Bilson v Esposito - [2019] VSC 801

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S ECI 2019 03598

ROSE BILSON (a Pseudonym)	Applicant
v
DOMINIC ESPOSITO SOLICITORS	Respondent

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JUDICIAL REGISTRAR:	Gourlay JR
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2019
DATE OF JUDGMENT:	6 December 2019
CASE MAY BE CITED AS:	Bilson v Esposito
MEDIUM NEUTRAL CITATION:	[2019] VSC 801

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I Percy	Castra Legal Costs Pty Ltd
For the Respondent	Mr S Warne	Dominic Esposito & Co

JUDICIAL REGISTRAR:

Note

The publication of these reasons employs pseudonyms for the name of the applicant. This has been ordered because otherwise this ruling would identify or could lead to the identification of a party or give an account of a Family Law Act 1975 proceeding contrary to section 121 of that Act.

This proceeding was issued on 9 August 2019 after a Magistrates Court proceeding was issued on 6 March 2019 claiming unpaid legal costs of $67,319.87 plus interest and costs.[1]
[1]Paragraph 9 Affidavit of Dominic Esposito sworn 23 October 2019.

In September 2017 the applicant retained the services of the respondent to represent her in her family law dispute involving issues of matrimonial property and child matters. At the time of giving her instructions the applicant advised the respondent that she was a lawyer. On 19 September 2017 the respondent gave the applicant a costs agreement and costs disclosure documents. The documents included an estimate of fees and disbursements and requested that the applicant sign and return the signed documents to indicate her consent to the terms of engagement proposed. During the retainer respondent gave the applicant bills of costs on 19 January 2018, 6 April 2018, 3 July 2018, 6 August 2018 and 13 August 2018 totalling $86,411.37. All these invoices were given in a lump sum format. On 24 September 2018, in response to the applicant’s request for itemised bills, an itemised bill detailing the work billed in the two August bills and covering the period 13 June 2018 to 3 August 2018 was given to the applicant. The respondent refused to itemise the work of the three earlier bills as the request was made out of time.

The applicant was given a costs agreement and costs disclosure documents said to be pursuant to Division 3 & 4 of Part 4.3 of the Legal Profession Uniform Law[2] (the LPUL) by the respondent.
[2]The documents were filed with the Court on 6 August 2019 by the applicant.

At the call-over on 3 September 2019 the respondent’s counsel advised the Court that the respondent disputed that the applicant had standing to proceed with her costs review application as she is, and was at the time of the retainer, a commercial or government client and consequently precluded from the provisions of Part 4.3 of the LPUL. Section 170 of the LPUL defines Commercial or government clients and states:

(1) This Part does not apply to—
(a) a commercial or government client; or

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bilson v Esposito

Details

AGLC: Bilson v Esposito [2019] VSC 801
Case: [2019] VSC 801
Decision Date: 6 December 2019

CaseChat Overview and Summary

In Bilson v Esposito, the applicant sought to review the respondent's legal costs in a family law matter. The applicant, who held a principal's practising certificate and was registered as a law practice, argued that she was not precluded by section 170 of the Legal Profession Uniform Law from seeking a review of the respondent's bills. The respondent contended that the applicant, as a law practice, was excluded from the costs review provisions. The court held that section 170 applied to the applicant, precluding her from seeking a review of the respondent's costs in this Court. The applicant's summons was dismissed, and the court considered the issue of costs. The court noted that the applicant could have pursued a costs complaint with the Legal Services Commissioner, although time limits might still apply.

The legal issues centred on the interpretation of section 170 of the Legal Profession Uniform Law, which excludes commercial or government clients, including law practices, from most of the consumer protection provisions, including the right to review legal costs. The applicant argued that the provision should not exclude a sole practitioner acting in a personal capacity, while the respondent contended that section 170 applied broadly to any client who was a law practice. The court found that section 170 applied to the applicant, precluding her from seeking a review of the respondent's costs in the Costs Court. The court emphasised that the exclusion of law practices from the consumer protection provisions was a matter for the legislature, not the court. The applicant's attempt to argue that she was not a law practice in her personal capacity was unsuccessful, as the evidence showed that she was registered as a law practice and held a principal's practising certificate.

Orders