BAMBRICK v EASTERBROOK

[2013] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BAMBRICK  v  EASTERBROOK

[2013] SASC 21

Reasons of Judge Burley a Master of the Supreme Court (ex tempore)

13 February 2013

PROCEDURE - COSTS - TAXATION

Claim by solicitor for recovery of legal costs from former client - proceedings originally commenced in District Court - dispute as to terms of retainer - consent order made in District Court for transfer of the action to the Supreme Court - parties purported to invoke sub-ss 42 (6) & (7) Legal Practitioners Act 1981 - those sub-sections not applicable to the dispute about the terms of the retainer agreement raised in the District Court proceedings - that aspect of the dispute should be determined by the District Court - order transferring proceedings to District Court.

Legal Practitioners Act 1981 s 42(6) and (7); District Court Act 1991 s 24(2), referred to.
Liddle & Anor v Southern Area Health Service [2010] SASC 11, applied.

BAMBRICK  v  EASTERBROOK
[2013] SASC 21

JUDGE BURLEY:

1. This matter comes before me by way of an interlocutory application filed on 26 November 2012 (FDN 2) where the plaintiff seeks a number of orders in relation to the question of costs sought to be recovered by the plaintiff against the defendant.  The plaintiff is a legal practitioner and the defendant is his former client.

2. These proceedings were initially commenced in the District Court.  The plaintiff is seeking to recover in excess of $50,000 for legal costs.  The defendant says that the original retainer agreement was varied to cap costs at $17,000.  In addition, the quantum of the costs was disputed by the defendant in the District Court proceedings.  Apparently this prompted the parties to apply to have the proceedings transferred to this Court.  A consent order was made by the District Court whereby the proceedings in that court were transferred to this Court.

3. When the matter came before me, I raised with the parties the question of whether the proceedings should be transferred back to the District Court so that that court could determine the terms of the retainer agreement between the parties.  Both parties submitted that such an order should not be made and I have heard today their submissions supporting that contention.  Having considered the submissions of the parties, I have come to the contrary conclusion.

4. The issue raised for consideration is whether or not the proceedings in the District Court should have been transferred to this Court at this stage. Reliance has been placed by the parties on the provisions of s 42 of the Legal Practitioners Act 1981 and, in particular, sub-ss (6) and (7).  Sub-s (6) provides:

   (6)     A legal practitioner may make an agreement in writing with a client for—

   (a)     payment of a specified amount by way of legal costs (which may—but need not—consist of a daily, hourly or other time-related rate for professional work carried out by the legal practitioner on the client's behalf); or

   (b)     payment of legal costs in accordance with a specified scale; or

   (c)     subject to any limitations imposed by the Society's professional conduct rules or the regulations—payment of a contingency fee to be calculated on a basis set out in the agreement on fulfilment of a condition stated in the agreement.

   (7)The Supreme Court may, in proceedings under this section, rescind or vary an agreement under subsection (6) if it considers that any term of the agreement is not fair and reasonable.

5. It will be seen from the other sub-sections of s 42 that the section is primarily concerned with the question of the Supreme Court taxing and settling a bill of costs rendered by a practitioner. It frequently occurs that in proceedings in other courts for the recovery of costs, a court may direct that there be a taxation of costs or, as it is currently called, an adjudication in respect of costs, prior to any further determination in that court.

6. Similarly, it can occur that it is necessary to fix the terms of a retainer agreement between the solicitor and client before an adjudication may proceed. In my opinion, this is such a case. The transfer of this matter to the Supreme Court does not, in my opinion, invoke either s 42(6) or s 42(7) of the Legal Practitioners Act.  The dispute between the parties is whether legal fees were to be capped at $17,000.  This is evident from the defence filed by the defendant in the District Court and from the written submissions relied upon by the defendant.

7. Section 42 deals, as I said, primarily with the quantum of costs, not the terms of a retainer, except for what is embraced by sub-ss (6) and (7). In my opinion, the dispute between the parties about capped fees does not arise within either of those two sub-sections.

8. The order made by the District Court Master was by consent and was made pursuant to s 24(2) of the District Court Act 1991. To the extent that the application to transfer was made under the assumptions that s 42 of the Legal Practitioners Act applied, the order for transfer was made under a mistake of law.

9. The order for transfer is not automatic.  There must be a good reason for the transfer of the proceedings to this Court.[1] In my opinion, no justification for a transfer has been demonstrated because s 42 of the Legal Practitioners Act has not been successfully invoked.  It is not appropriate that the retainer question be heard and determined in this Court.  There are no particular difficulties in relation to that aspect of the dispute between the parties.  I reject any suggestion that there are difficult questions of law.  In my opinion, the dispute raised in the pleadings relates solely to a dispute of fact which is eminently determinable by the District Court, namely, whether or not there was an agreement after the original written agreement that fees would be capped in a given amount.  As such, it is a routine factual matter which carries no special requirement to be heard in this Court.

   [1]    Liddle & Anor v Southern Area Health Service [2010] SASC 11, per Bleby J, at [12].

10. If the proceedings were to remain in this Court, in my opinion, an inappropriate precedent would be established for the transfer of costs disputes from lower courts to this Court. 

11. For these reasons, I refuse to make any order on the application by FDN 2 other than that the within proceedings be transferred to the District Court so that the question of the terms of the retainer between the solicitor and client be determined by that court and that, upon being determined, the matter be referred to this Court pursuant to s 42 of the Legal Practitioners Act for an adjudication of the costs.