Allison v Murfett Legal Pty Ltd - [2021] WASC 359

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ALLISON -v- MURFETT LEGAL PTY LTD [2021] WASC 359
CORAM:   MASTER SANDERSON
HEARD:   22 SEPTEMBER 2021
DELIVERED          :   22 OCTOBER 2021
FILE NO/S:   LPA 12 of 2021
BETWEEN:   GREG ALLISON
Applicant
AND
MURFETT LEGAL PTY LTD
Respondent

Catchwords:

Costs agreement - Application by plaintiff to set aside costs agreement with defendant - Turns on own facts

Legislation:

Legal Professions Act 2008 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	K Parker

Solicitors:

Applicant	:	In Person
Respondent	:	Murfett Legal Pty Ltd

Case(s) referred to in decision(s):

Crescendo Management Pty Ltd v Westpac Banking Corporation (1998) 19 NSWLR 40
Frigger v Shepherd [2014] WASC 477
Moleirinho v Talbot and Olivier Lawyers Pty Ltd [2014] WASCA 65
Stevenson v Zafra Pty Ltd [2021] WASCA 181

MASTER SANDERSON:

This is the plaintiff's application to set aside a Costs Agreement dated 12 August 2020. The Costs Agreement comprises four documents which were sent to the plaintiff on 12 August 2020. They are Murfett Legal's letter dated 12 August 2020, a document entitled 'Checklist for Explanation to Client before entering Costs Agreement', a document headed 'Costs Agreement' and a document headed 'Statutory Disclosure to Clients'.
The plaintiff says the Costs Agreement should be set aside on one of six separate grounds. They are:
1.The Costs Agreement is not fair or reasonable;
2.Fraud or misrepresentation of the defendant or of a representative of the defendant;
3.Failure of the defendant to make the required disclosures within a practical time;
4.The Costs Agreement included a party who was not a client;
5.The plaintiff entering into the Costs Agreement under duress; and
6.The defendant breaching its fiduciary duties to the plaintiff.
Two points can be made at the outset. First, the plaintiff did not actually sign the Costs Agreement and return it to the defendant. The defendant does not allege his failure to sign the document in some way eviscerates the Cost Agreement. Second, the defendant does not allege the plaintiff's partner Ms Lara Bardwell is not a party to the Costs Agreement. This eliminates the fifth of the sixth complaints. Before dealing with the specifics of each complaint I should set out the relevant undisputed factual background.
The plaintiff was for a time employed as a teacher at John Septimus Roe Anglican Community School teaching science and mathematics. On 7 September 2018 he was made redundant. In December 2018 the plaintiff instructed the law firm of Jackson McDonald in relation to his redundancy. Ms Kate Walawski was at that stage special counsel in the employment and workplace relations division of Jackson McDonald. She had conduct of the plaintiff's matter. Ms Walawski appeared for the plaintiff at a hearing in the Fair Work Commission and she prepared an application which was filed in the Federal Circuit Court of Australia.
The plaintiff's instructions to Jackson McDonald were limited to drafting the Federal Circuit Court application and a statement of claim. For reasons of costs it was not intended Ms Walawski would represent the plaintiff if the matter came to court. In that circumstance he would be self represented. Proceedings were duly filed on 9 April 2019. Although the form commencing the application had been prepared by Jackson McDonald it was lodged by the plaintiff personally. After filing the application the plaintiff had sporadic contact with Ms Walawski but in general he represented himself. This included filing all necessary documents to advance the proceedings.
The Federal Court proceedings were listed for a three day trial commencing the 19 August 2020. The respondents were represented by solicitors and counsel. On 17 July 2020, the respondent was granted leave to withdraw admissions they had made and file amended documents. The plaintiff was granted further time to file an affidavit, submissions and objections. This was to be done by 7 August 2020. Ms Walawski was not aware of any of these matters - she was not aware that the matter had been listed for trial and she was not aware that leave had been granted to withdraw admissions.
On 1 April 2020, Ms Walawski commenced with the defendant as a partner in employment and workplace relations. On 29 July 2020 the plaintiff contacted Ms Walawski by telephone and enquired as to her costs to represent him at trial. On the basis the plaintiff had done the majority of work required for trial, Ms Walawski estimated it would cost $20,000 should the plaintiff retain the defendant to appear at trial. On 31 July 2020, the plaintiff instructed the defendant to represent him up to and at trial.
When Ms Walawski reviewed the file she came to the conclusion that due to the volume of documents and material to be considered, a short adjournment would be required. On 3 August 2020 an application for adjournment was made. It was heard on 5 August 2020 and dismissed. Ms Walawski then advised the plaintiff to make an offer of settlement. By 11 August 2020, Ms Walawski was fully cognisant of what was involved in pursuing the claim and revised her costs estimate up to $60,000. This included the work that had been done to date.
On 12 August 2020, the plaintiff confirmed his instructions. He wished to proceed to trial. It was after the instructions were confirmed that the defendant provided the four documents referred to above and requested an amount of $40,000 be paid into trust. On 13 August 2020 the plaintiff had deposited $20,000 into the defendant's trust account. The defendants prepared and filed the plaintiff's further affidavit, submissions and objections. These were ready to be filed on 13 August 2020. On Friday 14 August 2020, the respondent made a without prejudice offer to the plaintiff. The plaintiff accepted the offer on 17 August 2020. By 27 August 2020 the matter was settled. A formal deed of settlement had been drafted and a notice of discontinuance of the Federal Circuit Court proceedings were filed. On 31 August 2020 the defendant issued its invoice to the plaintiff for an amount of $28,600 including GST and disbursements. Counsel for the defendant was at pains to point out this amount represented a significant discount on the fees the defendant could have charge the plaintiff under the Costs Agreement.
Turning then to the plaintiff's complaints. The claim the Costs Agreement is not fair nor reasonable is based upon s 288 of the Legal Professions Act 2008 (WA) (LPA). This section reads as follows:
288. Setting aside Costs Agreements
(1)In this section —
client means a person to whom or for whom legal services are or have been provided.
(2)On application by a client, the Supreme Court may order that a Costs Agreement be set aside if satisfied that the agreement is not fair or reasonable.
(3)In determining whether or not a Costs Agreement is fair or reasonable, and without limiting the matters to which the Supreme Court can have regard, the Supreme Court may have regard to any or all of the following matters —
(a)whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;
(b)whether any Australian legal practitioner or Australian‑registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;
(c)whether the law practice has failed to make any of the disclosures required under Division 3;
(d)the circumstances and the conduct of the parties before and when the agreement was made;
(e)the circumstances and the conduct of the parties in the matters after the agreement was made;
(f)whether and how 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;
(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.
(4)The Supreme Court may adjourn the hearing of an application under this section pending the completion of any investigation or determination of any charge in relation to the conduct of any Australian legal practitioner or Australian‑registered foreign lawyer.
(5)If the Supreme Court determines that a Costs Agreement be set aside, the Court may make an order in relation to the payment of legal costs the subject of the agreement.
(6)In making an order under subsection (5) —
(a)the Supreme Court must apply the applicable costs determination (if any); or
(b)if there is no applicable costs determination — the Court must determine the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account —
(i)the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian‑registered foreign lawyer acting on its behalf; and
(ii)whether or not it was reasonable to carry out the work; and
(iii)whether or not the work was carried out in a reasonable manner.
(7)In making an order under subsection (5), the Supreme Court may not order the payment of an amount in excess of the amount that the law practice would have been entitled to recover if the Costs Agreement had not been set aside.
(8)For the purposes of subsection (6)(b), the Supreme Court may have regard to any or all of the following matters —
(a)whether the law practice and any Australian legal practitioner or Australian‑registered foreign lawyer acting on its behalf complied with this Act;
(b)any disclosures made by the law practice under Division 3, or the failure to make any disclosures required under that Division;
(c)any relevant advertisement as to —
(i)the law practice’s costs; or
(ii)the skills of the law practice or of any Australian legal practitioner or Australian‑registered foreign lawyer acting on its behalf;
(d)the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian‑registered foreign lawyer responsible for the matter;
(e)the retainer and whether the work done was within the scope of the retainer;
(f)the complexity, novelty or difficulty of the matter;
(g)the quality of the work done;
(h)the place where, and circumstances in which, the work was done;
(i)the time within which the work was required to be done;
(j)any other relevant matter.
(9)The Supreme Court may determine whether or not a Costs Agreement exists.
(10)The Supreme Court may order the payment of the costs of and incidental to a hearing under this section.
Three points can be made about this section. First, it embodies a discretion. The court 'may,' not must, set aside an agreement that is not fair or reasonable. Second, in deciding whether to exercise the discretion, the matters to which the court commonly has regard are identified at s 288 (3). The court is not prevented in considering other matters which might be relevant to the exercise of the discretion. Third, the onus is on the plaintiff to establish that the Costs Agreement is either not fair or not reasonable with the result the agreement should be set aside. These principles emerge from a number of decisions including Frigger v Shepherd [2014] WASC 477 and Moleirinho v Talbot and Olivier Lawyers Pty Ltd [2014] WASCA 65.
So far as the element 'fairness' is concerned, it is generally said to refer to the mode of obtaining the agreement. So if a solicitor makes an agreement with a client who fully understands and appreciates that agreement, the requirement is satisfied. The requirement of 'reasonableness' primarily concerns the substantive terms of the agreement and its effect on the client. So in this case, the plaintiff's allegations require an assessment of the nature of the plaintiff's knowledge, experience and sophistication in dealing with the Costs Agreement and the terms of the proposed Costs Agreement itself.
The defendants submits the plaintiff's knowledge, experience and position dictate the nature and scope of the explanation required to be given by the defendant. In other words, there is a subjective element in the test. By way of example, a person who was not fluent in the English language may require the Costs Agreement to be explained to him or her in a different way to an educated person. In this case, the defendant says the plaintiff is an educated high school teacher with no disabilities and no issues with literacy. Further, the plaintiff had previous litigation experience. He had previously entered into Costs Agreements. He had previously represented himself in court proceedings. I would also note in this case the plaintiff filed written submissions which were of an unusually high standard for a self-represented litigant. At the hearing he was articulate and presented his arguments in a clear logical fashion. He was devoid of the emotional overlay which, on occasion, characterises self-represented litigants.
The defendant also points out the plaintiff was aware that lawyers generally, and the defendant in particular, charged on a time costing basis. Conscious of this, he undertook to try and reduce the time spent by the defendant doing administrative tasks to 'save costs'. Furthermore, the defendant verbally and in writing provided the plaintiff with a revised estimate of the defendant's fees up to trial as being $60,000 before the plaintiff was provided with the formal Costs Agreement.
The plaintiff in his written submissions (the plaintiff filed two sets of written submissions, the first dated 18 June 2021 and the second dated 4 August 2021) does not really focus on the issue of fairness. He appears to pick up this issue as part of his complaint about duress. I will discuss that issue later in these reasons. I now turn to the terms of the Costs Agreement and the issue as to whether they were reasonable.
The evidence of Ms Walawski clearly indicates the Costs Agreement was discussed with the plaintiff at some length. The plaintiff does not deny that that was the case. The Costs Agreement itself is a clear document. It also alerts the plaintiff to the fact he would be deemed to accept the terms of the Costs Agreement if he continued to provide instructions to the defendant. There was no suggestion of the agreement being concealed from the plaintiff nor was the plaintiff discouraged from reading the Costs Agreement. He was advised he could take independent legal advice as to its term and effect.
After being provided with the Costs Agreement, the plaintiff contacted the defendant by telephone to discuss it. The plaintiff did not raise any other queries as to the effect of the terms of the Costs Agreement and indicated his understanding of his liability for legal fees. It may be the plaintiff did not read the full terms of the Costs Agreement. It is not clear from the evidence whether that was the case. Be that as it may, if he did not read the Costs Agreement and fully understand its contents that was no fault of the defendant. In my view, the defendant took all steps necessary to ensure the plaintiff was fully informed as to his rights and liabilities. The plaintiff does not actually complain the terms of the Costs Agreements were unreasonable. That is to say, he does not point to any particular clauses in the agreement which he says fall foul of the section.
This aspect of the plaintiff's challenge of the Costs Agreement fails.
Turning then to the allegations of misrepresentation and duress, the plaintiff in his first set of written submissions puts his position as follows:
2The Plaintiff submits that the Costs Agreement between the Plaintiff and the Defendant be set aside pursuant to the Legal Professions Act 2008, (LPA2008) section 288 (2) on the grounds that it is not fair, not reasonable, or both. Specifically, under section 288 (3)(a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice.
(a)Under section 288 (3)(a) the Plaintiff was induced to enter into the agreement by the fraud or misrepresentation of Ms Walawski, a representative of the Defendant. As outlined in the Plaintiff’s Affidavit, dated 17 June 2021, from the 29 July up until the evening of the 12 August the Plaintiff was under the belief that the costs for the legal representation were capped.
(i)This is evidenced by a conversation the Plaintiff had with Mrs Allison on 29 July 2020, where he informed her he had secured a capped price representation from the Defendant and InBalance Legal (refer to sworn Affidavit of Mrs Allison in Annexure GA02).
(ii)The Defendant has admitted in the Annexure GA04 (email dated 12August 2020 from Ms Walawski) that discussions took place early in the piece about representation that was not reflected in the Costs Agreement Annexure GA07 sent on the 12 August 2020. I submit to the Court that the Defendant did not do enough to ensure that the client had an accurate understanding of the Costs Agreement.
(iii)The belief of being under a capped price agreement significantly affected the decisions being made about the case, its progress to trial and the legal representation. The giving of instructions such as 'you do what you need to do to win this case', in respect to the Defendant advising to seek an adjournment of approximately six months, do not reflect instructions someone with a $20,000 budget and cost agreement such as received on 12 August 2020 would make.
To make good his claim he entered into the Costs Agreement under duress, the plaintiff needs to show the defendant applied pressure which lead to him accepting and entering into the Costs Agreement. In his written submissions the plaintiff refers to a number of authorities including Crescendo Management Pty Ltd v Westpac Banking Corporation (1998) 19 NSWLR 40 [45] - [46]. The defendant accepted that case set out the relevant test.
As I understand the plaintiff's position, he submits the defendant's conduct in complying with its statutory obligation to give revised cost estimates and cost disclosure led to him feeling pressured to enter into the Costs Agreement. Further, the plaintiff suggests the conduct of the defendant was unreasonable and amounted to duress because he was forced to consider costs and forced to make a decision between accepting a settlement offer and proceeding to trial.
It is important to distinguish between the pressures every party to litigation is under and duress. As McHugh J said in Crescendo it is illegitimate pressure which is the key aspect of duress. Illegitimate pressure does not need to be the sole reason why a party entered into an agreement, but it is an essential element of the remedy. On the evidence on this case it is not possible to identify any illegitimate pressure which the defendant applied to the plaintiff. Looking at the facts it is clear the plaintiff was under considerable pressure. The respondent in the Federal Circuit Court proceedings had withdrawn admissions which no doubt significantly altered the plaintiff's case and imposed upon him legal and evidentiary burdens he had to discharge if he was to succeed in his action. An adjournment was refused, meaning Ms Walawski and the plaintiff had to prepare the case within a limited time frame. The plaintiff was faced with a three day trial and an expected cost of $60,000. But in recounting those facts and looking at the evidence generally it is not possible to identify any illegitimate pressure which Ms Walawski or the defendant applied to the plaintiff. They were entitled to have the plaintiff enter into a Costs Agreement. They were entitled to ask for money on account of those costs. It is true that if the plaintiff had not entered into the Costs Agreement the defendant would not represent him at trial. But that is not illegitimate pressure. That is commercial realty. I can see nothing in the evidence in this case which would amount to duress.

Division 3 of the LPA require a law practice to make disclosures to a client as to costs. A failure to provide one or more of the disclosure does not necessarily mean a Costs Agreement will be set aside. The significance of the non-disclosure or the consequences flowing from it must be assessed with reference to the relationship between the client and the practitioner. Appearing as Schedule A to the written submissions filed on behalf of the defendant is an analysis of the requirements for disclosure under a particular sections of the LPA and what the defendant says its disclosure was in this case. I have attached Schedule A as an appendix to these reasons. As can be seen, counsel's analysis was thorough and, in my view, in all respects fair. There is nothing in the plaintiff's submissions which when set against the defendant's arguments could lead to a conclusion there had been inadequate disclosure.
The main thrust of the plaintiff's argument appears to be that the defendant did not provide disclosure as soon as reasonably practicable contrary to s 262, and that the defendant did not provide ongoing disclosure pursuant to s 267. These two sections read as follows:
262.How and when disclosure must be made
(1)Disclosure under section 260 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
(2)Disclosure under section 261(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.
(3)Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the person as a client for the purposes of sections 260 and 261.
267.Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change
As submitted by the defendant, the phrase 'as soon as practicable' imports requirements of what is 'reasonable and appropriate'. This requires consideration of all the circumstances. The plaintiff's allegations regarding the defendant's failure to provide disclosure focused on an alleged failure by the defendant to give the revised estimate as soon as practicable after being instructed. But an estimate requires due and detailed consideration and must be realistic and reasonable. It would have been meaningless if the defendant had given an estimate after the first appointment with the plaintiff and prior to having a complete understanding of the proceedings.
It is suggested in the defendant's submissions the plaintiff mislead the defendant through Ms Walawski, as to what was involved in taking on the plaintiff's case. While I understand the defendant's evidence on this issue in so far as it alleges improper conduct on part of the plaintiff I would not be prepared to make such an adverse finding. What is clear however, is that over the weekend of the 1 August and 2 August, Ms Walawski had to conduct a thorough assessment of the file. Having done so, she sought the plaintiff's instructions to apply for an adjournment. The plaintiff provided those instructions - presumably, he was convinced by Ms Walawski first that her review of the file had been thorough and the nature of the case demanded more time than was available prior to the scheduled start. I also accept that after the hearing on 5 August 2020 Ms Walawski became aware from comments made by Justice Street the plaintiff's instructions had failed to include earlier critical observations made by His Honour. As the situation changed and as Ms Walawski came to better understand the plaintiff's case she was able to provide meaningful disclosure. That all occurred in the period between 5 August 2020, and 12 August 2020. Once she became aware of the realty of the situations, Ms Walawski provided disclosure to the plaintiff and she did so in a timely fashion. In my view, there was no breach of either s 262 or s 267.
In his written submissions the plaintiff alleges the defendant 'abandoned' its fiduciary duty to the plaintiff. He goes further and says 'knowing the plaintiff having $20,000 the (defendant) sought to achieve this by not honouring the cap price costs of representation, originally agreed in conversation on 29 July 2020, rendering the plaintiff unable to afford the cost of employing the (defendant) to take the case to trial'.
The scope of the fiduciary duty owed by a solicitor to a client in relation to a Costs Agreement was considered by the Court of Appeal in Stevenson v Zafra Pty Ltd [2021] WASCA 181. The Court said at [262]- [263]:
Moreover, the substance of the master's finding at [15] of the primary decision was, relevantly, that in relation to the Wilson Costs Agreement 'a fiduciary relationship cannot lead to a positive duty to draft a Costs Agreement in a particular way because a party has knowledge of the financial position of another party', in the context of a submission that Mr Leslie knew that Mrs Stevenson had limited financial means
There is no error in the quoted statement by the master in this particular context. There was no positive fiduciary obligation on the part of Wilson to offer to enter into a Costs Agreement with Mrs Stevenson on terms acceptable only to her, having regard to her financial circumstances. Nor, contrary to Mrs Stevenson's submission, was there an 'inherent obligation not to do anything which [made her] position worse where it [was] already precarious'. The task of a solicitor in acting for a client in substantial proceedings in a commercial matter in a Superior Court is an onerous one. It was ultimately a matter for Wilson, having regard to Wilson's obligations as fiduciaries and officers of the court and to relevant provisions of the LP Act, to decide the terms upon which it was prepared to act, if at all. In this case, Wilson's obligations as fiduciaries and officers of the court were such that if the Wilson Costs Agreement were not to be stigmatised as not fair in its formation, Wilson was required not to take advantage of the client in conformity with the principles outlined in [237] - [245] above. There is no 'legal aid'-type fiduciary obligation on the part of solicitors, although solicitors may, and not uncommonly do, choose to act for clients on a pro bono basis or on reduced or conditional fee arrangements. That is not to say, however, that the financial position of the client may not form part of the overall relevant circumstances in an application under s 288 of the LP Act such as where, for example, the complaint concerns an allegation of exorbitant fees.
What was said by the court there covers this case precisely. The fact that there is a fiduciary relationship between a solicitor and client does not mean commercial reality can be ignored. A solicitor is entitled to charge for their services - and so long as they charge at a reasonable rate no criticism can be made of that approach. What the plaintiff here is really saying is that the fiduciary duty the solicitor owed a client was such that a solicitor could not charge a reasonable market rate when the solicitor knew that would cause the client financial difficulty. That is not consistent with what the Court of Appeal had to say.
In all the circumstances I am not satisfied there is any basis upon which the Costs Agreement should be set aside. The plaintiff's application will be dismissed. The plaintiff ought pay the defendant's costs of the application, to be taxed if not agreed.

SCHEDULE A

Requirement

Defendant's Disclosure

260(1)(a)

Disclosure of the basis upon which legal costs would be calculated including whether a cost determination applied to any of the legal costs.

81. See the document titled "Checklist for Explanation to client before entering Costs Agreement" where the applicable statutory scale is indicated as being the Federal Circuit Court Rules 2001 - Schedule 1. The nature of the document as it is provided to the Plaintiff, includes "live links" that enables the Plaintiff to click on the statutory scale, and be directed to the scale, in a web browser. See also clause 3.5 and 6.12 of the document titled Costs Agreement.

82. The document titled Statutory Disclosure at clause 1 - 3 provides the basis on which legal costs will be calculated.

260(1)(b)(i)

Informed of his right to negotiate a different costs agreement with the defendant.

83. The Plaintiff was provided with Form 2 as contained in Schedule 1 of the Legal Profession Regulations 2009. The Form 2, in its entirety, was attached to the document titled "Statutory Disclosure to Clients" and sent to the plaintiff on 12 August 2020 ("Form 2").

s 260(1)(b)(ii)	Informed the plaintiff of his right to receive a bill from the defendant.	84. The Form 2 provided by the Defendant to the Plaintiff satisfies this requirement.
s 260(1)(b)(iii)	Informed the plaintiff of his right to request an itemised bill after receipt of a lump sum bill.	85. The Form 2 provided by the Defendant complies with this requirement. 86. In addition, clause 6.10 of the Defendant's document titled Costs Agreement advises of the Plaintiff's right to request an itemised bill from the Defendant.
s 260(1)(b)(iv)	Informed the plaintiff of his right to be notified under section 267 of any substantial change to the matters disclosed under this section.	87. See clause 6.12 of the Defendant's Costs Agreement.
s 260(1)(b)(c)	Disclosed to the plaintiff, an estimate of the total legal costs if reasonably practicable or, if that was not reasonably practicable: (i) a range of estimate of the total legal costs; and (ii) an explanation of the major variables that will affect the calculation	88. Paragraph 25 of the Defendant's document titled Statutory Disclosure sets out a range of estimates of the total legal costs, if the matter were to proceed to a 1 day trial, or if the matter proceeded to a 3 day trial. 89. The major variables that would affect the calculation are also contained in paragraph 24 of the document titled Statutory Disclosure, and further in the Notes section of this document.

90. In addition to the written costs disclosure which was provided on 12 August 2020, the Defendant gave an oral estimate of the range of the total legal costs, to the Plaintiff, on 11 August 2020.45
s 260(1)(d)	Disclosed to the plaintiff, details of the intervals (if any) at which the client will be billed.	91. Clause 6 of the Statutory Disclosure document provides that invoicing will be at least "once each month" but also that they will be issued more regularly depending on the nature of the work.
s 260(1)(e)	Disclosed to the plaintiff, the rate of interest (if any) that it charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in s260(2)).	92. Clause 8 of the Statutory Disclosure, states that the interest is a benchmark rate. 93. Clause 6.7 of the Defendant's document titled Costs Agreement also provides this information.
s 260(1)(f)	Provision of an estimate of the following to be provided if the matter is a 'litigious matter': 1. the range of costs that may be recovered if the client is successful in the litigation; and 2. the range of costs the client may be ordered to pay if the client is unsuccessful.	94. See Paragraph 9 - 14, and 25 of the document titled Statutory Disclosure.
s 260(1)(g)	The plaintiff's entitlement to progress reports in accordance with s 269.	95. See paragraph 15 of the document titled Statutory Disclosure.

⁴⁵ Walawski Affidavit at [57]

96. The Form 2 provided by the Defendant to the Plaintiff satisfies this requirement.
s 260(1)(h)	Details of the person whom the plaintiff may contact to discuss the legal costs.	97. See paragraph 16 of Statutory Disclosure Document where the Plaintiff is advised to make enquiries to Ms Kate Walawski, being the lawyer with the conduct of his matter.
s 260(1)(i) (i) - (iii)	The following avenues that are open to the client in the event of a dispute in relation to legal costs: (i) Costs assessment under Division 8; (ii) The setting aside of a costs agreement under section 288; (iii) Making a complaint under Part 13.	98. Clause 6.11 of the Costs Agreement sets out that the Plaintiff may apply for an assessment of the whole or any part of a bill for legal costs. And the limits for making the application. 99. Clause 19 of the Costs Agreement headed "Setting aside of this agreement" advises that the Plaintiff can apply to set this agreement aside. 100. The Form 2 provided by the Defendant to the Plaintiff also satisfies these requirements.
s 260(j)	Disclosure of any time limits that apply to the taking of any action referred to in paragraph (i).	101. The Form 2 provided by the Defendant to the Plaintiff also satisfies these requirements. 102. Clause 6.11 of the Costs Agreement also advises that the Plaintiff must apply within 12 months.
s 260(k)	That the law of this jurisdiction applies to legal costs in relation to this matter.	103. Paragraph 19 of the document titled Disclosure to Clients.

s 260(l)

Information about the client's right -

(i) to accept under a corresponding law a written offer to enter into an agreement with the Defendant that the corresponding provisions of the correspondent law apply to the matter; and

(ii) to notify under a corresponding law (and within the time allowed by the corresponding law) the Defendant in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

104. Paragraph 20 of the document titled Statutory Disclosure to Clients provides that this is not applicable.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Court Officer
22 OCTOBER 2021