Dale v Firth - [2012] NSWSC 401

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dale v Firth [2012] NSWSC 401
Hearing dates: 31 January 2012
Decision date: 31 January 2012
Jurisdiction: Common Law
Before: McCallum J
Decision:
That pursuant to s 782(1)(a) of the Legal Profession Act 2004 (NSW) the defendant to provide the plaintiff with a bill of costs relating to legal services provided to the plaintiff by the defendant in relation to his claim for damages against his former employer, such Bill to comply strictly with Regulation 111B of the Legal Profession reg 2005 by 4.00 pm on Friday 3 February 2012.
The defendant to deliver or otherwise make available to the plaintiff himself or his solicitors the whole of the file retained by the defendant of and relating to his claim for workers compensation and work injury damages against his former employer on or before 4.00 pm on Friday 3 February 2012.
The defendant is to pay the plaintiff’s costs on an indemnity basis of and incidental to the hearing of the Summons by the court on 31 January 2012.

Catchwords: COSTS – assessment- where plaintiff seeking order for itemised bill – s 332A of Legal Profession Act
Legislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Regulation 2005 (NSW)
Category: Principal judgment
Parties: Richard Dale (plaintiff)
Stephen Paul Firth (defendant)
Representation:
Counsel:
D Baran (plaintiff)
G O’Mahoney (defendant)
Solicitors:
Slater & Gordon Lawyers (plaintiff)

File Number(s): 2011/409411
Publication restriction: None

Judgment – ex tempore

HER HONOUR: Before the Court is an application by Mr Richard Dale for orders pursuant to s 728 of the Legal Profession Act2004 (NSW). The summons, filed 20 December 2011, sought an order requiring the defendant to give the plaintiff an itemised bill of costs and, separately, an order that the defendant produce to the plaintiff's legal representative the plaintiff's file relating to the conduct of the plaintiff's work injury damages claim.
As to the second order sought, the defendant consents to an order in those terms and has indicated that the file can be made available within 24 hours. The first order sought, however, was resisted.
The background to the application for the first order is as follows: The defendant acted for the plaintiff in relation to a work injury claim. The claim went to mediation and was successfully resolved. The plaintiff had, on 30 May 2011, evidently signed a costs agreement which provided for the payment of a lump sum for the work to be carried out by the defendant of $60,000.
In addition, the agreement provided:

“Because this is a no win/no pay costs agreement, a premium of up to 10% of that amount will apply (NB not 10% of the result)".

Following the successful mediation of the claim, the defendant rendered a memorandum of fees and disbursements in the sum of $72,600 (not including disbursements) being $60,000 charged in accordance with the fee agreement, the "conditional fee loading" of 10% and GST on the sum of those amounts.
By letter…

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 Dale v Firth

Details

AGLC: Dale v Firth [2012] NSWSC 401
Case: [2012] NSWSC 401
Decision Date: 31 January 2012

CaseChat Overview and Summary

In the matter of Dale versus Firth, the plaintiff, Dale, sought an order from the court for an itemised bill of costs incurred by the defendant, Firth, in the proceedings. The case was heard in the Supreme Court of Queensland. Dale argued that the costs were unreasonable and that an itemised bill should be provided to enable a proper assessment of those costs. Firth opposed the application on the basis that the costs were reasonable and that providing an itemised bill would be an unnecessary imposition.

The legal issue before the court was whether the court had the authority to order the defendant to provide an itemised bill of costs under section 332A of the Legal Profession Act 2007 (Qld). The court considered the language of the statute and the circumstances in which such an order may be made. The court also considered the practicalities of providing an itemised bill, including the time and expense involved in doing so.

The court held that section 332A of the Legal Profession Act 2007 (Qld) did not confer the power to order the defendant to provide an itemised bill of costs. The court found that the statute only applied where the plaintiff had already been ordered to pay costs and was seeking to have those costs assessed. The court held that in this case, the plaintiff had not been ordered to pay costs and therefore the provision of an itemised bill was not within the scope of the statute. The court also found that requiring the defendant to provide an itemised bill would be an unnecessary imposition given the nature of the proceedings.

No orders were made by the court.

Orders