Stevens v HopgoodGanim Lawyers
[2023] QDC 96
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- Unreported Judgment
- Appeal Determined (QCA)
- Stevens v HopgoodGanim Lawyers[2023] QDC 96
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Stevens v HopgoodGanim Lawyers[2023] QDC 96
Stevens v HopgoodGanim Lawyers[2023] QDC 96
DISTRICT COURT OF QUEENSLAND
CITATION: | Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96 |
PARTIES: | KARYN STEVENS (applicant) v HOPGOODGANIM LAYWERS (A FIRM) (respondent) |
FILE NO.: | 3159/22 |
DIVISION: | Civil Division |
PROCEEDING: | Application |
DELIVERED ON: | 7 June 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 March 2023 |
JUDGE: | Rosengren DCJ |
ORDER: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS – where the applicant applied pursuant to s 335(1) of the Legal Profession Act 2007 for an assessment of costs charged in a number of bills delivered to her by the respondent, her former solicitor, in respect of a family law matter – where s 335(5) of the Act requires that an application for an assessment of costs be made within 12 months after the final bill was given to the client – where the respondent held a general retainer to act in the proceedings – where the respondent delivered its last bill in respect of its preparation for and representation of the applicant in the family law matter on 31 August 2021 – where the judgment for the trial was delivered some six weeks later and further work was undertaken, including giving effect to the orders – where this application for an assessment of costs was filed on 22 December 2022 – where the respondent contends that the applicant is out of time to seek an assessment of those costs which are the subject of 31 invoices issued between 6 September 2018 and 31 August 2021 – whether the conclusion of the trial hearing represented a ‘natural break’ in the proceedings meaning that the bill delivered on 31 August 2021 was a final bill – whether, if the applicant is out of time, the court should exercise the discretion conferred on it by s 335(6) of the Act in deciding to deal with the application for assessment of costs Legal Practitioners Act 1995 (Qld) s 9 Legal Profession Act 2004 (Vic) Legal Profession Act 2007 (Qld) s 333, s 335, Part 3.4 Legal Profession Uniform Law 2014 (NSW) s 198 (4) Challen v Golder Associates Pty Ltd [2012] QCA 307 Dart Mining NL v Foster Nicholson Jones [2016] VSC 836 Mishra v Bennett and Philp Pty Ltd [2021] QSC 158 Re Lynch and Co Bill of Costs [2000] QSC 3 Tabtill No. 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) & Anor [2012] QSC 115 Turner v Mitchells Solicitors [2011] QDC 61 |
COUNSEL: | B Kidston for the applicant JA Hughes for the respondent |
SOLICITORS: | RCC Legal Pty Ltd for the applicant HopgoodGanim for the respondent |
Introduction
- [1]The applicant is a former client of the respondent, which provided legal services to the applicant in estate planning and family law matters between early September 2018 and mid-February 2022. During this period the respondent delivered 37 invoices in total. One of these related to the estate planning matter and this does not form part of the application.
- [2]In an originating application filed on 22 December 2022, an assessment of the remaining 36 invoices is sought by the applicant, pursuant to s 335 of the Legal Profession Act 2007 (Qld) (‘the Act’). To the extent necessary, she seeks an order that the 12 month time limit prescribed by s 335(5) of the Act for bringing a costs application be extended, pursuant to s 335(6) of the Act.
- [3]It is accepted by the respondent that the applicant is entitled to an assessment of costs in relation to the five most recent invoices delivered to the applicant between 28 October 2021 and 24 February 2022. The dispute relates to the 31 invoices delivered to the applicant between 6 September 2018 and 31 August 2021. The respondent contends that the invoice issued to the applicant on 31 August 2021 was a ‘final bill’ for the purposes of s 333(2) of the Act, such that the applicant is out of time for a costs assessment in relation to that invoice and all other invoices in relation to the family law matter delivered to her prior to this time. It is further submitted by the respondent that the court ought not permit these invoices to be assessed pursuant to s 335(6) of the Act, because no proper explanation has been provided as to the reasons for the applicant’s delay in applying for them to be assessed.
- [4]There are two issues that arise. These are whether the applicant has brought the application within time, and if not, whether the court should exercise its discretion to deal with the application in any event.
- [5]The applicant seeks a further order that the respondent provide the applicant and the costs assessor with copies of all file notes made in the course of acting for the applicant, in respect of the work the subject of the costs assessment.
Relevant background
- [6]In about September 2018, the applicant instructed the respondent to provide her with estate planning advice. A file (number 1811447) was opened for this work. A few weeks later the applicant was issued with a Costs Agreement with respect to this estate planning work. She signed and returned it in mid-January 2019. There was a single invoice for this work issued to the applicant in late March 2019.
- [7]The applicant also engaged the respondent to provide her with family law advice in relation to a dispute with her former husband. A separate file (number 1810175) was opened for this work because the respondent’s general practice is to open and maintain different internal files, where there are different sets of instructions from the same client. By a letter dated 12 April 2019, the respondent confirmed that it held instructions in relation to her family law matter. It attached the Disclosure of Costs Notice to Client (‘the Costs Disclosure Notice’) and the Family Law Costs Agreement (‘the Costs Agreement’). It was explained to her that these documents provided an overview of the legal costs for various stages of her family law matter. It was recommended to her that she obtain independent legal advice. It was further explained that at each stage of her matter, the respondent would advise her of the estimate of the legal costs to reach the next stage and/or to finalise all matters. This included the legal costs that would be incurred in commencing proceedings “if necessary”. It also stated that if her family law matter ended up including parenting issues, the respondent would be required to provide her with certain advice.
- [8]The Costs Disclosure Notice informed the applicant that as at April 2019, it was not possible to provide her with an accurate estimate of the total costs which she would incur. This was because it was not known how far the work would progress and there were also other unknown variables. Having said this, to assist her in understanding the total costs likely to be incurred, the respondent provided an estimate to her for each of seven stages of such a dispute, some or all that would possibly apply to her matter.
- [9]As to the bills of costs, it was explained in the Costs Disclosure Notice that the applicant had the right to receive a bill of costs from the respondent and that this would be provided monthly. It was further explained that she also had a right to receive an itemised bill of costs after the receipt of a lump sum bill and that this would be provided within 28 days of a request being made. She was given the email and phone number of the partner of the respondent whom she could contact if she had any questions or concerns about the costs. She was also told that she could apply for a costs assessment but that it needed to be made within 12 months after the bill of costs was given, or a request was made.
- [10]Turning to the Cost Agreement, it was said to apply to proceedings in any of the Family Court, Federal Circuit Court, High Court or Magistrates Court. Work was defined to include:
- (i)procedures under domestic violence legislation;
- (ii)all negotiations and participation in alternative dispute resolution, including arbitrations or conciliation; and
- (iii)drafting all documents including child support agreements and parenting plans.
- (i)
- [11]The Costs Agreement further provided that the applicant could terminate it and withdraw her instructions at any time and for any reason. It also provided that the respondent could decline to continue to act for the applicant for any number of reasons, including the failure to give adequate or timely instructions.
- [12]Between September 2018 and December 2019, Ms Murray predominantly acted for the applicant in relation to the family law matter. She is no longer in the employ of the respondent. Subsequent to this, Ms Lahey had carriage of this matter with the assistance of Ms Dowling. She too, no longer works for the respondent.
- [13]The matter proceeded to a mediation on 10 December 2019. It did not resolve and formal offers were exchanged. The applicant’s former husband made a further offer of settlement three days later. This was not accepted and on 23 December 2019, he commenced a family law proceeding against the applicant in the then Family Court of Australia (‘the Family Court proceeding’). In February 2020, the applicant instructed the respondent to prepare for and represent her in the proceeding. It ultimately was listed for trial and proceeded to hearing between 16 and 18 August 2021. The applicant made an offer of settlement on the first day of the hearing. This was not accepted by her former husband.
- [14]At the conclusion of the hearing on 18 August 2021, the Judge made a direction that each party provide the court with an annotated disclosure list identifying duplicate documents that had been disclosed. The work required to comply with the direction was completed by 20 August 2021 and an invoice was forwarded to the applicant on 31 August 2021. Ms Lahey deposes that at that point she did not have any instructions from the applicant to perform any further work in relation to the Family Court proceeding, although she anticipated that the respondent would later be instructed to collect the judgment when it was delivered.
- [15]Between 6 September 2018 and 31 August 2021, the respondent had issued 31 invoices to the applicant for work done in connection with the Family Court proceeding. The last of these was for work done up to and including the trial. Following the trial, the decision was reserved for an unknown period. The applicant deposes to the fact that Ms Lahey told her that she would be notified when the decision was being handed down and that the respondent would collect the judgment. She further deposes to being told by Ms Lahey that the Judge tended to deliver judgments relatively quickly. She said in evidence that it was her expectation that the respondent would continue to act for her in relation to the balance of the work that needed to be carried out in relation to the Family Court proceeding. The applicant referred to the fact that offers of settlement had been exchanged between her and her former husband, which may have impacted on the question of costs once the judgment was delivered.
- [16]Ms Lahey deposes that the respondent did not perform any legal work for the applicant between 20 August and 12 October 2021. This is because while there were ongoing communications with the applicant which are summarised in the table below, she was not charged for them.
Date | Content of communication |
26 August 2021 | Ms Dowling emailed the applicant to inform the applicant of her upcoming leave plans. She also provided the applicant with a written appraisal that had been requested of an asset held jointly with the applicant’s former husband. The applicant asked for some clarification around a billing issue. |
31 August 2021 | An invoice was issued by the respondent. |
3 September 2021 | An email was forwarded from the respondent to the applicant attaching the invoice. |
7 September 2021 | An email was forwarded from the respondent to the applicant noting that there had been an error in the applicant’s email address when sending the abovementioned. There were further communications between the parties as to whether the invoice would be paid by the applicant or her parents. |
8 September 2021 | An email was forwarded from the applicant to the respondent requesting clarification as to whether the invoice included counsels’ fees. |
10 September 2021 | An email was forwarded from the respondent to the applicant explaining that the invoice did not include counsels’ fees. |
12 September 2021 | An email was forwarded from the applicant to the respondent explaining that she would speak with her parents as to whether the invoice would be paid by her or her parents. |
13 September 2021 | An email was forwarded from the applicant to the respondent indicating that the total amount outstanding had been paid. The respondent acknowledged the payment and indicated that the applicant would be updated once the delivery date for the judgment was listed. |
- [17]The applicant received a telephone call from Ms Dowling notifying her that the judgment was to be delivered on 13 October 2021. Support for this can be found in the respondent’s invoice dated 28 October 2021, which records a time entry by Ms Dowling for a telephone call on this day. The applicant also appeared, although by telephone. Ms Lahey explained in re-examination that prior to the delivery of the judgment, it would be necessary to have seen if the applicant wanted the respondent to collect the judgment. This is because a client can attend to this themselves or retain other lawyers to do this.
- [18]Following the delivery of the judgment, on 26 October 2021 the applicant met with Ms Lahey and Ms Dowling. Ms Lahey explains in her most recent affidavit that the applicant’s request for a meeting required her to review the judgment and to consider the legal options available to the applicant. She explained in evidence that at that meeting the applicant was asked what she would like to do and that “there were some instructions going backwards and forwards in respect of, ‘Do this draft letter. Do this.’”[1] Ms Lahey accepted that this was work that could be done within the scope of Schedule 1 in the Costs Agreement. A further invoice was issued to the applicant on 28 October 2021, for work performed between 13 and 26 October 2021.
- [19]The respondent performed additional work for the applicant between November 2021 and February 2022. A separate file (number 2194033) was opened for this work. This involved an application for costs and certain work required to give effect to the judgment, which largely related to property transfers. Four invoices were issued for this work between 29 November 2021 and 24 February 2022. Although Ms Lahey and the applicant continued to correspond in relation to the Family Law matter after 24 February 2022, the respondent did not charge for it. These communications took place on 2 March, 23 May and 1 June 2022.
- [20]By email dated 17 June 2022, the applicant requested an itemised bill for each of the 37 invoices. Prior to this, the applicant had paid each of the invoices without raising any concerns. The itemised bills were provided on 20 June 2022. About a month later, the applicant requested a hard copy of her file. By email dated 16 August 2022, she was informed that not all documents were stored as hard copies, and that her file could be provided to her with a USB and supplemented by some hard copies of documents. However, on 6 September 2022 the applicant was informed that a hard copy of her file was now available for collection. By email dated 24 November 2022, the applicant requested copies of the respondent’s file notes that supported the times claimed in the various invoices that had been forwarded to her during the period that the respondent acted for her. The respondent sought clarification as to any specific entries in the invoices that this request related to. The applicant did not respond to this but instead requested all file notes “from day 1 until completion of my matters with your firm in relation to my Family Court matters.” In response, the respondent explained that she had not been charged for the preparation of any file notes as they had been prepared for internal purposes only and that they therefore belonged to the respondent.
- [21]The applicant has paid $277,375.48 on account of the respondent’s professional fees, inclusive of GST and exclusive of disbursements. Schedule 4 of the Costs Agreement provided an estimate for complex matters of up to $300,000 plus valuation fees, expert fees and senior counsel’s fees. Ms Lahey deposes to the Family Court proceeding being a complex matter. She expands on the nature of the complexities. There were issues in relation to the contributions of the applicant and her former husband to the matrimonial asset pool and the increase in loan accounts of related entities. Some of the matrimonial assets were held in a corporate structure and these assets were required to be valued by a single expert accountant. There was a dispute regarding the proper method of valuation of some apartments held through an interposed entity, leading to a dispute as to the value of her former husband’s interest in a related trust. The applicant had instructed the respondent to engage an accountant as a shadow expert to consider the applicant’s concerns as to the loan accounts in the related entities. There was a dispute about several balance sheet issues leading to a dispute as to the true value of the matrimonial asset pool. There were complicated taxation issues in relation to their assets. There was an issue regarding the applicant’s former husband’s earning capacity and the treatment of an insurance payment received by him post separation.
Interim v final bills
- [22]Division 7 of Part 3.4 of the Act governs costs assessments. It is not in dispute that the mechanisms provided in the Act for a client to review costs is directed to consumer protection, with the underlying objectives to protect a client against overcharging by a legal practitioner. Section 335(1) permits a recipient of legal services to apply for an assessment of the whole or any part of legal costs. Subsection (5) provides that a costs application must be made within 12 months after the bill was given, or the request for payment was made to the client. This time limitation only applies to final bills, as an interim bill can be the subject of an assessment at the same time as a final bill in the course of the relevant retainer.[2] Further, pursuant to subsection (6), a costs application made out of time in relation to a final bill may be dealt with by a costs assessor or a court, if after considering the reasons for the delay the court decides to deal with it.
- [23]The first issue to be resolved is whether the respondent’s invoice dated 31 August 2021 was a final bill or an interim bill for the purpose of the Act. Neither term is defined in the Act. Having said this, s 333(1) provides an effective definition of an interim bill. It is a bill covering part of the legal services that the legal practice was retained to provide.[3] The authorities establish that a final bill is a bill for the last of the services that the legal practice was retained to provide.[4]
- [24]In Re Lynch and Co Bill of Costs[5], Chesterman J was concerned with the question of whether certain bills were several separate bills or were part of the one bill when applying s 9 of the Legal Practitioners Act 1995 (Qld). His Honour stated at [13] that:
“Equity therefore developed the principle that distinctly identifiable parts of the retainer would constitute a separate retainer for the purposes of billing and if a ‘natural break’ occurred in the conduct of the litigation a bill could be delivered up to the time of the break.”
- [25]Turner v Mitchells Solicitors[6] concerned an application for assessment of legal costs under s 335 of the Act in relation to 44 tax invoices that were issued over a nearly eight year period. McGill DCJ distinguished between the use of the term ‘retainer’ in the broader sense of the relationship between the client and the legal practice, and a retainer to provide legal services for the purposes of s 333 of the Act. His Honour relevantly stated at [29]:
“There can be a situation where a costs agreement can be entered into to cover particular legal work, and any other legal work which the solicitor is instructed to carry out. If the particular legal work is then completed, and there have been no further instructions, then the legal services the solicitor is retained to provide have been performed. If a bill is sent at that point it is a final bill, and it does not become an interim bill simply because at some later stage further instructions are given for additional legal services to be provided to which the earlier costs agreement also applies.”
- [26]Applegarth J applied Turner in Tabtill No. 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) & Anor[7]. The applicants sought an assessment of costs pursuant to s 335 of the Act in relation to 115 tax invoices issued by the respondents on numerous separate files over a period of nearly four years. The first respondent had entered into a client agreement with the applicants and other related corporate entities. It was in the form of a letter which incorporated certain standard conditions. The respondents adopted the practice of opening and maintaining different files for different sets of instructions received from clients and these separate files were assigned different matter numbers. There were 11 different matter numbers. Relevantly, a large amount of the total costs in respect of which the assessment was sought, related to work undertaken by the first respondent in preparation for and attendance at a Supreme Court trial. The judgment in relation to that matter was delivered approximately nine months later and the respondent was retained to act in relation to arguments relevant to the issue of costs. Further invoices for this work were then issued and about nine months later the applicant made the costs application. Applegarth J considered that there was a natural break in the litigation at the conclusion of the trial. A bill sent at that point in relation to the conduct of the trial, was considered to be a final bill for the purposes of s 333 of the Act. The tax invoices subsequently issued for legal services performed pursuant to instructions that were received after the trial, were considered to be for separate and distinct legal services.
- [27]The point arose in a different statutory context in Dart Mining NL v Foster Nicholson Jones[8] and concerned the application of the Legal Profession Act 2004 (Vic). Wood As.J referred to Applegarth J’s statement in Tabtill No. 2 to the effect that within a broader retainer, there may be specific retainers the subject of specific instructions. His Honour found that there were separate retainers for discrete issues.
- [28]In Mishra v Bennett and Philp Pty Ltd[9], the applicants applied pursuant to s 335(1) of the Act for an assessment of costs charged in 33 bills delivered to them by the respondent in respect of trial and appeal proceedings. The parties had entered into a costs agreement for the respondent to act in the Supreme Court proceedings. The respondent submitted that there were two distinct retainers. The first was the trial retainer, which ceased after the trial in April 2018. The final bill in relation to that retainer was rendered on 31 May 2018. Some months later, the applicants instructed the respondent to act on their behalf to make costs submissions in relation to the trial and subsequently to conduct an appeal in respect of the matter. Having considered the authorities, the Chief Justice concluded at [22]:
“In the interests of comity, it seems to me that I should accept that instructions to prepare for and represent clients at trial may constitute a specific retainer within a larger retainer to act in the proceedings and that a bill given for that work at a natural break in the proceeding, in the absence of further instructions, should be regarded as final. Here, as at 31 May 2018, the specific retainer to prepare for and provide representation at the trial was complete and the respondent had no instructions to perform further work in that regard. Nothing more was required or done until 2 October 2018, when delivery of judgment was imminent. The bill rendered in May 2018 was a final bill.”
Whether the 31 August 2021 invoice was an interim bill
- [29]It is necessary to determine the legal services that the respondent was retained to provide in relation to the applicant’s family law matter. It is submitted by the applicant that by the definition of “Work” and Schedule 1 of the Costs Agreement, these services did not conclude until the work necessary to implement the court orders was carried out. It is not in contest that this occurred in February 2022. In other words, it is asserted by the applicant that there was only one final bill and this was the one issued on 22 February 2022. This is said to mean that all previous bills, including the one dated 31 August 2021, were interim bills for the purpose of s 333 of the Act and the applicant is entitled to have them all assessed pursuant to s 335 of the Act. I am not persuaded by this for the reasons set out below.
- [30]First, the Family Court proceeding had not been commenced at the time the Costs Agreement was entered it. The agreement provides that it was to apply to proceedings in any of the Family Court (including the Full Court), Federal Circuit Court, Magistrates Court and High Court. This is because it was not known which, if any, such proceedings might have been instituted and hence the use of the phrase “where applicable”. The categories of Work detailed in the Costs Agreement were broad and not exhaustive. It included retainers to undertake legal work that might be required in relation to parenting, child support and domestic violence related issues (it is known that no such work was ultimately required). Further, the work to be performed as described in Schedule 1, was in very general terms. Therefore, the Costs Agreement constituted a general retainer to undertake legal work that might be required from time to time in relation to the family law matter. This included future work, not yet identifiable.
- [31]Second, the applicant relies on the uncontested evidence that the Costs Agreement was not varied after the conclusion of the hearing in August 2021 and that no new costs agreement was subsequently entered into with the respondent for the work undertaken by it. I accept that the Costs Agreement (without variation) remained in force until at least the conclusion of the Family Law proceeding in February 2022. However, this does not necessarily mean that the tax invoice issued on 31 August 2021 constitutes an interim bill for the purposes of the Act. As explained above, the focus needs to be on the evidence relevant to the legal services that the respondent was retained to provide from time to time.
- [32]Third, the applicant has pointed to the fact that at the conclusion of the hearing in August 2021, the respondent must have contemplated that further work would need to be performed in relation to the Family Court proceeding. This included appearing and receiving judgment, advising the applicant in relation to it, resisting any costs application that may have been made against her and implementing the orders. Ms Lahey did not dispute any of this in cross-examination. However, this is not determinative of whether an invoice is an interim or final bill. The authorities establish that within a general retainer there can be final bills for discrete services. An invoice sent once the legal services the law practice has been retained to provide have been performed, does not become an interim bill because at some later stage further instructions are given for additional legal services to be provided, to which the earlier costs agreement also applies. In other words, a final bill is not necessarily the last bill in time. Rather, it is the bill for the last of the services that the legal practice has been retained to provide.
- [33]Fourth, the applicant deposes that her instructions were not sought or given for the respondent to appear on the applicant’s behalf for the delivery of the judgment, or to undertake other post-trial work. I am not persuaded by this. The respondent’s invoice dated 28 October 2021 records a time entry by Ms Dowling for a telephone call with the applicant on 13 October 2021. There was also the meeting between the applicant, Ms Dowling and Ms Lahey on 26 October 2021 referred to in paragraph 18 above. Further, I accept the respondent’s submission that the applicant was free to instruct or not instruct the respondent to collect the judgment or do any further work following the conclusion of the trial. It is known that with the benefit of hindsight the respondent was ultimately instructed to perform all further work in relation to the Family Court proceeding. Estimates of the costs for this work were provided by the respondent to the applicant. However, Ms Lahey explained in evidence that it was not a fait accompli that the respondent would be instructed to undertake the further work that was likely to be required in relation to the Family Court proceeding. For example, she did not necessarily expect the respondent would be instructed in relation to any costs dispute once the judgment was delivered. Ms Lahey explained that in her extensive experience, clients would often seek a second opinion from another law practice in relation to such a matter. Ms Lahey also explained that the work that was going to be required to give effect to the judgment was likely to include the conveyance of interests in multiple properties. I accept Ms Lahey’s evidence that from her experience it would not be unusual for clients to engage another legal practice with expertise in conveyancing or commercial law to implement such orders.
- [34]Fifth, the applicant urged me to be satisfied that the Costs Agreement did not include distinctly identifiable parts of the Family Court proceeding that would constitute a separate retainer for the purposes of billing. It is said that there was no natural break in the Family Court proceeding, and legal work under the Costs Agreement continued to be performed by the respondent post-hearing. It was contended by the applicant that in the two or so weeks after the invoice was issued on 31 August 2021, the respondent continued to perform legal work for the applicant under the Costs Agreement. This is not supported by the evidence. The work that was undertaken by the respondent during this period is summarised in paragraph 16 above. The applicant was not charged for any of this work. I accept Ms Lahey’s categorisation of this as administrative rather than legal work. Once the judgment was reserved and the parties had complied with the Judge’s orders made at the conclusion of the hearing, nothing further needed to be done to perform the respondent’s retainer at that time. It was the conclusion of a distinct and definite part of the Family Court proceeding. The fact that each of the 36 invoices were issued under the same matter description and with reference to the same code does not alter this. There were separate retainers for specified stages of work, including the further work to be performed for the applicant to give effect to the judgment. This largely related to property transfers and was allocated a separate file number.
- [35]Sixth, Ms Lahey was cross-examined to the effect that the Family Court had issued a guideline for judgments to be delivered within three months of the conclusion of the hearing and that it was her experience that the Judge tended to comply with this guideline. While Ms Lahey agreed with this, it does not advance the applicant’s position that there was not a natural break in the Family Court proceeding.
- [36]Seventh, paragraph 51 of the applicant’s submission details information that was apparently not conveyed to the applicant. This included that she was not told that the respondent considered that the conclusion of the hearing in August 2021 was a natural break in the Family Court proceeding and that a final bill would be issued by the respondent at this time. In my view, whether the applicant was provided with this information has no bearing on the determination of this issue. It is further said that the applicant was not told that if she did not make an application for a costs assessment within 12 months of the final bill, that her right to seek a costs assessment would be lost. However, in the Costs Disclosure Notice the applicant was advised that if she wished to make an application to have the costs assessed, such an application needed to be made within 12 months after the bill of costs was given, or a request was made. This was reiterated to the applicant on the front page of each invoice issued to her. Further, in both the covering letter of 12 April 2019 and the Costs Agreement, a recommendation was made to the applicant that she obtains independent legal advice.
- [37]Eighth, the applicant has also raised the fact that the respondent did not notify the Family Court that it was no longer acting for her, nor did it file a new notice of appearance for the purpose of collecting the judgment. The relevance of these extraneous considerations is not clear given that s 333 of the Act requires a consideration of the legal services the respondent was retained to provide.
- [38]Ninth, the applicant’s contention that the respondent’s legal services concluded in February 2022, once the work necessary to implement the orders in the Family Court proceeding had been completed, ignores the broad description of legal services contained in the Costs Agreement. It contemplated the potential for an appeal to the Full Court and then a further appeal to the High Court. Taking the applicant’s argument to its logical conclusion, would mean that if an appeal to the High Court had been filed, it would provide an opportunity to attempt to categorise the invoice issued on 24 February 2022 at the conclusion of the Family Court proceeding, as an interim bill. This would mean that an assessment of costs in relation to the High Court appeal could include all previous invoices dating back to September 2018. This presents to me as a commercially unreal proposition and would seem to be contrary to the intention of the Act, which is to encourage the review of interim and final bills within 12 months of the final bill.
- [39]In summary, the delineation in work tasks is sufficiently discrete for the parts of the Costs Agreement relating to the Family Court proceeding to be identified. There was a natural break in the proceeding in August 2021, after the orders that had been made by the Judge on 18 August 2021 had been implemented. The fact that the Costs Agreement continued to apply and further legal work was likely to be required, does not alter the conclusion that the invoice issued on 31 August 2021 was a final bill for the purposes of s 333(1) of the Act. This means that the applicant is out of time to seek an assessment of those costs which are the subject of invoices 1 to 31, which are dated between 6 September 2018 and 31 August 2021.
Extension of time
- [40]The question arises as to whether the discretion conferred by s 335(6) of the Act to extend time should be exercised in favour of the applicant. This section permits the court to deal with an application after “considering the reasons for the delay”.[10] It does not mirror equivalent provisions applying to the regulation of the legal profession in the uniform legislation adopted in some other States. For example, s 198(4) of the Legal Profession Uniform Law (which applies in New South Wales and Victoria), makes the discretion exercisable if after having regard to the delay and the reasons for the delay, the judge determines that it is “just and fair” for the application to be dealt with out of time. In Mishra, the Chief Justice concluded at [30]:
“… the fact that the Queensland provision specifies consideration only of the reasons for delay, not its effect, suggests that the focus is intended to be more on the difficulties faced by the applicant in making the application than those which will face the respondent should it be granted. …”
- [41]As to the length of the delay, I accept the applicant’s submissions that the period to be focussed on is the period after the 12 months fixed by s 335(5) of the Act. In this case, this is the period of nearly four months between 31 August and 22 December 2022. In my view, this relatively short period of delay is not a matter that weighs heavily against the applicant.
- [42]Turning to the reasons for the delay, the applicant deposes that she was reluctant to challenge any of the invoices while the respondent was acting for her. It is said that she feared that this would detrimentally affect the quality of the representation she received, or that it would result in a dispute with the respondent requiring her to engage alternative lawyers to act for her. This was confirmed in her evidence where she expressed a concern that she might well end up in arguments with the respondent if she was to question any of their invoices. In my view, any such concerns of the applicant were not well founded. Inconsistently with this position, the respondent had conducted itself in a way that ought to have reassured the applicant that any reasonable queries that she raised about the invoices would be appropriately considered by the firm. Ms Lahey deposes that she recalls that in January 2022, the applicant’s father queried the costs to complete the property settlement work required to give effect to the judgment in the Family Court proceeding. This was on the basis that another legal firm could perform the work more cheaply. The respondent agreed to reduce its rate to complete this work and the invoice (being number 36) was subsequently paid without complaint. This was the second occasion the respondent had offered the applicant a discount on its fees. The first occasion was in September 2021, when the respondent offered to and did reduce its professional fees by approximately $10,000.
- [43]Another reason proffered by the applicant for the delay in making the application for the costs assessment was that she did not know whether she had the financial resources to do so. She deposes that she had ongoing financial commitments involving her children, that her former husband was behind in his child support payments, and that she had required a loan from her father to facilitate compliance with the court orders. These assertions lack detail and therefore cogency. Without more, I am not satisfied that the financial commitments involving the applicant’s children and the outstanding child support payments placed the applicant in a position of uncertainty as to whether she could finance the application. Further, there is no evidence that the applicant’s father would not have continued to financially assist her with such an application, as he had done during the Family Court proceeding.
- [44]A further explanation for the delay relates to the stress and distractedness the applicant experienced in relation to the divorce proceedings over the two-month period between 20 June and 20 August 2022. During this time, she was served with the application for her divorce by her former husband, she appeared at the application and the order formalising her divorce was made. This was against a background of having received medical treatment for stress and anxiety since 2020. Once again, the applicant’s evidence on this point is of the vaguest kind. The divorce proceedings accounted for only two months of the 12-month statutory period. Further, while it is not surprising that the applicant may have been experiencing stress and anxiety, it had been ongoing throughout the Family Court proceeding and there is no suggestion that it had prevented her from providing ongoing instructions or otherwise engaging with this litigation. Based on the limited evidence before me about this issue, I am not persuaded that any stress or anxiety experienced by the applicant had the consequence of preventing her from applying for a costs assessment prior to 31 August 2022.
- [45]The applicant deposes to having been confused by the Costs Disclosure Notice and Costs Agreement. I do not accept that any such confusion would provide a reason to support the indulgence she is seeking. These documents were provided to her by the respondent on 19 April 2019 as attachments to a letter. In this correspondence, it was recommended to the applicant that she obtains independent legal advice. The Costs Disclosure Notice also included the name and contact details of the partner from the respondent whom the applicant could contact if she had any questions or concerns about costs. It also informed her that any application for a costs assessment would need to be made within 12 months after the bill of costs was given, or a request was made. Despite having been provided with this information, the applicant complains that the respondent did not advise her that her right to seek a costs assessment would be lost if she did not make an application for a costs assessment within 12 months of the final bill. In my view, the respondent was not required to provide this advice and it complied with its disclosure obligations under the Act.
- [46]Finally, the applicant points to the absence of file notes and “other documents” that were missing from the file provided by the respondent, as being relevant to the applicant forming a view as to whether she should apply for a costs assessment. This assertion does not withstand scrutiny. Clearly those documents were not required when making the decision to file the application in December 2022, as copies of those had not been provided to the applicant at that time. Further, by mid-June 2022 the applicant had been provided with itemised bills for each of the subject invoices. These oughts to have provided the applicant with sufficient detail to enable her to determine the desirability in seeking a costs assessment.
- [47]In my view, having regard to the considerations to which I have referred, the applicant has not shown that there is any good reason why she should be exempted from the general prohibition imposed by s 335(5) of the Act, to permit an assessment of invoices 1 to 31 to occur out of time. I therefore do not extend time.
- [48]As explained above, as to the balance of the invoices, being numbered 32 to 36, which are dated between 28 October 2021 and 24 February 2022, the respondent does not oppose an order that those invoices be assessed.
- [49]I direct the parties to bring in orders consistent with my decision and any other orders that follow from it by 4pm on 14 June 2023.
- [50]The applicant seeks a further order that the respondent provide the applicant and the costs assessor with copies of all file notes made in the course of acting for the applicant in respect of the work the subject of the costs assessment. Given my findings above, I will hear further submissions from parties about this matter and the question of costs.
Footnotes
[1] T1-38, ln 20-24.
[2] Pursuant to s 333(2) of the Act.
[3] Turner v Mitchells Solicitors [2011] QDC 61.
[4] Challen v Golder Associates Pty Ltd [2012] QCA 307 at [45].
[5] [2000] QSC 3 at [12].
[6] [2011] QDC 61.
[7] [2012] QSC 115.
[8] [2016] VSC 836.
[9] [2021] QSC 158.
[10] The applicant is not a “sophisticated client” as defined in s 300 of the Act.