Plaintiffs v Defendant

Supreme Court of Victoria|2009-03-20|Before: BYRNE J

LEGAL PRACTITIONERS - retainer to act in litigious matter - conditional costs agreement - uplifted fee - fee payable upon successful outcome of the matter - retainer determined before completion of matter - client later settled matter - whether successful outcome -whether solicitors entitled to render account - whether client in breach of costs agreement - whether solicitors entitled to uplifted fee - whether costs agreement void for contravention of Legal Practice Act 1996 ss 96, 97 - whether solicitors entitled to fees pursuant to s 93(b).

2 Mr Burmingham was aggrieved by this and in April 1997 he sought the assistance of the secondnamed plaintiff, a firm of solicitors carrying on practice in partnership under the registered business name, Maurice Blackburn Cashman ("MBC"), to press his entitlement to continuing payments. Its efforts were unsuccessful and he decided, in accordance with its advice, to sue AXA, which he did in proceeding No 7142 of 2000 in this Court on 11 October 2000.

3 Since Mr Burmingham lacked the resources to pursue the AXA claim, on 1 June 1997, he entered into a costs agreement with MBC for it to press and, if possible, negotiate a resolution of the claim. And later, in September 2000, when these negotiations came to nothing and he decided to sue, Mr Burmingham entered into a second costs agreement[1] with MBC whereby it agreed to fund the litigation on certain terms and, for this, to receive, in addition to its scale professional costs and disbursements, an uplift fee of 25% upon successful completion of the litigation. MBC ceased to act for Mr Burmingham in mid-2003 before the litigation was completed and he later achieved a settlement of the AXA claim without its further involvement.

4 Meantime, MBC had decided to incorporate the practice and, for this purpose, the firstnamed plaintiff, Maurice Blackburn Cashman Pty Ltd ("MBCPL") was registered on 24 July 2003. By an undated rollover agreement the assets of MBC were on or about 25 August 2003 transferred to MBCPL. These assets are said to have included the chose in action comprised by the debt owed by Mr Burmingham to MBC which is the subject of this litigation.

5 In this proceeding, commenced on 21 December 2004, MBCPL alone sought to recover from their former client $137,907.17 for their professional costs and disbursements, plus the $34,476.79 uplift fee. The firm was added as a party very late, on day 15 of the trial.

6 Mr Burmingham has represented himself in defending the claim. This has led to great difficulties in the litigation. Fundamental to this is his defence which occupies no less than 94 pages. The document ranges over a vast number of matters, but the allegations, for the most part, are of great generality and most of them do not lead to a conclusion which refutes or diminishes the plaintiffs' claim. When, at the outset of the trial, I enquired of counsel for the plaintiffs for some analysis of the issues raised, he told me that, after the fourth page, his eyes had glazed over. Unfortunately, I do not have the luxury of dealing with the document or Mr Burmingham's claim in this way. I have attempted to make some legal and logical sense of the allegations notwithstanding that they do not themselves appear to have that characteristic.

7 Similar difficulties beset the trial. As will be seen, the case of the plaintiffs was fairly straightforward, even if it was not free of difficulty. Mr Burmingham cross-examined their principal witness at extraordinary length with no real focus on the real issues in the case. When pressed as to this, Mr Burmingham often said that he was not sure where the line of questions was leading. Towards the end of the second day of this cross-examination, I directed that I would stop it at the end of day six of the trial, and that no further questions would be permitted unless Mr Burmingham could persuade me that there was some point to them. As the trial proceeded towards its tenth day, I imposed similar restrictions on the cross-examination of Mr Burmingham and upon final addresses.

8 A further difficulty was occasioned by Mr Burmingham's ill health. He complained that he suffered from fibromyalgia, chronic fatigue syndrome, headaches and an inability to concentrate for other than short periods. These symptoms appeared when he was under stress. On no less than six occasions the trial date had to be abandoned or the trial adjourned because he was physically unable to apply himself to the preparation for the trial or to bear the stresses of the trial itself. On one of these occasions in March 2008, the trial was adjourned in the course of counsel's opening because Mr Burmingham appeared to be in pain, confused and incoherent of speech. It was suggested that these symptoms were exaggerated and perhaps even feigned. Nevertheless, in the light of my observations of him and having regard to the reports from his Queensland general practitioner, I was concerned that he might not be able to bear the burden of presenting his case. He was many times encouraged to obtain legal representation and on at least one occasion he appeared to have done so. But nothing ever came of it. My concern was such that I directed that he not be at liberty to act as advocate at the trial unless he produced a medical certificate as to his fitness to do so. Happily, he was able to proceed when the trial resumed on 17 November and he conducted his case for seven days. At this point, he appeared to me to be unable to continue when he once again complained of headaches and became incoherent. After a substantial break, I resumed the trial, but sitting only every second day to give him time to rest. There was a further interruption in February 2009 during final addresses.

9 All of this had the consequence that the trial has taken much longer than it ought given the essential issues in this case.

10 Before I leave the trial I make mention of the state of the Court Book. The plaintiffs made discovery of their file in the AXA litigation. This file which comprised some 7500 pages, was arranged in a way which was doubtless convenient for the purpose of their conduct of the litigation. Documents such as court documents, medical reports and those relating to the particular issues were kept together. Furthermore, the general correspondence file comprising some 4000 pages, which contained all manner of correspondence and handwritten notes of attendances with the client, with counsel, with witnesses and with the AXA solicitors, was arranged in reverse chronological order.

11 For the purpose of the trial, this file was reproduced and was included in the Court Book. Then at the beginning of the trial counsel for the plaintiffs tendered the whole file as Exhibit 1. This meant that the Court was confronted with some 7,000 pages of documents which were not in chronological order and otherwise not in a form which rendered them accessible. Many of the pages were in illegible handwriting. There was no index.

12 When I enquired why it was necessary to tender the whole file, I was told that it was to lay the foundation for the evidence of an expert costing witness that the fees charged were proper or that they were fair and reasonable. I observed that I would not undertake at this trial the task of taxing the bill of costs.

13 When I then enquired why the file was in the form that it took, I was told that this was regrettable; the intent was to reproduce in facsimile the actual Solicitors' file. Why this was so was never explained. Notwithstanding my complaints, no index was ever provided. In defence of this essentially unhelpful response, I should note that, at this early stage of the trial, it was not at all certain what role, if any, Mr Burmingham would undertake. It may have been a waste of money to direct the plaintiffs to prepare a proper and orderly Court Book containing only those documents which were expected to be deployed at the trial. It is sufficient that I observe that the Court Book as presented represents an abrogation of the responsibility of the plaintiffs' lawyers to present their clients' case in an accessible, comprehensible and, even attractive, way.

14 The evidence was completed on 19 December 2008. Mr Burmingham closed his case. When the matter resumed in February and Mr Burmingham commenced his final address, he raised the point that at the time the costs agreement was entered into, in September 2000, MBCPL had not been incorporated. This is in fact correct; registration did not occur until 24 July 2003 before MBC entered into the rollover agreement.

15 This caused some consternation in the camp of MBCPL which was then the sole plaintiff. Counsel then applied for leave to amend to allege that the chose in action had been assigned under the rollover agreement to MBCPL and to join MBC as plaintiff. He also sought leave to reopen his case to prove the rollover agreement and to prove that the assets transferred to MBCPL by that agreement included MBC's rights to the payment of the costs which are the subject of this claim.

16 As I indicated to Mr Burmingham, such leave is rarely given when it is sought at this late stage. He resisted the application and I heard argument from him. In summary, his submission which occupied about half a day was that the point was raised in his defence which was filed as long ago as November 2005. This is correct. When paragraph 1 and paragraph 2 of the pleading are examined, it is there to be seen. The difficulty is that, like so much of his case, the point was buried in a great volume of irrelevancy. Counsel for MBC frankly admitted that he had misread the pleas and thought that the defendant had admitted that MBCPL was the contracting party. While this should not have occurred, I can understand that.

17 Mr Burmingham then said that the error on the part of the lawyers for MBC was inexcusable. He pointed out that MBCPL was in fact acting for itself and was instructing counsel at the trial. The solicitors actually involved at the time of the restructure in 2003 were also active in this proceeding. As lawyers, they must be taken to have been aware of the implications of the restructure and that MBCPL was not the contracting party in 2000. I agree.

18 He then developed an argument that the reopening of the plaintiffs' case would involve further evidence and that he would be unable to meet the new allegations, especially as it seemed that MBC's accounting records were not available. He went through the rollover agreement, drawing attention to the very many matters which he said would require investigation before the further evidence was called and at trial. I consider that much of this submission was exaggerated. He is, after all, a chartered accountant, even if he has not practised for a decade or more.

19 Finally, he relied upon his poor health. This, he said, would prevent him from investigating the new contention. I consider that this, too, was much exaggerated.

20 Although the orders sought were exceptional, I concluded that the justice of the case demanded that they be made. The litigation had been on foot for some four years with this point not having been brought to light. The trial had run for some 15 days. Notwithstanding Mr Burmingham's submission, my assessment of the issues which were to be the subject of further evidence was that they were very limited. The consequence of refusing the application would have been to cause the plaintiffs to receive an adverse judgment without any assessment of the substantial issues which have occupied them for a very long time. No prejudice was suffered by Mr Burmingham from the making of these orders other than the possibility of depriving him of a wholly technical point.

21 I therefore granted the leave sought, giving directions for the benefit of Mr Burmingham that the plaintiffs provide discovery and witness statements by a date which gave him nearly a month to consider his position and to ready himself to deal with the new issues. The trial was adjourned to 10 March. I also made costs orders directed to removing any financial disadvantage to him arising out of this turn of events.

22 At 5 pm on 9 March 2009, the eve of the resumed trial date,[2] an affidavit was faxed to the Court by Mr Burmingham, again seeking an adjournment of the trial on the grounds of his poor health. This time, the complaint was that he was suffering from severe fatty liver degeneration which, if untreated, would result in a high risk of his developing serious liver failure and liver cancer. This was supported by medical reports from his Queensland general practitioner, Dr Gary Martin. The treatment which Dr Martin instituted included rest and reduced stress. It appears also to have required some medication of an unspecified kind. Dr Martin said that his patient should have continued complete rest for a further three weeks. "After this time, he can only recommence work on his legal matter on a very gradual basis. He is not to travel until further notice."[3]

23 I determined that the trial should proceed notwithstanding, or perhaps having regard to, Dr Martin's opinion. Applications such as this have been made in the past on numerous occasions by Mr Burmingham, usually based on physical indisposition produced by stress. While I have no reason to doubt Dr Martin's diagnosis, it seemed to me that Mr Burmingham was unlikely to benefit from the adjournment sought. Upon the adjourned date he would be subject to the same stress. Moreover, the trial was at a stage where it is unlikely that his presence and participation would be of particular value. He had no knowledge of the matters which remained to be the subject of evidence. He had over the past month brought to my attention the contentions which he makes in resisting the plaintiff's claim. If it was thought to be important for him to participate, there is no reason why he could not have obtained legal representation for the purpose. I am altogether unpersuaded that legal representation is or has not been available to him, had he been prepared properly to instruct a lawyer. I was also pressed on behalf of the plaintiffs with their very understandable concern that this proceeding be brought to finality.

24 The trial, therefore, proceeded to its conclusion on 10 March 2009. During this time I raised with the remaining witness and with counsel for the plaintiffs the matters which I apprehend Mr Burmingham might reasonably have raised himself.

25 Following the conclusion of the trial, the Court received from Mr Burmingham a fax in which he sought leave to file a further written submission. I granted leave for Mr Burmingham to file such a submission by 5.00pm on 18 March. No submission was received by this deadline. Early on the morning of 19 March the Court received an email from Mr Burmingham's email address, apparently sent by his wife, attaching a 21 page draft of a document entitled 'Closing Submissions'. Despite the late filing of this submission, I have had regard to it.

26 The plaintiffs' claim is brought for sums payable under a costs agreement entered into between MBC and Mr Burmingham on 26 September 2000. The agreement was referred to, perhaps not altogether correctly, as a no-win no-fee agreement. In essence, the client agreed to pay to MBC, its professional costs at the end of the litigation and, then, only in the event of success.[4] Disbursements were payable in the usual way. The additional or uplift fee of 25% of the solicitor-client costs was payable only in the event of a successful outcome of the litigation.[5]

27 I shall return in a little detail to this costs agreement. The issues raised in this claim arise because, following the determination of the solicitor-client relationship in June 2003, MBC, on 23 June 2003, rendered a lump sum bill for professional charges in the sum of $98,936.44 and disbursements of $39,002.67, a total of $137,939.11. In response to Mr Burmingham's request for an itemised bill such a bill was provided on 3 July 2003. This bill was for $98,936.44, as before, for professional charges and $38,970.73 for disbursements, a total of $137,907.17. Mr Burmingham did not ask that this bill be taxed.[6]

28 At the time that these bills were rendered, the litigation was, on any view, not completed. Perhaps to address the difficulty that the bills were premature having regard to the deferred payment provisions of the costs agreement, the plaintiffs' claim was first presented on the basis that Mr Burmingham had committed repudiatory breaches of the costs agreement and that this repudiation was accepted by them on or about 5 June 2003.[7]

29 Mr Burmingham disputed the alleged breaches of contract and the repudiation. He contended that it was MBC who had repudiated the agreement.[8]

30 It is clear enough that, by whatever means, the relationship of solicitor and client and the costs agreement had come to an end by June 2003. By order made on 24 June 2003 the solicitors were given leave to file a notice of ceasing to act for the defendant[9] and this notice was filed on the following day.[10]

31 Following this, Mr Burmingham continued the litigation without a solicitor or, at least, without a lawyer on the record.[11] On 18 December 2003 the parties entered into an agreement under which AXA agreed to pay $1 million in full settlement of his claims including interest and costs.[12] The case of the plaintiffs is that this amounted to a settlement of the AXA litigation. This, they contend, brought the litigation to an end and amounted to a successful outcome which, under the terms of the costs agreement, entitled them to bill Mr Burmingham for their professional costs and disbursements, together with the uplift fee.

32 On 6 August 2004 MBCPL wrote to Mr Burmingham demanding payment of the uplift fee pursuant to cl 8 of the costs agreement. This uplift fee took the total of the itemised bill to $196,232.76. The Solicitors also asserted an equitable lien or charge over the proceeds of settlement to secure their right to payment of costs and advised the solicitors for AXA accordingly.

33 This assertion led to delays in the payment of the proceeds of settlement by AXA. An interpleader proceeding was commenced by AXA on 25 June 2004 and in July 2004 it was struck out following a settlement made between the solicitors and Mr Burmingham as to the proceeds. Under this settlement, the proceeds, namely $1 million, were paid by AXA on 22 July 2004 to Michael Dwyer, a solicitor in Southport, Queensland. Mr Dwyer agreed to hold $200,000 from the proceeds in his trust account pending resolution of the plaintiffs' claim for costs and interest or pending a court order or agreement between the parties.

34 This proceeding was commenced by writ filed on 21 December 2004.

35 I return to the claims of the plaintiffs in this proceeding. By amendment made in the course of the trial they introduced a second and third basis for their claim. Second, it was said that, by reason of breaches of the costs agreement by Mr Burmingham, they were entitled to render a bill, notwithstanding that the AXA litigation was not then successfully completed.[13] The third basis was that these breaches amounted to a repudiation of the costs agreement by Mr Burmingham which they elected to accept as terminating the agreement. Their claim in these circumstances was for the sums billed as a fair and reasonable value of their work.

36 Finally, it was contended by the plaintiffs that the settlement of the AXA litigation in December 2003 was a successful outcome pursuant to cl 8 so that they were entitled to their uplift fee of 25%.[14]

37 The identification of the issues raised in the defence raises particular difficulties. I make the following general observations:

The document is entitled defence. Nevertheless, there are to be found in it allegations that Mr Burmingham has suffered loss and damage as a result of misconduct of various kinds alleged against MBC.[15] The allegations of loss and damage do not appear to lead anywhere. Nor was the loss and damage particularised or any evidence led in proof of it. Paragraph 27 appears to be intended as a prayer for relief but it does not seek any relief other than that the court should have regard to MBC's wrongful acts in determining their entitlement to payment under the costs agreement and that there should be declarations and orders with respect to the $200,000 held in trust. I do not see this pleading as raising a counterclaim. The convoluted and complicated nature of this pleading tended to conceal rather than expose the real issues in the case.
I have attended carefully to the cross-examination of the plaintiffs' witnesses and to Mr Burmingham's own evidence in order to identify which of the numerous allegations in the defence were pursued.
The defence alleges a great number of terms of the costs agreement ranging over some 24 pages. For the most part, they were uncontroversial, such as a terms to act with due care, promptly and in accordance with the client's instructions. Others appear to have served no function at all in the pleading, or were not alleged to have been breached.

38 In order to identify the affirmative issues raised by Mr Burmingham other than those directly responding to the plaintiffs' claims, I turn to the allegations of breaches of agreement contained in paragraph 4(b) of the defence. Here, it is said that the AXA litigation was not conducted in accordance with his instructions or the terms of the costs agreement. The particulars of this are given in 42 paragraphs of the particulars contained in 30 pages of the pleading.

39 Some I can dispose of shortly at this stage. The original costs agreement was entered into between Mr Burmingham and the Melbourne office of MBC in early 1997. It was then decided in September 1997, after Mr Burmingham had moved to Queensland, that the AXA dispute should be handled by the Brisbane office of MBC and this was done until July 2000, when the Brisbane office declined to act further. The litigation thereafter was handled in Melbourne under the second costs agreement dated 26 September 2000. Criticisms are addressed to the conduct of MBC in Brisbane with respect to the period prior to July 2000[16] and to the refusal of the Brisbane office to act.[17] These are not matters for which payment is sought in this proceeding; any defect or inadequacy in the work which was performed under the first cost agreement cannot be relied upon as a breach of the second costs agreement or as a basis for diminishing the entitlement of MBC under the second costs agreement. I shall put these matters to one side.

40 In order to assist Mr Burmingham and counsel for the plaintiffs to unravel the other allegations in the defence, I circulated on 9 December 2008 my preliminary views as to what issues Mr Burmingham had raised at the trial. As he did in other respects, Mr Burmingham had his own list of complaints. I shall deal with the matters he raised in due course. Broadly speaking, the positive issues raised by him in the defence and at the trial may be grouped under five general headings:

(a) Work performed without Mr Burmingham's authority or otherwise than in conformity with his instructions.[18]

(b) Work performed defectively and in breach of their contractual and other duties owed to him.

(c) Failures to have regard to Mr Burmingham's continuing health problems when demands were made upon him[19] or otherwise acted in such a way as to cause or to exacerbate his health problems.

(d) The conduct of MBC before and on 22 May 2003, and shortly, thereafter relating to the determination of the retainer.

(e) The conduct of the plaintiffs after the termination of the retainer in June 2003.

41 I indicated to the parties at trial that I would not undertake any taxing of the bill of costs: this would be referred to the Taxing Master. This trial, therefore, concerns all questions in issue other than those as to the form of the bill,[20] those as to whether the items of work in the bill were in fact performed and those as to the value attributed to the items in the bill. The trial before me, however, included questions as to whether the items of work in the bill were in fact authorised and whether they were performed incompetently or otherwise in breach of contract as Mr Burmingham alleges.

42 The AXA claim was brought under a professional income replacement policy issued by AXA in June 1991. Under the policy, AXA agreed to pay a monthly benefit where the insured, as a result of injury or sickness, suffered total disability.[21] The benefits are to be continued for the continuous period of disability as a result of any one sickness.[22] The policy contains a number of detailed provisions and qualifications which are not necessary for me to consider.

43 As I have mentioned, Mr Burmingham suffered a breakdown in March 1992 and he made a claim under the policy on 4 December 1992. AXA accepted the claim and made monthly payments until October 1994 when it took the position that Mr Burmingham was no longer fully disabled. This appears to have been the substantial issue between Mr Burmingham and AXA when on 30 April 1997 he consulted John Gregory Berrill a solicitor, and now a director and principal of MBCPL, whose specialty is insurance and superannuation law.

44 Mr Berrill explained to me that a claim of this kind was ordinarily handled by MBC in two stages: the claims stage, where an acceptable resolution is sought by agreement with the insurer; and the litigation stage, where the client wishes to commence litigation. Two separate costs agreements were entered into in this case: an agreement dated 5 May 1997 for the work in the claims stage and an agreement dated 14 July 2000, but not executed until 26 September 2000, for the litigation stage.

45 The claim of the plaintiffs in this proceeding does not include a claim for payment for work done in the claims stage: this work did not produce a successful or any outcome, so that the no-win no-fee regime had effect. The Solicitors at this stage sought a modest sum of $835 for disbursements, and this was paid.

46 At the time of the first consultation in 1997 Mr Burmingham was living in Belmont and his matter was handled by the Melbourne office of MBC under the direction of Mr Berrill. In February 1999, after Mr Burmingham moved to Queensland, the file passed to the Brisbane office where it was under the direction of Rod Hodgson. At this time, litigation was contemplated and Mr Burmingham was advised in October 1999 that he might sue either in Queensland or in Victoria, but that Mr Hodgson recommended suing in Queensland.

47 By July 2000 the file was returned to the Melbourne office. It seems that this was because Mr Hodgson was unwilling to act further for Mr Burmingham.

48 Mr Berrill then resumed control of the file and he was the solicitor responsible for it until June 2003 when the relationship of solicitor and client ceased.

49 The writ was filed on 11 October 2000 and a defence was filed shortly thereafter, in December 2000. The substantial issue raised was whether Mr Burmingham was totally disabled on 14 October 1994 when payments ceased and thereafter.[23] The AXA proceeding moved through its interlocutory stages and on 18 June 2002 was fixed for trial commencing on 14 November 2002.

50 The relationship between MBC and the client was not, however, without its difficulties. In September and October 2002, with the first trial date pending, MBC sought payment of a further $10,000 to meet their disbursements. Mr Burmingham was upset by this and on 9 October 2002 after considerable correspondence he terminated the retainer forthwith. Notwithstanding this, he wrote on 11 October requiring that MBC serve a notice of compromise which he had drawn. The offer was to accept $410,000 plus costs. This led to disputation as to whether the offer should or could be delivered on a without prejudice basis, as he contended, but the offer was eventually served on 14 October 2002 in accordance with the rules.

51 I will not burden this judgment with an account of the correspondence in late 2002 which occupied some 200 pages of the Court Book and which dealt with Mr Burmingham's complaints about the conduct of MBC at this time and the courses which he proposed to pursue should MBC not remedy its ways. By letter dated 23 October 2002 these difficulties had been resolved and MBC withdrew its application to file a notice of ceasing to act. Thereafter MBC continued as solicitors on the record. This resolution was on the basis that MBC would not charge for its application to file a notice of ceasing to act.

52 The first trial date of 14 November 2002 was vacated on 6 November 2002 upon the application of AXA as a result of Mr Burmingham providing MBC on 28 October 2002 with a bundle of new medical reports and further material for the claim. A second trial date was fixed for 13 May 2003.

53 A matter of contention between MBC and Mr Burmingham at this time arose out of a claim for damages for personal injuries which he had brought against Officeworks Superstores Pty Ltd in the District Court of Queensland by writ filed on 1 April 1999. This litigation arose out of a fall suffered by Mr Burmingham in the Southport Officeworks store on 24 April 1994. It will be recalled that, at that time, Mr Burmingham was receiving disability payments under the AXA policy on the basis that he was totally incapacitated for work, and these payments continued until October of that year. Mr Burmingham's solicitors for the Officeworks litigation were KM Splatt & Associates of Bowen Hills in Queensland.

54 On 15 November 2002 and again on 14 January 2003, Ms Tamara Minchin of MBC requested Mr Burmingham to provide a copy of the Splatt file in respect of this claim. This was to ensure that the AXA claim and the Officeworks claim were not inconsistent. On 10 February 2003 Mr Burmingham wrote to MBC declining their request that he authorise them to deal with Mr Splatt directly or to obtain a copy of the file. Mr Burmingham maintained this position throughout February and March 2003.

55 This attitude of Mr Burmingham was a matter of concern to Mr Berrill. On 7 April 2003, in defiance of his client's express instructions, he spoke by telephone with Mr Splatt. He was told by Mr Splatt what were the injuries alleged in the Officeworks litigation and that the defendant to that litigation had admitted liability. They discussed, too, whether the Officeworks case should be concluded before the AXA trial which was then fixed for mid-May. On the same day, Mr Berrill reported his conversation to Mr Burmingham who became angry and even abusive that his instruction had not been respected and the conversation was abruptly terminated. Mr Burmingham followed this with a letter of 8 April 2003 in which he complained that Mr Berrill had hung up on him and in which he confirmed his decision that the AXA claim should proceed to trial before the Officeworks litigation.

56 Eventually, on 8 April 2003, Mr Burmingham sent to MBC a bundle of medical reports regarding the injuries the subject of the Officeworks litigation and, under cover of a letter dated 2 April 2003, copies of the court documents in that litigation.

57 A further matter which appeared about this time was that the solicitors for AXA discovered that Mr Burmingham had on 21 November 1996 entered into a deed of arrangement under Part X of the Bankruptcy Act 1966. It was suggested by them that his rights against AXA now vested in his trustee. This was raised by them in a letter to MBC dated 1 May 2003.

58 Finally, in the same letter of 1 May 2003, the solicitors for AXA raised for the first time the fact that Mr Burmingham had conducted in person a complicated proceeding before the Trademarks Office between January and October 1999 and that he did so in a lucid manner and with "strenuous intellectual activity". This, it was said, was inconsistent with his assertion that at all times since 1992 he was totally incapacitated by his chronic fatigue syndrome and fibromyalgia.

59 At this time, too, about a month before trial, there were on foot discussions with the solicitors for AXA with a view to settlement. These discussions had a number of aspects which are relevant for my purposes. I will list them:

Mr Burmingham was very keen to bring a claim against AXA for consequential loss. Notwithstanding the advice of Mr Berrill and counsel that such a claim was not maintainable, it was included in the updated particulars of loss filed on 14 April 2003. The loss alleged was about $450,000.
Since the AXA payments were stopped, Mr Burmingham had received pension payments from CentreLink totalling some $85,000. Mr Berrill was of opinion that these pension payments may have to be refunded if a judgment or settlement was achieved with AXA. He believed, too, that the risk of such a refund could be minimised if the settlement could be structured in a particular way.

60 The negotiations at this stage between the parties to the AXA litigation are very confusing. Mr Burmingham's letter of 2 April 2003 shows that AXA, as may be expected, had started low. By that date, its bidding had crept up to $100,000 all in. Mr Burmingham had made his offer of compromise of $410,000 on 14 October 2002.[24] He now wanted to start afresh, commencing with an offer of $3.7 million plus costs.

61 On 15 April 2003 there occurred a consultation with Mr Berrill and later Mr Burmingham, at the chambers of senior counsel retained for the trial. Counsel in fairly forthright terms - terms which might not have been consistent with the dignity of his office - advised the client that the consequential loss claim was factually and legally unsound. He suggested that a realistic offer be put to AXA and, eventually, Mr Burmingham authorised counsel to make an offer of $650,000 plus costs. In the course of this consultation, counsel also pointed to the need for Mr Burmingham to trust his legal advisers so that they could work together as a team.

62 I should add at this point that this had been an on-going problem over the preceding years. My examination of the MBC file shows that Mr Burmingham took a more than usually active role in the conduct of his litigation. He showed himself to be suspicious and was even sceptical of advice given and requests made by MBC. He required copies of documents filed in court. While it is not inappropriate for a client whose interests, after all, are at stake, to have an interest in and an involvement with the work of a solicitor, Mr Burmingham's conduct appeared to demonstrate distrust rather than a healthy curiosity and concern. Senior counsel at this meeting and at later meetings sought to dissipate this distrust.

63 On 16 April 2003 the parties went to mediation but settlement was not achieved. At this time the respective positions were that Mr Burmingham had offered to accept $750,000 plus costs, but the best AXA offer was $300,000 all in.

64 Shortly thereafter, AXA foreshadowed another application to vacate the trial date then fixed for 13 May 2003. The basis was the failure by Mr Burmingham to make discovery of material relating to the trademarks claim and material relating to the Part X deed of arrangement. The application came on before the Listing Master on 2 May, and she adjourned the trial for a few days, to 21 May 2003, and gave other directions.

65 A second consultation with counsel was held on 19 May. Matters discussed mainly concern the evidence to be called. The notes record that at this stage the AXA offer was $300,000 plus costs which were fixed at $60,000 and that Mr Burmingham's offer in response was $690,000 plus costs.

66 AXA, again, foreshadowed an adjournment application. This was heard by the Listing Master on 21 May and the date was again vacated and refixed for 23 September 2003. The Master's reasons for making this order included the need for AXA to investigate the material relating to the trademarks' application and new allegations contained in particulars of loss and damage. She also gave leave to AXA to file a counterclaim to seek repayment of payments made to Mr Burmingham prior to October 1994 and directed him to file a further affidavit of discovery.

67 About this time their occurred two important meetings between counsel and Ms Roden. The first was on 21 May before the hearing before the Listing Master. Counsel was concerned with the inconsistencies between the medical case put forward in the Officeworks litigation in Queensland and that put against AXA. The particulars of Mr Burmingham's pain and suffering filed in the Queensland District Court included the following:

(i) Prior to his injuries the plaintiff was a qualified chartered accountant with a wide array of outside interests including studying, working as a freelance cartoonist and illustrator, a professional model, an actor and speechwriter, and excelled in singing and voice production. As a result of his injuries the plaintiff is now precluded from pursuing all these activities.

(j) The plaintiff previously enjoyed sports such as football, cricket, soccer, basketball, golf, baseball, tennis, swimming and athletics, all of which he is now prevented from pursuing.

It will be recalled that the case against AXA was that, at that time, Mr Burmingham was totally incapacitated. Furthermore, a medical report obtained from a Queensland doctor, Dr Pamela McCombe, dated 27 May 2002 discussed the medical consequences of the fall in the Officeworks store in 1994. She speaks of headaches "which commenced after a fall in 1996" and of the chronic fatigue syndrome in 1992 which was the centrepiece of his claim against AXA. Of this, she says that he "was fully recovered by 1995 but then became unwell in 1996 after his injury". Furthermore, the documents included a letter from Mr Burmingham to a Dr John L Corbett in Queensland dated 25 February 1998. In that letter he stated "by November/December 1995 I had also recovered from the Chronic Fatigue..." Needless to say, this was seen by counsel for Mr Burmingham as potentially damaging for his claim against AXA and for the credit of him as the principal witness in that claim. Counsel raised this with the client and advised that the best strategy was to persuade AXA to make a more substantial offer.

68 The second meeting which occurred the following day, 22 May 2003, in counsel's chambers brought matters to a head. Counsel advised Mr Burmingham that he should seek to extract an improved offer from AXA but, if that was not possible, he should take the offer which was presently available. Although this offer is recorded as $320,000 plus $60,000 costs, it was, I think, only $300,000 plus $60,000 costs. There was some discussion as to whether the settlement could be structured to eliminate the need to make repayments to CentreLink and as to its tax implications for Mr Burmingham. These discussions are recorded in Ms Roden's notes of the meeting which were generally accepted as accurate. Counsel then suggested that Mr Burmingham make a further offer of $570,000 to $580,000 and that this be done immediately. Counsel pointed out that if this was not done, "the process of discovery will take over". I take this to mean that the recently available embarrassing documents from the Officeworks litigation in Queensland and the trademarks appeal would have to be disclosed to AXA and that this would lead it to harden its position.

69 Mr Burmingham is recorded as stating in response to this advice that he was unwell and that he was unable to comprehend what he was being told. He said he wanted to think about his position for a day or so. Senior counsel pressed him for immediate instructions but none were provided. Mr Burmingham accepted before me that he gave no instructions but said that this was because he was sick and exhausted. Mr Berrill told me that his assessment of his client at this time was that he was being manipulative, he was running different agendas and that his asserted ill-health was exaggerated. Ms Roden recalled that, at this meeting, Mr Burmingham was slumped down in his chair, made a guttural noise which she could not describe in words and then left counsel's chambers. Both she and Mr Berrill recalled that he returned briefly to collect his papers and that, when he did so, he moved in a normal manner. Mr Roden's notes show that senior counsel was sufficiently concerned with his client's medical condition to raise the question of appointing a litigation guardian.

70 After Mr Burmingham left counsel's chambers, counsel and Mr Berrill discussed what they might do. They agreed that Mr Burmingham should be advised to seek fresh legal representation. This advice was given in a letter to the client dated 22 May 2003.

71 Correspondence regarding this decision continued over the next month. On 24 June 2003, Master Wheeler at a hearing at which Mr Burmingham appeared in person, acceded to the application of MBC that they be given leave to file a notice of ceasing to act. The order records the agreement of MBC that it would not claim its costs until the proceeding was finished and as to the terms on which it would release Mr Burmingham's documents.

72 In the correspondence leading to this order MBC indicated to the client that they required him to agree that their costs be paid out of the proceeds of any settlement and that this was one of the terms of the agreement to release the documents.

73 Mr Burmingham on 6 June 2003 sought an indication from MBC as to what their costs might be and again on 18 June 2003. The response of MBC was to deliver their lump sum bill on 23 June 2003. The amount of $98,936.44 was claimed as a global sum. The items comprising the sum of $39,002.67 for disbursements were set out in some detail. In the covering letter, MBC informed their former client of his right to request an itemised bill.

74 Mr Burmingham availed himself of this right. His letter requiring an itemised bill is dated 16 June 2003 and the itemised bill for the sum now claimed[25] was delivered on 3 July 2003.

75 As I have mentioned, MBCPL was incorporated on 24 July 2003 and the rollover agreement whereby, it is said, assets of MBC were assigned to MBCPL, was entered into in August 2003. No notice of the assignment was given to Mr Burmingham and he was not advised of the change in the structure of MBC.

76 Following withdrawal of MBC from the AXA litigation in June 2003, Mr Burmingham pressed on as a self-represented litigant. It seems that he enjoyed the assistance of a member of the Queensland Bar, Mr Llewellyn Stephens. The precise nature of counsel's assistance is not clear. In any event, with this assistance, Mr Burmingham prepared an amended statement of claim in the AXA litigation and forwarded it in draft form to the solicitors for AXA in about November 2003. This is an extraordinary rambling document of 66 pages which transformed the fairly straightforward claim under the policy into a litigation behemoth. This appears to have caused AXA to modify its previous position as to the settlement of the claim. In any event, at this time it showed itself very ready to settle.

77 The evidence of what happened at this time is sparse. The trial date of 23 September 2003 was vacated. And then, on 18 December 2003, there occurred an exchange of correspondence which, the plaintiffs say, settled the AXA litigation. The two documents are short and I set them out in full, omitting formal parts. The first is Mr Burmingham's letter sent by email to the solicitors for AXA:

Dear Mr Byrnes

SUPREME COURT CLAIM v AC&L (now AXA) - MATTER 7142/00

I refer to our most recent correspondence, and now advise as follows.

I confirm that I will agree to forego all claims against your client (including all present and future entitlements under my policy) in exchange for a settlement in the following terms:

Your client agrees to pay to me the sum of one million dollars ($1,000,000) ("the settlement sum") in accordance with specific terms to be advised by me, on the understanding that the effect of those terms is not such as to require your client to pay more than the settlement sum;
I will bear responsibility for all payments for CentreLink, taxation, and my own legal costs, out of the settlement sum;
Your client bear responsibility for its own legal costs;
I will discontinue the proceedings against your client.

This offer will remain open until 8.30pm tonight.

Should this offer be accepted by your client, and then your client default on such agreement, this letter will be produced to the Court as part evidence of a settlement reached.

I look forward to your consent to the above matters as a matter of urgency.

Yours sincerely

The email response by the AXA solicitors sent shortly before the expiry of the deadline was in these terms:

Dear Mr Burmingham,

We are pleased to advise that our client accepts your offer subject to your signing a satisfactory release. We are preparing the release now and it will be ready to be picked up from our office tomorrow morning from 8:00am.

Further, our client will require you to seek legal advice about the effect of the offer and sight a letter from your solicitors stating:

1. That they have explained the effect of the release to you; and

The ramifications of the settlement you have reached with our client.

We note you have advised that you already have solicitors briefed in this matter, albeit that they are not on the Court record.

Once we receive:

That letter;
The executed Release; and
The specific terms you are to advise our client pursuant to clause 1 of your offer.

Our client will be able to give effect to the settlement reached.

Gavin Byrnes

Lawyer

TurksLegal

For a reason which was never explained, on the following day, Mr Burmingham obtained an order from the Master by consent that he have leave to file an amended statement of claim in terms of the November draft, and this was done.

78 It will be seen that this exchange of correspondence left three matters to be dealt with. The first, a letter from a solicitor that Mr Burmingham had had the settlement explained, was not provided notwithstanding that Mr Stephens' fee slips show that the settlement was the subject of input from counsel before and after 18 December. Furthermore, it appears from them that Mr Burmingham was in December 2003 and in January and February 2004 consulting a solicitor, Mr John Price of Messrs Garland Hawthorn Brahe. This matter was the subject of discussion and agreement with AXA at a mediation which took place later, in August 2004.

79 The second matter was a release which the solicitors for AXA were to prepare. This was done and the release was executed by Mr Burmingham and returned on 21 January 2004 under cover of a letter which has the appearance of having been drawn by a lawyer. In this letter, Mr Burmingham says that the release is subject to and conditional upon the carrying out of all of the terms of settlement agreed to on 18 December.

80 The third matter which is referred to in paragraph 1 of Mr Burmingham's letter of 18 December is that the payment of the settlement sum of $1 million is to be made "in accordance with specific terms to be advised by" him. What this referred to is a little obscure; it appears to have been inserted in the terms because Mr Burmingham required the sum to be allocated between different aspects of the claim so as to maximise the benefit to him in terms of his tax position.

81 These requirements were communicated to the solicitor for AXA by letter from Mr Burmingham dated 6 February 2004 and the enclosed draft deed of settlement. This deed contained a release to be given by AXA, a requirement that the settlement sum be paid in Australian dollars in the form of a normal business cheque and also "an extra large promotional cheque". The deed also set out the break-up of the settlement sum and contained a large number of other matters. This deed was neither accepted nor executed by AXA as being in accordance with the settlement of 18 December.

82 There occurred on 13 February 2004 a bizarre event. Mr Burmingham attended the offices of AXA in Brisbane with a promotional cheque, demanding that it be signed on behalf of AXA. This demand was rejected and there followed something in the nature of an incident as a result of which Mr Burmingham was ejected from the office. The solicitors for AXA wrote to him on 24 February 2004 requiring that there be no repeat of this incident and warning him of criminal consequences.

83 On 24 February 2004 Mr Burmingham commenced proceeding No 1807/2004 in the Supreme Court of Queensland against AXA and others reiterating the claim which was the subject of the AXA litigation and making further claims against it, the liquidator of AXA, the solicitors for AXA and others.

84 In the meantime, MBCPL was monitoring the settlement of the AXA litigation, asserting to AXA that it had a lien or other proprietary interest in the settlement sum to secure its entitlement to its fees and disbursements.

85 And so the disputes continued and proliferated. AXA commenced interpleader proceeding in this Court on 25 June 2004. Then followed further negotiations between the solicitors for AXA and Mr Burmingham and Mr Stephens of counsel on his behalf leading to an agreement whereby $200,000 of the settlement sum was to be held by Mr Dwyer, a solicitor in Southport, pending resolution of MBCPL's claim for its costs.

86 The settlement sum of $1 million was then paid by AXA to Mr Dwyer on 22 July 2004 on the basis that he was at liberty to pass $800,000 to his client. The solicitors for AXA on 29 July 2004 advised MBCPL that this payment had been made. By letter dated 6 August 2004 the solicitors' for AXA set out the break up of the $1 million in accordance with what was required by Mr Burmingham in his draft deed of settlement of February 2004. The only difference between the two was that $50,000 of the settlement sum was allocated as general damages in the August letter whereas this was described as exemplary and aggravated damages in the draft deed.

87 For some reason this did not satisfy Mr Burmingham. He claimed to have suffered further loss and damage as a consequence of the conduct of AXA after 18 December 2003. The parties then went to mediation at the end of August. At this mediation, which continued over four days, Mr Burmingham was assisted, if not represented, by Mr Price. On the evening of 27 August 2004 Mr Burmingham executed a document entitled "Terms of Release and Settlement". The terms of this document included an agreement that the parties would consent to orders disposing of the AXA litigation. The document also contains in cl 2(a) an acknowledgement that on 18 December 2003 the parties had agreed to settle the claims made in the AXA litigation in the statement of claim and in the counterclaim. In the document, AXA also agreed to pay a further $12,500 to Mr Burmingham and to bear the mediator's fee for the first day of the mediation.

89 On 30 August 2004 the orders were made by consent as agreed in the August document. These included an order that the AXA claim and counterclaim be dismissed. At the making of this order Mr Burmingham was not present;[26] he was represented by a solicitor from Garland Hawthorn Brahe.

90 Mr Burmingham then contended that the deed of settlement was ineffective and that he had not agreed to its terms. He took this position on the basis that the deed was amended after execution and, further, at the time the matter was agreed he was suffering from mental incapacity. I reject these contentions. It is true that amendments were made to the document after execution but they were not of any substance such as would invalidate it. Second, I reject the evidence that Mr Burmingham was incapable of agreeing the settlement or that he was overborne. He was represented at the mediation. This is, in my assessment, another example of his attempt to exaggerate his suggested illness after the event in order to manipulate matters to suit his convenience.

91 I conclude this unhappy saga by recording that on 18 July 2005 Mr Burmingham commenced a further proceeding in the Federal Court, proceeding No. QUD202 of 2005, against AXA. This proceeding was stayed on 7 March 2006.

92 Following the reopening of the plaintiffs' case, evidence was led that in August 2003 the members of the firm, MBC, entered into an agreement with MBCPL whereby the assets of MBC were transferred to MBCPL as part of the process of incorporating the practice

93 The agreement, a copy of which was produced, is undated. The witness, Michael John Brett Young was, prior to the incorporation, the managing partner of MBC and, after this, the chief executive officer of MBCPL. Under the agreement, the 12 partners comprising MBC sold the business assets of the partnership to MBCPL. These assets included what are called the rollover assets and the non-rollover assets. In the schedules to the agreement the rollover assets include among the current assets, trade debtors of $3,236,737. The non-rollover assets are described as follows:

Work-in-progress amount comprising of uncompleted works, unrecovered disbursements and out of pocket expenses (12 x $275,000)

Brett Young said that transfer took place around August 2003. He said, too, that, since Mr Burmingham had in July 2003 received an itemised bill for services rendered and disbursements in the sum of $137,907.17, this was a debt owing to MBC. This debt, however, was not payable, having regard to the deferred payment provisions and the no win no fee provisions of the costs agreement. Mr Brett Young said that this debt was included in the work in progress figure which was transferred to MBCPL under the rollover agreement.

94 It is clear enough that the agreement transferred the assets in the schedules. The question remained whether there was a chose in action constituted by Mr Burmingham's debt which was included in these assets. No accounts were produced showing how Mr Burmingham's liability was treated in the financial records of MBC and no satisfactory explanation for their non-production was offered in evidence. Perhaps this does not matter: the liability is either part of trade creditors or part of work in progress.

95 I am therefore satisfied that there was, in August 2003, a liability owing by Mr Burmingham to MBC and that this was assigned to MBCPL in equity by the rollover agreement. In the circumstances, the debt owing by him may be recovered at the suit of MBCPL.

96 The costs agreement imposed certain obligations on the client by way of co-operation with MBC in pursuing the subject litigation. These are set out in cl 2:

We require that you

(a) provide us with full and frank instructions,

(b) co-operate with us in preparing your claim and do all that we reasonably ask of you,

(c) accept and follow reasonable advice given to you by us,

(d) continue to instruct us.

97 Three distinct breaches are relied upon. In the form which they took following a late amendment permitted on 24 November 2008, they are in essence as follows:

Mr Burmingham, contrary to cl 2(a) failed to provide MBC with full and frank instructions in two respects -

(1) He failed to inform or instruct MBC of an adverse decision in an appeal by Mr Burmingham to the Federal Court against an adverse decision of the Registrar of Trademarks on 30 November 1999.[27]

(2) He had made a personal injuries claim seeking damages for the same injuries in respect of which his claim in the AXA proceeding was made in relation to which he did not provide material and instructions to MBC until 8 April 2003.[28]

Contrary to cl 2(c) he failed to accept and follow the reasonable advice given to him by MBC in the following respects:

(3) In the course of settlement negotiations, Mr Burmingham failed to follow the reasonable advice of MBC and counsel retained by them on behalf of Mr Burmingham regarding settlement offers.

98 I am not satisfied that the first breach has been made out. While it is true that Mr Burmingham failed, prior to May 2003, to advise MBC of the adverse decision in the Federal Court in the trademarks matter, this must be seen in the context in which it occurred.

99 For some time prior to May 2003 he had been pestering MBC with complaints against AXA and with items of loss which he wished to be inserted in the claim but which had nothing to do with the AXA claim. The Solicitors had discouraged him from doing this which involved a great deal of time and cost wasted on their part. Mr Burmingham said, and I accept, that this was a reason for him not bringing the fact to their attention.

100 A second matter was that this matter was of very peripheral, if any, relevance to his claim against AXA. It was suggested that Mr Burmingham's conduct of the appeal, rather than the adverse decision, might be used by AXA to show that he was far from disabled in and after 1994 when the payments under the AXA policy were terminated. The decision under appeal was that of the delegate of the Registrar of Trademarks given on 30 November 1999.[29] In it the delegate observed that Mr Burmingham presented his case "in a clear and assured fashion and he made quite fulsome comments on points which had been raised".[30] In the Federal Court judgment delivered on 15 March 2001,[31] Drummond J, dismissing Mr Burmingham's appeal, made passing reference to Mr Burmingham's poor health in 1997, but I can see in it nothing that might be relevant to the AXA litigation. In any event, Mr Burmingham was represented at the appeal so that his conduct of the appeal could not be put against him at the trial of the AXA claim.

101 The second suggested breach stands in a different position. Mr Berrill feared that material in the Officeworks litigation might be discoverable and might be potentially harmful to his client's case in the AXA litigation. He pressed Mr Burmingham to provide it for many months prior to 8 April when it was finally released. Mr Berrill's apprehensions were well-founded. Mr Burmingham's resistance to the disclosure was unjustified and unreasonable. This want of cooperation was a cause of much of the difficulty in the settlement negotiations of May 2003 and a cause for urgency in their resolution. The second breach has been made out.

102 Mr Burmingham addressed the third breach by inviting me to conclude that the advice given with respect to settlement was not reasonable. Advice given to him on 22 May 2003 was that he should instruct counsel to make an offer to AXA and that he do so forthwith. The amount of the offer was not the sticking point; Mr Burmingham did not give any instructions. The urgency was apparent and the delay risked causing great prejudice to the AXA claim and perhaps to cause AXA to reduce or even withdraw its existing offer.

103 Mr Burmingham said that he was at the consultation on 22 May 2003[32] physically unable to address the advice. The evidence of Mr Berrill and Ms Roden was that he behaved strangely on that day but that he was mentally alert and was acting in a manipulative way and appeared to be exaggerating his condition. Neither senior counsel nor junior counsel who were present was called and no explanation for their absence was offered. I will draw an O'Donnell v Reichard inference from this.[33] Their absence takes on a particular significance in that the notes of the discussions between counsel and Ms Roden after the client had left show that senior counsel was sufficiently concerned about Mr Burmingham's state that he discussed the appointment of a litigation guardian.

104 I observed Mr Burmingham throughout the trial. He has become unable to act coherently on more than one occasion when under pressure. I have formed the view that he is mentally alert notwithstanding his continual inability to focus on the real issues. At the May 2003 consultations he appeared to be alert about the need to consider the tax implications of the proposed settlement and the risks that he might have to repay part of the settlement sum to CentreLink. Likewise, at trial he was quick to seize upon any procedural shortcomings of the plaintiffs' case and, in my judgement, often exaggerated his difficulties in addressing the issues. I am mindful, too, of the considerable body of medical opinion which has been marshalled prior to the May meetings. These show that Mr Burmingham suffered from various conditions which might have affected his ability to comprehend and concentrate, to some extent at least.

105 I have considered, too, Mr Burmingham's account of the meeting. I am satisfied that his evidence that he was unable to address the question whether an offer should be made on 22 May is exaggerated. I am satisfied, too, that his resistance to giving instructions was in part the product of the distrust of his legal advisors which attitude he had exhibited in the past. Nevertheless, I accept that he was under pressure at the time and that his state of mind at the end of the meeting was such that he was unable to address the advice which he was receiving within the very short time frame which counsel required. The breach has not been made out.

106 A further aspect of this matter is whether the advice to make an offer would have been somewhat less than $750,000 plus costs which had been put to AXA in April 2003, was reasonable advice. A powerful consideration in this regard is the fact that, seven months later, AXA agreed to pay $1 million all in to release the claim and the policy. I think that this offer does not detract from the reasonableness of the advice given in May. I am of this opinion for a number of reasons:

(1) The offer was to be made before the disclosure of the potentially damaging Officeworks litigation material and on the eve of the trial.

(2) The position, from AXA's point of view, was different and more dangerous in December 2003. They were then confronted by an unrepresented litigant with the capacity of dredging up all manner of allegations with the likely consequence that the trial on the AXA litigation, like the present trial, would take a form which was out of proportion to the amount at stake.

(3) A further consideration from AXA's point of view is that, whether the claim was successful or not, it was faced with the prospect that it had an insured who would be likely to bring further costly claims.

In all these circumstances, AXA in December might well have seen itself as well-rid of a troublesome and very costly insured and that $1 million was a reasonable price to achieve this.

107 I conclude, then, that in May 2003 Mr Burmingham was in breach of the conditions of the costs agreement in the second respect as alleged.

108 The relevant provisions of the costs agreement regarding MBC's entitlement to payment are the following.

109 By cl 4, MBC agreed not to render a bill for any costs until the end of the matter.

(4) Costs

We will not bill you for any costs until the end of the matter. The amount of the costs will be determined in accordance with the appropriate Supreme Court Scale applicable to the matter. In the event that your claim is successful, a component of the legal costs (being party-party costs) will be payable by the Defendant. However, you may be asked to pay for disbursements which have been or may be incurred in the running of your case.

110 The no-win no-fee provisions are contained in cll 1, 2 and 3 which are in the following terms:

(1) On the basis that you have not breached the conditions of engagement set out herein and in the event that your case is not successfully completed, we will not render a bill for our professional charges.

(2) We require that you

(a) provide us with full and frank instructions,

(b) co-operate with us in preparing your claim and do all that we reasonably ask of you,

(c) accept and follow reasonable advice given to you by us,

(d) continue to instruct us.

(3) If you breach any of the conditions of engagement set out in this Agreement, we reserve the right to render an account for legal costs for services rendered in the matter.

111 In the event that the claim was successfully completed, the provisions for payment of MBC's professional charges and disbursements are contained in the following clauses:

(4) Costs

... In the event that your claim is successful, a component of the legal costs (being party-party costs) will be payable by the Defendant. However, you may be asked to pay for disbursements which have been or may be incurred in the running of your case.

(5) Party-Party Costs

Party-party costs are the professional charges and disbursements which the unsuccessful party is ordered, agrees or is otherwise obliged under the Rules of Civil Procedure to pay to the successful party when a case is finalised. These costs are calculated on the appropriate Court Scale. Party-party costs do not usually cover all the costs in the matter, but do cover some of the work usually required to conduct your claim.

(9) Deduction of Costs

In the event that your case is successfully completed, you hereby authorise us to deduct from the sum of money recoverable the difference between the solicitor-client legal costs and any party-party costs recovered, together with any other sum in accordance with clause (8) above. This amount will be discussed with you prior to successful completion of your matter.

(8) Success Condition - Additional Fees

In the event of a successful outcome, we will be entitled to charge a premium of 25% on the solicitor-client costs otherwise payable by you under this Agreement. (Note: this does not mean 25% of the amount of settlement - it is 25% of the solicitor-client costs calculated in accordance with the terms of this letter.)...

112 "Successful outcome" is defined in cl 8 as follows:

...

For the purposes of this Agreement, a successful outcome means:

(a) a verdict or award of money made by a Court in your favour;

(b) an arrangement entered into by us on your behalf under which money is payable to, for or on your behalf arising out of your claim or in circumstances relating to your claim;

(c) we obtain on your behalf from any other party to the claim or any other party concerned with the claim an offer of settlement which can be recommended to you to accept and which represents the appropriate conclusion in our reasonable opinion to the claim or proceedings brought by you;

(d) settlement or resolution of the claim in accordance with your instructions, whereby moneys will become payable to you for you or on your behalf arising out of the circumstances relating to your claim.

113 The Solicitors' claims as pleaded, are put on two bases. The first, which was inserted by the late amendment, was for payment in accordance with the costs agreement. The second appears to depend upon Mr Burmingham having repudiated the costs agreement.

114 The issues here were, first, whether the claim, as brought, was premature. The second was whether the uplift fee was payable on the basis that settlement was achieved by Mr Burmingham after the termination of the retainer.

115 The relationship of solicitor-client terminated not later than 24 June 2003 when leave was given for MBC to withdraw, and probably some weeks previously to this. The lump sum bill was delivered on 23 June 2003; the itemised bill on 3 July 2003. The AXA litigation was then still on foot. Before I turn to consider the terms of the costs agreement with respect to this claim, I wish to make some general observations.

116 I approach an agreement of this kind between a solicitor and client with considerable caution. As Fletcher Moulton LJ observed in Clare v Joseph[34]

agreements between a solicitor and his client as to the terms on which the solicitor's business was to be done were... however, viewed with great jealousy by the Courts, because they were agreements between a man and his legal adviser as to the terms of the latter's remuneration, and there was so great an opportunity for the exercise of undue influence, that the Courts were very slow to enforce such agreements where they were favourable to the solicitor unless they were satisfied that they were made under circumstances that precluded any suspicion of an improper attempt on the solicitor's part to benefit himself at his client's expense.

117 With greatest respect, his Lordship's views are as apposite today as they were a century ago, perhaps even more so in the modern environment where fee agreements are required and where these may include provisions for uplift fees. There is in this case no allegation of undue influence and no relief is sought based on any breach of MBC's duty with respect to the preparation of the costs agreement. Nevertheless, the modern legal environment is more sensitive to the consequences of inequality of bargaining power. In this case, Mr Burmingham was presented with a printed agreement prepared by his solicitors. The circumstances are such that I will construe the document contra proferentem, that is, I shall construe ambiguities in favour of the client.

118 There are two independent provisions in the costs agreement which might prevent the bills being rendered when they were delivered. The more general is cl 4 by which MBC agreed not to "bill you for any costs until the end of the matter". This contractual bar applies to "any costs". In ordinary parlance, this would include professional costs and disbursements.[35] It is common ground that on 3 July 2003 when the itemised bill was rendered, the matter was not completed.

119 By cl 1 MBC agreed that, subject to a precondition, "in the event that your case is not successfully completed, we will not render a bill for our professional charges". Professional charges is defined in cl 7(a) to mean MBC's profit costs. This clause, therefore, says nothing of disbursements. Then follows the surprising provision 7(b) that, upon successful completion, the client may be asked to pay for the disbursements incurred. This produces a potentially inconsistency between cl 1 and cl 4 with respect to the payment of disbursements.

120 I return then to cl 4 which, in its opening sentence, provides that no bill for costs will be rendered until the end of the matter. The clause concludes by saying that the client may be asked to pay for disbursements "which have been or may be incurred in the running of your case". Notwithstanding its context, this cannot be a right which arises only upon a successful outcome. It was submitted, then, that this is consistent with cl 1, so that the postponement of the bill applied only to a bill for professional costs. I agree.

121 The no-win, no-fee provisions of cl 1 are negative: if the conditions are satisfied, "we will not render a bill for our professional charges". Clause 3 is expressed positively and, regrettably, in different terms. There, it is said that if there is a breach of conditions of engagement, "we reserve the right to render an account for legal costs for services rendered in the matter". In contradistinction to cl 1, the expression "legal costs for services rendered" in cl 3 might be wide enough to cover both professional charges and disbursements.

122 In cl 4 this expression "legal costs" is used again in circumstances where it is said to include party-party costs. Party-party costs are defined in cl 5 as comprising the professional charges as well as disbursements which might be the subject of an order. Consistency requires, then, that legal costs in cl 3 should cover both professional charges and disbursements.

123 This produces the unsatisfactory result that cl 1, where it applies, prevents MBC from rendering a bill for professional charges until the case is completed and successfully completed; cl 4 prevents MBC from rendering a bill for any costs until the end of the matter. It was submitted on behalf of the plaintiffs that "the end of the matter" means the same as "the completion of the case". This does not necessarily follow, as this case demonstrates. From MBC's point of view, on 24 June 2003 when they withdrew as solicitors on the record in the AXA litigation, the file might then have been closed other than for the collection of their legal costs. In that sense, they might see the matter as having been ended withstanding that the case was still on foot.

124 Next, what is meant by "your case is not successfully completed" in cl 1? Clause 8, dealing with the uplift fee adopts different terminology: it speaks of a "successful outcome", an expression which is defined in the same clause. Counsel for the plaintiffs contended that this differing terminology shows that agreement is referring to different events: successful completion is the event which permits a bill for professional costs to be rendered; successful outcome entitles his client to the uplift fee. Mr Burmingham pointed out that the Legal Practice Act 1996, by s 97, permitted a practitioner to enter into a conditional costs agreement and, by s 98 permitted the charging of an uplift fee. In each case the fee may be payable upon a successful outcome. By s 97(4) it is required that the conditional costs agreement set out the circumstances that constitute a successful outcome. In the costs agreement presently under consideration, cl 1 is a conditional costs agreement within the meaning of s 97 because it provides, not only that payment of professional costs is deferred, but also that they be not payable if the case is not successfully completed. Clause 8 contains the provision for a premium by way of uplift fee in the same event. The definition of successful outcome in cl 8 satisfies s 97(4). This, Mr Burmingham argued, puts MBCPL in a dilemma. If the event upon the happening of which professional costs are chargeable is not that same as successful outcome in cl 8, then cl 1 does not comply with s 97(4) so that the agreement is void pursuant to s 102(1). Alternatively, if there be no distinction between successful completion in cl 1 and successful outcome in cl 8, then the right of the plaintiffs to recover professional costs under cl 1 must depend upon their establishing that the facts of this case fall within the definition of successful outcome in cl 8. Accepting that I should strive to interpret the agreement in a way that avoids unlawfulness, he said, the two expressions must be equivalent so that the plaintiffs can recover professional costs only if the settlement of this case falls within the contractual definition of successful outcome.

125 Counsel for the plaintiffs responded to this by maintaining the essential difference between the two expressions. He argued, perhaps faintly, the no-win no-fee provisions of the costs agreement do not amount to a conditional costs agreement within the meaning of s 97. I do not accept that this is so. In such an event, counsel accepted that the costs agreement was void pursuant to s 102(1). Sub-s 102(2), however, provides that, in such event, legal costs remain recoverable as set out in ss 93(b) and (c). The entitlement of the practitioner under s 93(b) is to costs in accordance with an applicable practitioner remuneration order or scale. Since the present claim under cl 4 of the costs agreement is for costs determined on the appropriate Supreme Court scale, nothing turns on the conclusion that the agreement offends s 97. The submission of Mr Burmingham, therefore, goes nowhere.

126 The final awkwardness arises from the use of various expressions as to the deferment of the client's liability to pay professional costs and disbursements. Clauses 1, 3 and 4 all speak of the deferment of the right of MBC to render a bill or an account. Since the rendering of an account is normally a precondition to the right to sue for legal costs[36] this must be intended to prevent the solicitor from suing before the client's litigation is brought to a successful completion.

127 Notwithstanding its drafting deficiencies, the intent of this costs agreement is clear enough. I construe it to mean that the client may be required to pay disbursements as and when they are incurred prior to the completion of the litigation.[37] The client, however, may not be called upon to pay professional charges unless, in breach of the agreement, or unless and until successful completion.[38] At this stage, the matter will have been ended.[39] Upon successful completion, by which I understand that the litigation has achieved a successful outcome in terms of cl 8, the client may be called upon to pay MBC's professional costs and the uplift fee, as well as its disbursements.

128 This raises two issues which I shall address in turn. First, were the bills which were delivered prior to completion of the AXA litigation delivered in breach of the terms of the costs agreement and, if so, what consequence follows? Second, has there been a successful outcome within the meaning of cl 8 and, if not, what consequence follows? In his draft closing submission Mr Burmingham also raises issues as to the contents of the s 86 statement which accompanied the costs agreements.[40] These were not the subject of evidence or debate at the trial and I shall say nothing about them.

129 On any view, the lump sum bill and the itemised bill were delivered before completion or a successful outcome of the AXA litigation. Was this, then, in breach of cl 1 of the costs agreement? Counsel for the plaintiffs made three answers to this.

130 He contended that Mr Burmingham on a number of occasions in June 2003 had requested a bill and an itemised bill. In these circumstances he cannot be heard to complain that MBC complied with his request.

131 Mr Burmingham responded to this by asserting that his request was not for a bill of costs, but rather for details of what was the amount of costs for which MBC was seeking security in early June 2003. This is correct.[41] In response to this request, MBC on 23 June 2003 delivered a lump sum bill which has the appearance of a bill of costs. It includes with a statement that the terms are payment within 14 days and a further statement that interest will run on the amount outstanding at the penalty interest rate. Furthermore, the document was delivered together with a statement advising Mr Burmingham of his right under s 108 to request an itemised bill. All of this is a little surprising, because on the following day, when leave was granted for MBC to withdraw as solicitor on the record, the Master was assured that MBC would not claim its costs until the proceeding was finished.[42] Nevertheless, the form of the document is such that I must conclude that it amounted to a bill of costs. Likewise, the itemised bill delivered on 3 July. The circumstances in which the lump sum bill was delivered, however, caused me to reject the submission of counsel for the plaintiffs that Mr Burmingham requested a bill of costs. The true position, as I find it, is that Mr Burmingham requested information as to the amount of costs which were to be the subject of security and that MBC volunteered its bill of costs.

132 Second, it was submitted that, even if the bill was delivered prematurely, this does not affect MBC's right to sue for its professional costs. Section 106 provides, as a precondition of the right to sue, only that a bill has been delivered. The bills in this case are not void or ineffective for the purpose of this provision only because they were delivered in breach of contract. If such a breach is established, it might give rise to other legal consequences but I am not concerned with these here. I was not directed to any authority on the point and my tentative view is that the MBC submission is correct. It is, however, not necessary that I express any concluded view upon this and I do not do so.

133 Third, it was said that MBC's disentitlement to deliver a bill for professional costs was conditional upon the client, Mr Burmingham, not having breached the conditions of the costs agreement. I have found that, in June 2003, he was in fact in breach of these conditions, so that MBC was entitled to render the bill for professional costs. This submission, which I accept, presupposes that, as a matter of construction, the opening sentence of cl 4 is to be read subject to cll 1 and 3. I am of opinion that this is correct, so that MBC was for this reason entitled to render the lump sum bill and the itemised bill in June and July 2003 respectively. In his draft final address Mr Burmingham argues further that cl. 3 will permit MBC to render a bill only when a breach has been determined by judgment or by admission.[43] I do not accept Mr Burmingham's contention. Whether it is correct must depend upon a proper construction of the agreement. The clause in question is one which relieves the solicitor from the contractual restraint against rendering a bill for costs. This is essentially a procedural restraint: it does not impose an immediate liability to pay those costs. Such a liability will arise only, subject to the statute, where this liability and the amount payable have been agreed or authoritatively determined.

134 This conclusion renders it unnecessary, for the purposes of the claim for professional costs based on the itemised bill of 3 July 2003, for me to consider whether and when the AXA litigation was brought to a successful outcome. The claim for the uplift fee, however, does depend on there having been a successful outcome of the litigation.

135 On behalf of the plaintiffs it was put that there was an outcome, and that, since Mr Burmingham agreed to accept $1 million and did receive this sum from AXA, it was a successful outcome. It was suggested that this outcome was achieved on one of the following dates:

18 December 2003 when he and the AXA solicitor exchanged correspondence recording the settlement
21 January 2004 when Mr Burmingham executed and returned the release prepared by the AXA solicitor
27 August 2004 when the parties signed heads of agreement following the mediation
On 30 August 2004 when the Master struck out the AXA proceeding by consent

In the statement of claim only the 18 December 2003 event is relied upon.[44] The demand for the uplift fees was made on 6 August 2004 and the proceeding was commenced more than 30 days thereafter - on 21 December 2004.

136 It will be recalled that, as required by statute,[45] the costs agreement in cl 8[46] sets out the circumstances which constitute a "successful outcome". That this is a statutory requirement makes me the more cautious in approaching the construction of this clause. The unusual facts of this case do not sit easily with any of the four circumstances which make up this definition, other than part (d). Each of the circumstances referred to in parts (b) and (c) presupposes that MBC had an active role in achieving the outcome. This was, of course, not the case here where Mr Burmingham played that role himself. Part (d) is in these terms:

(d) [s]ettlement or resolution of the claim in accordance with your instructions, whereby moneys will become payable to you for you or on your behalf arising out of the circumstances relating to your claim.

Let it be assumed that settlement or resolution of the AXA claim was achieved on 18 December 2003 as pleaded. The requirement that it be "in accordance with your instructions" suggests that someone other than Mr Burmingham acted as his agent as arriving at the settlement. The context in which part (d) is found suggests that this agent is MBC. Part (d) appears to resemble part (b). In each case the transaction is to have the effect that money is payable[47] or will become payable[48] to, for or on behalf of the client arising out of the circumstances relating to the claim. The underlying transaction itself is also expressed differently in each of the parts. In part (b) it is "an arrangement entered into by us on your behalf"; in part (d) it is "settlement or resolution of the claim in accordance with your instructions". I am unable to see why these were expressed differently since both parts appear to deal with the circumstance where the litigation is settled.

137 A further puzzling aspect of parts (b) and (d) is the distinction which is drawn in them between the expressions "money is payable" and "money will become payable". If these expressions are equivalents, then, it is difficult to see why part (d) was inserted at all, unless it was to draw a distinction between the case where the settlement was achieved by MBC and that where is was not. If this is the explanation, the further question arises, did the drafter of part (d), by the use of the expression "in accordance with your instructions", intend to draw a distinction between the case where the settlement was not achieved through the agency of MBC[49] and that where it was achieved by some other agent for the client, whether the agent is a solicitor or some other person. Even so, it is difficult to give a sensible meaning to this expression because a settlement binding upon the client will normally be made in accordance with the client's instructions, unless we are speaking of a settlement binding on the client by reason of the agent's ostensible authority but not in fact authorised. This then raises the further question, why should this matter to MBC? We are here concerned with its entitlement to seek the uplift fee for work done some time before settlement. Presumably it would not be concerned that a settlement which was effective as between the contending litigants, might give rise to a dispute between the client and his agent regarding want of authority. And there is the further question, why they should be concerned, for present purposes, that the settlement was achieved by the client as a principal, in which case they do not get an uplift fee, or achieved by an agent, in which case they do? There seems to be two solutions to this difficulty. The first is that the expression "in accordance with your instructions" should be ignored as surplusage, the product of bad drafting. The second is to treat these words as meaning "by us in accordance with your instructions", that is, that MBC achieved this settlement in accordance with the client's instructions to it. This has the advantage of giving some meaning to the expression and, further, the word "instructions" has the flavour of instructions to a lawyer. But if this construction is to be preferred it is necessary to address the puzzle mentioned at the outset of this paragraph. If both part (b) and part (d) address the circumstance where the litigation is settled by the solicitors acting for the client, what is the effective difference between them?

138 A satisfactory answer to this can be found only if there might be some distinction to be drawn between a settlement whereby "money is payable" and that whereby "money will become payable". It will the rare case where litigation is settled on the basis that money is payable forthwith: commonly the settlement sum will be payable within an agreed period or by instalments or upon the happening of some future event, such as the execution of some agreement, release or other documentation. The explanation may be that cl 8 was drafted with only parts (a), (b) and (c), until someone raised the question which I have just mentioned. This may be consistent with the location of the fourth circumstance which might have been expected to follow part (b).

139 It is neither desirable nor necessary that I attempt to unravel all of these obscurities. The question here is whether a settlement or resolution of the AXA claim which was achieved by Mr Burmingham without the involvement of MBC satisfies part (d). Although I have hesitated over this question, I conclude that such a settlement or resolution advanced by the client does not fall within part (d) and therefore does not amount to a successful outcome within the meaning of cl 8.

140 I reach this conclusion because part (b), which appears to relate closely to part (d), requires that MBC achieve the settlement. It would be difficult to understand the reason for inserting such a restriction upon a settlement under which money is payable and not upon a settlement under which money will be payable. Given that cl 8 will also apply, normally, to the entitlement of MBC to professional costs as well as to its uplift fee, it would be remarkable that there be such a disconformity as to its entitlement in the event of settlement.

141 There is a further consideration which suggests that a successful outcome by way of settlement of the litigation must be one achieved by MBC. It is that, if the client terminated the retainer, this would normally constitute a breach of cl 2(d) so that an entitlement to render a bill for professional costs would arise.

142 Finally, the requirement that MBC be instrumental in the fourth circumstance means that, like the second and third circumstances, the fact would be known to MBC so that it would know where it stood, as indeed it would if the matter went to judgment as contemplated in part (a).

143 These matters are consonant with the underlying assertion which appears elsewhere that the client was told that MBC would run the case at its own risk; if it did not achieve a successful outcome it would not charge for its professional work.

144 Having regard to these matters, and construing the provisions of the costs agreement contra proferentem, I conclude that MBC has not established its entitlement to the uplift fee. There has been no successful outcome.

145 Having regard to the conclusions I have reached, it is not necessary that I consider the further question whether the AXA litigation was settled on 18 December 2003. Nevertheless, in case the matter may go further and that this becomes a relevant question, I shall venture my views upon it.

146 The terms of the exchange of the emails of 18 December and the circumstances in which they were sent are set out above.[50] A number of things should be noted about the legal effect of these circumstances. First, the emails are expressed in terms of offer and acceptance which suggests a concluded agreement. The penultimate sentence in Mr Burmingham's offer, whereby the letter is to be evidence of a settlement reached, is consistent with this. The offer and the acceptance are expressed as an agreement by Mr Burmingham to forego in exchange for an agreement by AXA to pay.

147 The offer and, indeed, the acceptance, contain qualifications. The specific terms as to payment remained to be advised. This, however, was not a condition precedent. These terms are apparently related to the break-up of the settlement sum which Mr Burmingham required for his tax purposes. The offer and acceptance as to this simply meant that AXA would agree to any break-up that Mr Burmingham required, the only qualification being that he could not require payment of more than the settlement sum. The other qualifications were that Mr Burmingham execute a release and that he provide a letter evidencing that he had obtained independent legal advice. These three circumstances, however, were not expressed as conditions precedent or subsequent to the settlement; they were matters to be fulfilled before AXA might be obliged to pay the settlement sum. I conclude, therefore, that the AXA litigation was completed by a settlement which was achieved on 18 December 2003.

148 I conclude, therefore, that, subject to the affirmative matters raised in the defence, the contract claim of MBCPL is made out to the extent that it is for its costs, that is, its professional charges assessed under the appropriate Supreme Court scale, and its disbursements. Its claim for an uplift fee must fail.

149 In paragraph 7(b) of the statement of claim the plaintiffs alleged that Mr Burmingham repudiated the costs agreement by his breaches. I have found that he was in breach by failing to provide full and frank instructions with respect to the Officeworks litigation. In the circumstances, I do not consider that his conduct with respect to this amounts to a repudiation of the costs agreement. He may have been difficult; he may have been wrong in his view of the relevance of this material or in his view as to the tactics which he wished to pursue in the AXA litigation. The fact remains that this litigation was his litigation. In any event, it is not alleged and it was certainly never established that MWC accepted his conduct as bringing the costs agreement to an end. The claim, if it be a separate claim, goes nowhere.

150 I have sought to extract, from the defence and from what he told me at trial, Mr Burmingham's allegations against MBC. I have put to one side those allegations which were of such generality that it is impossible to know precisely what is put and those which were plainly nonsensical. I have gathered the remaining allegations under a series of general headings.

General competence and the retainer of counsel

• Persons employed by MBC, including the barristers retained, were not competent or qualified.[51]

• MBC were not up to speed on everything.[52]

• MBC failed to retain barristers on a no-win, no-charge, basis.[53]

• MBC did not instruct counsel on the same basis as they would have for a paying client. [54]

• MBC failed to provide Mr Burmingham with copies of all court documents and discovered documents and details of his claim against AXA.[55]

• The proceeding was brought in Victoria rather than in Queensland.[56]

• MBC failed to commence the proceeding or to pursue it in a timely manner.[57]

• MBC prepared a statement of claim that did not include all the terms of the relevant insurance policy.[58]

• MBC did not include a claim for breach of contract based on the Insurance Contracts Act 1984 (duty of utmost good faith).[59]

• MBC and counsel failed to pursue the claims for consequential losses.[60]

• MBC and counsel failed to include a claim for aggravated or exemplary damages.[61]

• MBC advised AXA that the claim for consequential losses was abandoned.

• MBC did not review the AXA documents.[62]

• MBC did not review the AXA medical reports especially that of Dr Ullmann in which he used superseded criteria during medical procedures.[63]

At a glance

Court

Decision date

Before

Source

Judgment (283 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)