Mishra & Anor v Bennett & Philp Pty Ltd

The Supreme Court of Queensland held that a solicitor’s bill issued for trial proceedings (“trial bill”) was a final bill even though a subsequent bill was issued for appeal proceedings (“appeal bill”), and therefore an application for the assessment of costs of the trial bill was made out of time. The Court refused to exercise its discretion to consider the application for assessment of the trial bill out of time because no adequate explanation was given for the delay. An affidavit supporting the application does not need to state the grounds of dispute with precision. The grounds of dispute only need to be rational and do not need to be supported by evidence. The applicants were entitled to assessment of the appeal bill.

Holmes CJ

25 June 2021

The respondent (“solicitor”) acted for the applicants in trial proceedings in the Supreme Court of Queensland and appeal proceedings in the Court of Appeal. Separate bills for legal costs were given for the trial proceedings (“trial bills”) and the appeal proceedings (“appeal bills”).

The applicants applied for an assessment of legal costs under s 335(1) Legal Profession Act 2007 (“the Act”).

Time limit for application for assessment of legal costs

The application was made within the 12 month time period required under s 335(5) of the Act from the date of the appeal bills, but not from the date of the trial bills. [14].

The applicants argued the trial bills were interim bills which, under s 333(2), could be assessed, relevantly, at the time of the final bill. [15].

Chief Justice Holmes held 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 a bill given for that work at a “natural break” in proceedings is a final bill. [22]. Therefore, the applicants were out of time to dispute the trial bill unless the Court exercised its discretion to consider the application out of time under s 335(6) of the Act.

Her Honour refused to consider the application out of time because no adequate explanation was offered for the delay. Unlike equivalent provisions in other states, the terms of the Queensland provision suggested that the reason for the delay in making the application was a more important consideration than prejudice to the solicitor caused by responding to a delayed application. [30]–[33]. The Court refused to assess the costs of the trial bill.

Affidavit supporting application for assessment of legal costs

The solicitor also argued that the affidavit supporting the application did not meet the requirements of r 743A(5) Uniform Civil Procedure Rules 1999 because it did not identify what part of the costs were to be assessed or the grounds on which an assessment was sought. [34]–[36].

Chief Justice Holmes held that the assessor was obliged to consider all items on a bill, whether or not the applicant identified grounds to dispute all items. [42]. Precision is not required when identifying grounds of dispute because the Act is concerned with consumer protection. [48]. Rational grounds for disputing a costs bill are sufficient and there is no requirement to provide evidentiary support for those grounds. [50].

The affidavit supporting the application complied with r 743A(5) and the applicants were entitled to an assessment of costs of the appeal bills. [51], [52].

S Spottiswood of Counsel