ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WILLIAMS LOVE & NICOL LAWYERS PTY LTD TRADING AS BRADLEY ALLEN LOVE LAWYERS v LOW (Civil Dispute) [2017] ACAT 31

XD 1044/2016

Catchwords: CIVIL DISPUTE – claim for legal costs by law firm – counterclaim for recovery of legal costs paid by client to law firm – law firm’s claim for legal costs abandoned – claim by self-represented litigant for compensation for time and expense incurred in defending claim and counterclaim – whether this claim for compensation is a claim for costs under section 48 of the ACT Civil and Administrative Tribunal Act 2008 – whether a client of a solicitor can invoke the provisions of the Australian Consumer Law

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48Australian Consumer Law ss 2, 3,18, 29Competition and Consumer Act 2010 (Cth) s 4B, sch 2

Cases cited: Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2012] FCA 47 Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

Tribunal: President G Neate AM

Date of Orders: 26 April 2017Date of Reasons for Decision: 26 April 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1044/2016

BETWEEN:

WILLIAMS LOVE & NICOL PTY LTD TRADING AS BRADLEY ALLEN LOVE LAWYERS

Applicant

AND:

COLIN JAMES LOWRespondent

TRIBUNAL: President G Neate AM

DATE: 26 April 2017

ORDER

The Tribunal orders that:

1. The counterclaim by Mr Low is dismissed.

………………………………..President G Neate AM

REASONS FOR DECISION

1. The ACT Civil and Administrative Tribunal (Tribunal) is asked to decide on a

counterclaim by Colin James Low against Williams Love & Nicol Lawyers Pty Ltd

trading as Bradley Allen Love Lawyers (BAL Lawyers/the Firm). That is the only

matter remaining for determination from proceedings against Mr Low commenced in

the Tribunal by BAL Lawyers in September 2016.

Background

2. Mr Low is a mechanical engineer. In December 2015, he received correspondence from

his employer informing him that he was to “cease inputs” on his two current projects in

Nepal and stating that “no correspondence or contact, either formal or informal,” was to

be made to the clients, contractors and suppliers on those projects “with immediate

effect.” In separate correspondence his employer advised him that, although his

“technical performance” on the projects had been “exemplary,” his “work conduct”

(including his “abrasive communication style”) had been “unsatisfactory.”

3. Mr Low sought legal advice from BAL Lawyers. The Firm provided advice and made a

general protections application to the Fair Work Commission. It took other action on his

behalf. Mr Low did not achieve an outcome which he considered satisfactory. He is

disappointed in the legal system, which he feels has failed him, and with the lawyers

who he considers failed him. In his view, as someone with no background in legal

matters, he put his case in the hands of his lawyers and their action contributed to his

loss of employment opportunity. He is claiming $19,824.00 from them.

4. Mr Low’s counterclaim is best understood in the context of the following events:

(a) the original debt recovery claim by BAL Lawyers for $10,549.58 in respect of

invoices issued to Mr Low pursuant to a retainer relating to Mr Low’s dispute

with his former employer;

(b) Mr Low’s counterclaim for damages arising from allegations of misleading and

deceptive conduct, or breach of contract, or negligence; and

(c) the subsequent discontinuance of the claim by BAL Lawyers against Mr Low.

5. The following events led to the claim and counterclaim.

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6. On 14 December 2015, Mr Low had an initial conference with John Wilson, a legal

practitioner and Legal Director of the Firm. By letter dated 17 December 2015 to

Mr Low, BAL Lawyers recorded that they were instructed to advise Mr Low “in

relation to his removal from the Rasuwagadhi and Sanjen Project teams, including

preparing general protections application.” They enclosed documents setting out:

(a) the main details of Mr Low’s matters, including a statement of his initial

instructions “which assists to define the scope of our estimate”;

(b) the terms on which BAL Lawyers agreed to be retained as legal representatives by

Mr Low; and

(c) disclosures made by BAL Lawyers to Mr Low.

7. Mr Low signed the relevant schedule to the correspondence on 21 December 2015 and

paid $5,500.00 into the Firm’s trust account.

8. BAL Lawyers undertook work on behalf of Mr Low. On 11 February 2016, the Firm

sent him an invoice for $4,317.35 (being total fees and disbursements less the amount

previously paid into the trust account). On 26 February 2016, BAL Lawyers sent Mr

Low another invoice for an additional sum of $5,486.25 for the further costs of acting in

his matter.

9. Mr Low did not pay those accounts.

10. On 29 September 2016, BAL Lawyers filed a civil dispute application with the

Tribunal. It was an application to recover a debt said to be owed by Mr Low to BAL

Lawyers in the sum of $10,549.58 (comprising $9,803.60 for legal services provided to

Mr Low pursuant to invoices dated 11 February and 26 February 2016, $290.00 filing

fee, and $455.98 for interest accrued to the date of filing). BAL Lawyers also

foreshadowed a claim for costs incurred by them in recovering moneys owed to them by

Mr Low, in a sum to be confirmed at the date of judgment.

11. On 28 October 2016, Mr Low filed a response to the civil dispute. He expressly

disputed the claim by BAL Lawyers on grounds that he set out in attachment 1 to the

form. However, in order to “expediently resolve this dispute” he agreed to pay BAL

Lawyers the “full amount of their originally estimated fees for all they have done,” that

is, the amount taken by BAL Lawyers from the trust account.

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12. On 20 January 2017, Mr Low filed a further response to the civil dispute in the form of

a counterclaim. He claimed $19,824.00. He stated that he is seeking:

(a) recovery of all contract payments made to BAL Lawyers;

(b) compensation for time and cost expended to date defending himself;

(c) compensation for any additional time and costs that he may incur due to BAL

Lawyers;

(d) publicising and penalising BAL Lawyers for offences per Australian Consumer

Law.

13. The way in which the amount claimed was calculated is set out as follows in a

document headed ‘Civil Dispute Revised Response – Attachment 1’ dated 24 January

2017:

(a) initial consultation: -$605.00;

(b) recovery of payments made: $5,500.00;

(c) submit for & attend 30 November 2016 ACAT conference (18 hrs @ $176 ph):

$3,168.00;

(d) submit for ACAT hearing (64 hrs @ $176 ph): $11,264.00;

(e) ACAT counterclaim fee of $145.00; and

(f) allowance for attendance at 14 February 2017 ACAT hearing (2 hrs @ $176 ph):

$352.00.

14. On 23 January 2017, BAL Lawyers filed a notice of discontinuance of their application

against Mr Low. The Firm no longer seeks payment of the fees claimed in its claim of

September 2016.

15. On 7 March 2017, BAL Lawyers filed a response to the civil dispute in which they set

out in detail their grounds for disputing the counterclaim. Although the Firm admits

some of the assertions made in Mr Low’s counterclaim, it denies the balance of the facts

alleged by Mr Low and provided replies to each of the statements made in Mr Low’s

revised response.

16. It is relevant to note that, at the hearing of this matter on 3 April 2017:

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(a) the representative of BAL Lawyers confirmed that the Firm is not claiming

anything in excess of the $5,500.00 paid to them by Mr Low to date, and provided

a letter to that effect to Mr Low on that date (in other words, the discontinuance of

the claim completed any legal action that BAL Lawyers had in relation to the

recovery of outstanding legal fees and associated costs of their work for Mr Low);

and

(b) Mr Low clearly stated that, despite including in his counterclaim “Notice is given

that separate action may yet be sought against the Applicant for negligence

contributing to loss of employment opportunity,” he would not be taking such

action.

17. In light of the way the case was argued, it is appropriate to deal separately with the

elements of Mr Low’s counterclaim as follows:

(a) initial payment of $605.00 to BAL Lawyers;

(b) the $5,500.00 paid to BAL Lawyers;

(c) the $14,784.00 claimed by Mr Low;

(d) the Australian Consumer Law issue; and

(e) the counterclaim filing fee of $145.00.

Initial payment of $605.00 to BAL Lawyers

18. From the total sum he claims is owed to him by BAL Lawyers, Mr Low deducted

$605.00 being the cost of the initial consultation with Mr Wilson.

19. Mr Low agrees that he owes BAL Lawyers $605.00 for that initial consultation. He said

that he has not paid that sum but will do so were he to be successful in his counterclaim.

However, as is clear from his counterclaim, he does not agree that he should have paid

the $5,500.00.

20. At the hearing, Mr Larkings for BAL Lawyers reiterated that the discontinuance of the

claim by BAL Lawyers was on the basis that the $5,500.00 was complete payment of

the amount owing to the Firm and that the Firm would not be seeking the $605.00.

21. Because the Firm has renounced any further claim to the sum of $605.00, there is no

need for the Tribunal to make any order in relation to it.

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Dispute over $5,500.00 already paid to BAL Lawyers

22. There was a substantial amount of evidence in relation to the type and amount of work

done by BAL Lawyers on behalf of Mr Low. That evidence comprised witness

statements and annexed documents from Mr Wilson (Exhibit C) and Gabrielle May

Sullivan, a legal practitioner employed by the Firm (Exhibit D), and copies of

handwritten file notes prepared by Ms Sullivan for conferences with Mr Low on

15 January 2016 (Exhibits E and F) and 11 February 2016 (Exhibit G). There were also

copies of correspondence between Mr Low and the Firm in the period between

December 2015 and 27 April 2016 (when the Firm ceased to act for Mr Low) and

subsequently (Exhibit A).

23. It is not necessary to deal with that evidence in detail. Rather, it is sufficient to note the

following key events and interactions between Mr Low and the Firm.

24. On 14 December 2015, Mr Wilson met with Mr Low in an office of the Firm. A file

note and a transcript of a recording of the conference were in evidence (Exhibit C).

Mr Low agreed that the transcript was accurate.

25. In his discussion with Mr Wilson, Mr Low stated that it was “very very hard to shake

the stigma of being sacked so brutally off a project,” particularly as he considered there

to be “absolutely no reason at all” for that action. The outcome he sought was to remain

in employment until at least 2018.

26. Mr Wilson offered a strategy. It involved seeking general protection against adverse

action taken by Mr Low’s employer in response to him drawing their attention to

deficiencies in the project. Mr Low told Mr Wilson that he had “no problem with any of

that.” He continued “that’s what I want no question” but alerted Mr Wilson to the hard

negotiating stance that he expected his employer would take. They discussed aspects of

documentary and oral evidence on which each side might rely, and assertions the parties

might make. Mr Wilson said he would “bring [the strategy] all together” after reading

all of the documents provided by Mr Low. He asked Mr Low if there were “other

alternatives”. Mr Low suggested other approaches he might make to the client, and they

discussed some implications of that. Mr Wilson said he would “need to think that

through Colin and properly advise you.” They discussed Mr Low’s age (56), family

circumstances, and other employment prospects. Mr Low told Mr Wilson “your strategy

I think will work.” He agreed that Mr Wilson should prepare a draft letter to the

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employer once Mr Wilson had read all the documents provided by Mr Low. Mr Wilson

asked Mr Low for additional information about the organisation of the employer.

Mr Low would consider the draft letter and they would talk further. The transcript of the

recording concluded with Mr Wilson saying “We’ll leave it there. Thank you Colin.”

27. At the hearing, there was some dispute as to the duration of this conference. Mr Low

stated that it went for two hours. He did not dispute the transcript and file notes of the

meeting, but said that the conversation went beyond that and might have included

references to slander, defamation or censuring. Mr Wilson gave evidence that the

transcript was an accurate record and no other matter was discussed outside the meeting

covered by the transcript. The transcript stated “TIME ENGAGED: 1hr 07 mins”. The

invoice rendered on 11 February 2016 billed for the conference on the basis of 10 units

of six minutes.

28. It appears from the transcript of that conversation that, after confirming his instructions

to Mr Wilson, Mr Low referred to his previous communications with his employer in

which he stated that they were “slandering” him. He said that he was “being denigrated

around the place” and he was trying to get to his employer’s client. He referred to

various previous communications. Mr Wilson suggested that Mr Low “leave that here”

or send it to his office. Mr Low said, “I think it’s of secondary importance.” It was at

that stage that Mr Wilson said “We’ll leave it there. Thank you Colin.”

29. Although there might have been some personal conversation immediately before and

after the recorded conversation, on the evidence before the Tribunal I am satisfied that

the substantive consultation was confined to the discussions recorded in the file note,

sound recording and transcript during the period of about one hour and seven minutes.

30. By letter dated 17 December 2015 to Mr Low signed by Mr Wilson, BAL Lawyers

recorded that they were instructed to advise Mr Low “in relation to his removal from the

Rasuwagadhi and Sanjen Project teams, including preparing general protections

application.” They enclosed documents setting out:

(a) the main details of Mr Low’s matter, including a brief statement of his initial

instructions “which assists to define the scope of our estimate”;

(b) the terms on which BAL Lawyers agreed to be retained as legal representatives by

Mr Low; and

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(c) disclosures made by BAL Lawyers to Mr Low.

The letter contained the following paragraphs:

Please pay particular attention to Item B of the Schedule, which describes our understanding of your instructions in this Matter.1 That detail is repeated above. If we have not understood your instructions correctly, please contact us immediately.Based on the instructions detailed at Item B of the Schedule, we estimate the range of our fees for the work to be $5,000 plus GST and disbursements as specified at item C of the Schedule. We draw your attention to what is stated about estimates at clauses 6 and 7 of the Disclosures document.These documents must be carefully and thoroughly read by you … This letter and the enclosed documents constitute an offer to enter into a costs agreement with the Firm.

31. The Schedule stated that the client would be charged for each six minute ‘unit’ of time

spent by the Firm attending to the matter at the different rates (exclusive of GST)

specified for a partner, special counsel, associate/senior associate and lawyer. The

Schedule also referred to the “many variables which may affect” the Firm’s fees, and

referred to clause 7 of the Disclosures.

32. Clauses 6 and 7 of the Disclosures document stated:

6. COSTS ESTIMATEAn estimate of the total legal costs, if reasonably practicable or, if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs is stated at Item C. An explanation of the major variables that will affect the working out of the costs is stated at clause 7 below.

7. MAJOR VARIABLES THAT WILL AFFECT COSTS7.1 It is difficult to accurately estimate legal costs. The amount of costs can be

and often is affected by matters that are largely, sometimes entirely, outside of the Firm’s management or control. Such matters include: the attitude, actions, decisions, inaction and omissions of the other party or parties to or involved with the Matter, third parties (such as government agencies with whom the Firm has to communicate for the purposes of the Matter), changes in the law or Court decisions handed down during the course of the Matter and, where the matter is a litigious one, the Court.

7.2 Accordingly, except where the Matter is stated at Item C to be for a fixed fee, whilst at the date it was prepared the Firm believed on the information before it at that time that the costs estimates at Item C or otherwise stated to the Client Parties are reasonable estimates:

1 Item B stated “The Client has instructed the Firm to advise you in relation to your removal from the Rasuwagadhi and Sanjen Project teams, including preparing a general protections application.”

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(a) regardless of any cost estimate given to the Client Parties, the sole basis on which the Firm’s Fees will be charged for all work performed by it is on a time spent basis at the rates stated at Item C;

(b) the Firm gives no promise, warranty or guarantee whatsoever that the cost estimates given to the Client Parties whether in this document or otherwise are accurate, will remain accurate as the Matter progresses or will turn out to be accurate at the end of the Matter;

(c) no costs estimate given to the Client Party is given as a quotation; and(d) the Client’s actual costs could be considerably, indeed vastly, in

excess of the costs estimates given by the Firm to the Client Parties whether in this document or otherwise.

…

33. Item C of the Schedule did not provide that the payment of fees was conditional upon

the successful outcome of the matter (see also clause 9 of the Terms).

34. Clause 11.10 of the Disclosures document also stated that the “outcome of legal

disputes and litigation is inherently uncertain.” That meant that whilst the Firm may, on

the basis of the client’s instructions and information that they otherwise acquire during

the matter, provide the client with an assessment of the client’s prospects of a successful

(or otherwise) outcome, “the Firm does not, cannot and never will guarantee, warrant,

promise or otherwise represent to the Client that the Client will necessarily obtain from

the Dispute or Proceedings the result that the Client needs, wants, desires, hopes or

wishes for.”

35. Mr Low signed the Schedule on 21 December 2015 and paid $5,500.00 into the Firm’s

trust account.

36. Ms Sullivan provided evidence (including file notes) of conversations with Mr Low on

18, 21, 22 December 2015 and 7 and 15 January 2016. She also gave evidence about

written instructions received from Mr Low on 22 December 2015 to send a letter of

demand to his employer, and further written instructions from him on 5 January 2016.

37. On 11 February 2016, BAL Lawyers sent Mr Low an invoice for $4,317.35 (being total

fees and disbursements less the amount previously paid into the trust account) for the

period between 14 December 2015 and 1 February 2016. The items identified in the

invoice included the costs of the conference with Mr Wilson on 14 December 2015, the

preparation of a letter of demand and a GP (general protections) application, perusing

correspondence and other documents, offering advice to Mr Low in teleconferences,

and commencing proceedings in the Fair Work Commission.

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38. On 12 February 2016 there was a conference before the Fair Work Commission, the

contents of which are confidential. For present purposes it is enough to note that

Mr Low seems to have incorrectly characterized the conference as a hearing before the

Commission, and that the parties did not agree on an outcome.

39. On 26 February 2016, BAL Lawyers sent Mr Low another invoice for an additional sum

of $5,486.25 for the costs of acting in his matter between 11 and 22 February 2016. The

items identified in the invoice included drafting submissions for a conciliation

conference in accordance with Mr Low’s instructions, attendance at conciliation, and

follow-up including an email to the other party about settlement discussions.

40. Mr Wilson, Ms Sullivan and Mr Low had a conference on 17 March 2016 to discuss the

conciliation conference and what might follow. The file notes of that meeting indicate,

among other things, that Mr Low was not happy with the way the matter was

progressing, that he had “got nothing” to date and was concerned about costs.

41. In a detailed email to Mr Low dated 30 March 2016, Mr Wilson confirmed previous

advice including about prospects of success in an adverse action claim and the possible

costs of a hearing. Advice was also given about the prospects of success and costs of a

defamation claim and a claim for breach of contract by his employer. Mr Wilson

referred to time limits that applied to those causes of action and requested instructions

“as soon as possible” if Mr Low intended to proceed.

42. Mr Wilson also noted that Mr Low was “still a debtor to this firm for our work as

previously instructed.” Mr Wilson had advised the Firm’s accounts section to allow

Mr Low a further seven days to attend to his outstanding account before commencing

recovery procedures. He continued, in response to a request from Mr Low to revise the

invoice:

We will not be revising our outstanding invoice. Proper disclosure was provided in relation to the work performed that that invoice records, and the work was performed in accordance with your instructions at the time. At no time did we agree to act on a ‘contingency’ basis, or to not charge (or to revise our accounts) because, or if, the hoped for result was not achieved at any point in time.

43. At the hearing, Mr Low stated that he had paid little attention to the invoices when they

arrived. He saw the first but did not read it. He thought it was for a sum less than the

$5,500.00 paid into the trust account, and hence concluded that he was still in credit to

the Firm. He thought that the second invoice was the same. Indeed he suggested that he

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thought the invoice appeared to supersede the previous invoice. He agreed that that

invoice had items for which he had provided instructions, but thought that the total

account was likely to be a little over $5,500.00. In general terms, he thought they were

on budget. It was not until he received the detailed email from Mr Wilson dated

30 March 2016 that Mr Low realised that the Firm was billing him for amounts

substantially in excess of the $5,500.00 that he had paid into its trust account.

44. Mr Low’s assessment of the situation to that date might explain his delay in taking issue

with the accounts. It does not, however, affect their validity and hence his obligation, at

that time, to pay the amounts owed to the Firm.

45. Evidence given by Mr Low also indicates the different approaches taken by him and by

the Firm to estimating costs for work done. Mr Low referred to the way in which

engineers prepare estimates and need to get permission to vary them. However, as noted

earlier, the Disclosures document described the sole basis of charging as on a time spent

basis at the rates specified. It expressly stated that the amount estimated was not a

quotation and that, for reasons explained by reference to major variables, his actual

costs could be considerably in excess of the Firm’s original estimate.

46. The differences of approach were illustrated in Mr Low’s email dated 27 April 2016 to

Mr Wilson (in response to the 30 March 2016 email). On the basis that “Engineers use

numbers” he had “quantified your assessment” in relation to prospects of securing a

sum of damages in relation to the three causes of action and various costs scenarios. He

concluded that “in monetary terms there was no possible positive outcome,” though he

also stated that “it was not about money, all I was needing was some concession that

would allow me to feel I could continue to work for [his employer] with principles and

dignity intact. Didn’t get it.”

47. Mr Low noted that, at the employer’s initiative, he had separated from his employer on

20 April 2016 with an ex gratia payment. He concluded:

The ex-gratia payment is a consequence of the process to date, so thank you for that.2 Further to this, please can you consider discounting your invoice so that there may be some of the ex gratia payment with me from this outcome, I would be very grateful for this?

2 At the hearing, Mr Low suggested that this statement was made “tongue in cheek” as a “sweetener” to get BAL Lawyers to settle with him

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48. On 27 April 2016, Mr Low advised Ms Sullivan that he would not be requiring the Firm

to provide further legal assistance on his employment matter.

49. Mr Low’s written statement attached to his counterclaim (his revised response) includes

assertions about, and criticisms of, aspects of the advice he received from Mr Wilson

and the approach taken by the Firm in his matter. In particular, Mr Low contends that

BAL Lawyers’:

(a) failure to be ready or able to argue how the Fair Work provisions were relevant to

his claim was a failure to follow instructions and breach of contract;

(b) refusal to challenge the employer’s claim of his “abrasive communication style”

was a failure to follow instructions and a breach of contract; and

(c) refusal to pursue his reinstatement to the project was a failure to follow

instructions and a breach of contract.

50. As was apparent at the hearing, and is reflected in some file notes and correspondence,

Mr Low was dissatisfied with the Firm’s performance at the Fair Work Commission and

in negotiations. For example, he thought the Firm was not as forceful in representing

him as he might have wished, in the sense that he perceived that they did not “fight

tooth and nail” to get him reinstated. He was dissatisfied with the outcome of the matter.

He contended that the Firm took him for a ride, when he could have been more

successful.

51. However, Mr Low did not provide any evidence (for example, from other lawyers who

are experts in this area) that the advice provided to him was legally wrong or that the

strategy adopted by the Firm on his behalf was inherently flawed.

52. BAL Lawyers submit that the work performed by the Firm on behalf of Mr Low was

always within the scope of the retainer and instructions provided by him which

included:

(a) providing advice in relation to Mr Low’s claims in the matter and potential causes

of action;

(b) taking and confirming instructions from Mr Low;

(c) drafting and submitting a general protections application pursuant to his

instructions;

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(d) representing Mr Low at a Fair Work Commission hearing pursuant to instructions;

and

(e) providing further advice on causes of action and prospects of success if Mr Low

commenced court proceedings.

53. The evidence before the Tribunal, including file notes of conferences and

correspondence between the Firm and Mr Low, indicates that BAL Lawyers understood

his goal of seeking reinstatement and that the Firm took steps consistently with his

instructions. The general protections application to the Fair Work Commission

expressly referred to and denied allegations that Mr Low adopted an “abrasive

communications style” or made “belittling and derogatory comments.” The letter

prepared by the Firm, settled with Mr Low and sent to his employer in December 2015

asserted that the employer’s actions unfairly damaged Mr Lowe’s personal and

professional reputation. The letter also stated that he may have a separate action in

defamation against his employer and named individuals for their actions. The evidence

as a whole supports the submission made by the Firm set out in the preceding

paragraph.

54. It is sufficient to note that, although Mr Low is not a lawyer, he appears to have

understood the advice he was given. He accepted the Firm’s recommendations. He gave

and confirmed instructions (albeit at times with some reluctance) at each key stage in

the process. Indeed he urged the Firm not to delay in taking action on his behalf.

55. His dissatisfaction with the outcome is understandable. He felt aggrieved and

vulnerable. He wanted to complete projects to which he had devoted time, energy and

expertise. He was concerned to preserve his reputation. However, his dissatisfaction

with the outcome or some aspects of how BAL Lawyers performed on his behalf is not,

in itself, sufficient basis for his counterclaim to succeed. The fact is that BAL Lawyers

took initial instructions from Mr Low, offered advice, developed a strategy, and sought

and acted on instructions at each stage of the process. They explained in detail in

writing the basis on which they would bill Mr Low for their services, and the major

variables that might mean that their estimate of the cost of their services was well below

the actual cost. They expressly did not describe the estimate as a quotation. They also

advised that he might not obtain the result that he needed, wanted, desired, hoped or

wished for. They urged Mr Low to read the documents they provided with the letter

dated 17 December 2015. Mr Low signed the fee agreement on 21 December 2015.

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56. The Firm was entitled to be reimbursed for its services. It is not the Tribunal’s role in

these proceedings to assess precisely how much that reimbursement should have been.

The Firm contends that the fees as invoiced were commensurate with the complexity

and level of the work required. However, it has undertaken to pursue no more than the

amount of the original estimate which Mr Low paid into their trust account. In all

circumstances, that seems a reasonable approach.

57. Consequently Mr Low is not entitled to recover $5,500.00, being the amount that he

originally agreed to pay and did pay for the legal services provided by BAL Lawyers.

Dispute over $14,784.00 claimed

58. As noted earlier, Mr Low claims that BAL Lawyers owe him the following amounts:

(a) submit for & attend 30 November 2016 ACAT conference (18 hrs @ $176 ph)

= $3,168.00;

(b) submit for ACAT hearing (64 hrs @ $176 ph) = $11,264.00; and

(c) allowance for attendance at 14 February 2017 ACAT hearing (2 hrs @ $176 ph)

= $352.00

59. Mr Low has calculated those amounts by reference to the approximate number of hours

he spent preparing for such things as a conciliation conference at the Tribunal on

30 November 2016 and the present hearing, as well as an attendance fee at what became

a directions hearing before the Tribunal on 14 February 2017. According to Mr Low,

the number of hours included in the calculations were fewer than the hours he actually

expended. He described his frustration with the inefficient process in which he engaged.

Apparently much of that time was spent reading documents from BAL Lawyers.

60. There are evidentiary and legal obstacles to this part of Mr Low’s claim. In particular,

BAL Lawyers submit that:

(a) there is no evidence of the number of hours spent by Mr Low in relation to the

counterclaim or the rate charged;

(b) there is no evidence that Mr Low turned work away in preparation for this claim;

(c) Mr Low is not entitled to costs as a self-represented party; and

(d) the Tribunal has a largely no costs jurisdiction and Mr Low is not entitled to an

award of costs.

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61. The evidentiary hurdles are clear. Mr Low acknowledged that he did not have a diary or

other records of the hours that he spent in preparation of, and for the hearing of, his

counterclaim. He also gave evidence that he did not turn any work away in order to

prepare his counterclaim or for the hearing of it and, in that sense, did not suffer any

economic loss as a result of these proceedings. He did not engage solicitors for this

purpose and hence did not incur any legal costs in connection with the hearing. Apart

from his own time and efforts expended on this application, there was no evidence of

any financial cost to him in relation to these proceedings.

62. Even if the Tribunal accepts as evidence Mr Low’s statements that he spent substantial

periods preparing his counterclaim and for the hearing in relation to it, the amounts

claimed in the way they are calculated are analogous to costs that might otherwise have

been incurred by Mr Low had he engaged lawyers to represent him in relation to his

counterclaim. In other words, this part of the counterclaim is in lieu of, but analogous

to, a claim for legal costs. Consequently, he faces a more significant legislative hurdle.

63. Section 48(1) of the ACT Civil and Administrative Act 2008 (ACAT Act) provides:

48 Costs of proceedings

(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.

64. Section 48(2) provides exceptions to that general rule and commences with the word

‘however’. Those exceptions include:

(a) ordering the payment of a filing fee for the application or any other fee incurred

by the applicant that the Tribunal considers necessary for the application (in cases

where the Tribunal decides an application in favour of the applicant);

(b) reasonable costs of one party arising from the unreasonable delay or obstruction

caused by the other party before or while the Tribunal was dealing with the

application; and/or

(c) part or all of the costs of one party to the application where the other party

contravenes an order of the Tribunal.

65. In Williams Love & Nicol Lawyers Pty Ltd v Wearne,3 an Appeal Tribunal clearly and

concisely considered the Tribunal’s powers to award costs. It held that the Tribunal’s

3 Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

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only powers to make costs orders are found in section 48(2) of the ACAT Act and any

other applicable legislative provisions.4 The Tribunal has no inherent power to make

costs orders.5

66. On the facts of this case, Mr Low could not expect the Tribunal to exercise its discretion

to make an award in relation to any of those exceptions. The filing fee provision is dealt

with below. There is no evidence that BAL Lawyers caused unreasonable delay or

obstruction before or while the Tribunal was dealing with his counterclaim. Indeed,

BAL Lawyers discontinued their claim against Mr Low within days of his counterclaim

being filed, and complied with directions of the Tribunal in relation to the hearing of the

counterclaim. Nor did BAL Lawyers contravene an order of the Tribunal.

67. For the reasons outlined above, I have characterised this part of Mr Low’s counterclaim

as, in effect, a claim for costs. No provision in section 48(2) of the ACAT Act applies in

relation to that claim. Consequently, I adopt the Appeal Tribunal’s statement that “the

Tribunal’s limited powers to make an order for costs do not apply in the circumstances

of this case.”6

The Australian Consumer Law

68. At the hearing, Mr Low did not explicitly expand on the statement in his counterclaim

that he wanted to publicise and penalise BAL Lawyers for “offences per Australian

Consumer Law.” However, it is possible to deal with this point by reference to his

written statement attached to his counterclaim.

69. It appears from the Competition and Consumer Act 2010 (Cth) that Mr Low was a

‘consumer’ as defined in section 4B and section 3 of Schedule 2 of that Act. Schedule 2

contains the Australian Consumer Law (ACL). In the ACL, ‘services’ is defined to

include the “rights, benefits, privileges or facilities that are, or are to be, provided,

granted or conferred under … a contract for or in relation to the performance of work

(including work of a professional nature).”7 The expression ‘trade or commerce’ is

4 Citing CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 965 Citing Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 1336 Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123 at [1]7 ACL, section 2

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defined to include “any business or professional activity.”8 On that basis, a client of a

firm of solicitors could invoke the provisions of the ACL.

70. Section 18(1) of the ACL provides that a person “must not, in trade or commerce,

engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

Section 29(1)(i) provides that a person must not, in trade or commerce, in connection

with the supply of services “make a false or misleading representation with respect to

the price of services.”

71. In the course of the hearing and in his statement attached to his counterclaim Mr Low

asserted that BAL Lawyers had engaged in misleading or deceptive conduct. The

conduct alleged comprised:

(a) advising him that a Fair Work Commission ‘hearing’ would avoid the costs and

delay of a court case;

(b) advising him that the alleged defamation, slander and censuring would be

addressed in the adverse action proceeding when that claim was “never going to

be successful” (and the authority relied on9 dealt with a different factual

circumstances);

(c) not advising him that he did not need legal representation at the conference before

the Fair Work Commission and hence not giving him the opportunity to represent

himself (which, he asserts, he would have done); and

(d) making an estimate of costs that was misleading or deceptive, and subsequently

(by misleading invoicing and by failing to comply with their own terms of not

working if payment was in arrears) disguising that the contract estimate was

exceeded and the Firm intended to charge him more than the contract estimate.

72. In reply, the Firm denies that it engaged in misleading and deceptive conduct. In

particular, in relation to the allegations summarised above, the Firm submits that:

(a) Mr Low has not made out that allegation in circumstances where no court

proceedings were commenced, Mr Low achieved an ex gratia payment from his

former employer as (in his words) “a consequence of the process to date”, and it

8 ACL, section 29 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2012] FCA 47

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remained open to Mr Low to seek advice elsewhere concerning the

commencement of defamation proceedings or other claims;

(b) Mr Low has no evidence that BAL Lawyers advised him that defamation, slander

and censuring could be dealt with as part of the Fair Work Commission matter,

and BAL Lawyers deny providing such advice or advice that the decision referred

to is authority for that position;

(c) Mr Low has not made out how BAL Lawyers failed to advise him that he did not

have to be represented by a legal practitioner in the Fair Work Commission.

Rather, that was disclosed to him as part of the Fair Work Commission form

emailed to him on 22 December 2015 which stated (under the heading “Legal or

other representation”)

Representation is where another person (such as a lawyer, a representative from a union or employer organisation or a family member) speaks or acts on your behalf in relation to your matter. There is no requirement for you to be represented when you appear at the Commission. You will need the permission of the Commission member dealing with your case if you wish to be represented by a lawyer … If you decide to represent yourself in proceedings you will need to make sure you are well prepared;

(d) in relation to the costs issue:

(i) the initial estimate of costs was expressly only an estimate;

(ii) Mr Low agreed that the Firm’s charges would be at its hourly rates; and

(iii) the Firm has abandoned its claim for any fees above that which was

estimated in its retainer.

73. The Firm also submits that Mr Low has not suffered any loss in respect of any alleged

misleading and deceptive conduct.

74. Mr Low was critical of the quality of the service provided to him by BAL Lawyers,

both as to the content of the advice and the way in which they prosecuted his matter.

Those criticisms are dealt with earlier in these reasons for decision. There was no

evidence (for example, from other lawyers who are experts in this area) that the advice

provided to him was legally wrong or that the strategy adopted by the Firm on his

behalf was inherently flawed. The evidence does not bolster the assertions outlined in

[71] above, and provides support for the submissions outlined in [72].

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75. Even if some of the actions taken, or advice given, by the Firm proved to be inadequate

to meet the objectives sought by Mr Low, that does not mean that the Firm was guilty of

misleading or deceptive conduct.

76. The basis on which BAL Lawyers entered into an agreement with Mr Low about how

its costs would be calculated, and the way in which the invoices were calculated, are

considered earlier in these reasons for decision. I am not satisfied that there was

anything misleading or deceptive in the way in which the Firm dealt with that matter.

77. Accordingly, I am not satisfied that the Firm was in breach of section 18 or section

29(1)(i) of the Australian Consumer Law.

Counterclaim filing fee of $145

78. As noted earlier, section 48(2)(a) provides:

if the Tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant-

(i) the filing fee for the application; and(ii) any other fee incurred by the applicant that the tribunals considers

necessary for the application …Examples –subpar (ii)

a fee for a business name or company search a filing fee for a subpoena hearing fees” (emphasis added)

79. It is clear that the Tribunal has not decided this application (i.e. the counterclaim) in

favour of Mr Low. Consequently, the Tribunal cannot exercise its discretion to order

BAL Lawyers to pay his filing fee in relation to the counterclaim.

Orders

80. For the reasons given above, the counterclaim by Mr Low is dismissed.

………………………………..President G Neate AM

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HEARING DETAILS

FILE NUMBER: XD 1044/2016

PARTIES, APPLICANT: Williams Love Nicol Lawyers Pty Ltd Trading as Bradley Allen Love Lawyers

PARTIES, RESPONDENT: Colin James Low

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT Bradley Allen Love

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: President G Neate AM

DATES OF HEARING: 3 April 2017

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