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Solicitor’s lengthy correspondence, ‘unjustified allegations’ fail to overturn costs assessor fee
Although successful in reducing how much she owed a client by over $10,000, a principal of a small Queensland firm has failed to overturn the costs assessors fee, due in part to her consistent lengthy letters demanding and debating reasons as well as her persistence with “unjustified allegations” that the assessor was biased.
Naomi Neilson
In a lengthy judgment, the District Court of Queensland was charged with reviewing a costs assessment for a small firm solicitor, but otherwise dismissed or had reduced most of the 20 grounds of appeal that the latter brought to court. The solicitor – referred to under her firm’s name for this particular judgment – was ultimately successful in one part of the judgment to reduce the costs owed to a client.
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In 2015, the solicitor conducted work on three matters relating to one client which, in total, came to a cost of $44,817.49. After a review was requested, an assessor found that the solicitor owed a refund of $29,328.24 to the client, having dissected her invoices to determine that the costs did not match up to the work she had done.
However, the District Court found a number of errors in the assessment and was also satisfied that the magistrate of the original matter was in error in not dealing with those issues and in not allowing the appeal to that extent. As such, the court reduced the total by $10,319 and awarded $2,855 to the solicitor in short change.
Having cleared up the refund amount, the District Court then dismissed the solicitor’s submission that the magistrate had erred in finding that the costs assessor was not biased and there was no reasonable apprehension that he might have been biased. The solicitor had argued that the fee of $5,041 for the assessment was too high, but the District Court eventually found this was due to the solicitor’s correspondence.
“The solicitor sent frequently lengthy letters to the assessor about issues that the solicitor considered relevant or making submissions about the issues raised by the assessor. Instead of allowing the assessor to get on with the assessment, the solicitor demanded reasons for interim decisions, debated those decisions after they had been made, and made and persisted with unjustified allegations against the assessor and attempted to denigrate him personally,” the District Court found.
The court did concede that the assessor may have been better advised “not to take the bait” and that his breakdown of the costs might not have matched up to the time he alleged his assessment took. However, subject to any later assessments sought, the District Court said it was not for it on appeal to assess these fees other than to dismiss the grounds of appeal and point to the solicitor’s part in the high fee.
The District Court ruled: “To put it in equitable terms, the solicitor’s conduct reasonably led the assessor to assume that it was necessary to respond to the solicitor’s correspondence and the solicitor cannot now be permitted to resign from the assumption that she created.
“One of the solicitor’s criticisms of the assessor’s conduct of the assessment was that he responded to many of the solicitor’s letters in a manner that the solicitor categorised as attempting to justify the assessor’s conduct. I do not accept that criticism, particularly in light of the solicitor’s repeated assertions that the assessor was, or threatening to, deny the solicitor’s natural justice, that the assessor was incompetent, and that the assessor was biased.”
Similarly, an appeal against the magistrates’ orders disposing of the reserved costs has been dismissed, and the solicitor has been ordered to pay the costs of her former client on that appeal.
The entire judgment can be found on AustLII: D.M. Wright & Associates v Murrell (No 2) [2021] QDC 141 (16 July 2021).
