In this matter, the Queensland Court of Appeal considered whether for the purposes of s 335(5) of the Legal Profession Act 2007, delivery of an itemised bill after a lump sum bill has already been delivered triggers a fresh limitation period? On the facts of this particular case, the lump sum tax invoice had been received approximately a year before the itemised bill was requested, with the effect that if the itemised bill were the relevant trigger then the time period would run afresh. The Court of Appeal rejected this view and held that nothing in the Act suggests that such a result was intended.
Sofronoff P, and Morrison and Philippides JA
28 September 2018
The applicant was a firm of solicitors which acted for the respondent in a personal injuries proceeding. . The proceedings were settled and monies paid into the applicant’s trust account. . In April 2015, the applicant delivered a letter to the respondent informing her that her claim had been settled and attaching a “tax invoice” setting out a lump sum for the applicant’s professional fees. .
A year later in March 2016, the respondent requested an itemised bill, which she received in May 2016. . Almost another year later, the respondent filed an application for a costs assessment pursuant to s 335 of the Legal Profession Act 2007. . Relevantly, s 335(5) of the Legal Profession Act provides:
“A costs application by a client or a third party payer must be made within 12 months after –
(a) the bill was given, or the request for payment was made, to the client or third party payer; or
(b) the costs were paid if neither a bill was given nor a request was made.” .
An issue arose concerning the construction of the words “the bill” in s 355(5), and the effect on the limitation period. . If “the bill” was the lump sum tax invoice, then the application was out of time. . However, if “the bill” was the itemised bill, then the application was within time. .
Before a Magistrate, it had been determined that “the bill” was the lump sum tax invoice and therefore that the respondent’s costs application had been made out of time. . On appeal to the District Court, this decision was overturned on the basis that “each of the two bills delivered by the applicant to the respondent was a relevant bill for the purposes of s 335(5)(a)”. . The effect of issuing the itemised bill was that the limitation period ran afresh. .
On an application for leave to appeal to the Queensland Court of Appeal, Sofronoff P (with whom Morrison and Philippides JA agreed) held that the District Court judge had erred in his construction of the Legal Profession Act. . His Honour rejected the view that “delivery of an itemised bill after a lump sum bill has already been delivered triggers a fresh limitation period”. . As his Honour explained:
“If that were the case, then the client who has received a lump sum bill would be in a position to extend the limitation period to one of two years merely by making a request for an itemised bill. Nothing in the statute suggests that such a form of self-help was intended.” .
His Honour noted that there was nothing in s 355 that “promotes the importance of an itemised bill over a lump sum bill or even that distinguishes between them”. .
His Honour granted leave to appeal, and allowed the appeal, setting aside the orders of the District Court judge. .