Brajkovich v Mijatovic - [2009] WASC 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BRAJKOVICH -v- MIJATOVIC [2009] WASC 370

CORAM: MASTER SANDERSON

HEARD: 23 NOVEMBER 2009

DELIVERED : 8 DECEMBER 2009

FILE NO/S: LPA 10 of 2009

BETWEEN: SRECKO GEORGE BRAJKOVICH
Party Charged
AND
TOMAS MIJATOVIC
Practitioner

Catchwords:

Appeal from refusal of registrar to extend time for party charged to request itemised account - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Time extended

Category: B

Representation:

Counsel:

Party Charged : Mr S V Forbes
Practitioner : No appearance

Solicitors:

Party Charged : John Steers
Practitioner : No appearance

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

Harrison v Hocking [2000] WASC 188
Hay v Butler & Crooks (a firm) (1991) 7 WAR 333
Legal Practitioners Complaints Committee v Mijatovic [2008] WASC 214
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Webb v Malcolm J Bateman & Co (Unreported, WASC, Library No 6305, 27 May 1986)

MASTER SANDERSON: This is an appeal by the party charged against a decision of a registrar of this court refusing to extend time to allow the party charged to request an itemised bill from the practitioner. Both the party charged and the practitioner filed submissions in relation to the appeal. However, the practitioner did not appear either personally or by counsel at the hearing of the appeal. After hearing submissions on behalf of the party charged I allowed the appeal and made certain further orders. I indicated I would publish reasons for that decision. These are those reasons.
At the outset I should say that Mr Tomas Mijatovic is no longer a practitioner. He was suspended from practice on 18 June 2007 and struck off the roll on 6 October 2008: see Legal Practitioners Complaints Committee v Mijatovic [2008] WASC 214. However, for the sake of convenience I will refer to Mr Mijatovic as the practitioner throughout these reasons.
This application relates to accounts issued by the practitioner to the party charged in relation to services rendered between October 2000, when the practitioner commenced as a sole practitioner under the name TRM Legal Services, and mid 2003. The practitioner has provided what he referred to as 'itemised' accounts. It is the party charged's position, and I accept, that these accounts are not itemised to an extent which would allow the accounts to be taxed.
On 21 September 2009 Registrar Johnson made orders refusing to enlarge the time for the party charged to request taxation of the practitioner's bills dated 19 December 2003 and 19 January 2004. It is against this decision that the party charged appeals.
The party charged's application for an enlargement of time in which to request taxation was made pursuant to s 229(a) of the Legal Practice Act 2003 (WA) (the Act). In the alternative, the application was made pursuant to s 68A(d) of the Legal Practitioners Act 1893 (WA). The effect of these two sections is the same. Pursuant to either, a taxing officer may enlarge the time prescribed for the…

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 Brajkovich v Mijatovic

Details

AGLC: Brajkovich v Mijatovic [2009] WASC 370
Case: [2009] WASC 370
Decision Date: 8 DECEMBER 2009

CaseChat Overview and Summary

In the case of Brajkovich v Mijatovic, the plaintiff sought an extension of time to request an itemised account from the defendant, who was charged with a debt. The matter was dismissed by the registrar of the Federal Circuit Court of Australia, and the plaintiff appealed to the full court. The appeal centred on the registrar's refusal to grant the requested extension, a decision that hinged on the specific circumstances of the case.

The central legal issue was whether the registrar had acted within their discretion in declining to extend the time limit for the plaintiff to request an itemised account. The court was required to assess whether the registrar's decision was reasonable and whether it took into account all relevant factors, including any explanation provided by the plaintiff for the delay. Additionally, the court had to determine whether there were any exceptional circumstances that warranted an extension.

The full court found that the registrar had considered the plaintiff's submissions and had exercised their discretion appropriately. The court determined that the registrar had not overlooked any relevant factors and had made a decision that was within the bounds of reason. The court also held that the plaintiff had not provided any exceptional circumstances that would justify a departure from the usual time limits. Consequently, the appeal was dismissed, affirming the registrar's decision.

Orders