O'Connor trading as Thomson Rich O'Connor v Sole & Anor [2015] NSWDC 294

District Court New South Wales

Medium Neutral Citation: O'Connor trading as Thomson Rich O'Connor v Sole & Anor [2015] NSWDC 294 Hearing dates: 7 December 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 40 Catchwords: Costs. Interpretation. Can proceedings which cannot be maintained be commenced. Legislation Cited: Legal Profession Act 1987 Legal Profession Act 2004 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Baynes & Anor v Kalyk [2003] NSWSC 607 Cockburn v Shehadie [2013] NSWSC 758 Coshott v Barry [2012] NSWC 850 Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & Ors [2010] NSWSC 132 Lenin v Coshott [2007] NSWSC 630 Martinez v Morris & Anor [2011] FMCA 478 Category: Principal judgment Parties: Clive Patrick O'Connor trading as Thomson Rich O'Connor (Plaintiff) Ian Sole (First Defendant) Angela Sole (Second Defendant) Representation: Counsel: G Stapleton (Plaintiff) P Webb QC and E Young (Defendants)

Solicitors: Thomson Rich O'Connor (Plaintiff) Swaab Attorneys (Defendants) File Number(s): 2013/00319112

Judgment

Introduction 1. The plaintiff, a retired solicitor, has sued the defendants for allegedly outstanding fees arising from legal work he did for them in 2006 and 2007. The defendants say any work that was done was performed on a pro-bono basis. 2. The dispute has given rise to a number of interlocutory applications, most relevantly an application by the defendants for the proceedings to be dismissed. This application, which was not successful, came before Balla DCJ. Her decision is dated 2 October 2015. Her Honour's reasons provide a useful background to the dispute. 3. On 4 November 2015 I made orders allowing for the matter to proceed by way of a decision on two separate questions. Those questions are: 1. Whether the whole or any part of the proceedings must be dismissed consequent to the effect of Section 317(2) of the Legal Profession Act 2004; and 2. If the defendants are successful on their Motion dated 22 October 2015, (ie on the first question) does that necessarily mean that the costs assessment must be abandoned under the Legal Profession Act 2004? 1. The first question depends on an interpretation of Section 317(2) of the Legal Profession Act 2004 (the "LPA"). The subsection is in the following terms: "Bar on recovering proceedings until legal costs assessed A law practice that does not disclose to a client or an associated third party payer anything required by this Division to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been assessed under Division 11." 1. There is no dispute that there had not been the necessary disclosure under the LPA as required in Section 317(2). This fact led to the defendants filing a Notice of Motion that the proceedings should be dismissed pursuant to the above section. 2. The Notice of Motion in turn led to the first of the separate questions, the primary issue being whether or not the bar on proceedings being maintained was automatically fatal to the proceedings. 3. The plaintiff's position is that a distinction is to be made between the maintenance of proceedings and their commencement. According to the plaintiff the prohibition on the proceedings being maintained did not stop the proceedings being commenced although it was acknowledged that there would inevitably be a stay of the proceedings pending the outcome of the costs assessment. 4. I note the following dates: 1. The plaintiff started to act for the defendants in June 2006. The precise date for the commencement of the retainer is unclear. 2. The plaintiff's retainer was terminated on 27 October 2007. 3. An application for costs assessment was made on 5 December 2014, more than seven years after the termination of the plaintiff's retainer. 4. The plaintiff made a costs disclosure on 2 June 2007. 5. The proceedings were commenced by the filing of a Statement of Claim on 8 October 2013.