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[2002] QCA 290
Court of Appeal (Qld)
2003-11-22
McPherson and Williams JJA and White J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Merrin & Anor v Cairns Port Authority [2002] QCA 290
PARTIES: ANNETTE ELIZABETH MERRIN / THOMAS WILLIAM MERRIN / (Plaintiffs/Appellants/Applicants) / v / CAIRNS PORT AUTHORITY / (Defendant/Respondent)
FILE NO/S: CA No 11540 of 1999 / DC 153 of 1997
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal - further order
ORIGINATING COURT: District Court at Cairns
DELIVERED ON: Judgment delivered on 15 May 2001 / Further Order delivered on 9 August 2002
DELIVERED AT: Brisbane
HEARING DATE: 23 and 24 April 2001; 24 July 2002
JUDGES: McPherson and Williams JJA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS: **1.**Declare that the action referred to in the order of this Court made on 15 May 2001, being action no 153 of 1997 in the District Court at Cairns, has not been concluded. / 2. That the respondent firm of Thompson & Royds submit the bill or costs statement, referred to in their letter dated 28 August 2001 to the applicants, to the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action. / **3.**That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority. / **4.**That save as in 3, the applicants’ costs of and incidental to this application be paid by the respondent firm Thompson & Royds. / **5.**The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid Queensland.
CATCHWORDS: PROCEDURE - COSTS - JURISDICTION - GENERAL - Repeal of Costs Act 1867 - whether Court has jurisdiction to order taxation of solicitor’s bill to client / PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - INCONCLUSIVE PROCEEDINGS - NEW TRIAL - whether costs of first trial ordered on appeal are owed before new trial concluded / Costs Act 1867 (Qld) / Legal Aid Queensland Act 1997 (Qld) s 31 / Queensland Law Society Act 1952 (Qld) s 6ZA(1)(b), s 6ZC(2) ,s 48J, s 48K(1)(a) / Trusts Act 1973 (Qld), s 102 / Uniform Civil Procedure Rules, r 702 / Ex p Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, discussed / Re Johnson & Weatherall (1888) 37 Ch D 433, followed / Storer & Co v Johnson & Weatherall (1890) 15 App Cas 203, mentioned / Woolf v Snipe (1933) 48 CLR 677, 678, applied
COUNSEL: The appellants appeared on their own behalf / K J McGhee for the respondent / W J Markwell for Thompson & Royds Lawyers by leave of the Court
SOLICITORS: The appellants appeared on their own behalf / MacDonnells Solicitors (Brisbane) for the respondent
McPHERSON JA: On 15 May 2001 the applicants Mr and Mrs Merrin (to whom I shall refer here as the plaintiffs) succeeded in their appeal against a directed verdict and judgment in the District Court at Cairns which dismissed their action no 153 of 1997 for damages against the defendant Cairns Port Authority. The Court of Appeal ordered: (1) that the appeal be allowed with costs; (2) that the verdict and judgment in favour of the defendant be set aside; (3) that there be a new trial of the action; and (4) that the defendant pay the plaintiffs’ costs of the first trial.
Consequent upon those orders, the plaintiffs’ party and party costs of the appeal, in which they had appeared before this Court in person, were assessed in the sum of $5,151.53. They were the costs the subject of the first of the orders made on 15 May 2001. They also applied for assessment of their party and party costs of the first trial, which were the costs the subject of the fourth of the orders made on the appeal. That assessment was set down for hearing before Mr Registrar Bingham at the Cairns District Court on 15 November 2001. In the meantime, solicitors acting for the defendant Port Authority made a written offer to settle those costs for the sum of $44,727.00. The offer was dated 8 November 2001 and was transmitted by facsimile to the plaintiffs at their home address at Torquay. On 13 November 2001 Mr Karydas of defendant’s solicitors was approached by the plaintiffs at the Cairns Court House. The male plaintiff Mr Merrin handed him a letter dated 12 November 2001. It was signed by both plaintiffs and stated that they accepted the amount of $44,727.00 offered in settlement of their costs “and will accept this amount payable immediately”.
After reading the letter, Mr Karydas asked Mr Merrin what was meant by payable immediately, to which Mr Merrin replied “By 5 o’clock today”. Mr Karydas then said it was not possible to get a cheque from the Authority as quickly as that, and, in any event, it was his intention to pay the money into court. Mr Merrin having objected to that course, Mr Karydas said that his client the Port Authority was “on notice of Royds’ claim to that money and wants to protect itself”. At this Mr Merrin became agitated and said that the Court of Appeal had ordered that the costs be paid “to the plaintiff” emphasising the words quoted.
I interpose here to say that the Royds referred to is Mr William Royds, who is the principal of the firm Thompson & Royds, solicitors, who had been acting for the Merrins as plaintiffs in the trial, or part of it, culminating in the appeal at which the orders for costs had been made on 15 May 2001. He had on 25 May 2001 given to solicitors for the Port Authority a letter claiming an equitable interest in the trial costs the subject of the order made on appeal on 15 May 2001.
According to the affidavit of Mr Karydas, he and the plaintiffs then went to the office of the Registrar, who was waiting to conduct the costs assessment. In the presence of the plaintiffs, Mr Karydas told the Registrar that, although the amount of the plaintiffs’ costs had been agreed, the parties were not in agreement about how that amount should be paid. He also explained that his clients were intending to pay the amount into court to avoid becoming involved in a dispute between the plaintiffs and Mr Royds, whereas the plaintiffs wished to have the amount paid to them personally. Mr Merrin confirmed that this was the attitude of the plaintiffs.
“HIS HONOUR: Listen to my question. If there is no dispute … if there were no dispute between you and Mr Royds, would you accept the offer made by the Cairns Ports Authority?
RESPONDENT MERRIN: I’ve accepted the offer yesterday.
HIS HONOUR: All right.”
At the conclusion of the hearing, his Honour made orders as follows: (1) that the amount of the offer made by Cairns Port Authority to settle the trial costs, namely $44,727, be paid into Court in a separate account in no 119 of 2001; (2) that the taxation of the trial costs be adjourned to a date to be fixed; (3) that payment by Cairns Port Authority of the costs of the appeal, namely $5,151.53, and the receipt of the plaintiffs for that payment, will discharge Cairns Port Authority in respect of that set of costs.
There is no longer any dispute about the item in the third of these orders of Jones J. The sum of $5,151.53 represents the amount of the assessed costs of the appeal resulting from the first of the orders of the Court of Appeal made on 15 May 2001. It may be assumed that those costs have now been paid by the Port Authority in accordance with his Honour’s order. The plaintiffs’ application that is presently before this court seeks a number of orders of which the first is for “clarification and further directions” with respect to orders 2 and 4 made by the Court of Appeal on 15 May 2001. Before this Court, no question has been raised about the second of the orders made on 15 May 2001. Nor could there be: it simply set aside the verdict and judgment given at the trial, and so was self-executing. As regards the fourth order, which was that the defendant pay the plaintiffs’ costs of the first trial, there is no occasion for clarification of the order as such: it is simply a matter of determining what are the costs “of” the first trial and of quantifying them. It was that function that the Registrar was preparing to undertake when he was advised of the dispute between the parties about the alleged agreement, which he referred to Jones J on 13 November 2001.
His Honour’s order on the following day does not expressly say so, but it appears implicit in its terms and in the transcript of the proceedings before him that he accepted that the parties had agreed to settle the amount of the trial costs at $44,427. It was this sum that his Honour then ordered to be paid into court in no 119 of 2001. It is unlikely he would have made the order for payment into court of that amount, or that he would have ordered the proceedings for taxation of those costs to be adjourned rather than remitted to the Registrar, had he not been satisfied that the amount of those costs had been settled by the parties at that figure. He had before him an unqualified statement in writing signed by the plaintiffs saying that they accepted the defendant Port Authority's offer to settle the trial costs for $44,427. In addition, when asked by his Honour at the hearing whether, if it were not for the dispute with Mr Royds, the plaintiffs would accept the offer made by the Port Authority, Mr Merrin said he had accepted the offer on the previous day. There has been no appeal to this Court against the orders made by Jones J, and the time for appealing against them has now long since expired.
Underlying the application now before this Court is the plaintiffs’ impression that on 15 May 2000 the defendant was ordered to pay the costs of the abortive trial to the plaintiffs and that it has failed to do so. In fact, the order of the Court of Appeal was that the defendant Port Authority pay the plaintiffs’ costs, not that they be paid to the plaintiffs. In any event, however, even if the order had been expressed in the form supposed by the plaintiffs, it would have made no difference. Orders for costs, or the fund to which they give rise, are always subject to any valid prior claims against them having precedence over the right of the party in whose favour the costs order has been made. One such form of prior claim is that of the party’s solicitor who asserts that his professional services have generated those costs. He or she has an equitable interest (sometimes but inaccurately called a lien) in or right to be paid professional costs out of the money that will come to the client by way of costs. In (1940) 40 SR (NSW) 96, 100, Sir Frederick Jordan explained the principle as follows:
“A solicitor has no lien for his costs over any property which has not come into his possession. If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or award or compromise for the payment of money, although the solicitor acquires no common law title to his client’s right to receive the money or to any part of that right, he acquires a right to have his costs paid out of the money, which is analogous to the right which would be created by an equitable assignment of a corresponding part of the money by the client to the solicitor. That is to say, the solicitor has an equitable right to be paid his costs out of the money; and if he gives notice of his right to the person who is liable to pay it, only the solicitor and not the client can give a good discharge to that person for an amount of the money equivalent to the solicitor’s costs: Welsh v Hole 1 Doug 238. If the person liable to pay refused, after notice, to pay the costs of the solicitor, the solicitor may obtain a rule of Court directing that the amount of his costs be paid to him and not to the client; and payment by the judgment debtor to the client after notice of the solicitor’s claim is no answer to an application for such a rule.”
In reliance on this principle Mr Royds gave notice to the plaintiffs of his claim on 25 May 2001, and on 19 September 2001 he applied for and obtained from Noud DCJ a declaration that, as solicitor for the plaintiffs, he had an equitable right and interest in the costs ordered to be paid by the defendant Port Authority “to the extent that the applicant [Royds] is lawfully entitled to be paid money by the respondent [Merrin] for the work done and the outlays incurred by the applicant as the respondent’s solicitor in respect of the trial” that was referred to in the order of the Court of Appeal. Mr Royds having notified the Port Authority or its solicitor of his interest, they paid the agreed amount of costs into court under the order made by Jones J on 14 November 2001. The provisions of O 75, r 5 of the Rules of the Supreme Court of 1900 have not been repeated in the new Uniform Civil Procedure Rules now in force; but s 102 of The Trusts Act 1973 provides statutory authority for the order that was made by his Honour. The Port Authority claimed no interest in the sum of $44,727.00 and his Honour’s order directing that it be paid into Court has not been appealed against within the time allowed or at all. Nor has the declaration made by Noud DCJ been the subject of appeal. The plaintiffs’ complaint is that, while the money remains in court, they do not have the means of bringing their action on for trial again, which the Port Authority is pressing them to do.
Instead of appealing against either or both of those orders, the plaintiffs sought to make the order of Jones J the subject of judicial review before Fryberg J sitting in the Supreme Court at Maryborough on 13 February 2002. The application was, however, doomed to failure and it was dismissed with costs. A Supreme Court Judge sitting alone has no power to review an order made by a Judge of co-ordinate jurisdiction, nor to entertain an appeal from him or her. The plaintiffs’ concerns have been excited by some remarks of his Honour in the course of giving his judgment that suggest that the procedure by which the matter was brought before Jones J was not warranted. Mr Registrar Bingham issued an originating application in his own name. No doubt Fryberg J was correct in saying that instead he should, under UCP Rule 702, simply have referred the issue which arose in the course of the costs assessment to Jones J. Issuing an application may have been intended as a means of informing other parties, notably Mr Royds, of the nature and the timing of the question that was being referred to the Judge. Other methods of doing so could have been devised; but the fact that an application was used for that purpose did not detract from the jurisdiction of Jones J to make the order that he did and, as has been already said, there has not been any appeal against his Honour’s order for payment into Court of the sum of $44,427.00.
The declaration made by Noud DCJ was not unqualified. It was that Mr Royds had an equitable right in the costs sum, but only to the extent that he was lawfully entitled to be paid money by the plaintiffs for work done and outlays incurred by him as their solicitor in what had proved to be the abortive trial. It is that element that is now the bone of contention between the Merrins and Mr Royds. Mrs Merrin, who for the most part has a sound grasp of most of the issues involved, addressed us on a number of matters that she claimed went to show that Mr Royds is not entitled to the amount he claims is due to him for outlays and professional services at the trial. Among those matters is the fact that Mr Royds did not attend the trial on various dates for which he claims to charge fees, but on which the plaintiffs say only Mr Wrenn of counsel was in fact present on their behalf. That was an issue that the Registrar was preparing to investigate when the taxation proceedings before him were interrupted by the reference to Jones J. There is also a dispute about whether and at what date Mr Royds’s instructions were terminated.
“that if I succeed in this action … I am to repay to the Public Trust Office, through the Legal Aid Office, all sums of money advanced on my behalf, and to pay all other proper professional costs and outlays incurred on my behalf in this action by my solicitor according to the appropriate scale of fees including proper counsel’s fees, as though I had been a private client and had not been assisted under this Legal Aid Scheme.”
Clause 12 acknowledges that, should the action be unsuccessful, the client will not be liable to pay to the solicitor, nor to refund to the Legal Aid Office, any costs or professional fees incurred on the client’s behalf in relation to the action. In addition, there are some attached guidelines in which, among other things, the statement is repeated that if the action is successful, a professional fee will be paid; but if unsuccessful, no professional fee will be paid to solicitor or counsel, except as set out in section 2. Section 2 contains a provision requiring: (a) the solicitor to undertake to accept instructions on the basis that his professional fees are not sought or paid until the matter is “successfully concluded”, save for some amounts that are specified; and (b) to obtain counsel’s agreement to await a successful finalisation of the matter for payment of his fees.
It is difficult to reconcile the client agreement dated 13 July 1999 with some of these provisions of the subsequent Acknowledgment except on the basis that the provisions of the Acknowledgment are intended to prevail. One thing at least is clear, and may safely be stated by way of “clarification” of the order of this Court made on 15 May 2000. It is that, contrary to the submission of Mr Markwell for Thompson & Royds, action no 153 of 1997 brought by Mr and Mrs Merrin as plaintiffs against the defendant Port Authority has not yet been concluded either successfully or otherwise. The third of the orders made by the Court on 15 May 2001 directed that there be a new trial of the action. It has not yet taken place. The action therefore stands now as if a trial of the action had not yet begun at all. The provisions of cl 6 of the client agreement and of the undertaking required in section 2 of the guidelines attached to the Acknowledgement, thus appear to present an obstacle at this stage to the recovery by Thompson & Royds of their claim to be paid professional fees for work done at or before the trial. It is neither necessary nor desirable at present to say more about it than this because, if that claim is pursued, the magistrates court, or possibly some other court or tribunal, may in due course be asked to rule on the meaning or effect of these provisions of the agreement, and of the Acknowledgment and the guidelines, or all of them. It would be wrong for this Court to rule on that question when it is not now before us. The most we should say by way of “clarification” or interpretation of the order made on 31 May 2001 is that the action by the plaintiffs against the Port Authority has not yet been concluded but is still awaiting trial.
What should perhaps be added is that, irrespective of what the parties to the action may have agreed, s 31(2) of the Legal Aid Queensland Act 1997 provides that Legal Aid “is subrogated to the rights and remedies the legally assisted person has against the party against whom the costs order is made”. By s 31(1), that section applies if, in a court proceeding, the court makes an order for costs in favour of a legally assisted person. Such an order was made by the Court of Appeal on 15 May 2001. In this instance, it does not matter for the purposes of s 31 that the action or proceeding has not been concluded whether successfully or not. As a statutory provision, s 31 overrides any agreement that might be in conflict with it. Legal Aid is by s 31(2) of the Act therefore subrogated to the rights and remedies of the plaintiffs against the Port Authority against which the costs order was made on 15 May 2001.
The word subrogated in this context means substituted for. That seems to me to raise a possible question whether the agreement made by the Port Authority with the plaintiffs on 13 or 14 November 2001 settling the amount of the party and party costs of the trial at $44,727.00 may, given the absence of participation by or approval from Legal Aid, have been beyond the power of those parties. So far, however, Legal Aid has neither ratified nor repudiated the costs agreement that was made on that date, and it may never do so. As yet, all it has done is to forward a letter to Mr Merrin dated 23 November 2001 requiring a refund of a sum of $14,989 representing the total of the payments in the form of outlays made by the Legal Aid Scheme on the plaintiffs’ behalf, and advising that this sum is to be paid by their solicitor to Legal Aid Queensland “prior to the distribution of any monies to you”. As appears from the first sentence of the letter, it was, however, written under the misapprehension gained from advice apparently provided by Thompson & Royds that the plaintiffs’ claim “has now finalised”. For reasons I have given that is not so.
“a jurisdiction to ascertain, by taxation, moderation, or fixation, the costs charges, and disbursements claimed by an attorney or solicitor from his client, and that jurisdiction is derived from three sources and falls under three corresponding heads”.
His Honour then discusses those sources, of which the first is the general jurisdiction over solicitors considered as officers of the Court. He concludes by saying that after the Judicature Act the existence of the Court’s general jurisdiction was “completely established” by Re Johnson & Weatherall (1888) 37 Ch D 433, affirmed in Storer & Co v Johnson & Weatherall (1890) 15 App Cas 203. It concerned an application for taxation of part of a bill, which, it had been held, fell outside the power to order taxation under the Costs Act 1867 or its English equivalent; but in respect of which it was nevertheless open to the Court to exercise its general power or jurisdiction over the costs of solicitors, enabling the Court, as Dixon J has said, to regulate “the charges made for work done by attorneys and solicitors of the Court in that capacity, and to prevent exorbitant demands”: Woolf v Snipes (1933) 48 CLR 677, 678.
The repeal of the Costs Act 1867 has not removed that general jurisdiction of the Supreme Court to order taxation of the bill or account of a solicitor for professional fees or services and disbursements rendered to a client. I consider that this jurisdiction should be exercised here to require Thompson & Royds to submit their bill of costs, charges and disbursements, referred to as a Costs Statement in the letter dated 28 August 2001 from that firm to the plaintiffs, for taxation, moderation or fixation by the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane. Having regard to what was said by Dixon J in Woolf v Snipe (1933) 48 CLR 677, 681, 682, it may be that the Registrar’s certificate may not, either at all or in view of the provisions of the client agreement and the Legal Aid Acknowledgment and accompanying guidelines, operate as a judgment for the amount certified; but it is desirable that the amount properly claimable in that respect by Thompson & Royds should now be quantified even if it may not be immediately recoverable. In performing this function the Senior Deputy Registrar (Assessments) will act as a delegate of this Court to whom, or to any of the members of the Court, he may refer questions arising in the course of the taxation or relating to his certificate.
As to the costs of this application, I consider that the applicants should be ordered to pay the costs of and incidental to this application of the respondent Cairns Port Authority. The Port Authority was made a respondent to the application and it has successfully resisted the relief sought against it in the application. As to the remaining costs of the application, I consider that the firm of Thompson & Royds should be ordered to pay the applicants’ costs of and incidental to this application. I reach this conclusion because: (a) that firm sought and was granted leave to appear on the application; (b) it was their submission at the hearing that the District Court action had been concluded; (c) the applicants have succeeded in their application for an order that the firm’s bill of costs or costs statement be submitted for taxation by the Taxing Officer in the Court Registry at Brisbane.
The orders on this application will be as follows:
1.Declare that the action referred to in the order of this Court made on 15 May 2001, being action no 153 of 1997 in the District Court at Cairns, has not been concluded.
2.That the respondent firm of Thompson & Royds submit the bill or costs statement, referred to in their letter dated 28 August 2001 to the applicants, to the Senior Deputy Registrar (Assessments) of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action.
3.That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority.
4.That save as in 3, the applicants’ costs of and incidental to this application be paid by the respondent firm Thompson & Royds.
The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid Queensland.
WILLIAMS JA: The relevant facts are, or perhaps one should more correctly say the sorry tale is, set out in the reasons for judgment of McPherson JA. The contest between Mr and Mrs Merrin on the one hand and the Cairns Port Authority on the other is not yet over; as ordered by this court on 15 May 2001 there has to be a retrial of that proceeding in the District Court. The issues raised by the application now before this court are seen by Mr and Mrs Merrin as a battle with the legal system. Whilst the issues have become more confused and complicated than they should have been because of the unfamiliarity of Mr and Mrs Merrin with the legal system, and because of their mistrust now of lawyers, nevertheless the ultimate matter in dispute can be clearly identified. McPherson JA in his reasons has defined the issue which presently arises for determination by this court and there is nothing I wish to add to that.
The Supreme Court of Queensland has jurisdiction over solicitors, as officers of the court, and also has jurisdiction over the officers appointed to assist it in carrying out its functions, and that includes Registrars and Deputy Registrars. As pointed out by Dixon J in Woolf v Snipe (1933) 48 CLR at 678 – the passage quoted by McPherson JA – this court has jurisdiction to control, moderate and fix costs and charges claimed by solicitors for performing court work. The court has general jurisdiction to give such directions to its officers, including Deputy Registrars, as are necessary to perform that task.
Because other procedures are in place, and are more regularly resorted to, to resolve such issues it is only in unusual situations that the court would be called upon to exercise the general jurisdiction referred to. This is, however, such a case.
Given all of the circumstances outlined in the reasons for judgment of McPherson JA I agree that this court should take the somewhat unusual course of making the second order proposed by McPherson JA.
I agree with all that has been said by McPherson JA and with all of the orders he proposes.
WHITE J: I have read the reasons of McPherson JA and agree with them and the orders which his Honour proposes.
I also agree with the observations of Williams JA. There is nothing more which I can usefully add in respect of this troubling case.
Merrin & Anor
Cairns Port Authority [2002] QCA 290
(1933) 48 CLR 677
When it became apparent that the parties were not at one, the Registrar said he proposed to refer the issue to Justice Jones in the Supreme Court. In this, in my respectful opinion, he adopted the correct course. His duty was to assess the costs in order to arrive at the total amount due under the order of the Court of Appeal made on 15 May 2001 for payment of the plaintiffs’ costs of the trial. When it became evident there was a dispute about whether the amount of costs or the method of payment had been agreed, it was not his function to decide whether or not an agreement had been made. It was an issue for the Judge to determine.
The question came before Jones J on 13 November 2001, but was adjourned at the plaintiffs’ request to the following day. On 14 November 2001, there was a hearing at which Mr Merrin spoke on behalf of the plaintiffs. In the course of it, the official transcript records his Honour as saying:
Until these allegations are properly proved, we can give no evidentiary weight to what Mrs Merrin has told us; they are simply unverified statements from the Bar table to which Mr Royds has had no opportunity to respond. It should, however, be said that there seems to have been some kind of error in the bill of costs rendered by Thompson & Royds in respect of the successful appeal to this Court in 2001. It included a large outlay claimed on account of counsel’s fees on appeal, whereas the fact is, as Williams JA and I are aware from having sat on the appeal, that the plaintiffs appeared before the Court and argued the appeal in person without the assistance of counsel. Another reason for our not making any further comment on the plaintiffs’ assertions is that there was also said to be a dispute about whether Mr Royds has rendered to the plaintiffs a bill of costs or account for his solicitor and client costs. A copy of a letter dated 28 August 2001 exhibited to an affidavit of Mr Royds, refers to the enclosure of an amended bill or account of his solicitors and client fees and disbursements. The bill itself or a copy of it is, however, not before us.
Mr Markwell of counsel, who was given leave to appear for the firm of Thompson & Royds on the hearing of this application, informed us that his client has instituted proceedings in the magistrates court at Cairns against Mr and Mrs Merrins pursuant to s 48J of the Queensland Law Society Act 1952 to recover the amount he claims is due to him for professional services and outlays in the action. It would, as I said in the course of the hearing, be prudent for Mr Royds not to pursue that claim until a number of questions are first resolved. Among them are that the plaintiffs originally entered into a client agreement dated 13 July 1999 for the conduct of the action. The agreement contains a series of provisions, including in cl 6 a term that the solicitors will not seek to recover their professional fees “until the conclusion of this matter or until their discharge from acting in this matter”. Clause 7 provides that, in the event that the solicitor is discharged, the client agrees to pay the solicitor their solicitor and own client costs. There is a further provision in cl 9 that the client will provide funds to pay outlays and out of pocket expenses. Clause 11 provides that, if the client rescinds his instructions, the client agrees to pay the solicitors their fees at the rate agreed “being double the amount assessable by taxation on a solicitor and own client basis … These fees owing will not be dependent upon the success of the matter, but shall become immediately payable”. My present impression is that a provision in that form is penal in effect and consequently unenforceable. The relationship between Mr and Mrs Merrin and Mr Royds has, in any event, been dogged by assertions that, on one or more occasions, the plaintiffs instructions have, whether justifiably or not, been terminated. It is impossible on the material now before the Court to resolve these issues, which in any event are not properly before us for determination.
That is, however, not the end of the problems besetting this unfortunate matter. The plaintiffs in their action against the Port Authority were, and presumably still are, legally aided. We were provided by the plaintiffs with a copy of an Acknowledgement dated 17 November 1999 signed by them under the Civil Law Legal Aid Scheme. In addition to other provisions of more or less relevance, cl 5 contains an acknowledgment:
What is clear is that the whole matter is rapidly getting out of hand. Additional costs are being run up in quite unnecessary and largely futile applications that, directly or indirectly, threaten to erode the fund of costs that were ordered to be paid on account of the abortive trial and would or might otherwise be available to the plaintiffs for use in conducting the new trial. No one involved appears to have adverted to s 31 of the Legal Aid Queensland Act 1997 or its potential implications. The money paid by the Port Authority is now in Court, where it will presumably remain at least until the differences between the plaintiffs and Thompson & Royds are resolved by agreement or otherwise determined. Logically, the first step is to ensure that the solicitor’s bill or statement of fees and costs that has been, or perhaps is yet to be submitted, by Mr Royds to the plaintiffs undergoes taxation, assessment or quantification. For the reasons already given, the right of Thompson & Royds to recover their fees may in any event be suspended until the action is concluded. That, however, would not operate to prevent the appointment of a costs assessor under Division 6A of the Queensland Law Society Act 1952 to perform the function of assessing those costs. Mr Royds has approached the plaintiffs with a view to adopting that course, but has been met with their refusal.
The reasons given for the plaintiffs’ refusal to adopt that course are difficult to justify. In their submissions before us, the plaintiffs informed the Court that they have now made a complaint to the Complaints Tribunal of the Law Society about the conduct of Mr Royds as their solicitor. Having done so, they consider that the Tribunal is not in a position to appoint a costs assessor under Division 6A of the Act. As to that, it is appropriate to say that any disciplinary proceedings that the Complaints Tribunal of the Society might resolve to take against Mr Royds are quite separate from the appointment by that Tribunal of a costs assessor under Division 6A. The two functions are completely distinct, and it would be quite wrong to assume that the Tribunal would appoint a costs assessor who, in terms of s 6ZC(2) of the Act, has any actual or apparent interest in the outcome of assessing the solicitor's costs in the matter between Mr Royds and the plaintiffs. It can with confidence be said that the fact that the plaintiffs have made a complaint about him to the Tribunal would not affect the decision of the assessor in any way. In making the appointment of an assessor the Tribunal may be relied on to appoint an assessor who is completely impartial between the clients and the solicitor.
The plaintiffs have, however, made it clear that they are not prepared to apply under s 6ZA(1)(b) of the Act to the Tribunal for the appointment of an assessor under Division 6A, and we have not been referred to any provision under which they can be compelled to do so. The whole matter is plainly one in which some strong feelings have been aroused by the course that the proceedings have already taken, and which in some respects reflects no particular credit on some of those involved. It is desirable that every effort should be made to ensure that the plaintiffs are, as far as possible, given the opportunity of having their claims in the action determined according to law by the tribunal which they have chosen, which is a civil jury. It would be unfortunate if the trial were further delayed or obstructed by wrangles over issues relating to the costs of the first trial, which have been paid by the defendant. What the plaintiffs now seek in para 3 of their application to this Court is an order that “a full costs assessment of the first trial be held on a date to be fixed and that this assessment is held in the Brisbane Courts Registry”.
The question is whether this Court has power to make such an order. The procedure for taxing costs between solicitor and client in Queensland was formerly regulated by the Costs Act 1867, which has now been repealed and replaced by the provisions in Division 6A of the Queensland Law Society Act 1952, which contemplates an assessment by a costs assessor. Section 48K(1)(a) provides that the court may itself appoint a tribunal costs assessor “or another person” to assess a solicitor’s account or bill; but the court in that context refers to the court in a proceeding by a practitioner to recover fees or costs, which is not this Court. On the other hand, a superior court like the Supreme Court, of which the Court of Appeal is part, has always, as Dixon J said possessed: