Eventus Lawyers Pty Ltd v Richens - [2021] VSC 370

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

PRACTICE COURT

S ECI 2020 03454

EVENTUS LAWYERS PTY LTD (ACN 167 146 965)	Applicant
v
KATHRYN LEE RICHENS	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2021
DATE OF JUDGMENT:	24 June 2021
CASE MAY BE CITED AS:	Eventus Lawyers Pty Ltd v Richens
MEDIUM NEUTRAL CITATION:	[2021] VSC 370

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LEGAL COSTS – Application for assessment of costs – Application made out of time - Law practice seeking assessment of legal costs beyond 12-month period – Referral by costs assessor – Whether just and fair for application for assessment to be dealt with – Relevant considerations – Legal Profession Uniform Law Application Act 2014 ss 169, 178 194, 198(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms SF Cherry	SLF Lawyers
For the Respondent	In person

HIS HONOUR:

Introduction

By summons for taxation of costs dated 31 August 2020, the applicant law practice, Eventus Lawyers Pty Ltd (‘Eventus’) seeks an order under s 198 of the Legal Profession Uniform Law (‘LPUL’)[1] for a costs assessment of disbursements that it claims to have paid for its former client, the respondent, Ms Kathryn Richens. Eventus does not seek assessment of its professional fees, only the disbursements. Because the application was made out of time, the Judicial Registrar in the Costs Court referred this proceeding to me, sitting in the Practice Court, to determine whether it should be dealt with after the 12-month period prescribed by the LPUL. For the reasons that follow, I determine that it is just and fair for the application for the assessment to be dealt with after the 12-month period.
[1]See Legal Procession Uniform Law Application Act 2014 sch 1 (‘LPUL’).

The facts

Eventus acted for Ms Richens, including by engaging counsel on her behalf, in proceedings against the Commonwealth (as represented by the Commissioner for the Australian Federal Police) for adverse action (‘Federal Court proceeding’).[2] Ms Richens’ costs were initially funded by the Australian Federal Police who paid her invoices for legal fees. However, it ceased that funding, following which, Ms Richens and Eventus entered into a conditional costs agreement on 26 October 2018 (‘Agreement’).
[2]See Richens v Commonwealth [2019] FCA 1224 (‘Federal Court Proceeding’).

The Agreement stipulated that Ms Richens was required to pay disbursements irrespective of the outcome of the proceeding. It stated:[3]
[3]Affidavit of J E Gdanski dated 16 November 2020, Eventus Lawyers Pty Ltd v Richens (Supreme Court of Victoria, S ECI 2020 03454) [10]-[12] (‘Gdandki November Affidavit’).

4. Your liabilities for our charges
You will be liable to pay our charges in this matter ONLY if there is a successful outcome in this matter. This is provided that you retain us to the conclusion of the matter.
…

5. Your liabilities for disbursements
Disbursements are separate from our charges and you are liable to pay these fees, including GST (Goods and Services Tax), incurred by this practice…

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.

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Details

Case: [2021] VSC 370
Decision Date: 24 June 2021

CaseChat Overview and Summary

Eventus Lawyers Pty Ltd sought an assessment of legal costs from Richens, which was made outside the 12-month period stipulated by the Legal Profession Uniform Law Application Act 2014. The application was referred by the costs assessor, and the court had to determine whether it was just and fair to proceed with the assessment. The primary considerations were the relevant provisions of the Legal Profession Uniform Law Application Act 2014, specifically sections 169, 178, 194, and 198(4).

The court considered whether the application was made out of time, the reasons for the delay, and whether there were any exceptional circumstances justifying the late application. The court also evaluated the overall fairness and justice of allowing the application to proceed. Factors such as the conduct of the parties, the likelihood of prejudice to either party, and the public interest in resolving disputes were taken into account. The court balanced the need for the expeditious resolution of legal costs disputes against the potential unfairness of allowing an out-of-time application.

The court found that it was just and fair to deal with the application for assessment despite it being made out of time. The court considered the reasons for the delay were not unreasonable, and there were no exceptional circumstances that would justify denying the application. The court emphasised the importance of resolving disputes over legal costs and the need to ensure that the legal system functions efficiently. The court also noted the potential prejudice to Eventus Lawyers Pty Ltd if the application were to be dismissed, given the significant amount of costs involved. The decision was in line with the overarching principles of fairness and justice in the administration of law.

The court ordered that the application for assessment of legal costs be dealt with, despite being made out of time. The specific orders included the assessment of costs and any related matters. The court also directed that the parties bear their own costs of the application. This decision ensures that the dispute over legal costs is resolved, and it maintains the integrity of the legal process by balancing the rights of the parties and the public interest.

Orders