Supreme Court New South Wales Medium Neutral Citation: Dale v Firth [2012] NSWSC 401 Hearing dates: 31 January 2012 Decision date: 31 January 2012 Jurisdiction: Common Law Before: McCallum J Decision: That pursuant to s 782(1)(a) of the Legal Profession Act 2004 (NSW) the defendant to provide the plaintiff with a bill of costs relating to legal services provided to the plaintiff by the defendant in relation to his claim for damages against his former employer, such Bill to comply strictly with Regulation 111B of the Legal Profession reg 2005 by 4.00 pm on Friday 3 February 2012. The defendant to deliver or otherwise make available to the plaintiff himself or his solicitors the whole of the file retained by the defendant of and relating to his claim for workers compensation and work injury damages against his former employer on or before 4.00 pm on Friday 3 February 2012. The defendant is to pay the plaintiff's costs on an indemnity basis of and incidental to the hearing of the Summons by the court on 31 January 2012. Catchwords: COSTS – assessment- where plaintiff seeking order for itemised bill – s 332A of Legal Profession Act Legislation Cited: Legal Profession Act 2004 (NSW) Legal Profession Regulation 2005 (NSW) Category: Principal judgment Parties: Richard Dale (plaintiff) Stephen Paul Firth (defendant) Representation: Counsel: D Baran (plaintiff) G O'Mahoney (defendant) Solicitors: Slater & Gordon Lawyers (plaintiff) File Number(s): 2011/409411 Publication restriction: None Judgment – ex tempore 1. HER HONOUR: Before the Court is an application by Mr Richard Dale for orders pursuant to s 728 of the Legal Profession Act 2004 (NSW). The summons, filed 20 December 2011, sought an order requiring the defendant to give the plaintiff an itemised bill of costs and, separately, an order that the defendant produce to the plaintiff's legal representative the plaintiff's file relating to the conduct of the plaintiff's work injury damages claim. 2. As to the second order sought, the defendant consents to an order in those terms and has indicated that the file can be made available within 24 hours. The first order sought, however, was resisted. 3. The background to the application for the first order is as follows: The defendant acted for the plaintiff in relation to a work injury claim. The claim went to mediation and was successfully resolved. The plaintiff had, on 30 May 2011, evidently signed a costs agreement which provided for the payment of a lump sum for the work to be carried out by the defendant of $60,000. 4. In addition, the agreement provided: "Because this is a no win/no pay costs agreement, a premium of up to 10% of that amount will apply (NB not 10% of the result)". 1. Following the successful mediation of the claim, the defendant rendered a memorandum of fees and disbursements in the sum of $72,600 (not including disbursements) being $60,000 charged in accordance with the fee agreement, the "conditional fee loading" of 10% and GST on the sum of those amounts. 2. By letter dated 9 November 2011 the plaintiff wrote to the defendant in the following terms: "I have reviewed Form 2 of this agreement [the provisional costs agreement signed in May 2011] and am requesting a written itemised breakdown of these costs within the next 21 days." 1. The reference to Form 2 of the agreement makes it plain that the plaintiff was, in substance, making a request under s 332A of the Legal Profession Act for an itemised bill. 2. The defendant responded by providing a bill which, although it listed dates and events of work allegedly undertaken by the defendant, plainly did not conform with the requirements of reg 111B of the Legal Profession Regulation 2005 (NSW). There is no real dispute as to any of those matters. 3. There followed an exchange of correspondence between the solicitor who now acts for the plaintiff and the defendant. As I observed during argument, that correspondence unhappily reflects a practice sometimes engaged in by lawyers in this jurisdiction of exchanging correspondence expressing acrimony and animus which does no service to the clients for whom such solicitors act. The long and the short of it, however, is that the defendant has failed or refused to provide any further itemised bill. 4. The defendant's most recent explanation for his position is a letter dated today in which he appears to contend that the plaintiff is not entitled to an itemised bill since he signed a costs agreement providing for a lump sum fixed fee. In my view that is plainly wrong. 5. The Legal Profession Act is frequently recognised as being legislation intended to regulate the profession and to protect clients of legal practitioners from the risks that can be involved in engaging in costly litigation with unforeseen high legal costs. 6. I have given careful consideration to the provisions of the legislation dealing with costs agreement and costs assessment and have concluded that the legislature is likely to have intended in s 332A that there should be a bare right to information as to the work undertaken by a solicitor even if that information would not to give rise to any remedy. 7. As it happens in the present case, the information sought by the plaintiff is relevant to a remedy he may wish to consider pursuing. Under s 328 of the Act, the plaintiff could, so it appears, seek to have the costs agreement set aside. A costs assessor would have power to do so if satisfied that the agreement was not fair or reasonable. One of the considerations in determining whether a costs agreement is fair or reasonable is whether the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement. 8. It seems to me that to know what work was in fact undertaken by the defendant for the plaintiff will be a consideration the plaintiff would be entitled to have regard to in determining whether to pursue that remedy. 9. Under s 350 of the Act, the plaintiff is entitled to seek an assessment of the costs regardless of the fact that the costs agreement he signed was for a fixed fee. Section 361 of the Act provides that a costs assessor must assess the amount of any disputed costs by reference to the costs agreement provided that the agreement has not been set aside under s 328. Thus, for a variety of reasons, it is plainly important for the plaintiff to have some mechanism for enforcing his entitlement under s 332A for an itemised bill. 10. The principal point taken in opposition to the orders sought was a question as to the power of the Court under s 728 of the Act. Mr O'Mahoney submitted, with some ingenuity, that the Court does not have power under that section to order a practitioner to give an itemised bill of costs that has not been provided in response to a request under s 332A. Mr O'Mahoney relied in particular on the absence of any specific reference in s 728 to an itemised bill in the language of s 332A. 11. It seems to me that, having regard to the structure of the Act, that submission must be rejected. Section 728 falls in chapter 7 of the Act, which is headed "General Provisions". In my view, the legislature intended, by the inclusion of the power under s 728, that this Court would have power to grant a variety of remedies including the specific remedy of making an order in the event of failure to comply with a request properly made under s 332A. That is consistent with the remedial and protective objects of the Act. Accordingly, I am satisfied that the plaintiff is entitled to the order sought. 12. The plaintiff has sought his costs of the application on an indemnity basis. Mr O'Mahoney valiantly opposed that application on the premise that the argument as to the proper construction of s 728 was open and was one which warranted the determination of the Court. 13. It is not Mr O'Mahoney's fault by any means, since he has only recently been briefed in the matter, but the correspondence discloses resistance to the request for different reasons and the reasons changed over time. 14. I am satisfied from my consideration of the correspondence that Mr Firth ought to have complied with the request properly made in accordance with the 21 day period provided for in the legislation and that no reasonable basis for his failure to comply with that request has been provided. I regard his suggestion in the correspondence that he was entitled to a further 21 days from the date of a letter from the plaintiff's present solicitor as being without any merit. The itemised bill ought to have been provided within 21 days of 9 November 2011. The plaintiff should have a costs order which fully compensates him for the trouble to which he has been put for bringing the present application. 15. For those reasons, I make orders 1 to 4 in the form of order handed up by Mr Baran which I will sign and place with the papers. ********** Amendments 02 March 2017 - Judgment previously published with duplicate MNC [2012] NSWSC 1. 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: 02 March 2017