Stubberfield v Webster & Ors [1995] QCA 520

The history of the matter is rather complex, but it is possible to give an adequate account of it by concentrating on what seem to be the principal events. The respondent did certain legal work for the appellant and delivered a memorandum of fees, partly itemised, charging $1,294.50. The memorandum contained a note to the effect that if payment was not received in 14 days the respondent reserved the right to render a bill of costs in taxable form which might be for a higher amount. The appellant did not pay the amount charged and wrote requesting a bill in taxable form. That was delivered in a sum of $1,933.55 and was not paid.

The respondent appropriated to the amount due by the appellant a sum of $500, which had been lodged in trust, and sued in the Magistrates Court for the balance of the $1,933.55. That court gave judgment in favour of the respondent for the whole sum claimed. The appellant did not challenge the judgment, as he might have done, by seeking leave to appeal under s. 11AB(2)(a) of the Magistrates Court Act 1921; that provision allows an appeal from the Magistrates Court in its civil jurisdiction to the District Court by leave, where the amount involved is not more than $5,000. It is not really clear why the appellant did not apply for leave, since he has asserted that at least one of the questions involved in the case, namely the legal consequences of the respondent's attempt to attach to the first bill the condition which has been mentioned, is one of considerable importance. If that was so, then presumably the District Court would have granted leave on the basis that "some important principle or question of law or justice" was involved: see s. 11AB(2)(a) of the Magistrates Court Act 1921.

What the respondent did instead was apply to the Supreme Court to review the magistrate's judgment under s. 43(1) of the Act. It is unnecessary to set out the terms of that section and enough to say that it falls within part 5 of the Act, the scheme of which is that prerogative writs of mandamus prohibition or certiorari are no longer to be issued (s. 41(1)) and they are replaced by provision for making what are called prerogative orders, under s. 43(1). The respondent applied to Thomas J for dismissal of the appellant's application under s. 43(1) of the Act; in that application the respondent relied upon s. 12 of the Act which is as follows:

" Despite section 10, but without limiting section 48, the Court may dismiss an application under section 20 to 22 or 43 that was made to the Court in relation to a reviewable matter because -

(a) the applicant has sought a review of the matter by the Court or another court, otherwise than under this Act; or

(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court. "

His Honour held that the requirements of that section were satisfied, as to para (b), and that the appropriate course was to dismiss the application. It was also held that the requirements for dismissal under s. 13(b) of the Act were satisfied and, in effect, that s. 13(b) was a sufficient basis for dismissal of the appellant's application; it seems unnecessary to set out the terms of that provision. The appellant, then, as we have mentioned, appealed against the order of Thomas J and there followed the application and cross-application producing the consequence that is necessary to determine whether leave to appeal should be granted.

The appellant makes a number of criticisms of the order of Thomas J. He says that there is no law, other than the Act itself, whereby the prerogative orders sought can be granted; that, however, is irrelevant, because it is not a condition of either s. 12 or s. 13 that there be such a law. Each of those sections mentions "a law, other than this Act, under which the applicant is entitled to seek a review of the matter . . . ". The review contemplated in the expression just quoted need not necessarily be a review by way of application for prerogative order. Then, the appellant says that ss. 12 and 13 relate only to applications under s. 20 of the Act, but that again is plainly wrong.

The object of the application for leave to appeal from the appellant's point of view is we think that he wishes to have decided, in the interests of the public generally, legal questions relating to what was said to be a common practice of solicitors, namely delivering a bill of costs subject to such a condition as has been mentioned above. That condition is one to the effect that if the bill is not paid within a specified time the solicitors reserve the right to deliver a bill in taxable form, which may be for a larger sum. One difficulty about asking for leave on that ground is that the point raised appears now to be of an academic character. Fryberg J ordered (on 29 August last) on the application of the appellant that the larger bill of costs, that for $1,933.55, be referred to taxation, on certain conditions. That taxation has taken place and the appellant has had considerable success; $859.80 was taxed off the bill, reducing the amount due to a lesser sum than was sought to be charged under the first bill. There is of course now no suggestion that the respondent is entitled to recover the amount of costs the subject of the Magistrates Court judgment, nor does the appellant say he will not accept the result of the taxation. Fryberg J held that the entry of that judgment did not prevent a challenge to the amount of the bill in the way in which his Honour ordered - i.e. by referring it for taxation; there has been no appeal from the order of Fryberg J. The appellant points out that apart from the claim for costs under the bills which have been mentioned, other issues of costs have arisen in this litigation. But he does not submit, and it is plainly not the case, that those issues of costs constitute a ground for granting leave to appeal under s. 15(4) of the Act. We have mentioned that the main basis upon which leave is sought is that the public interest requires an elucidation of the effect of attachment of the condition to the first bill; in view of the reduction, under the reference which has been mentioned, of the amount of the respondent's charges to a lesser sum than that claimed in the first bill, it does not appear at all likely that if an appeal against the order of Thomas J were successful, the question of the effect of that condition would then be litigated. Then there is of course the more basic difficulty, that neither the reasons nor the order of Thomas J decided anything about the effect of the condition.

In one respect the position arising between the parties has become procedurally complex, there being an inconsistency between the judgment of the Magistrates Court and the result of the subsequent reference of the bill of costs of the respondent for taxation. But the s. 43(1) application relating to the Magistrates Court judgment cannot raise any question about that, and it is to be noted that the order of Fryberg J of 29 August last, ordered that proceedings in the Magistrates Court action be stayed until further order.

Thomas J explained that what the appellant wants is a "full appeal capable of reviewing the evidence, various rulings and various aspects of the reasons for judgment" of the Magistrates Court. That is not available under a s. 43(1) application.

It is our opinion, then, that leave to appeal should be refused. There are no doubt questions other than the principal point, about the condition, which the appellant would seek to agitate, if leave to appeal were granted; but there is no issue, as it seems to us, of such a character as to be a ground for leave. Another point against the grant of leave is that presumably all that is now in question, as to money, is responsibility for the costs of these and earlier proceedings.

We therefore strike out the notice of appeal, on the respondent's application, and refuse the applications made by the appellant by notice of motion filed on 3 November 1995. It is ordered that the appellant pay the costs of the proceedings in this Court of the respondent Hill & Taylor (a firm).