Bell v McConnel & Anor [2012] NTSC 66

 

PARTIES:                                         BELL, Kevin Brian

 

                                                         v

 

                                                         McCONNEL, Duncan

 

                                                         and:

 

                                                         DEFLAW PTY LTD

                                                         (ACN 054 442 447)

                                                         t/as David Francis & Associates

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          143 of 2011 (21139320)

 

DELIVERED:                                   13 September 2012

 

HEARING DATE:                             9 February 2012

 

JUDGMENT OF:                              BARR J

 

CATCHWORDS:

 

LEGAL PRACTITIONERS – COSTS – STATUTORY REVIEW

Legal Profession Act (NT) – Application for extension of time for review of legal costs assessment – general principles relating to extension of time applications – no merit in the application for review – no injustice to applicant if time limit enforced – application for extension of time refused

 

Legal Profession Act (NT) s 301, s 303, s 311, s 341, s 344, s 351, s 352, s 354

 

Gallo v Dawson (1990) 93 ALR 479, considered.

 

 

REPRESENTATION:

 

Counsel:

    Applicant:                                     A Downs

    Second Respondent:                     D Francis

 

Solicitors:

    Applicant:                                     NT Law

    Second Respondent:                     David Francis & Associates

 

Judgment category classification:    B

Judgment ID Number:                       Bar1213

Number of pages:                             21


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Bell v McConnel & Anor [2012] NTSC 66

No. 143 of 2011 (21139320)

 

 

IN THE MATTER of the Legal Profession Act and in the matter of an application by Kevin Brian Bell for a review of a determination of costs by Duncan McConnel

 

                                                     BETWEEN:

 

                                                     KEVIN BRIAN BELL

                                                         Applicant

 

                                                     AND:

 

                                                     DUNCAN McCONNEL

                                                         First Respondent

 

                                                     AND:

 

                                                     DEFLAW PTY LTD

                                                     (ACN 054 442 447)

                                                     T/as David Francis & Associates

                                                         Second Respondent

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 13 September 2012)

 

[1]       The applicant is a former client of the law practice carried on by the second respondent.  The first respondent, a prominent member of the Bar, is a costs assessor appointed by the Law Society Northern Territory to be a costs assessor for the purposes of the Legal Profession Act.  The applicant seeks a review of the costs assessment carried out by the first respondent.

[2]       The second respondent provided legal services to the applicant from January 2009 to July 2010, and sent the applicant a number of tax invoices for those legal services, as follows:

11 March 2009 Tax Invoice # 009011, amount including costs, disbursements and GST $302.50

4 November 2009 Tax Invoice # 009093, amount including costs, disbursements and GST $13,116.50

18 March 2010 Tax Invoice # 0010-004, amount including costs, disbursements and GST $18,393.00

30 June 2010 Tax Invoice # 0010-034, amount including costs, disbursements and GST $51,141.75

22 July 2010 Tax Invoice # 0010-036, amount including costs, disbursements and GST $8,038.25

[3]       Relevant to the application now before me, the separate amounts for professional costs in the last four of the above invoices were $11,632.50, $16,555.00, $46,392.50 and $7,287.50.  The total of the professional costs claimed in those four invoices was thus $81,867.50.  That does not include GST.

[4]       Disputes arose between the applicant and the second respondent as to the amount of costs payable, and on 14 December 2010 the second respondent made an application to the Law Society of the Northern Territory for a costs assessment in respect of the costs billed in the last four invoices.[1]

[5]       The total amount of costs in dispute was originally stated to be $90,698.60 but was amended by the second respondent to $59,180, said to have been the total outstanding and unpaid.[2]

[6]       On 11 January 2011, the first respondent was appointed by the Law Society of the Northern Territory to undertake the costs assessment.  He wrote to the applicant and the second respondent on 1 March 2011 to inform them of his appointment.  He asked for particulars of the basis on which the applicant disputed his obligation to pay the second respondent’s costs.  He sought from the second respondent answers to eight questions which were relevant to the costs assessment, and also asked for copies of specific documents.  He informed the applicant and the second respondent that, after receiving their responses, he intended to make an assessment of the costs on the papers, but that he would give the parties the opportunity to request a “face to face assessment”.  The first respondent also asked the parties to notify him if either objected to the way in which he proposed to deal with the assessment. 

[7]       On 18 March 2011, the applicant submitted to the Law Society his own application for a costs assessment of the second respondent’s costs.  The Law Society forwarded a copy of that application to the first respondent, although it did not request or appoint him to undertake an assessment in respect of it.  In relation to the applicant’s request, the first respondent later wrote as follows:

“I am satisfied that the letter relates to the same subject matter as this assessment.  I am further satisfied that the letter does not raise any new allegation of fact relevant to the preliminary assessment of costs that I have already undertaken.”[3]

[8]       Under s 344(1) Legal Profession Act, a costs assessor must determine an application for a costs assessment relating to a bill by either confirming the bill or, if the assessor is satisfied the disputed costs are unfair or unreasonable, by substituting an amount for costs that, in the assessor’s opinion, is a fair and reasonable amount.

[9]       Division 3 of Part 3.3 (and in particular s 303) Legal Profession Act imposes on law practices the obligation to make detailed and timely costs disclosure to clients.  Under s 311 Legal Profession Act, if a law practice does not disclose to a client anything required to be disclosed under Div 3 of Part 3.3, the client need not pay the costs unless they have been assessed under Div 8 of Part 3.3 of the Act.  Further, under s 311(4) Legal Profession Act, if a law practice does not disclose something required to be disclosed to a client under Div 3 of Part 3.3, then on an assessment of the relevant legal costs, the amount of the costs may be reduced “by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose.”

[10]     In conducting an assessment of legal costs, a costs assessor is required by s 341 Legal Profession Act to have regard to disclosures made by the legal practice under Div 3 of Part 3.3 in considering what is a fair and reasonable amount of legal costs to be paid by the client.[4]

[11]     On 6 July 2011, by his amended certificate of determination, the first respondent determined the second respondent’s application for a costs assessment by finding that the disputed costs were (in part) unfair or unreasonable and substituting an amount of $71,436.67 for the amount of $81,867.50 referred to in par [3] above.  The first respondent then calculated that there was an unpaid balance of $47,640.34 inclusive of GST and disbursements.

[12]     The first respondent attached to his amended certificate of determination a concise but nonetheless comprehensive statement of his reasons for determination.  The explanation for the reduction of the second respondent’s costs by approximately 12.75 per cent was in part because the amount charged for some items was in excess of what the first respondent considered reasonable, and in part because the second respondent had failed to make a costs disclosure in accordance with s 303 Legal Profession Act until 17 March 2010, more than a year after being engaged by the client.  Even then, the costs disclosure was inadequate.  As the first respondent explained in his statement of reasons, the estimate of costs given on 17 March 2010 included a statement that the range of costs “might be between $20,000 plus GST and disbursements and $60,000 plus GST and disbursements”.  Yet the amount of costs already charged to the client at that stage was more than $31,500, and this led the first respondent to say that the estimate was “meaningless and of no assistance to a client wondering what [his] legal costs might end up being”.[5]

[13]     The first respondent further observed, relevantly, that no further costs disclosure was made to the client by the law practice after the costs had exceeded the upper limit of the estimate disclosed on 17 March 2010.[6] 

[14]     The first respondent’s approach to the second respondent’s non-disclosure (and/or inadequate or delayed disclosure) of costs was to deduct 5 per cent of the total amount charged to the applicant in the relevant period from 19 March 2009 to 22 July 2010, in addition to deductions made for various items of costs taxed off.  The reduction in total was, as mentioned, 12.75 per cent.

 

Application for review of costs assessment

[15]     Under s 351 Legal Profession Act the Supreme Court is the relevant “reviewer” for the review of a determination of a costs assessor who has been appointed by the Law Society.

[16]     Under s 352(2)(a) Legal Profession Act, unless the reviewer allows further time, an application for review of a determination of a costs assessor must be made within 28 days after the issue of the certificate under s 345 specifying the determination under s 344. 

[17]     The certificate of determination was issued on 6 July 2011.  The application for review should therefore have been made within 28 days after 6 July 2011.  The application for review of the costs assessment was filed on 31 October 2011.  The application was therefore made 117 days after the issue of the certificate, or 89 days out of time. 

[18]     The Legal Profession Act does not specify the matters to be taken into account in the exercise of the discretion whether to allow or refuse further time under s 352(2)(a) of the Act.

[19]     However, the general case law in relation to extension of time applications establishes some broad principles: that the delay should be satisfactorily explained; that the substantive matter (appeal or otherwise) has merit; and that the respondent would not be prejudiced as a result of the delay in the event that leave were granted (to appeal, or as the case may be) out of time, although the absence of prejudice is not of itself enough to justify the extension.  These principles are relevant to the exercise of my discretion under s 352(2)(a) Legal Profession Act.

[20]     In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J made the following observations in relation to O 60 r 6 of the Rules of the High Court, which permitted the Court or a Justice to enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case required:

"The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend the time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time ……  Where the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal …".

[21]     In Gallo v Dawson, the applicant had sought an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of the High Court.  The dismissed action was clearly misconceived and had no prospects of success.  The application for an extension of time was brought 16 months out of time.  The principle of finality of judicial determinations was a relevant consideration.  The observations of McHugh J in that context are not necessarily determinant in the present case.  Nonetheless, I propose to consider possible injustice to the present applicant in deciding whether or not to permit his application for review to be made outside the 28-day period specified in s 352(2)(a) Legal Profession Act, although I do not consider that my discretion can only be exercised in favour of the  applicant “upon proof that strict compliance with the [time limit] will work an injustice upon the applicant”.

[22]     The applicant has provided a document for the Court’s consideration headed “Applicant’s issues to be considered as part of the costs assessment and review”.[7]

[23]     The document sets out a number of complaints and matters which the applicant “would have liked to have been considered by Mr McConnel, as part of the costs assessment and as part of this review process.”[8]  The complaints can be divided into two categories: (1) excessive or unreasonable charges and (2) negligent performance of professional work.  

[24]     In the first category, the applicant has raised the following matters:-

·        David failed to make costs disclosure as required by the Legal Profession Act.

·        There is no clear unequivocal indication in David’s accounts of the duration of the time spent and at what time the work was performed.

·        There was no indication in David’s accounts as to who performed the work. Based on the invoices as presented it indicates that all the work was performed by David when some matters charged did not require legal skill or knowledge.

·        There are multiple services charged under individual items.

·        There is a brevity of particulars in the itemisations.

·        David charged for work on the Affidavit in April and May 2010 without my instructions and when it was previously promised and agreed that he would not charge for that work.

·        David charged for preparation for the hearing and attendance at the hearing without disclosing the costs to me or seeking my instructions in relation to those costs.

·        David charged for preparation and attendance contrary to the applicable scales, in particular, the Supreme Court scale, and the appropriate scale for counsel.

·        David charged for preparing and settling submissions, on, inter alia, 1 and 2 July 2010 during the course of the trial and whilst I was under oath.

·        David charged for the preparation of an advice relating to an appeal contrary to my instructions.

[25]     The reference to “David” is to David Francis, who is the principal of the law practice carried on by the second respondent.

[26]     In the category of excessive and/or unreasonable charges, the applicant has also identified in excess of 70 challenges to the number of units charged by the second respondent for individual items of professional work, some 11 of which the applicant challenges on unspecified grounds and the balance on the basis that they are “unreasonable, unfair, excessive and/or not justifiable”.[9]

[27]     The first dot point matter identified in par [24] above: “David failed to make costs disclosure as required by the Legal Profession Act”, was clearly considered and taken into account by the first respondent.  The first respondent made relevant findings and, as mentioned earlier, reduced the second respondent’s costs by 5 per cent for that specific reason.  The applicant does not suggest that the reduction of 5 per cent was inappropriate or inadequate, that any greater reduction should have been made, or that the first respondent erred in principle.  

[28]     As to the other dot point matters, having regard to the history of the costs assessment and the conduct of the applicant, I consider it would now be unfair to the second respondent for the applicant to be permitted to raise matters which he did not raise with the first respondent in the process of the costs assessment.  

[29]     On 1 March 2011, at an early stage in the costs assessment process, the first respondent wrote to the applicant, as mentioned in par [6] above, indicating that he would proceed to make an assessment “on the papers” of the costs claimed by the second respondent, but that he would allow either party the opportunity to request a face to face assessment.  The first respondent asked the applicant to provide details of any specific items in the invoices he disputed and to state the basis of dispute in respect of each such item.  The first respondent also asked whether the applicant disputed the total of the invoices on any other basis than on an item by item basis and requested him to explain any such other basis.[10]

[30]     The applicant wrote to the first respondent by email dated 14 March 2011, forwarding a copy of a letter sent by him to the Law Society, and also a copy of his counterclaim against the second respondent in pending Local Court proceedings.

[31]     The first respondent replied to the applicant, also by email dated 14 March 2011, inter alia, as follows (underline emphasis added):

“You have stated that you can identify more items verbally.

I do not propose to allow you to identify specific disputed items verbally.  To do so would result in an uncontrolled process without any clear indication of what items are disputed.  It would result in time being wasted which must ultimately be paid for by either you or Mr Francis’s company Deflaw.

I have granted an extension of time to allow both parties the necessary time to answer the questions I have identified.  Please use that time to itemise each and every disputed attendance in David Francis and Associates’ accounts.  I can then address your dispute as to each item in a manner that is fair to you and fair to Mr Francis.

I accept that in addition to specific items you dispute the whole of the bill on the basis that you allege that Mr Francis conducted your proceedings negligently.  However I also require you to identify what items are specifically disputed eg, because you assert they did not occur or were for a shorter time etc.”

[32]     The applicant was thus invited to put forward, for the consideration of the first respondent, a ‘unit by unit’ challenge to the second respondent’s costs, in addition to any suggested overriding disentitling matter.

[33]     On 27 May 2011, the first respondent issued to the parties what he described as “preliminary reasons for determination”.  In that document he indicated those items of costs which he proposed to disallow (in whole or in part) and tax off.

[34]     By letter dated 15 June 2011, the first respondent notified the parties that the assessment of costs would proceed on 30 June 2011.  He gave both parties the opportunity to notify him if the appointed date and time were not suitable.

[35]     The second respondent replied by email dated 15 June 2011, in which an explanation was provided for the failure to make adequate costs disclosure to the applicant. 

[36]     The first respondent did not accept the second respondent’s explanation for the failure to deliver any costs disclosure statement until 17 March 2010 and informed the second respondent of his view by letter dated 28 June 2011.  However, the first respondent did take into account some matters raised by the second respondent, and made a few adjustments to the assessment he had foreshadowed in his preliminary reasons.

[37]     The first respondent forwarded to the applicant a copy of his letter to the second respondent dated 28 June 2011.  In a subsequent e-mail to the applicant sent 28 June, the first respondent wrote as follows, formal parts omitted:

“Mr Francis has now indicated that he will accept my preliminary determination with the variations I indicated to my letter to him today, thus avoiding the need for a face to face assessment of costs (from his perspective).”

[38]     The first respondent then explained a significant matter to the applicant:-

“It is important that you understand the limitation on my role as a costs assessor.  It is not my function to determine whether Mr Francis negligently represented you or not, except to the extent that there may be individual attendances that were prolonged, unnecessary or due to a mistake, negligence or incompetence on his part.  My function is limited to looking at the specific attendances on your matter and determining whether those attendances were reasonable or not.  I do so on the basis of my understanding of the proceedings generally and of typical litigation matters.  I have adopted that approach in determining that a number of attendances by Mr Francis cannot be recovered. 

You are not prevented from raising an allegation of negligence or breach of contract against Mr Francis in either the local court claim he has brought against you, or in the Family or Supreme Courts.  My assessment is not a binding determination on any question of whether he acted negligently or not.  That will be for a court to decide if you pursue that allegation against him. 

Accordingly, I am of the view that I have done as much as I am able to as a costs assessor in assessing the reasonableness of Mr Francis’s charges.  If you obtain a finding against Mr Francis it may well be that a court will also find that you should not have to pay any, or any part of the amounts that you have paid or that I have assessed as reasonable.  However that is not something that I have the power to do.

In light of that, I now need an indication from you as to whether you wish to proceed with a face to face assessment of costs … Please provide me with your response tomorrow (29 June 2011).”

[39]     The first respondent correctly identified his role and explained it adequately. His task under s 341 Legal Profession Act was to consider whether or not it was reasonable for the second respondent to carry out the work charged for; whether or not the work was carried out in a reasonable way; and the fairness and reasonableness of the amount of legal costs charged.  In considering what was a fair and reasonable amount of legal costs, the first respondent was entitled to have regard to matters which included the following: the level of skill and responsibility on the part of the legal practitioner; whether the work done was within the scope of the retainer; the complexity and difficulty of the matter; and the quality of the work done.[11]  It was no part of his role to attempt to resolve disputed allegations of professional negligence or to assess any damages claimed to have been suffered in consequence. 

[40]     The applicant responded to the first respondent by email sent Wednesday 29 June 2011, in which he wrote as follows, formal parts omitted (underline emphasis added):

“Mr McConnel

I generally agree with your findings and will address the other matters through the appropriate channels.  If Mr Francis does however insist on his face to face I would however wish to sit in on the conference to hear what claims he makes and reserve the right to respond.

I believe there is little advantage in further distraction of your time. …”

[41]     The first respondent then replied to the applicant as follows:

“Dear Mr Bell,

Mr Francis does not wish to proceed to a face to face assessment and is willing to accept my determination as advised yesterday.

I will therefore cancel tomorrow’s appointment and will proceed to issue the determination as soon as I am able to. …”

[42]     Had the applicant wished to pursue them, he should have raised with the costs assessor the dot point matters set out in par [24] and the other matters referred to in par [26].  He did not. In my opinion, the applicant is bound by his conduct.  It would be contrary to the policy of Div 8 of Part 3.3 Legal Profession Act to indulge parties who do not raise matters of concern to them at the time of the costs assessment, by permitting them to include those matters in the review process.  

[43]     I turn to further consider the document described “Applicant’s issues to be considered as part of the costs assessment and review” first referred to in par [22] above. 

[44]     With respect to complaints which I have categorised as relating to excessive or unreasonable charges, I confirm that I have determined that it would be unfair for the applicant to be permitted to raise matters on a review which were not raised in the course of the costs assessment. 

[45]     The document also contained a number of allegations of negligent performance of professional work.  I set them out below.

·        David conducted the trial in June/July 2010 with a lack of preparation and/or was not up to speed on the matter.  Further, he conducted the trial contrary to, and/or without my full and proper instructions.

·        David failed to adequately and properly cross examine my former wife on the numerous inconsistencies in her affidavit.

·        David appeared and filed submissions without obtaining full and proper instructions from me, if any at all.

·        David continued to act for me, and charge me, notwithstanding that I had advised David of my dissatisfaction with the services he was providing me.

·        David failed to provide submissions when required to do so.  The submissions were ultimately filed late as they were due on 7 July 2010 and filed on 9 July 2010 despite being prepared on 1 and 2 July 2010. 

·        David made statements and submissions on behalf of me that were incorrect and/or contrary to facts and my instructions including that my former wife was not responsible for the debt of $64,000. 

·        David failed to prosecute my case as instructed by drawing the Court’s attention to the wife’s failure to comply with Court orders in relation to obtaining a valuation of the various properties as per the Court orders dated November 2009 and February 2010.

·        David failed to retain counsel when I requested it in or around February 2010 and David informed me words to the effect that “we don’t need one yet”.

·        David incurred unnecessary and unreasonable costs on my behalf by failing to provide bank statements as requested and instructed by me.  This would have indicated to the Court that I was the only party making contributions to joint assets despite my former wife having a higher income at times.

·        David provided incorrect facts and statements to the Court in relation to the freezing on joint borrowings that were contrary to facts and my instructions.

[46]     None of the above matters appears to come within the proper scope of a costs assessment, with the possible exception of the allegation that Mr Francis had not sufficiently prepared for the trial.  The costs assessor was able to consider, inter alia, whether or not the professional work was carried out in a reasonable way, the level of skill and responsibility of the legal practitioner, and the quality of the work done.  However, the amount of preparation required for a trial is very difficult to determine by persons who are not closely involved with the particular case.  In the absence of a specific unprofessional conduct finding or a statement by the trial judge to the effect that the legal practitioner was unprepared, it would have been very difficult for the first respondent to have assessed the situation.  In the circumstances I consider that the first respondent was correct to confine the assessment to costs charged for work done, and to not attempt to determine what other work (if any) should have been done. 

[47]     The alleged failings of Mr Francis as counsel (failing to adequately cross examine, filing submissions without obtaining proper instructions, making incorrect statements to the Court, failing to draw the Court’s attention to the applicant’s wife’s failures to comply with Court orders, failing to provide bank statements to the Court etc.) are more matters of professional conduct.  They might also be the subject of a claim in negligence, subject to the doctrine of advocates’ immunity.[12]  I should note that Mr Francis has sworn an affidavit denying and/or explaining the alleged failings.  To adequately resolve the disputed allegations, it would be necessary for me to hear evidence and submissions from both the applicant and Mr Francis, and to read a significant number of documents, including the trial transcript.  It would be very difficult to determine on a costs assessment whether the allegations had a proper basis, and if so, what adjustment, if any, should be made to the costs charged.  In my opinion, the costs assessment process is not appropriate to determine the validity of the complaints made by the applicant set out in par [45] above.[13] 

[48]     Under s 354(1) Legal Profession Act, if a review were to take place, the Supreme Court could affirm the assessor’s determination or set aside the assessor’s determination and substitute some other costs determination which, in the Court’s opinion, should have been made by the assessor.

[49]     Any assessment for determining the costs determination which should have been made “must be conducted on the evidence that was received by the costs assessor who made the determination the subject of the assessment”, in accordance with s 354(3) Legal Profession Act.  Moreover, unless the Court as reviewer decides otherwise, no further submissions are to be received from the parties and no further evidence is to be received whether in addition to or in substitution for the evidence received by the costs assessor.

[50]     If I were to review the first respondent’s costs assessment, on the evidence and submissions properly to be taken into account, I would affirm the assessor’s determination.  The applicant has not demonstrated any proper basis for this Court as reviewer to set aside the determination and to then determine costs otherwise than as previously determined.

[51]     The applicant has provided an explanation for his delay in making application for a review of the cost assessment.  In July 2011 he was preoccupied with the rehearing of his Family Law case.  After a successful appeal by the applicant, the rehearing took place over a two day period in July 2011.  The applicant was self represented.  He had to prepare for the hearing himself, which required him to arrange for new valuations of assets, to prepare financial statements and affidavits and to attend several preliminary hearings and a conciliation conference.  He spent a lot of time preparing for the rehearing, as well as running his business.  However, if the hearing took place on 6 and 7 July 2011, I must assume that all of the preparation which occupied the applicant had been done prior to 6 July, and that by 8 July, the litigation was over.

[52]     The applicant says that it was not until September 2011 that he realised that the second respondent could enforce its assessed costs by filing a certificate in the Local Court.  The applicant says that he was unaware of his right to apply for a review of the costs assessment, and laboured under the belief that all his “concerns in relation to David’s accounts would be dealt with as part of the Local Court proceedings”.  He complains that at no stage was he “aware or made aware of the full extent and implications of the costs assessment including its binding nature.”

[53]     Although some of the applicant’s statements by way of explanation are hard to accept (for example, that the applicant did not understand that the costs assessment was binding on both himself and the second respondent), I accept for present purposes that the applicant was not aware of the time limit applicable to his application for review of the costs assessment.  His explanation overall is not unreasonable and the delay (89 days out of time) is not so egregious that I would not allow further time if I thought there was any point in doing so.

[54]     I have determined that there is no merit in the application for review of the first respondent’s cost assessment.  There is no injustice to the applicant if the time limit in s 352(2)(a) Legal Profession Act is enforced.

[55]     I therefore refuse to allow further time for the application for review.

[56]     I will hear the parties on the issue of costs.

-----------------------------



[1]    The application referred to a Tax Invoice dated 6 July 2010, but the evidence shows that the actual invoice was dated 22 July 2010.

[2]    First respondent’s Reasons for Determination of Costs Assessment, 4 July 2011, paragraph 2.  The second respondent contended that it had requested a costs assessment in respect of unpaid accounts only, and queried the first respondent as to why the costs assessment took into account the whole of the work charged for in the four invoices.  Subsequently, however, the second respondent appeared to accept the logic in the first respondent’s approach and now does not press its contention.

[3]    First respondent’s Reasons for Determination of Costs Assessment, 4 July 2011, paragraph 5.  It would appear from par 48 of the applicant’s affidavit sworn 8 March 2012 that the applicant made separate application for an assessment of the second respondent’s costs because he thought that the second respondent had restricted his request for assessment to the invoices dated 30 June 2010 and 22 July 2010, whereas the applicant wanted to ensure that the assessment took into account all of the second respondent’s claimed costs (which it did).

[4]    s 341(2)(b) Legal Profession Act.

[5]    First respondent’s Reasons for Determination of Costs Assessment, 4 July 2011, par 12.  One of the matters which must be disclosed by a law practice to a client under s 303(1)(c) Legal Profession Act is “an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, (i) a range of estimates of the total costs and (ii) an explanation of the major variables that will affect the calculation of those costs …”.

[6]    First respondent’s Reasons for Determination of Costs Assessment, 4 July 2011, par 15.

[7]    Annexure “KBB-7” to the applicant’s affidavit sworn 8 March 2012.

[8]    Affidavit Kevin Brian Bell sworn 8 March 2012, par 71.

[9]    Annexure “KBB-7” to the applicant’s affidavit sworn 8 March 2012, par 21 and par 22.

[10] Letter dated 1 March 2011, Annexure “A” to the affidavit of David Edward Francis sworn 26 March 2012).

[11]   see s 341(1) and (2) Legal Profession Act.

[12]   Giannarelli v Wraith (1988) 165 CLR 543 at 556-7 per Mason CJ; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.

[13]   I add that some of the complaints make no sense, eg: “David continued to act for me, and charge me, notwithstanding that I had advised David of my dissatisfaction with the services he was providing me.”  One might ask what was the legal practitioner to do?  The retainer was still on foot.  The legal practitioner was therefore bound to carry on.  Is the complaint that he carried on, or that he continued to charge?  If the latter, did the applicant expect his lawyer to carry on without charging because the applicant had expressed dissatisfaction?