Urbaniak-Bak v Prail [2014] ACTSC 171

Urbaniak-Bak v Prail [2014] ACTSC 171 - ACTSC 2014 case summary — Zoe

[53]

But the language through a minor solicitor that you attacked the ethical basis upon which he advances his role to you and for you as your representative is quite significant. You, in fact, because of this document you say you read and approved and you adopted because all [the respondent] wanted to know is "Do you adopt the intent of this letter, the meaning of it?" And you said, "Yes", because in this letter you say:

You have acted in a way that may amount to a breach of your duties as set out in the Legal Profession Act Solicitors Rules 2007.

And the author of the document drew the attention to the fiduciary nature of the relationship:

... to be free of influence of any interest which may conflict with the client's best interests.

The basis upon which you were making that thrust was that [the respondent] rather than pay $792 for your interpreter was seeking not to pay that amount because it would come out of his pocket.

...

Now the point is that you saw that as his obligation but clearly, as I have said previously, it was not. The obligation for an interpreter had been ruled out by the court. It had nothing to do with [the respondent]. Now you make the suggestion though that [the respondent] should absorb the cost, should pay for the interpreter because that is what you want. And of the article, this letter, what the suggestion he drives at is that his inability to do that, his self interest in wanting to keep his money was something which was unacceptable to you but that is not the basis upon which [the respondent] was refusing to engage the interpreter, but that is what you have taken as the reason and that is what the author of this letter has done, and that is what you adopted on that morning when [the respondent] asked you, "Do you stand by what is in this?", Because the moment you did then you attacked both his integrity and his honesty as your representative and he could not act for you any longer on that basis.

See that was the conflict. All that happened at that point in time, and that needed to be said, is that "No, I understand I do not need it. The court has ruled I do not need an interpreter". But you could not see any of that. You were now clouded by your understanding of what had occurred and what had been denied use the previous day.

But that had nothing to do with [the respondent]. [The respondent], as your legal representative gave instructions to your counsel and I read those out to you and you were nodding with me as I read them to you. See language difficulty, lack of understanding, all the things you have been asserting, [the respondent] asserted through instructions to your solicitor, the same thing. And he tried to advance the best he could for you, but the court ruled against him. That has got nothing to do with [the respondent], nor your counsel.

Then to write this on top of that after a court ruling and blaming your solicitor for it was an attack on his integrity and that is why he asked you that question, "Do you stand by that?" And you said "Yes". And he said, "Well I can no longer act", because you now saw your legal representative putting their own self-interest ahead of yours and the moment that occurred he could not act for you.

[69]

1. The Appellant does not agree with the decision made by [the magistrate] on 06/12/2013. The Appellant disagrees to pay any money to the Respondent because the Appellant doesn't owe any money to the Respondent. [The magistrate] did not consider that the Appellant did not have sufficient understanding or comprehension of the Costs Agreement in order to be able to make an informed decision to competently signed the document in a proper legal capacity.

2. [The magistrate] did not consider that, at the time of signing with the Conditional Cost Agreement the Respondent did not offer the Appellant the services of an interpreter to allow her to understand the complex and legal nature of the Agreement in her first language, Polish. Therefore, the Appellant's understanding of the document was confined to its "no win-no fee" nature. Appellant was misled by Respondent.

3. [The magistrate] did not consider that the Respondent lost any chance of a settlement when he withdrew from the case and breached his ethical duty to his client to continue the case and keep control over the hearing process.

4. [The magistrate] did not consider that the Respondent did not bring a successful outcome, he lost sight of the Appellant's goals, raised conflict of interest and terminated himself.

5. [The magistrate] did not take any consideration that Respondent issued a bill to the Appellant for Barrister fees when that Barrister was briefed without the appellant's informed consent. Fees for the barrister arrived on the first day of the hearing (09/02/2010).

6. [The magistrate] did not consider that the Appellant must be informed about the basis for the barrister's charges, the scope of the brief, and any other relevant information that is needed so that the Appellant can be properly informed before starting of proceeding.

7. [The magistrate] did not consider liability of the Respondents produced legal documents that included an incorrect statement that wasn't true (Attachment C Form 2.18 Reply to defence paragraph 2 and Attachment A audio script).

8. [The magistrate] asked the Appellant whether she had received the court book. Appellant stated she did not received and have not seen the court book before. [The magistrate] said that the court book was sent to the Appellant via registered post on 16 October 2013. The Respondent confirmed this (Attachment A audio script an Attachment D). On 12 December 2013, the appellant called the respondent seeking a copy of the postal receipt. The Respondent agreed to provide a copy of the receipt but stated he never said it was sent via registered post.

9. [The magistrate] ignored the fact that the Appellant did not receive the court book before the hearing and he allowed the proceedings to continue. [The magistrate] failed to consider that the Appellant did not have a chance to be prepared fairly for the hearing.

(numbering added)

[81]

And, although the appeal is by way of rehearing, the appellate [court] does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.

Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on part of the court below: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ. Here, the admission of evidence by consent, which simply confirmed what was before his Honour, thus required the appellant to demonstrate error in the discretionary judgment.

I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a "re-hearing" does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.

Where no oral evidence was given below, or the trial judge's findings based on oral evidence are not challenged, the Supreme Court on appeal is in a good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox 214 CLR at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; see too CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 at 252-253 [69]; [2008] HCA 30; 82 ALJR 1135 at 1144 [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

[84]

1. Work to be Done

The work we have been instructed to do is:-to act for you as your legal representative in relation to your workplace injury occurring at work with Burrangiri Centre Rivett.

2. Successful Outcome of your Matter

The successful outcome of your matter, as agreed with you, is:-to obtain either a lump sum payment from your employer or to successfully have your workers compensation entitlements re-instated.

3. When Costs are Payable by You

Subject to our right to charge you costs if this agreement is terminated prior to the completion of the work we have been instructed to do, we will only charge you professional charges if the successful outcome as set out above is achieved. However regardless of the outcome, you must pay our disbursements as provided hereunder.

...

5. Our Disbursements

We will incur disbursements on your behalf. Disbursements may include but are not limited to, filing and other Court fees, registration fees, Counsel's fees, medical or other report fees, document production fees, experts' fees...

You must pay our disbursements regardless of the outcome of your matter, and regardless of whether our services are terminated by you or by us prior to the completion of the work we have been instructed to do. Further, we may at any time, require you to pay money or further monies into our trust account to cover (or we may at any time require you to otherwise secure to our satisfaction) the anticipated cost of any disbursements before they are actually incurred. We may send you a bill of costs for our disbursements at any time, which bill will be itemised.

...

6. Counsel's Fees

Unless we have reasonable cause, we will seek your instructions and give you an estimate of Counsel's fees before we retain Counsel. The actual amount of Counsels fees however will depend on events as they unfold, the amount of work Counsel performs, and other circumstances over which we may have little or no control. You will be responsible to pay or to reimburse us for the reasonable fees of any and all Counsel retained by us (unless we have agreed not to charge you for disbursements in circumstances where a successful outcome is not achieved).

...

15. Termination of this Costs Agreement after the Cooling-Off Period

(a) You may terminate our services at any time in writing after the cooling-off period ...

(b) We may, in addition to any circumstances in which we may by law be entitled to cease acting for you, give you written notice that we intend to cease acting for you if:-

...

(iii) You fail to provide us with proper, accurate, truthful and/or timely instructions; or

(iv) You unreasonably refuse to follow our advice in relation to your matter and we believe that your refusal has caused an irretrievable breakdown in our relationship with you; or

...

(vi) A conflict of interest arises.

(c) (i) If you terminate our services or if we cease acting for you in accordance with clause 14(b) above, we will (subject to Clause 14(c)(ii)) send you an account for our professional charges and disbursements for all work performed by us and for all disbursements incurred by us up until that time, or performed or incurred since our last account to you. If we have agreed to charge you a fixed fee for our professional charges for completing your matter, we will charge you a pro rata proportion of that fee for the work done, and we will charge you in full for any disbursements incurred.

(ii) If we cease acting for you or if you terminate our services as a result of a conflict of interest which we should have reasonably foreseen, and about which we did not forewarn you, we will not charge you any professional charges.

[89]

Dear [Respondent]

I am writing because I am concerned at the way you are handling my mother's case. As you are aware she is not a native speaker of English and has trouble communicating a lot of the time.

I was quite surprised when I heard that you had suggested that she would not need a translator while she was being questioned in court. As you will appreciate answering questions in a court is unnerving for most people, but particularly for those people who do not have such a strong grasp of the English language, who cannot understand everything that is being put to them and can often not respond in an adequate manner.

Undoubtedly you will be familiar with the concept of procedural fairness and the principles of natural justice that enshrine every person's right to a fair trial. By denying my mother the right to access the services of a translator you have surely breached some of your ethical duties.

I am quite sure that if this were to be reviewed that someone could see that my mother would have been denied the right to a fair trial, a right afforded to everyone in the Australian legal system.

That being said, if you were to continue to suggest to my mother that she did not need the services of a translator even though it has been made expressly clear to you that she wants a translator I would be deeply concerned.

To do so would not be in the best interests of my mother, your client. When you accepted the retainer to act for my mother, you accepted the duties and responsibilities that accompany that.

I feel that the way you have acted may amount to a breach of your duties as laid out in the Legal Profession (Solicitors) Rules 2007. I would particularly like to draw your attention to the preamble of Section 1.

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

I sincerely hope that you will bear in mind the above when giving my mother advice in the future.

Yours sincerely

[the name of the appellant's son]

At a glance

Court

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Judgment (181 paragraphs)

Urbaniak-Bak v Prail [2014] ACTSC 171 (18 July 2014)

Parties

Legislation Cited (16)

Cases Cited (10)