and legal costs consultant.
• [26] Mr Walter's qualifications and experience referred to in the Proctor advertisement were not in dispute in the SCT and QCAT proceedings.

1. The unfortunate history of delay in the finalisation of this case in the former SCT, which QCAT succeeded when it merged with this Tribunal under the QCAT Act[2] must be understood in overall context but it is ultimately not relevant to jurisdiction for reasons which I will explain.

• [28] It is the case that the passage of time between 22 May 2009 and 6 July 2020 (eleven years and two months approximately) may mean that Mr Amos' unextinguished right, if any, to a remedy in another jurisdiction is statute barred by section 10 of the Limitation of Actions Act 1974 (Qld).[3]
• [29] A statutory bar preventing Mr Amos instituting proceedings in another forum cannot however be relevant to the question of jurisdiction.
• [30] That is because if, as I have found, the former SCT and QCAT as its statutory successor never had jurisdiction, then Mr Amos should not have filed the Claim in the SCT in the first instance.
• [31] Originally, Mr Walter, by letter dated 10 June 2009 filed in the SCT, sent to Mr Amos by the SCT in turn, raised the point of jurisdiction and sought dismissal of Mr Amos' Claim (the dismissal application). I will come to the substance of Mr Walter's submissions and those filed on behalf of Mr Amos later.
• [32] The SCT listed Mr Walter's dismissal application for hearing on 9 July 2009. Mr Amos did not file any submissions on jurisdiction in reply at that time. He was not then directed to do so.
• [33] Mr Amos was unsuccessful in an application to adjourn that hearing. He did not attend. J Daley, the presiding Magistrate sitting as the SCT referee on 9 July 2009, noted on the hearing cover sheet that Mr Amos had failed to provide medical evidence in support of the requested adjournment.
• [34] Mr Walter did attend the hearing and the record shows that the SCT dismissed Mr Amos' Claim for want of jurisdiction on that date.
• [35] Mr Amos then applied to set aside the dismissal order, this time relying on a medical certificate of illness.
• [36] The SCT granted Mr Amos an application for a rehearing on 29 July 2009 but did not list the matter for further hearing before the merger of the SCT with QCAT occurred.

I will soon be 80 and as you would appreciate I would like this matter to be resolved in my lifetime.

• [45] I am satisfied that QCAT Registry acted promptly to rectify the situation on receipt of Mr Amos' letter dated 2 April 2020 on 6 April 2020.
• [46] On 8 April 2020, QCAT's Minor Civil Dispute Coordinator asked the Brisbane Magistrates Court to locate the SCT file, noting that QCAT had no record in its claims database of the SCT's rehearing decision in 2009.
• [47] An Administrative Officer of the Civil Registry of the Brisbane Magistrates Court located the SCT file in archives on 12 May 2020 and sent a scanned copy to this Tribunal.
• [48] In turn, QCAT's Minor Civil Dispute Coordinator notified Mr Amos by letter dated 18 May 2020 that the file would be placed before a Member of the Tribunal, as it was, leading to the Senior Member's directions on 21 May 2020 to which I referred at the beginning of these reasons.
• [49] That returns me to the present.

• [50] In his letter to the SCT dated 10 June 2009 requesting dismissal of Mr Amos' claim for lack of SCT jurisdiction, Mr Walter said:

(a) In paragraph [1], that he was appointed as a costs assessor by the Registrar of the Supreme Court to the interim panel of costs assessors pursuant to the interim arrangements for costs assessment in accordance with Practice Direction 7 of 2007 made by the Chief Justice of Queensland on 28 June 2007.

(b) In paragraph [2], that following amendments to the Uniform Civil Procedure Rules 1999 (the UCPR) effective 10 December 2008, he applied to the Registrar of the Supreme Court in accordance with rule 743K of the UCPR for appointment as a costs assessor under the amended rules and that he was so appointed pursuant to rule 743L on 20 February 2008.

(c) In paragraph [3], that his appointment as a costs assessor was current and, for purposes of Chapter 17A of the UCPR, he was an Assessing Registrar as defined by rule 679 of the UCPR.

(d) In paragraph [4], that he never ceased to hold the office of costs assessor between his initial appointment under the interim arrangements and his subsequent formal appointment under the new rule 743L, confirmed by an email from Deputy Registrar of the Supreme Court, Joelle Lenz, dated 27 April 2009 attached to the submissions.

(e) In paragraph [5], that the status of his application to the Court for registration as a costs assessor in accordance with rule 743K of the UCPR was disclosed to Mr Amos' solicitors, Keller Nall and Brown, in a letter dated 22 January 2008 which enclosed the original of his signed Consent to appointment as costs assessor in the Court of Appeal proceeding.

(f) In paragraph [6], that, by Order of the District Court of Queensland in BD 2347/2005 per Judge Wilson DCJ made on 1 November 2007, he was appointed to assess costs payable by Mr Amos to Monsour as Respondent pursuant to an Order of Judge Nase DCJ made on 2 November 2006.

(g) In paragraph [7], that, by Order of the District Court of Queensland in proceedings BD 2347/2005 per Judge Martin SC DCJ made on 14 January 2008, he was appointed to assess the costs payable by the Appellant (Amos) to Monsour pursuant to the order of Wilson DCJ made 1 November 2007.

(h) In paragraph [8], that, by Order of the Court of Appeal in CA9984/2006 made 4 February 2008, he was appointed to assess the costs payable by the Appellant (Amos) to Monsour pursuant to the Order of the Court of Appeal (McMurdo P, Wilson J and Lyons J) made 24 July 2007.

(i) In paragraph [9], that his assessments of costs in those matters were completed and certified by him as costs assessor by Certificates in CA9984/06 dated 6 June 2008, BD22347/2005 (costs order dated 2 November 2006) dated 13 March 2009, and BD2347/2005 (costs order dated 1 November 2007) dated 13 March 2009.

(j) In paragraph [10], that his account for his costs assessor's fees in conducting the assessments was forwarded to the Respondent (Monsour's) solicitors Messrs McInnes Wilson and Jensen dated 6 June 2008 for a total of $4,875.00 comprising $2,000.00 for the Court of Appeal Assessment, $2,125.00 for the District Court costs assessment (Order dated 2 November 2006) and $750.00 for the District Court costs assessment (Order 1 November 2007).

(k) In paragraph [11], that, by letter dated 19 June 2008, the Appellant's solicitors (for Mr Amos) sought reasons for his decision in respect of the costs assessment in the Court of Appeal proceeding.

(l) In paragraph [12], that his reasons for the decision in respect of the Court of Appeal proceeding were prepared and subsequently delivered to the parties under cover of his letter dated 12 March 2009, accompanied by his account for $1,650.00 addressed to the Appellant (Amos).

(m) In paragraph [13], that the Respondent's solicitors (for Monsour) paid his costs assessor's accounts dated 6 June 2008 and 12 March 2009.

(n) In paragraph [14], that, by facsimile letter dated 25 March 2009, the Appellant's solicitors (for Amos) requested his reasons for decision in respect of his two assessments in the District Court proceedings.

(o) In paragraph [15], that he drafted the requested reasons and informed the parties' solicitors by letter dated 27 March 2009 of the fact and enclosed his account for $1,925 addressed to the Appellant (Amos), whose solicitors had requested the reasons, himself requesting pre-payment before delivery.

(p) In paragraph [16], that, by Application for Review of Costs Assessor's Certificate of Assessment filed by the Appellant (Amos) in the Court of Appeal proceeding on 26 March 2009, Mr Amos sought to have the Court of Appeal review his Certificate of Costs Assessor dated 12 March 2009 in the sum of $16,338.00.

(q) In paragraph [17], that the Appellant's Application for Review was apparently resolved by Order of the Court made by consent on 15 May 2009 following negotiation between the parties.

(r) In paragraph [18], that, by facsimile letter dated 3 June 2009, the Appellant's solicitors (for Amos) requested copies of Mr Walter's "marked up" costs statements in respect of his two assessments.

(s) In paragraph [19], that, by facsimile letter dated 4 June 2009 to the parties, Mr Walter informed them that the requested copies would be supplied upon payment of his fees for providing the material, assessed at $183.15 in accordance with the District Court Scale of Costs and upon payment of his costs for drafting reasons dated 27 March 2009.

(t) In paragraph [20], that those fees were not paid.

(u) In paragraph [21], that the Appellant (Amos) had not paid the outstanding account for Mr Walter's reasons in respect of the two assessments in the District Court action.

(v) In paragraph [22], that the assessment of costs payable or to be assessed under, inter alia, an Order of a Court in Queensland was regulated by the UCPR and in particular, Chapter 17A (rules 678 to 743).

(w) In paragraph [23], that, in performing his functions as a costs assessor pursuant to Orders of the Court of Appeal and the District Court, he enjoyed the same protection and immunity as a judge performing the functions of a judge, namely, in terms of (the then) section 93LA(1) of the Supreme Court of Queensland Act 1991 (Qld) to that effect.

(x) In paragraph [24], that, in summary, Mr Amos' claim against him was for a refund of costs assessor's fees for assessments completed by Mr Walter in accordance with the UCPR in the Court of Appeal and in the District Court.

(y) He referred in paragraph [25] to the SCT's jurisdiction under the SCT Act and, in paragraph [26] said that, according to section 4 of the SCT Act, a claimant is defined inter alia as:

(i) A consumer in relation to a small claim that arises out of a contract with a trader.

(ii) A trader in relation to a small claim arising out a contract between traders.

(z) He said in paragraph [27] that, according to section 4 of the SCT Act, a small claim means:

A claim for payment of money of a value not exceeding the prescribed amount or for relief from such payment or a combination of the two that in any case arises out of a contract for a supply of goods or provision of services between a consumer and a trader.

(aa) In paragraph [28], he referred to section 2(e) and (f) of the SCT Act and that the Tribunal may make an order that dismisses a claim or that a claim be struck out for want of jurisdiction.

(bb) In paragraph [29], he said that he undertook the cost assessment work in accordance with his appointment as a costs assessor under the UCPR.

(cc) In paragraph [30], he said that he is entitled to protection and immunity from suit.

(dd) In paragraph [31], he said that the UCPR provides the mechanism for review of a cost assessor's work, including for review by the Court from which a particular costs assessment has its genesis.

(ee) In paragraph [32], in respect of his Court of Appeal costs assessment, he said that Mr Amos had exhausted his remedies for a costs assessment review as a result of orders made by consent by the Court of Appeal on 15 May 2009.

(ff) In paragraph [33], he said that Mr Amos then still had available a right of review by a Court as prescribed by rule 742 of the UCPR in respect of two District Court costs assessments performed by Mr Walter.

(gg) In paragraph [34], he said that Mr Amos was not one of the class of persons defined as a claimant in section 4(1)(a) to (f) of the SCT Act.

(hh) In paragraph [35], he said that the claim was not a small claim within the class of claims defined in that section.

(ii) In paragraph [36], he said that the SCT Act had no application to costs assessments or to his function as a costs assessor under the UCPR or to the costs assessment fees paid or payable to him arising from his work as a costs assessor.

(jj) In paragraph [37], he said that Mr Amos had wrongly filed his claim under the SCT Act in circumstances where not only were his rights concerning assessment of costs regulated by the UCPR but also where, in the case of two District Court costs assessments, Mr Amos' rights of review under the UCPR had not been exhausted by him.

(kk) In paragraph [38], that Mr Amos' claim had therefore to be dismissed for want of jurisdiction.

• [50] Of significance is the fact that submissions of Mr Jeffery of Counsel for Mr Amos, to which I will come next, did not rebut any of the facts referred to in paragraphs [1] to [21] of Mr Walter's submissions in his letter dated 10 June 2009.
• [51] Submissions are not pleadings. Pleadings are not required in terms of the QCAT Act because QCAT is not a court of pleading. However, I may nevertheless take into account that Mr Walter's assertions of fact referred to in paragraphs [1] to [21] of his submissions were not disputed.[4]
• [52] The email of Joelle Lenz, then Deputy Registrar of both the Supreme and District Courts of Queensland, dated 27 April 2009, attached to Mr Walter's submissions and referred to in paragraph [4] in his letter dated 10 June 2009, to which I may (and did) have regard, read as follows:

Yes, I can confirm that as far as the Registrar is concerned, you retained the status of costs assessor in the period after 10 December 2007 pending your formal approval as a costs assessor under the new Rule (743L).

The interim arrangements which permitted 'external' costs assessors to be appointed by the Courts were valid under Practice Direction 7 of 2007, which was issued in June 2007. This Practice Direction was repealed in December 2008.

• [53] I had no reason to doubt the accuracy of Ms Lenz' email to Mr Walter dated 27 April 2009 and, in the absence of any other documentary evidence, it is proof of what it contains and I must take notice of it.
• [54] No credible evidence to the contrary was filed by Mr Amos and his solicitors, Keller Nall & Brown, or referred to in the affidavits of Messrs Collinson, Keller, and Milani.
• [55] I accept Mr Walter's submissions regarding the rules of the UCPR pertaining to costs assessors and costs assessment processes. I also accept that Mr Walter was an appointed costs assessor throughout the period to which he refers.
• [56] Though it is not directly relevant to jurisdiction for reasons I will explain shortly, I accept Mr Walter's submission on the immunity of costs assessors under (then) section 93LA(1) of the Supreme Court of Queensland Act 1991 referred to in paragraph [23].
• [57] That section was however repealed but re-enacted identically in section 77 of the Civil Proceedings Act 2011 (Qld).
• [58] I accept Mr Walter's submissions in paragraphs [31], [32] and [33] of his letter dated 10 June 2009.
• [59] In supplementary submissions in a letter to the Tribunal dated 5 June 2020, Mr Walter said that he no longer had his original paper file due to the passing of time and said:

(a) At paragraph [5], that the definition of "minor civil dispute" in Schedule 3 of the QCAT Act "reinforces" his submissions.

(b) At paragraph [6], that the debt allegedly owing was plainly not a claim which is a minor civil dispute.

(c) At paragraph [7], that the alleged claim was, in any event, disputed for the reasons set out in his letter dated 10 June 2019 including that, as a costs assessor, he had immunity from suit.

(d) At paragraph [8], that Mr Amos had no entitlement to proceed with, or revive, his claim by reason of the Order made on 9 July 2009, his submissions in the letter dated 10 June 2009, the delay of 11 years since the dismissal order was made, the vexatious nature of the claim, and prejudice to Mr Walter should it continue.

(e) At paragraph [9], that the Tribunal ought exercise its "jurisdiction" under section 47 of the QCAT Act and dismiss or strike it out.

(f) At paragraph [10], alternatively that the Tribunal ought exercise its "jurisdiction" under section 48 of the QCAT Act with the same result.

(g) At paragraph [11], that the Tribunal ought properly make an order for costs of the proceeding in his favour in an amount fixed by the Tribunal.

(h) At paragraph [12], that he had no current address for Mr Amos; and

(i) At paragraph [13], that if the claim continued, he would be obliged to obtain independent representation on the High Court authority of Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, 4 September 2019.

• [60] I accept Mr Walter's submission in paragraph [6] of his letter dated 5 June 2020 for the reasons to which I will refer later.
• [61] Mr Walter's submission in paragraph [7] of his letter dated 5 June 2020 is not directly pertinent because immunity from suit does not go to the point of jurisdiction that I have decided; rather it would be an absolute defence where there is jurisdiction to entertain proceedings.
• [62] Mr Walter's submission in paragraph [8] of his letter dated 5 June 2020 is misconceived. The facts are that the SCT re-opened the proceeding in 2009 and the proceeding was still pending and current until I dismissed it for lack of jurisdiction.
• [63] I note for completeness that:

(a) the Senior Member's direction dated 25 May 2020 confined the tribunal and parties to the issue of whether Mr Amos' claim should be dismissed pursuant to section 47 of the QCAT Act.

(b) Thus, I could not traverse Mr Walter's submission that the claim should also be dismissed pursuant to section 48 of the QCAT Act (see paragraph [10] of his submissions in the letter dated 5 June 2020).

(c) Mr Walter's submissions in paragraphs [12] and [13] of that letter were irrelevant for present purposes.

(d) Lamentably,[5] insofar as the submission in paragraph [11] of Mr Walter's letter dated 5 June 2020 is relevant, no costs are recoverable by a successful Respondent such as Mr Walter in the minor civil dispute jurisdiction of this Tribunal.

(e) That is so regardless of whether an Applicant has abused the process of the tribunal, or acted frivolously or vexatiously, using up the tribunal's limited material and temporal resources and causing unnecessary inconvenience to a Respondent, for which there is no material deterrence in the QCAT Act and rules.

• [64] Though he did not have leave to represent Mr Amos, Mr PG Jeffery of Counsel for Mr Amos, by Mr Amos' solicitors who themselves did not have leave to represent him, filed footnoted submissions dated 8 June 2020 on 9 June 2020 with QCAT. My acceptance or rejection of them appears after each submission below.
• [65] In them, Mr Jeffery said:

(a) At paragraph [4], that the merits of the claim were not to be considered because the question posed by the Tribunal went to jurisdiction only.

I accept that whether, as a costs assessor, Mr Walter overcharged for his costs assessments and reasons was not a matter that could be adjudicated on the merits in considering and ruling on the objection to jurisdiction.

(b) At paragraph [5], that, when the claim was filed originally, the SCT operated from within the Magistrates Court system and had jurisdiction over claims of up to $7,500.00 between consumers and traders and between traders.[6]

(c) At paragraph [6], that claims to recover a debt or liquidated demand of money where the amount involved no more $7,500.00 could be dealt with by the Magistrates Court under the simplified procedure for Minor Debt Claims provided by the UCPR.[7]

(d) At paragraph [7], that, once QCAT was formed as from 1 December 2009, it took over both the jurisdiction of the Small Claims Tribunal and the Minor Debt Claims jurisdiction of the Magistrates Court.[8]

I accept that submission but refer to my analysis of the relevant statutory provisions of the SCT Act and the QCAT Act later in these reasons.

(e) At paragraph [8], that Mr Amos' claim, correctly characterised, was one for a refund or "in a more legal sense, restitution of certain monies paid to the Respondent for not more than the prescribed amount."

Correctly characterised, Mr Amos' claim was, for the reasons I will give later, an unliquidated demand of money for less than the prescribed amount for alleged overcharge/s by Mr Walter for his costs assessment services.

(f) At paragraph [9], that this Tribunal had jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the QCAT Act as a claim to recover a debt.

I reject that submission for the reasons to which I will refer later.

(g) At paragraph [10], that Mr Amos' claim, correctly characterised, was a liquidated demand of money within the meaning of s 12(4)(a) of the QCAT Act.[9]

I reject that submission for the reasons to which I will refer later.

(h) At paragraph [11], that the Tribunal ought not consider the merits of the claim to decide whether it falls within s 12(4)(a) of the QCAT Act but rather must consider the claim on its face for $2,462.50 as a refund as particularised.

I accept the submission that the Tribunal could not adjudicate the merits of the claim for refund of money but I reject the balance of the submission insofar as it implied that the Tribunal had jurisdiction to adjudicate the claim on its merits at a trial.

Neither the SCT nor QCAT had jurisdiction for the reasons I will refer to later.

(i) At paragraph [12], that, "to the extent that any procedural requirements had not been complied with, the Tribunal may waive compliance."[10]

This submission was vague and cryptic. It did not articulate what (if any) procedural requirements had not been complied with and, therefore, what compliance waiver was, or might be, sought by Mr Amos.

It therefore did not warrant further consideration.

(j) At paragraph [13], that, if the Tribunal did not accept that it had jurisdiction to hear and decide the matter as a minor civil dispute, it was nevertheless a consumer and trader dispute between the parties as such.

In principle, I accept that Mr Amos was at the relevant time a consumer but, for the reasons to which I will refer later, I reject the implication that Mr Walter was at the time (and is) a "trader."

It follows that I reject the submission that Mr Amos' claim is a minor civil dispute between a consumer and trader.

(k) At paragraph [14], that a contract for the provision of services comprehends a contract which calls for the doing of a positive physical act which can be appropriately categorised as services[11] and that, while a solicitor does not fall within the definition of "trader,"[12] the Respondent was not contracted to perform the role of a solicitor.

In principle, I accept that the activity of costs assessing is a service which may arise from a contract for the service and I accept that a solicitor is not a "trader' according to case precedent.

I accept that Mr Walter was not contracted to undertake costs assessments and provide reasons in his capacity as a solicitor.

Mr Walter's status and appointment as a costs assessor did however require that he be a solicitor of at least five years' standing and that is a relevant consideration to which I will return later.

(i) The Respondent was contracted to conduct a costs assessment which is not part of the "practice of law" (in the words of the Appeals Tribunal in Morales[13]) but something different.[14]

(ii) A person is eligible for appointment as a costs assessor only if the person is an Australian lawyer who has at least five years' experience in either or both the practice of law or the assessment of costs and is a fit and proper person to assess costs.

In principle, I accept that a costs assessor assessing costs is not practising law as such.

I accept the submission insofar as it refers to the eligibility prerequisites for appointment as such. Notably, that Mr Walter possessed those eligibility attributes was not in dispute.

(m) At paragraph [16], that it was "tolerably clear from the wording used by the legislature that the assessment of costs is separate to the practice (sic) of law."

I accept that the assessment of costs is an activity that is separate from the practise of law.

(n) At paragraph [17], that there was no authority on the precise point as to whether a costs assessor would fall within the definition of "trader" but, in view of the confined categories of persons who do not meet the definition of "trader,"[15] it was "highly arguable" that a costs assessor is a "trader" and that such a conclusion would be consistent with Walsh referred to in the footnote to paragraph [14].

I accept the submission that there is no authority on the precise point of whether a costs assessor is a "trader" but, for the reasons to which I will refer later, I do not accept that it is highly arguable that a costs assessor falls within the definition of a "trader."

(o) At paragraph [18], that Mr Walter was not, in any event, an approved costs assessor at the time he was appointed because:

(i) In Appeal CA 9984/06, the Court of Appeal ordered Mr Amos to pay the costs of the appeal;

(ii) The assessment of costs was governed by the Uniform Civil Procedure Amendment Rule (No. 4) 2007 which commenced on 10 December 2007;

(iii) By consent order made 4 February 2008, the parties to the appeal agreed that pursuant to rule 712 of the Uniform Civil Procedure Rules 1999 Mr Walter be appointed to assess the amount of the costs payable by Mr Amos;

(iv) Rule 679 of the Uniform Civil Procedure Rules 1999 defined "costs assessor" to mean, relevantly, a costs assessor appointed under Rule 743L; and

(v) As at the date of the consent order made 4 February 2008, Mr Walter was not a person appointed under Rule 743L.

Mr Walter was undoubtedly an appointed costs assessor who, by consent of the parties and a Court order, carried out the costs assessments quantifying Mr Amos' costs liability to Monsour. Mr Amos' claim against Mr Walter depended on those facts.

Whether or not Mr Walter was an approved costs assessor at the time that he was appointed to carry out the costs assessments was however irrelevant to the point of jurisdiction.

(p) At paragraph [19], that the Tribunal must not however decide that fact (one way or the other) in the absence of any evidence from either party, or without a trial and detailed argument, on the issue and, to the extent that any evidence on the issue may have been filed in the Small Claims Tribunal, such evidence is untested.

I repeat what I have said in respect of Mr Jeffery's submission in paragraph [18]. The issue was not whether Mr Walter was a costs assessor but rather whether he had overcharged for his costs assessments and for giving the reasons requested by Mr Amos for disallowing some of his objections to costs items claimed by Monsour.

(q) At paragraph [20], that the Tribunal had jurisdiction to hear and decide this matter as either:

I reject that submission for the reasons to which I will return later.

(r) At paragraph [21], that, in the event the Tribunal decided that a costs assessor does not fall within the definition of "trader," then "the Tribunal should nevertheless allow the claim to proceed to trial on the issue of whether Mr Walter was an approved costs assessor at the time (sic) that he was appointed (sic)".

I accept the implied admission that Mr Walter was an appointed costs assessor but otherwise reject that submission.

That Mr Walter was a costs assessor was not disputed. Whether he either was or was not an "approved" costs assessor was a red herring and, as I have said, was irrelevant to the point of jurisdiction. If a costs assessor, approved or not, was not a trader for purposes of jurisdiction then Mr Amos' Claim had to be dismissed for lack of jurisdiction.

• [66] At all material times until repeal of the SCT Act by the QCAT Act, the Magistrates Court of Queensland, not the SCT, was vested with minor debt claims jurisdiction and the SCT had limited statutory jurisdiction under the SCT Act in respect of claims up to $7,500[16] between consumers and traders[17] during its existence.
• [67] I summarise the following provisions of the SCT Act and, where convenient in the process of doing so, refer to counterparts of the QCAT Act which replaced it and are substantially similar in content or effect.
• [68] Section 4(1) of the SCT Act defined the following terms.

A claim for money, or relief from paying money, of a value not exceeding the prescribed amount, that arises out of a contract for the provision of service between persons who, in relation to those services, are a consumer or a trader on the one hand and a trader on the other.

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, and includes a person who is or was the landlord of any premises let to a tenant for the purposes of a dwelling and otherwise than for the purposes of assigning or subletting by the tenant or for the purposes of a trade or business carried on by the tenant.

• [69] Section 4(2) of the SCT Act however provided for an exception to the definition of "trader" for purposes of the SCT Act in the following terms:

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 (my emphasis) 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; or

(b) the person gives effect to the instructions of another who in providing those instructions acts in the exercise of a discipline that is not ordinarily regarded as being within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with those instructions.

• [70] The jurisdictional question in this case was whether the function of a costs assessor involves a discipline within the statutory exception contemplated in section 4(2) of the SCT Act.
• [71] The provisions of section 4(1) and (2) of the SCT Act are substantially, but not identically, replicated in the definition of "trader" in Schedule 3 of the QCAT Act to which I will return later.
• [72] Section 10(2) of the SCT Act provided that, if a settlement of a dispute was not reached, it was the function of the referee (a Magistrate) constituting a small claims tribunal to make such an order with respect to the dispute as was fair and equitable to all the parties concerning the dispute or, where the referee thought that the case required it, an order dismissing the claim.
• [73] The provisions of section 10(2) of the SCT Act are substantially, but not identically, replicated in section 13 of the QCAT Act to which I will return later.
• [74] Section 16(1)(a) of the SCT Act provided that a small claims tribunal had jurisdiction inter alia with respect to any claim that was a small claim (as defined).
• [75] The provisions of section 16(1)(a) of the SCT Act were substantially, but not identically, replicated in sections 10 and 11 of the QCAT Act to which I will return later.
• [76] Section 20(2)(f) of the SCT Act empowered the tribunal to make an order that a claim before it be struck out for want of jurisdiction.
• [77] Section 47(1) of the QCAT Act provides that it applies if the tribunal considers a proceeding or a part of a proceeding is:

• [78] In that event, in terms of section 47(2)(a) and (3) of the QCAT Act, the tribunal may, whether of its own motion or upon the application of a party, dismiss or strike out an applicant's claim.
• [79] Section 20(2) of the SCT Act is, in effect, replicated in section 47 of the QCAT Act in that a proceeding brought by an Applicant in respect of which QCAT has no jurisdiction is an abuse of process and vexatious and misconceived.
• [80] The power of QCAT to dismiss an application for lack of jurisdiction flows variously from both section 13 and section 47 of the QCAT Act, in my opinion.

(a) this Tribunal became the legal successor to the SCT; [18]

(d) all records of the SCT became QCAT records;[21]

(e) a reference to the former SCT is taken, if the context permits, to be a reference to QCAT;[22]

(f) QCAT became a party to the proceeding to which the SCT was formerly a party;[23]

(g) Mr Amos' Claim is taken to be a proceeding before QCAT;[24]

(h) Mr Amos' Claim continued as an existing proceeding[25] pending[26] before this Tribunal;

(i) QCAT has jurisdiction to deal with the matter the subject of the proceeding under the QCAT Act.[27]

• [82] Part 4 of Chapter 7 of the QCAT Act relates to conducting a proceeding from a former Tribunal and, by section 269(a), applies to an existing tribunal proceeding taken under part 2, division 3, to be a proceeding before QCAT.
• [83] In terms of section 271 of the QCAT Act in respect of the conduct of the proceeding generally:

(1) QCAT must deal with the matter the subject of the existing proceeding under this Act or an enabling Act.[28]

(2) However, in relation to the matter -

(a) QCAT has, and only has, the functions that the former entity (defined in section 270 as the former tribunal the proceeding was before immediately before the commencement) had in relation to the matter under the former Act;[29] and

(b) QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.[30]

• [84] In terms of section 275 of the QCAT Act:

(1) If a provision of this Act or an enabling Act is inconsistent with QCAT's ability to perform a function under a former Act in relation to the proceeding, for the purpose of performing the function to the fullest extent practicable QCAT may (my emphasis) disregard the inconsistent provision.[31]

(a) "Minor civil dispute" means (inter alia) a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or a claim between a consumer and trader that is for payment of money of a value of not more than the prescribed amount; or for relief from payment of money of a value not more than the prescribed amount.

(c) "Consumer" means inter alia an individual for whom services are supplied for fee or reward other than in a trade or business carried on by the individual or as a member of a business partnership.

(d) "Trader" means inter alia a person who in trade and commerce carries on the business of providing services or regularly holds out as ready to provide services of a similar nature but a person is not a trader if in providing the services:

(i) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or

(ii) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the services provided are in all respects in accordance with the instructions.

• [86] In terms of section 10(1) of the QCAT Act, the tribunal's original jurisdiction is -

(a) The jurisdiction conferred on the tribunal by section 11; and

(b) The jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance.

• [87] In terms of section 11 of the QCAT Act, the tribunal has jurisdiction to hear and decide a minor civil dispute.
• [88] In terms of section 12(1) of the QCAT Act, the tribunal may exercise jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
• [89] In terms of section 12(4) of the QCAT Act, relevant person means -

(a) For a claim to recover a debt or liquidated demand of money - a person to whom the debt is owed or money is payable; or

(b) Subject to paragraphs (c) to (f), for a claim arising out of a contract between a consumer and a trader - the consumer.

(b) the Magistrates Court in minor debt claims amongst other categories of claims with an increased monetary jurisdiction.

• [91] In terms of section 13(1) of the QCAT Act, in a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.
• [92] I have already summarised, and therefore do not repeat here, the relevant parts of section 47 of the QCAT Act in considering section 20(2)(f) of the SCT Act earlier.

• [93] Paragraphs [34] to [37] and particularly paragraphs [34] and [35] of Mr Walter's submissions in his letter dated 10 June 2009 summarised above, contain the gravamen of his objection to jurisdiction, viz that:

(a) Mr Amos was, and is, not one of the class of persons defined as a claimant in section 4(1)(a) to (f) of the SCT Act; and

(b) Mr Amos' claim was, and is, not a small claim contemplated by that section.

• [94] Either Mr Walter was and is, or was not and is not, a person falling within the exception of the definition of a "trader" referred to in section 4(2) of the SCT Act. As I said earlier, that was the pivotal issue which I had to decide.
• [95] Section 271(2)(b) of the QCAT Act, which I recited earlier, required that I make (and only make) a decision which the former SCT could make under the repealed SCT Act.
• [96] However, I would note for completeness that, as appears from my analysis of similar provisions in both the SCT Act and the QCAT Act, there is no material difference between the two Acts insofar as the power to dismiss a claim for lack of jurisdiction is concerned.

• [97] I find that a costs assessor is (and was) not a trader for purposes of the SCT Act and QCAT Act because a costs assessor acts in the exercise of a discipline that is not ordinarily regarded as being within the field of trade and commerce. Therefore, Mr Amos' claim was not a small claim or a minor civil dispute justiciable in the former SCT and in QCAT as its successor.
• [98] Neither, in substance, was Mr Amos' claim one for a minor debt or a liquidated demand of money such as to bring it within jurisdiction under the QCAT Act. It was not such a claim by a claimant against a trader in respect of a minor civil dispute justiciable in QCAT.
• [99] As Counsel for Mr Amos conceded in written submissions, there is no case precedent to support the conclusion that a costs assessor is either a trader as defined or not a person within the exception to the definition of a trader.
• [100] In addition to the disciplines falling within the exception to the definition of trader referred to by Counsel for Mr Amos, namely podiatrists, lawyers,[32] professional town planning consultants and valuers, QCAT case precedent establishes that the following other disciplines are not traders either:

(k) general accounting and financial management services;[43]

(l) parties to a franchise agreement;[44] and

(m) a council assessment manager for development approval applications.[45]

• [101] Costs Assessors in Queensland are, in my opinion, similarly, uniquely skilled specialists. Additionally, they have, by reason of their office, immunity from suit in terms of section 77 of the Civil Proceedings Act 2011 (Qld).[46]
• [102] A common jurisprudential thread through the plethora of the QCAT decisions to which I have referred is that an occupation involving a specialist discipline and some statutory regulation and oversight will almost always take the person trading as such outside of the statutory definition of a "trader" in applying the exception to the definition to which I have referred and, therefore, beyond the jurisdiction of this Tribunal and the former SCT.
• [103] The word "discipline" is not defined in the SCT Act and the QCAT Act, however according to grammatical meaning and common usage[47] it connotes the regulation of an activity by a set of rules and/or a code of behaviour where the activity itself requires specialist expertise.
• [104] A costs assessor, and the process of costs assessment, requires special expertise and is regulated by a comprehensive set of statutory rules in Chapter 17A of the UCPR, rules 678 to 743S.
• [105] The word "expert" connotes a person with a high level of knowledge or skill relating to a particular subject or activity.[48]
• [106] The threshold requirements for appointment of a costs assessor required (and require) a high level of specialist expertise and, in the present case, Mr Walter's qualifications and experience equipped him with that expertise.
• [107] In Graham v Legal Services Commissioner (No 2) [2014] QCA 306 at paragraphs [8] to [11] of his judgement, Fraser JA of the Queensland Court of Appeal provided a comprehensive summary of the costs assessment processes by reference to the UCPR. See also the analysis by Nase DCJ in at paragraphs [14] to [18].

• [112] There is, to the best of my knowledge and research, no enabling legislation which would, pursuant to section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), give QCAT, or did previously give the SCT, jurisdiction to review and re-assess:

(a) the quantum of items previously allowed or disallowed by a costs assessor in the course of a costs assessment, whether as between solicitor and own client pursuant to the provisions of the Legal Profession Act 2007 (Qld) or otherwise; and/or

(b) The quantum of a costs assessor's fees charged to the person liable to pay them for the costs assessment undertaken.

Not a Liquidated Demand of Money or Minor Debt Claim

• [113] Regardless of the application of section 271(2)(b) of the QCAT Act, I did consider whether Mr Amos might have a cause of action available to him for a minor debt or liquidated demand of money justiciable in QCAT (but not in the former SCT) if he had amended his claim in that regard.
• [114] I find that Mr Amos' claim could not feasibly be categorised as a minor debt claim or a claim for a liquidated demand of money within the jurisdiction of QCAT for the following reasons.
• [115] First, though the assessment of costs payable by one person to another, whether in terms of a Court order or otherwise, requires an assessor to have regard to the terms of a costs agreement (if any) for charging or a relevant Court scale of items for which charges for professional fees and outlays may be raised, the ascertainment of allowable costs claimed by a party involves the exercise of a discretion or opinion.[49]
• [116] In other words, costs do not assess themselves according to a Court scale of items or a formula. There would be no need for costs assessors if that were so.
• [117] Therefore, until completion of a costs assessment, the quantum of costs payable by one party to another cannot be characterised as a liquidated demand of money or a debt.[50]
• [118] Nor, for the same reason, could a claim for the review and reduction of fees charged by a costs assessor for a costs assessment be characterised as a liquidated demand of money or a debt. It is neither.
• [119] Mr Amos' claim merely alleged what, on a permissible review in the correct jurisdiction, might be the correct amount to be paid to Mr Walter on account of Mr Amos' costs liability to Monsour. The SCT was not the correct jurisdiction in which to commence the proceedings as Mr Amos did. Nor is QCAT, as successor to the SCT.
• [120] Only if, and when, a costs assessor's fees paid are reviewed, adjusted, and reduced by a court of competent jurisdiction, could the adjusted amount be categorised as a liquidated demand of money or a debt on account of an overpayment.
• [121] It follows that Mr Amos never had any cause of action justiciable in either the former SCT or in QCAT as its successor against Mr Walter. His claim therefore had to be dismissed for lack of jurisdiction, as it was.

• [122] Neither, for the reasons to which I referred earlier, had I jurisdiction to order payment of Mr Walter's costs.
• [123] Nor, as a self-representing solicitor and costs assessor, could Mr Walter profit by an order for costs against Mr Amos from his participation in the litigation to which he was a party.[51]

• [124] The decision, now amended pursuant to section 135(1)(b) and (2) of the QCAT Act, is, for the reasons to which I have referred, as follows.
  1. The Form 1 Claim filed on 22 May 2009 is dismissed for lack of jurisdiction because:

(a) It is not a claim for a debt or a liquidated demand of money; and

(b) The Respondent is and was not a trader as defined in Section 4(2) of the Small Claims Tribunals Act 1973 (Qld).

[1] A copy of the Certificate is filed in the present case.

1. [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 244, s 245, s 247, s 248, s 253, s 254, s 256, s 270, s 271, s 275 and see Schedule 1 and the definition of 'former Tribunal' as including [in 15] the former Small Claims Tribunal.

[3] See Commonwealth v Mewett (1997) 191 CLR 471 cited by Horneman-Wren SC DCJ in Pritchard v The Brisbane City Council and Anor [2020] QDC 189 at [19].

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b) and (c).

[5] As explained in paragraphs [148] to [153] of my decision in Fisher v Wenzel & Anor [2016] QCAT 456.

[6] Capital Options (Aust) Pty Limited v Bachelor [2013] QCAT 493, [40].

[9] Royce v Youi Pty Limited [2018] QCAT 5, [119] - [120].

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1)(c).

[11] Walsh (Referee of the Small Claims Tribunal) v Palladium Car Park Pty Ltd [1975] VicRp 91; (1975) VR 949.

[12] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87, [22].

[14] See the eligibility requirements for the appointment of costs assessors in the Uniform Civil Procedure Rules 1999 (Qld) in Chapter 17A, part 5, Rule 743J.

[15] See for example, McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126 (podiatrists); Davy v Ryter Planning Pty Ltd [2010] QCATA 96 (professional town planning consultants); Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 (valuers).

[16] Small Claims Tribunals Act 1973 (Qld), s 4(1) (definition of 'prescribed amount').

[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 248(1).

[19] Ibid, s 243.

[20] Ibid, s 247.

[21] Ibid, s 253.

[22] Ibid, s 254(1)(a).

[23] Ibid, s 251(1) and (2).

[24] Ibid, s 256(1) and (2).

[25] Ibid, s 244.

[27] Ibid, s 256(3).

[28] Ibid, s 271(1).

[29] Ibid, s 271(2)(a).

[30] Ibid, s 271(2)(b).

[31] Ibid, s 275(1).

[32] However, in the case of the provision of administrative services involving no specialist learning, compare Edwards v Edgar & Wood Solicitors [2018] QCATA 154.

[33] Holman v Deol [1979] 1 NSWLR 640.

[34] Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36.

[35] Safe and Sound Building Society v SRJ Audit Pty Ltd [2015] QCATA 109.

[36] Gall & Anor v Lakatoi Pty Ltd t/as Maritime Solutions Most Things Nautical [2014] QCAT 557.

[37] Butler v Corporate Consulting Services Pty Ltd [2012] QCAT 258.

[38] Blackwhite Pty Ltd v Ryall Smyth Architects Pty Ltd [2013] QCAT 142.

[39] Grommen v Hawes [2018] QCATA 49.

[40] Pike v Rockhampton Optical Pty Ltd [2011] QCATA 200, but not an optician manufacturing spectacles to prescription.

[41] Aquilar v Egnalig [2014] QCATA 219.

[42] Sizintseva v Benowa Mansions Periodontal Specialist Centre [2014] QCATA 249.

[43] Hi Dow Australia Pty Ltd v Shivlosh Australia Pty Ltd [2015] QCATA 155.

[44] S & M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd [2016] QCAT 446.

[45] Aronis v Brisbane City Council [2014] QCAT 287.

[46] Cf Graham v Legal Services Commissioner (No 2) [2014] QCA 306.

[47] See Definitions from Oxford Languages.

[48] Cambridge Dictionary and see also Expert-Wikipaedia.

[49] See Amos v Monsour P/L & Ors [2009] QCA 65, [8] - [11]; Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161, [36], [38]; see also Ziegeler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78 referring to Hill v Berghofer [2011] QCATA 34, [7].

[50] See Royce v Youi Pty Ltd [2018] QCAT 5 and the case examples of what are or are not liquidated demands of money referred to in paragraphs [126] and [127].

[51] See Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, [20].