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 taking of any step in relation to taxation and may give direction for substituted service of any notice or document required to be served.
Under O 60A r 4(6)(c) of the Rules of the Supreme Court 1971 (WA), no appeal from a decision of a registrar can be dealt with by a master where the registrar is acting as a 'Taxing Officer'. This provision was considered by Master Newnes (as his Honour then was) in Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112. His Honour said:
… the exclusion contained in O 60A r 4(6) does not apply to a decision of a Registrar made as a 'taxing officer' under s 229 of the Act. While s 229 of the Act identifies the person who is empowered to extend time under that section, it does not follow that when so acting a person is 'acting as a Taxing Officer' within the meaning of O 60A r 4(6). I consider that a person is 'acting as a Taxing Officer' within the meaning of O 60A r 4(6) when exercising the powers of taxation, allowance and certification of bills of costs, not in the determination of an application under s 229 of the Act. Order 60A r 4(6) excludes an appeal under O 60A r 4(1) in the former instance because a separate regime exists for the review of the taxation of a bill of costs [14].
Accordingly, the appeal against the registrar's decision to extend time is properly made under the regime mandated by O 60A.
Turning then to the legal principles, s 231(3) of the Act states:
At any time within 30 days from the service of the bill for a lump sum the party charged may require the legal practitioner to serve upon the party charged, in lieu of the lump sum bill, a bill containing detailed items.
Consolidated Practice Direction 4.7.4.8 sets out five matters which the court may take into account when considering an application for an enlargement of time pursuant to s 229 of the Act. These are:
1.the reason for the delay;
2.whether a refusal to allow an extension of time may cause injustice to the party charged;
3.whether there is evidence that suggests that the bill may be excessive;
4.whether, and to what extent, extending the time would cause prejudice to the practitioner; and
5.the practitioner's reasons for opposing the application.
In Hay v Butler & Crooks (a firm) (1991) 7 WAR 333 Owen J said:
If a client requests the provision of an itemised bill and the request is made within the 30‑day period specified in s 65(1), the practitioner is obliged to comply. If the request is made outside the 30‑day period, the practitioner is not obliged to comply unless the taxing officer extends time. On the other hand, common sense, good commercial practice and the logical extension of the nature of the relationship between solicitor and client would dictate that except in most unusual circumstances, a practitioner ought always to provide an itemised account when requested to do so (339).
It is fair to say that this statement of principle, embodying as it does a bias in favour of an extension of time, has been picked up and applied in a number of other decisions. Without reviewing the cases in exhaustive detail, this approach was applied by Franklyn J in Webb v Malcolm J Bateman & Co (Unreported, WASC, Library No 6305, 27 May 1986); Hasluck J in Harrison v Hocking [2000] WASC 188; and the decision of Master Newnes in Monopak to which I have already referred.
Against that background it is appropriate then to look at the facts of this case. The practitioner's first invoice was dated 19 December 2003 and was for an amount of $2,425.75. The practitioner rendered two further invoices dated 19 January 2004, totalling an additional amount of $31,702.16. The party charged deposes that to the best of his recollection he received the December account at the same time as the later accounts in January 2004. The party charged also deposes to the fact that at the time of receiving the accounts he had complained to the Legal Profession Complaints Committee. He says after discussions with a Ms Roberts, a representative of the committee, he requested the practitioner to tax his costs. However, he makes plain in his affidavit that he is unable to be certain that his memory is correct. He has no independent corroboration that the request for itemised accounts was made to the practitioner. It is on that basis he now applies for the extension of time.
Clearly the main factor against the extension is the length of the extension sought. It is around five and a half years. The very fact there is such a lengthy delay must be a factor against an extension being granted. Looked at in terms of the criteria set out in the practice direction, and to which I have referred above, even without taking into account the evidence of the practitioner it is reasonable to assume that enlarging time would cause prejudice to the practitioner. Even assuming records are still available to the practitioner, the period which is passed is such that the practitioner's recollection of the work done, why it was done, the way he interacted with the party charged, and all of those matters must necessarily have faded. That being so, the party charged needs to provide cogent reasons for the delay in requesting taxation.
On balance I am satisfied that the cogent explanation has been provided. There are a number of factors to be taken into account. First, the party charged clearly believes that he had requested the practitioner to tax his costs. It was not until January 2009 when he received a Magistrates Court's summons that he realised there was an issue as to whether or not the request had been made. Second, the party charged believed the practitioner was not pursuing his costs as the practitioner was the subject of an inquiry as to his fees in the Legal Profession Complaints Committee and before the State Administrative Tribunal.
Further, the party charged was aware the practitioner had been struck off the roll for overcharging and, in the circumstances, did not believe the practitioner would seek to pursue the party charged for the costs. Finally, there was the length of the delay. The party charged clearly believed that if the practitioner felt the party charged was liable for a not insignificant amount of costs something would have been done in the five years which passed between the rendering of the accounts and the action in the Magistrates Court. To an extent, the inaction of the practitioner lulled the party charged into a false sense of security. It is hardly surprising that the party charged saw no reason to stir the sleeping dog.
Clearly the refusal to enlarge time would cause injustice to the party charged. The bills which have been rendered are not sufficiently particularised to allow any real assessment to be made of the charges rendered. It is difficult to separate this particular issue from the question of delay overall but on balance - and it is marginal - a refusal to enlarge time would cause an injustice to the party charged.
There is some evidence here that the bill rendered by the practitioner is excessive. It is, I think, unwise at this stage to say too much about this issue because it may reflect adversely on the practitioner in circumstances where the practitioner has not had any real chance to put his side of the argument. It is sufficient if I mention two matters. First, the practitioner has purported to charge $50 for posting a letter. It is very difficult to see how that charge could be reasonable. Although the sum is modest and it is but one item, it is an indicator that the bills need careful scrutiny.
Of more concern are a number of charges appearing in the accounts which do not marry up with what is shown in the court record. I will not detail these instances. Suffice it to say that counsel for the party charged was able to point to a number of charges appearing in the bill for court appearances when the court record does not show that any appearance occurred on that date. As I have indicated above, there may be an entirely reasonable explanation for this discrepancy. These discrepancies were not highlighted in the affidavit in support of the party charged's application and were not detailed in the submissions. Doubtless these matters can be explored at a later date. But it is the case, as the evidence stands at the moment, there is real reason to believe that the bills may be excessive. This is a strong factor in favour of the extension being granted.
In opposition to the application the practitioner swore an affidavit dated 25 August 2009. In that affidavit the practitioner fails entirely to lead any evidence that enlarging time would cause him prejudice. As I have said, it is reasonable to assume the very passage of time would prejudice the practitioner's position. That may be referred to as general prejudice. But in this case there is no evidence of any particular prejudice to the practitioner which would result from the enlargement of time.
Nor is it clear just what the reasons are for the practitioner opposing the application. The tenure of his affidavit suggests the fact that so much time has passed and that he cannot verify that any request for itemisation and taxation of the bills had been made was his reason for opposing the application. But there is nothing more - no reasons particular to this case why the application is opposed. Once again, the lengthy delay figures prominently in the practitioner's approach to the application and must be seen as a reason for his opposing it.
On balance I was satisfied the time ought be extended. While I accept the long delay may cause prejudice to the practitioner and may justify his opposing the application, the factors in favour of granting the application are more compelling. I am satisfied the delay has been explained. But most importantly I am satisfied there is evidence to suggest that the bill may be excessive. This factor is, in my view, decisive. It goes to the very heart of the solicitor‑client relationship. It is a consideration which outweighs all others and strongly favours the party charged.
For these reasons I allowed the appeal and extended the time accordingly.