Elks has alleged the costs agreement he entered into was “unfair or unreasonable” because there was no attempt by Aitken Whyte Lawyers to “engage counsel whose fees would be capable of remaining within the estimate given in the costs agreement”.

To support his case, Elks said he would reference the time frame between the costs agreement and engagement of counsel, the daily rate of the counsel, and an alleged absence of attempts by the firm to contact or engage with alternative counsel for his matter.

QCAT noted Elks also alleged “that both junior and senior counsel were engaged at the same time, but that he was not told about the date upon which junior counsel was engaged until a later time”.

Elks alleged this comes from his “understanding of a conversation with a solicitor employed by the respondent” in November 2021.

In response, Aitken Whyte Lawyers told QCAT the engagement of senior counsel occurred after Elks was provided with the counsel’s costs disclosure letter “and had understood the applicant had provided instructions to brief that counsel”.

Justice Kerri Mellifont, president of QCAT, said that given the relevance of the materials, “a direction should be made for their production”.

This includes copies of all documents or records of communication between the firm’s solicitors specifically relating to the engagement of counsel between 14 October and 30 November 2021.

The firm will also have to hand over all documents or records of communication between solicitors of the firm and counsel relating to their engagement between those same dates.

The tribunal said this would need to include communications with senior and junior counsel and “communication with any other counsel about their availability for, or potential engagement on, the matter”.