HOOK v SIMPSONS SOLICITORS [1999] NSWSC 667

New South Wales Supreme Court CITATION : HOOK v SIMPSONS SOLICITORS [1999] NSWSC 667 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 10632/1999 HEARING DATE(S) : 8 June 1999 JUDGMENT DATE : 5 July 1999

JO-ANNE HOOK PARTIES : v SIMPSONS SOLICITORS JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 91901/1998 LOWER COURT JUDICIAL OFFICER : Leonard S Hattersley

COUNSEL : PLAINTIFF: MR C SIMPSON DEFENDANT: MR J G RENWICK SOLICITORS : PLAINTIFF: MICHELL SILLAR DEFENDANT: SIMPSONS SOLICITORS CATCHWORDS : Appeal against decision of costs assessor; entitlement of client to apply for assessment of costs where payment has been made; application to be made within prescribed period; commencement thereof. Legal Profession Act 1987, s 173, s 208L, s 193, ACTS CITED : s 199. Legal Profession Regulation 1994, r 22A, r 25. CASES CITED : N/A DECISION : SEE PARAGRAPH 25

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

MONDAY 5 JULY 1999

10632/1999 JO-ANNE HOOK v SIMPSONS SOLICITORS JUDGMENT 1 These proceedings were commenced by Summons filed on 18 March 1999. In substance, the process brings an appeal pursuant to s 208L of the Legal Profession Act 1987 (the Act). 2 The appeal was heard on 8 June 1999. An abundance of material was placed before the Court (including many exhibits). 3 The defendant is a firm of solicitors. The plaintiff is a resident of Queensland. In April 1994, she retained the defendant to act on her behalf in Federal Court proceedings in the State of Victoria. 4 Between May 1994 and 29 August 1997, the defendant sent what have been described as invoices for professional fees. The invoices were rendered at regular intervals. They were periodically paid (at least in part) by the plaintiff. 5 By 2 September 1997, the plaintiff had retained Messrs Baker Johnson to act on her behalf in respect of the proceedings. At that time, invoices for costs and disbursements had been rendered in the total sum of $64,096.75. All but $5,000.00 of the total sum had been paid. There had been no dispute as to the costs and disbursements rendered by the defendant. 6 The proceedings in the Federal Court were settled in September 1997. On 6 October 1997, Messrs. Baker Johnson requested an itemised bill of costs in taxable form from the defendant. On 17 October 1997, the defendant responded with inter alia a document entitled "Memorandum of Costs in Taxable Form". It was dated 20 October 1997. It was in the sum of $55,857.00. This sum comprised professional costs. The document did not include any amount for disbursements. 7 On 9 April 1998, the balance owing was paid on the basis that the plaintiff was then insisting upon an entitlement to have an itemised bill in taxable form. 8 On 8 May 1998, the defendant responded by advising that an itemised bill in taxable form had already been given and purported to supply another copy of the bill. This document was entitled "Memorandum of Costs in Taxable Form" but was dated 30 April 1998 and was in the sum of $64,096.75. This sum comprised $55,857.00 for professional costs and $8,239.75 for disbursements. 9 Save for the different date and inclusion of the sum for disbursements, the October 1997 document and the April 1998 document were similar. 10 On 9 September 1998, the plaintiff applied to this Court for an assessment of the bill of costs dated 30 April 1998. The application was referred to a Costs Assessor (Mr Hattersley). The plaintiff provided a Notice of Objection to this document (it extended to 72 pages). The defendant made a response to the objections. The response raised inter alia a matter of the competency of the application. The Costs Assessor sought submissions from the plaintiff on this matter. Messrs Baker Johnson responded with the contention that the relevant period for the bringing of the application did not expire until 17 October 1998. 11 On 12 February 1999, the Costs Assessor made a decision in the application. He decided that he had "No authority or jurisdiction to proceed with the assessment". This decision was founded on provisions of s 199 (2) of the Act and Regulation 25 of the Legal Profession Regulation 1994 (the Regulation). 12 Section 208L provides a narrow avenue of appeal. It is restricted to a matter of law arising in the assessment proceedings. The appellant bears the onus of satisfying the Court that there is an entitlement to relief. 13 The plaintiff's case is founded on two submissions. Firstly, it is contended that the Costs Assessor misconceived or misapplied the relevant provisions. The case is that there was no time bar as the Costs Assessor was being asked to assess the bill dated 30 April 1998. Secondly, by way of alternative submission, it is said that the doctrine of election (or perhaps estoppel) precludes any reliance on the time bar. 14 It is common ground that the relevant provisions are s 199 and regulation 25. Section 199 is in the following terms:- "(1) A client who is given a bill of costs may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs. (2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid. If the costs have been wholly or partly paid, the application is to be made within the period prescribed by the regulations for the purposes of this subsection. (3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the barrister or solicitor is taken to be the bill of costs. (4) In this section, 'client' includes any person who is a party to a costs agreement relating to legal services for which the bill of costs is given, other than the barrister or solicitor who gave the bill or who provided the services." 15 Regulation 25 is in the following terms:- "Limitation period for applications by clients for cost assessment where bill paid or part paid For the purposes of section 199 (2) of the Act, the prescribed period for making an application for an assessment of a bill of costs is the period of 12 months after the bill was given to the client." 16 Reference was also made to the unhelpful definition of "bill of costs" which may be found in s 173. The section defines it to mean a bill of costs for providing legal services and includes a memorandum of fees. Further, reference was made to regulation 22A. It provides the particulars which are to be included in a bill of costs for the purposes of s 193 (1). Section 193 is headed "Form of bill of costs". It enables regulations to be made making provision for or with respect to the form of and the particulars to be included in bills of costs. 17 There are some differences between the earlier invoices and the subsequent memoranda. The memoranda provides additional information concerning the person involved in the supply of the legal services. The memoranda provide a dollar sum for each item as opposed to an identification of units (as shown in the invoices). 18 Whilst, the plaintiff contends that none of the documentation satisfies the requirements of regulation 22A, she further contends that this failure is not of significance. 19 Section 199 prescribes the circumstances in which an application for assessment of costs by a client may be made. Subsection (1) enables a client to apply to the Court for an assessment of costs where the client has been given a bill of costs. Subsection (2) enables an "application relating to a bill of costs" to be made even if the costs have been wholly or partly paid, but the application has to be made within the prescribed period (a period of 12 months after the bill was given). In cases where there has been payment without a bill of costs, the section provides that the client may nevertheless apply for an assessment. In those circumstances, the request for payment is taken to be the bill of costs (subsection 3). 20 The intention of the legislature was to impose a prescribed period for the making of an application in those cases where payment has been made. If the payment has been made prior to the giving of a bill the prescribed period runs from any request for payment. 21 This is a case where payment has been made in respect of the costs. Accordingly the application has to have been brought within the prescribed period. Payment was made following receipt of invoices sent prior to September 1997. The invoices gave rise to a request for payment in the sense contemplated by the section. It is the plaintiff's case that the invoices cannot be said to constitute a bill of costs. In my view, that contention is correct. In these circumstances, the prescribed period had expired prior to 9 September 1998. 22 In this case, it would not seem to matter whether the memoranda (or either of them) can be seen as a bill of costs in the relevant sense. In the event that it may be of significance, I express the view that both memoranda given in this case fall short of satisfying the requirements of regulation 22A. 23 The election (or perhaps estoppel) argument was but briefly pursued and without great enthusiasm. It had not been agitated before the Costs Assessor. Even if it had been of substance, in the circumstances of this case, I am not satisfied that the plaintiff has an entitlement to advance the argument in this appeal. In any event, I am not satisfied that it is of substance. 24 Accordingly I am not satisfied that the plaintiff has demonstrated an error of law which would justify the disturbing of the decision of the Costs Assessor. I am not satisfied that the plaintiff was entitled to apply to the Court for an assessment of the costs. 25 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibits may be returned. **********