Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nana Asare v Turner Coulson Immigration Lawyers [2015] NSWCATAP 26 Hearing dates: 9 February 2015 Decision date: 13 March 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President C Paull, Senior Member Decision: Appeal dismissed Catchwords: Civil and Administrative Tribunal - S7 of the Consumer Claims Act - whether Tribunal has jurisdiction Legislation Cited: Consumer Claims Act 1998 NSW Civil and Administrative Tribunal Act 2013 NSW Legal Profession Act 2004 NSW Cases Cited: Doyle v. Hall Chadwick (2007) NSWCA159 Category: Principal judgment Parties: Nana Asare (appellant) Turner Coulson Immigration Lawyers (Respondent) Representation: Appellant: self represented Respondent: Mr Turner File Number(s): AP 14/46499 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 July 2014 Before: S Hennings, General Member File Number(s): GEN 14/18860 REASONS FOR DECISION Background 1. The appellant appeals a decision made on 14 July 2014 in the Consumer and Commercial Division of the Tribunal. The appellant had filed an application in the Division on 8 April 2014 in which he alleged that the respondent had provided "substandard service in relation to work agreement contract" and that "work was not performed as expected". 2. The decision of 14 July 2014 dismissed the appellant's application on the basis that the Tribunal had no jurisdiction to determine the application. The decision found that the agreement between the appellant (then the applicant) and respondent was one which had given rise to a claim concerning the fairness or reasonableness of the costs charged by a solicitor and that, accordingly, the Tribunal had no jurisdiction because of the operation of section 7(5) of the Consumer Claims Act. 3. It is helpful in order to understand the decision of the appeal panel if the relevant background between the parties is set out. This is done in the following paragraphs. 4. The appellant retained the services of the respondent by an agreement in writing between the parties entered into on or about 27 September 2010. The agreement concerned the provision of services which were described in the agreement as "to assist and represent you in an application for a spouse visa to migrate to Australia". The agreement required the payment of fees by instalments and the appellant paid an instalment of $2,200. 5. On or about 21 January 2011 the appellant elected to discontinue the instructions of the respondent and sought recovery of the sum of $2,200 previously paid. The respondent wrote to the appellant by letter dated 27 January 2011 declining to return the monies paid and relying upon the terms of the retainer agreement. Clause 11.2 of that agreement essentially provided that no refund of fees is payable if the client terminates the agreement. 6. Thereafter the appellant took action to recover the sum paid including lodgement of a complaint with the Legal Services Commissioner who in turn referred the complaint to an officer associated with the Department of Migration. Then on or about 22 January 2014 the appellant lodged an application with the Tribunal. The appellant informed the Appeal Panel during the appeal hearing that that application was dismissed on 7 April 2014 by reason of the appellant's non appearance at the hearing of that application. 7. On the following day (8 April 2014) the appellant filed the application which led to the decision of 14 July 2014 (which is the decision from which the appellant appeals). In the application filed on 8 April 2014 the appellant states that he requires an extension of time and states that: "I was very sick on the day of hearing – lost my entire voice. I was severely suffering from tonsillitis on the day of hearing and had a knee pain and unable to walk properly". 1. The Tribunal's jurisdiction to hear and determine the application filed on 8 April 2014 arises by reason of the provisions of the Consumer Claims Act ("CC Act"). Section 7 of that Act is in the following terms: 7 Jurisdiction in respect of consumer claims (cf Act No 206 of 1987, sec 10) (1) General The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South Wales The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (3) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. (4) Limitation periods The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (4A) Nothing in this section affects any period of limitation under the Limitation Act 1969. (5) Claim relating to solicitor's or barrister's costs A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004. 1. The decision of 14 July 2014 found that the agreement between the parties was an agreement between a client and a solicitor. The Tribunal found that the applicant's claim was that "he wanted a refund in money that he had paid. The applicant was dissatisfied with the level of work that had been undertaken by the respondent for the amount of money that he had paid. The Tribunal was satisfied that it was essentially a claim in relation to the fairness or reasonableness of the cost charged by the solicitor. The respondent submitted that the Tribunal had no jurisdiction to determine such a claim". The Tribunal decided that it should accept the respondent's submission and found that it did not have jurisdiction to determine the matter. The final sentence of the decision stated that the applicant may consider taking the matter to the appropriate legal forum which would have jurisdiction to determine such a claim. However, the appellant did not take the claim elsewhere but instead has lodged this appeal. Notice of Appeal and Appellants submissions 1. The appellant's grounds of appeal may be summarised as follows: ● that the decision below was "based upon an erroneous and / or inadequate assessment / classification of the nature of the complaint". ● the Tribunal Member incorrectly applied section 7(5) of the Consumer Claims Act". In addition the appellant asserted that the Tribunal Member had failed "to apply / adhere to the rules of procedural fairness". That assertion was not elaborated upon either in the Notice of Appeal, nor at the appeal hearing. 1. In the Notice of Appeal the appellant sought orders that the decision below be quashed and a decision to the effect that the Tribunal has jurisdiction to hear the application. The appellant submitted that clause 11.2 of the retainer agreement should be declared unfair and void and further asserted that the respondent had breached the agreement by failing to supply services at all or at a level reasonably expected to be supplied pursuant to the contract. 2. The appellant did not file any submissions. At the hearing the appellant submitted that his claim against the respondent was not based upon an assertion concerning the fairness or reasonableness of the costs charged but rather was based upon an assertion that the respondent had not performed the services for which the respondent was retained or had not performed them adequately, and as a consequence, the appellant was entitled to terminate the retainer and have the money paid refunded. The appellant therefore submitted that section 7(5) of the CC Act was not relevant to the application. Reply to Appeal and respondents submissions 1. The respondent filed a Reply to Appeal, written submissions (received 5 February 2015) and made oral submissions. Essentially, the respondent's submission was that the decision below was correct in excluding the jurisdiction of the Tribunal upon the basis that the claim fell within the provisions of section 7(5) of the CC Act. The Appeal Panels jurisdiction 1. The jurisdiction of the appeal panel is granted by section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). This is an internal appeal and the provisions of section 80(2) of the Act are relevant. The appellant may appeal as of right on a question of law and with leave on other grounds. The appellant's appeal is based upon the argument that the Tribunal incorrectly concluded that it had no jurisdiction. The appeal raises a question of law and the appellant may appeal as of right. The Appeal Panels decision 1. It is the opinion of the appeal panel that s7(5) of the CC Act is only engaged where the matter before the Tribunal is "a matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor" and if the costs can be the subject of a costs assessment under part 3.2 of the Legal Profession Act 2004.The appellant asserts a breach of the retainer agreement entitled him to terminate that agreement and seek damages. The damages sought in this case is the return of the costs already charged and paid. The respondent asserts that the retainer agreement precludes the payment of a refund. A Tribunal determining such a case would adjudicate on the issue having regard to the usual principles concerning the law of contracts as modified by statutory obligations. 2. Part 3.2 of the Legal Profession Act (the LP Act) contains provisions the purposes of which are described in section 301 of the LP Act. Those purposes include provisions for law practices to make disclosures to clients regarding legal costs, to regulate the making of costs agreements in respect of legal services, to regulate the billing of costs for legal services and to provide a mechanism for the assessment of legal costs and the setting aside of certain costs agreements. 3. S328 of the LP Act provides that on application by a client, a costs assessor may order that a costs agreement or a provision of a costs agreement be set aside if satisfied that the agreement is not fair or reasonable. The section empowers the cost assessor to determine the fair and reasonable costs. 4. Section 350 of the LP Act provides that a client may apply to the Manager Costs Assessment for an assessment of the whole or part of any legal costs. 5. S350(4) of the LP Act provides that an application by a client for a costs assessment under s350 must be made within 12 months after: 1. The bill was given or the request for payment was made to the client or 2. The costs were paid if neither a bill was given nor a request was made. However, s350(5) permits the Supreme Court to determine that an application made outside the 12 month period should be dealt with by a costs assessor if the Supreme Court determines that it is just and fair for the application for assessment to be dealt with. 1. The respondent described the appellant's attempt to distinguish his application as a matter which was not a matter arising in relation to the fairness or reasonableness of the costs charged as a "distinction without a difference". The respondent sought to argue that the application fell within the provisions of section 7(5) because the application concerned a claim for the return of the fees paid on the basis that the charge made was not fair or reasonable. 2. The appellant's submission has been carefully considered. The appellant's submission has merit in respect of a claim by a client against a barrister or solicitor alleging breach of obligations agreed to be performed under a retainer agreement but which makes no assertions concerning the fees and only seeks other damages arising as a result of the practitioner's breach. For example, a failure to perform an agreed task within a particular time frame may cause the client financial loss. Such claims may not involve any question concerning the legal costs paid or payable. Such claims would not fall within s7(5) of the CC Act. 3. However, the appellant's case is not a case of the kind considered in the above paragraph. Rather it is a case in which the appellant seeks the recovery of the fees paid. 4. In the circumstances of this matter a costs assessor could have exercised the power given under s328 to order that the costs agreement be set aside if the costs assessor determined that the agreement was not fair or reasonable in precluding the applicant from obtaining the refund by reason of the respondent's alleged breach of its obligations to provide the service agreed to be provided under the retainer agreement. The costs assessor's power extends to setting aside "merely a provision of the costs agreement" (s328 (1A)). 5. In Doyle v Hall Chadwick (2007) NSWCA159 Hodgson JA said in referring to s208(3) of the Legal Profession Act 1987 (now repealed) that a costs assessor had jurisdiction to construe a costs agreement, determine its effect and determine disputes as to the terms of the costs agreement (see paragraphs 55, 56 and 61). S208 (3) states in summary that for the purposes of determining an application for an assessment or exercising any other function, a costs assessor may determine whether a costs agreement exists, and its terms. The LP Act is expressed differently to the repealed Act but the effect of s328 and s363 of the LP Act is to similarly give to a costs assessor a power which would enable the assessor to determine whether a refund of costs paid should be made. S363 requires the assessor to consider the fairness and reasonableness of the amount of legal cost in relation to the work. 6. The appellant could have applied for a determination under s328 of the LP Act or an assessment under s350 of the LP Act. The opinion of the Appeal Panel is that the claim concerns a matter in relation to the fairness or reasonableness of the costs charged and that the costs were costs which could have been the subject of a costs assessment under Part 3.2 of the LP Act. In short, the opinion of the Appeal Panel is that s7(5) of the CC Act precludes this claim from being dealt with by the Tribunal. Consumer Claims Act – section 7(4) 1. Section 7(4) of the CC Act provides that the Tribunal does not have jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than 3 years before the date in which the application is lodged. In this case, it was common ground that the application was lodged on 8 April 2014. In the opinion of the appeal panel the cause of action first accrued when the respondent declined to return the fees paid to it. That occurred on 27 January 2011. In the opinion of the appeal panel because the cause of action first accrued on that date the Tribunal ceased to have jurisdiction to deal with the consumer claim from 28 January 2014. 2. Even if the appeal panel is wrong in its view concerning s7(5) of the CC Act the panel is of the view that the Tribunal also had no jurisdiction to determine the claim by reason of s7(4) of the CC Act 3. As a consequence of the views expressed above, the appeal panel will order that the appeal be dismissed. 4. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 5. Principal Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 26 February 2015 - decision number not in use. 30 March 2015 - number used DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2015