Fazli v Wentworth Lawyers & Partners
[2024] VSC 353
•25 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S ECI 2021 00581
BETWEEN:
| AMIR FAZLI | Applicant |
| -and- | |
| WENTWORTH LAWYERS & PARTNERS | Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2024 |
DATE OF JUDGMENT: | 25 June 2024 |
CASE MAY BE CITED AS: | Fazli v Wentworth Lawyers & Partners |
MEDIUM NEUTRAL CITATION: | [2024] VSC 353 |
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LEGAL COSTS – Motor vehicle accident in Brisbane in 2013 – Respondent solicitors in Sydney engaged in 2014 – Claim resolved in 2016 – Final account rendered in 2017 – Proceedings in the Victorian Civil and Administrative Tribunal in 2018 and 2019 – No subsequent application for leave to appeal – Complaint made to Legal Services Commissioner (NSW) in 2020 – Summons for taxation of costs in 2021 – Summons purported to be based in the provisions of the Legal Profession Uniform Law – Application made out of time – Summons referred to Trial Division to determine whether time ought be extended pursuant to s 198(4) of the Legal Profession Uniform Law – Delay – Reasons for delay – Whether ‘just and fair’ to extend time – Matters the subject of the applicant’s complaint were, in substance, determined against him at the Victorian Civil and Administrative Tribunal in 2019 – Risk of abuse of process by re-litigation – Whether Court has jurisdiction – Applicable statutory provisions – Transitional provision – Summons subject to stated proviso not established – Futility – Presumptive prejudice – Not ‘just and fair’ to extend time – Summons dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | J Park, solicitor | Wentworth Lawyers & Partners |
HIS HONOUR:
The applicant was involved in a motor vehicle accident in Brisbane on 4 September 2013.
At some point, the applicant moved to Sydney and retained the respondent firm to act for him in a claim arising out of injuries suffered in the motor vehicle accident. In that regard, the applicant and respondent entered into an Engagement/Costs Agreement on about 22 May 2014 (‘Costs Disclosure Agreement’).[1]
[1]Exhibit ‘JP-8’ to the affidavit of Jeong (John) Park sworn/affirmed 12 April 2021 (‘Park affidavit’).
The applicant’s claim in respect of the motor vehicle accident settled on 24 November 2016. Suncorp Insurance agreed to pay ‘$190,000 “all inclusive”’ in settlement of the claim.[2]
[2]Exhibit ‘AF-3” to the affidavit of Amir Fazli sworn/affirmed 19 February 2021 (‘Applicant’s affidavit’).
On 20 April 2017, the respondent issued a final account which identified $101,000 as ‘paid to Mr Fazli as agreed’. The account specified deductions from the settlement sum of $190,000 for reimbursement of Medicare, disbursements and expenses and professional fees.[3]
[3]Exhibit ‘AF-4’ to the Applicant’s affidavit (n 2).
The applicant later moved to Victoria.
On 16 April 2018, the applicant commenced a proceeding at the Victorian Civil and Administrative Tribunal (‘VCAT’). In his claim, the relevant part of which was handwritten, the applicant stated –
… the Wentworth company … simply ripped me off by taking $90000 for himself and two other partners out of $190000 that I was given as a compensation [sic] for becoming disabled while at work.[4]
[4]Exhibit ‘JP-4’ to the Park affidavit (n 1).
The applicant identified his claim as being for ‘$50000.00’.[5]
[5]Ibid.
The VCAT proceeding was dismissed on 29 January 2019, when the applicant did not appear.[6]
[6]Exhibit ‘JP-16’ to the Park affidavit (n 1).
On 18 April 2019, an application for review was granted. The order made on 29 January 2019 was revoked and the matter was set down for hearing on 25 June 2019.[7]
[7]Exhibit ‘JP-17’ to the Park affidavit (n 1).
The VCAT hearing proceeded on 25 June 2019 before a senior member. The applicant appeared with the assistance of an interpreter and Mr Park appeared for the respondent. Both the applicant and Mr Park gave oral evidence.[8]
[8]See generally Exhibit ‘JP-5’ to the Park affidavit (n 1) (‘VCAT Transcript’).
In that connection –
(a) the applicant contended that he had been threatened and intimidated into settling his claim and that the firm had taken ‘exorbitant fees’ out of his compensation when ‘$15,000 should be appropriate for their services’;[9]
[9]VCAT Transcript (n 8), transcript pages 3-4.
(b) in his evidence, the applicant was shown the Costs Disclosure Agreement and confirmed that his signature was on it;[10]
[10]Ibid, transcript page 26.
(c) the applicant was played recordings of various discussions relating to the settlement negotiations concerning his claim;[11]
(d) a written note was produced in which the applicant had instructed Mr Park to make an offer of $190,000 to settle his claim from which he would receive a ‘balance of approximately $90,000’;[12] and
(e) the applicant essentially agreed that he had instructed Mr Park to settle the matter for $190,000, from which he would receive ‘approximately $90,000’, but that he in fact ‘got $101,000’.[13]
[11]Ibid, transcript pages 23-24, 31-32.
[12]Ibid, transcript pages 33-35.
[13]Ibid, transcript page 53.
The application was dismissed for reasons given by the senior member. In that regard, the senior member was not satisfied that there was any ‘impropriety’ in the settlement and stated –
I am satisfied on the material before me that Mr Fazli was faced with the alternatives and he chose to settle and I am satisfied that the settlement figure was within the ambit of what was being discussed …[14]
[14]VCAT Transcript (n 8), transcript page 48.
In respect of the question of costs, the senior member accepted that the applicant had given instructions to settle from which he would receive ‘approximately $90,000’ and, in fact, the applicant had received ‘$11,000 more than he was expecting’. In that regard, the senior member ruled as follows –
Having regard to all the material that was put before me, I have come to the conclusion that there is no need to make any adjustments to the costs. I have already made my decision in relation to the question of the settlement, so now in its entirety the proceeding is dismissed.[15]
[15]Ibid, transcript page 55.
On 29 June 2019, the applicant’s interpreter emailed VCAT claiming that the senior member had erred. By responding email dated 10 July 2019, the interpreter was advised that ‘VCAT decisions can only be appealed at the Supreme Court of Victoria on a question of law’ and that leave to appeal must be sought within 28 days of the decision.[16]
[16]Exhibit ‘JP-21’ to the Park affidavit (n 1).
On 20 July 2019, the applicant’s interpreter emailed Mr Park to advise that he and the applicant would be ‘taking the case to the Dandenong Magistrate [sic] Court’.[17]
[17]Exhibit ‘JP-22’ to the Park affidavit (n 1).
On 31 July 2019, the applicant seems to have accepted a ‘BARRISTER’S DISCLOSURE STATEMENT AND CONDITIONAL COSTS AGREEMENT IN DIRECT ACCESS MATTERS’ proffered by a purported legal representative who wrote to Mr Park on the same day.[18]
[18]See Exhibit ‘JP-23’ to the Park affidavit (n 1). I note that 2½ years later, on 19 November 2021, the applicant’s representative was the subject of orders preventing her from engaging in legal practice while she did not hold an Australian practising certificate. On 31 March 2023, Gorton J found that person to have committed a civil contempt by breaching the orders made on 19 November 2021: Victorian Legal Services Board v Nida (No 2) [2023] VSC 154.
On 21 August 2019, the applicant’s representative wrote to Mr Park and, among other things, said that the applicant was ‘eager to appeal the VCAT Order dated 25 June 2019’.[19]
[19]See Exhibit ‘JP-23’ to the Park affidavit (n 1).
It seemed to be common ground that no application for leave to appeal from the decision of VCAT was ever made.
Instead, in about June 2020, the applicant’s representative appears to have pursued a complaint on his behalf with the Legal Services Commissioner of New South Wales. It is not clear what ultimately happened with that complaint, although it is evident that the Office of the Commissioner identified it as having been out of time. Among other things, a letter to Mr Park dated 7 July 2020 stated –
All of the conduct alleged in Mr Fazli’s complaint occurred more than three years before the complaint was received by this Office on 23 June 2020.[20]
[20]Ibid.
On 1 March 2021, the applicant filed a summons for taxation in this Court in respect of the final account rendered by the respondent on 20 April 2017. The title to the summons includes the following statement –
IN THE MATTER of Section 198 of the Legal Profession Uniform Law 2014 (if solicitor was retained after 1 July 2015)
In that connection, I note that the Legal Profession Uniform Law (NSW) and the relevant parts of the Legal Profession Uniform Law (Victoria) each commenced on 1 July 2015. For the purposes of these reasons, those laws will be referred to collectively as the ‘Uniform Laws’.
Schedule 4 of the Uniform Laws includes various savings and transitional provisions. In particular, cl 18 states relevantly as follows –
18 Client information and legal costs
(1) Subject to subclause (2)—
(a)Part 4.3 of this Law [which is entitled ‘LEGAL COSTS’ and includes, in particular, ss 174, 175, 177 and 178 concerning ‘disclosure obligations’] applies to a matter if the client first instructs the law practice on or after the commencement day; and
(b)the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day.
(2)If a law practice is retained by another law practice on behalf of another client on or after the commencement day in relation to a matter in which the other law practice was retained by the client before the commencement day—
(a)Part 4.3 of this Law does not apply in respect of the other law practice in relation to that matter; and
(b)in that case the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply.
The ‘old legislation’ means, as the case may be, the Legal Profession Act 2004 (Vic) and the Legal Profession Act 2004 (NSW).[21] For the purposes of these reasons, where applicable, those repealed statutes will be referred to collectively as the ‘Legal Profession Acts’.
[21]See, eg, Legal Profession Uniform Law Application Act 2014 (Vic) s 157; Legal Profession Uniform Law (Victoria) sch 4 cl 1.
In any event, s 198 of the Uniform Laws concerns ‘applications for costs assessment’ and, in particular, states that such an application –
(a) is to be made ‘in accordance with applicable jurisdictional legislation’; and
(b) ‘must be made within 12 months’ after the bill was given to the client.
In that connection, s 198(4) states –
However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period.
The Court has considered and determined several such applications in recent times.[22]
[22]See, eg, DLA Piper Australia v Triclops Technologies Pty Ltd [2020] VSC 93; Eventus Lawyers Pty Ltd v Richens [2021] VSC 370; Naomi Liu Legal Pty Ltd v Ren [2023] VSC 744; Peter Szabo Family Law Pty Ltd v Young [2023] VSC 756.
In that context, reference has been made to considerations earlier identified as relevant to determining whether it is ‘just and fair’ to extend time, particularly –
(a) whether the application for review is futile;
(b) the extent of any prejudice to the respondent; and
(c) the just and fair balance of the right to seek a review of costs and the right of the respondent to have that review conducted within the period set by statute.[23]
[23]Rohowsky v S Tomyn & Co [2015] VSC 511, [3].
In support of the summons for taxation, the applicant swore an affidavit in which, among other things, he deposed to –
(a) injury in a motor vehicle accident in Brisbane on ‘4 September 2016’;[24]
[24]Applicant’s affidavit (n 2) [4]. Remarkably, the exhibits to the Applicant’s affidavit include at Exhibit AF-1 a medico-legal report apparently obtained on behalf of the applicant which identifies the date of the accident (correctly) as having been ’04 September 2013’, at Exhibit AF-3 the signed release in respect of the applicant’s claim against Suncorp, which identifies ‘the incident’ as having been ‘[a] motor vehicle accident alleged to have occurred on or about 4 September 2013 …’ and at Exhibit AF-4 the Respondent’s final account dated 20 April 2017, which is stated to be in respect of ‘Motor Vehicle Accident on 4 September 2013’.
(b) engagement of the respondent in ‘October-November 2016’ to issue proceedings in respect of his claim;[25]
[25]Applicant’s affidavit (n 2) [6].
(c) having signed a costs disclosure agreement at the time of engaging the respondent;[26]
[26]Ibid [7].
(d) settlement of his claim with Suncorp on 24 November 2016;[27]
[27]Ibid [12].
(e) his VCAT proceedings in June 2019 – which he said were ‘not successful’; and that ‘the Judge [had] completely failed to understand the nature of my claim’;[28]
[28]Applicant’s affidavit (n 2) [17], [20]-[21].
(f) not having then been aware that ‘the Costs Court was the correct jurisdiction;[29]
(g) having learned that he ‘had to bring proceedings in the Costs Court’ when he had ‘finally engaged a Farsi-speaking lawyer’;[30] and
(h) his application for ‘costs taxation’ having been ‘brought out of time’.[31]
[29]Ibid [22].
[30]Ibid [24].
[31]Ibid [34].
In respect of the latter, the applicant deposed as follows –
I believe [that] it is fair and reasonable to extend the time limit and allow my Application to be filed out of time as I was coerced into signing the Respondent’s Costs Disclosure and was not provided with an estimation as to costs. As such the Respondent had taken advantage of my lack of understanding of the Australian legal system as well as my lack of understanding of the English language. Furthermore, I was not made aware that the costs court has jurisdiction for these kinds of matters until this year.[32]
[32]Ibid [35]. Emphasis in original.
In addition, the applicant’s then representative prepared written submissions dated 10 March 2021 that, among other things, repeated the contentions that the applicant had been injured on ‘4 September 2016’ and had engaged the respondent in ‘October-November 2016’. Thereafter, by reference to various provisions of the ‘Legal Profession Uniform Law’ (which were extracted in full and included together with the submissions), it was contended that the Costs Disclosure Agreement was ‘void per section 178 of the Legal Profession Uniform Law’.[33]
[33]See especially the submissions on behalf of Amir Fazli dated 10 March 2021, [22].
On 12 March 2021, the respondent prepared written submissions which identified several errors in the applicant’s material, but also identified the ‘first critical issue’ as being ‘whether there should be an extension of time to bring proceedings in the Costs Court’.[34]
[34]Submissions on behalf of the respondent dated 12 March 2021, [30].
In the circumstances, it is unsurprising that on 16 March 2021 a Judicial Registrar made orders, among other things, referring an extension application to a judge sitting in the Trial Division.
In that connection, on 13 April 2021, the respondent filed and served an affidavit of Mr Park in which he deposed, among other things, that the Court ‘does not have jurisdiction’ and that there was ‘a res judicata between the parties’.[35] The affidavit exhibited many relevant contemporaneous documents including –
[35]Park affidavit (n 1) [3].
(a) a police report relating to the motor vehicle accident in Brisbane on 4 September 2013;[36]
[36]Exhibit ‘JP-1’ to the Park affidavit (n 1).
(b) the Costs Disclosure Agreement;[37]
[37]Exhibit ‘JP-8’ to the Park affidavit (n 1).
(c) the transcript of the hearing at VCAT on 25 June 2019 (including rulings);[38]
[38]VCAT Transcript (n 8).
(d) the email from the applicant’s interpreter to VCAT on 29 June 2019 and VCAT’s reply on 10 July 2019;[39]
[39]Exhibit ‘JP-21’ to the Park affidavit (n 1).
(e) a disclosure statement as between the applicant’s then representative and the applicant apparently signed on 31 July 2019;[40]
(f) the letter from the applicant’s then representative to Mr Park dated 21 August 2019;[41] and
(g) the letter from the Office of the Legal Services Commissioner to Mr Park dated 7 July 2020, referring to the applicant’s complaint lodged out of time on 23 June 2020.[42]
[40]Exhibit ‘JP-23’ to the Park affidavit (n 1).
[41]Ibid.
[42]Ibid.
In response, the applicant filed and served a short further affidavit affirmed 22 April 2021.
Little seems to have occurred between April 2021 and early May 2024. The reasons for that lengthy delay are not entirely clear.
On 14 May 2024, the respondent filed a summons seeking dismissal of the applicant’s proceeding for want of prosecution as well as a detailed written outline of further submissions.
The matter came before Moore J for directions in the Practice Court on 21 May 2024. On that occasion –
(a) the applicant appeared with the assistance of an experienced interpreter and translator and Mr Park also appeared;[43]
[43]Transcript of 21 May 2024, 2 (’21 May Transcript’).
(b) Mr Park confirmed that he did not press his summons seeking dismissal of the application for want of prosecution;[44]
[44]Ibid 4-5.
(c) the applicant’s interpreter correctly identified the substance of the issue required ultimately to be determined by the Court;[45]
[45]Ibid 8-9.
(d) his Honour confirmed the material that had been filed;[46]
[46]Ibid 10-12.
(e) arrangements were to be made for the applicant to be provided with copies of the filed material by his Honour’s associates;[47]
[47]Ibid 13.
(f) Mr Park agreed that the jurisdictional issue could be raised at the hearing of the applicant’s summons, rather than as a preliminary issue, and thereafter identified the substance of his jurisdictional objections;[48]
[48]Ibid 14-18.
(g) his Honour encouraged the applicant to obtain legal representation and adverted to the potential costs consequences if his proceeding were to fail;[49]
[49]21 May Transcript (n 43) 18-19.
(h) the applicant confirmed that he had been trying to get legal representation for two months and asked for a further month (which was not opposed and therefore given);[50]
(i) arrangements were to be made for the applicant to be provided with the contact details for the self-represented litigant co-ordinator;[51] and
(j) the matter was adjourned for hearing in the Practice Court on 18 June 2024.[52]
[50]Ibid 20.
[51]Ibid 25.
[52]Ibid.
Owing to technological difficulties experienced within the Court at the time, the hearing on 18 June 2024 took place entirely online.
In that context, the applicant appeared with and was assisted by a friend who seems adequately to have fulfilled the role of interpreter (and, to a minor extent, advocate). Mr Park also appeared online.
The applicant confirmed that he had been unable to obtain legal assistance.[53] Otherwise, both parties, in large part, relied upon their written material.
[53]Transcript of 18 June 2024, 1 (’18 June Transcript’). I should note that enquiries within the Court did not suggest that the applicant had made contact with the self-represented litigant co-ordinator. That said, as I have noted, he appeared assisted by his friend.
In the course of oral submissions, the applicant said that the ‘lawyer’ had taken $90,000 from the settlement monies of $190,000. When asked what he thought the lawyer should have ‘taken’, the applicant said that he was ‘thinking about 30 grand, 30 to 40 grand’.[54] He otherwise referred to various without prejudice discussions and said that he needed the help of the Court.
[54]Ibid 4.
As noted, s 198(4) of the Uniform Laws refers specifically to the need to consider the delay, the reasons for the delay and whether it is ‘just and fair’ for the assessment to be dealt with outside the statutory period. Matters such as futility, prejudice and balance of the competing ‘rights’ are relevant to the latter.
In the present instance, the respondent’s final account is dated 20 April 2017 and the summons for taxation was filed on 1 March 2021. It follows that there is a delay beyond the expiry of the 12 month period of nearly three times the length of that underlying period. On any view, the delay is extraordinarily long.
The applicant addresses the reasons for delay more indirectly than directly in his affidavit. A significant part of it seems to be that he did not know that he could bring proceedings in the Costs Court until he engaged his then representative.
Having regard to the contemporaneous and other documents to which I have earlier referred, I am inclined to treat the applicant’s explanation with caution –
(a) his affidavit includes plain errors – particularly in respect of the date of the motor vehicle accident (which actually occurred on 4 September 2013) and the date when the applicant engaged the respondent (which actually occurred on 22 May 2014);
(b) his affidavit does not explain how it is that he came to commence and pursue proceedings at VCAT in 2018;
(c) his description of the senior member at VCAT as having ‘completely failed to understand the nature of [the applicant’s] claim’ is not borne out either by his own handwritten description of that claim to VCAT,[55] or a reading of the transcript of the hearing before the senior member on 25 June 2019;[56]
[55]See Exhibit ‘JP-4’ to the Park affidavit (n 1).
[56]VCAT Transcript (n 8).
(d) the applicant retained his then representative on 31 July 2019 and she seems to have first been contemplating an appeal from VCAT, which never occurred, and then, in mid-2020, seems to have made a complaint on his behalf to the Office of the Legal Services Commissioner (NSW), the outcome of which is unknown,[57] before ultimately filing the summons for taxation on 1 March 2021;
[57]See generally Exhibit ‘JP-23’ to the Park affidavit (n 1).
(e) in that regard, there is an unexplained but very significant tension between the statements in the applicant’s affidavit that he did not know that he could bring proceedings in the Costs Court until he ‘finally engaged a Farsi-speaking lawyer’[58] (on 31 July 2019) and that he had not been ‘made aware’ that the Costs Court had jurisdiction ‘until this year’ (2021);[59]
[58]Applicant’s affidavit (n 2) [24].
[59]Applicant’s affidavit (n 2) [35].
(f) in particular, it seems that the applicant’s then representative had been acting during the entirety of a period of roughly 18 months since 31 July 2019 and, indeed, it was implicitly her who had ultimately advised him to issue a summons in the Costs Court in March 2021; and
(g) a significant part of the affidavit is otherwise directed to unsuccessful requests by the then representative for a copy of the Costs Disclosure Agreement,[60] when the applicant had seen and identified it in the course of his proceedings at VCAT in June 2019;[61] and
(h) none of that really explains why it was that the applicant could not have issued a summons in the Costs Court immediately after 31 July 2019 and essentially in the form in which he ultimately came to issue it on 1 March 2021.
[60]See Applicant’s affidavit (n 2) [25]-[33].
[61]See especially VCAT Transcript (n 8), transcript page 26.
In short, while the applicant has advanced reasons for the delay, those reasons are far from pellucid (or, I suspect, complete) and must be treated with a degree of caution.
As to whether it is ‘just and fair’ for the assessment of costs to be dealt with now, I have noted that the applicant otherwise claims to have been –
(a) coerced into signing the Costs Disclosure Agreement;
(b) not provided with an estimate of costs; and
(c) taken advantage of by the respondent.[62]
[62]See generally Applicant’s affidavit (n 2) [35].
In a practical sense, much of the above was claimed and, in turn, considered by the senior member in the course of the hearing at VCAT in June 2019.
In that regard, as I have earlier noted, the senior member heard the oral evidence of the applicant and Mr Park, and was not satisfied that there was any impropriety in the settlement.[63] It follows that the senior member plainly did not accept the applicant’s various allegations of coercion and exploitation by the respondent.
[63]See VCAT Transcript (n 8), transcript page 48.
Further, the senior member specifically noted that the Costs Disclosure Agreement did not disclose, among other things, ‘an estimate of the total fees’, but considered the overall issue to have been determined by the instructions of the applicant to settle for $190,000, as well as the ‘vital piece of information’ that the applicant would receive approximately $90,000 from the settlement, and further, that he had ultimately come to receive ‘$11,000 more than he was expecting’.[64]
[64]See VCAT Transcript (n 8), transcript pages 54-55.
In that sense, the senior member accepted that, when disclosed, the applicant had endorsed the deduction of the total fees from the settlement monies and had ended up achieving a better overall result than those instructions had contemplated.
That is, in circumstances in which there was no impropriety, any much earlier failure of the respondent to estimate the fees, which the applicant came later to approve, was considered to have been essentially immaterial.
In addition, as I have earlier indicated, the substance of the applicant’s claim at VCAT was that he had been ‘ripped off’ in that $90,000 had been taken from the settlement monies of $190,000, as a consequence of which he claimed $50,000.[65]
[65]Exhibit ‘JP-4’ to the Park affidavit (n 1).
However, as I have also noted, when asked about the substance of his present complaint, the applicant again referred to the deduction of $90,000 from the settlement monies of $190,000 and said that he thought that it should only have been ’30 to 40 grand’. In short, the applicant’s objective was again to recover roughly $50,000.
It follows that at that level of generality, as well as in respect of the contentions of impropriety and the like to which I have earlier referred, the present application has more than a whiff of re-litigating the applicant’s failed contentions at VCAT from which no application for leave to appeal was ever sought.
In that regard, it seems to me that there is a very real risk that the present application could stand to undermine the principle of finality in litigation such as to bring the administration of justice into disrepute and so constitute an abuse of process.[66]
[66]Angeleska (known as Slaveska) v State of Victoria (2015) 49 VR 131.
It might be said, however, that there are other considerations of a similarly fundamental kind that tend against any conclusion that it could be ‘just and fair’ for the costs now to be assessed.
As I have noted, the respondent took several points by way of jurisdictional objection. The nub of the respondent’s complaint was that the Court presently lacks any jurisdiction to assess the disputed costs under the Uniform Laws.
In that regard, as I have noted, both the subject motor vehicle accident and the Costs Disclosure Agreement substantially pre-dated the relevant commencement of the Uniform Laws on 1 July 2015.
That is, to state the obvious, when the Costs Disclosure Agreement was made on 22 May 2014 –
(a) the Uniform Laws did not exist; and
(b) consequently, it was regulated by the provisions of what I have earlier referred to as the ‘old legislation’, namely the Legal Profession Acts.
In a practical sense, so much is reflected in the written terms of the Costs Disclosure Agreement.[67] In particular –
[67]Exhibit ‘JP-8’ to the Park affidavit (n 1).
(a) clause 7, entitled ‘[y]our right to a bill of costs’, refers to ‘The Legal Profession Act 2004’; and
(b) clause 8, entitled ‘[y]our right to fair and reasonable costs’, states–
The Act gives you the right to have the costs charged by us assessed for their fairness and reasonableness by an assessor appointed by the Supreme Court. That right is not available to you in certain circumstances where there is a costs agreement that complies with the Act, unless a costs assessor decides that the agreement we have with you is unjust.
The latter, of course, reflects the practice in New South Wales rather than Victoria.[68]
[68]Which, of course, is unsurprising, as the respondent firm practices in Sydney.
Further, as I have also earlier noted, the Uniform Laws include a specific transitional provision which applies the provisions of ‘the old legislation relating to legal costs’ to a matter ‘if the client first instructed the law practice … before the commencement day’.
It follows that, the present Costs Disclosure Agreement was and remains relevantly regulated by the provisions of the Legal Profession Acts,[69] not the provisions of the later Uniform Laws.
[69]Specifically, I would imagine, the Legal Profession Act 2004 (NSW).
In that context, as I have earlier noted –
(a) the applicant’s summons for taxation of costs is specifically identified as being in a ‘matter’ of ‘[s]ection 198 of the Legal Profession Uniform Law 2014 (if solicitor was retained after 1 July 2015)’; and
(b) the applicant’s argument, and therefore application, is directed only to alleged breaches of provisions of the Uniform Laws, particularly –
(i) section 174(1)(a), which obliges a law practice to ‘provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs’; and
(ii) section 178(1)(a), which makes a costs agreement ‘void’ if the law practice concerned contravenes its ‘disclosure obligations’.[70]
[70]See especially submissions on behalf of Amir Fazli dated 10 March 2021, [12], [16]-[22], [46].
Having regard to the contemporaneous documents to which I have earlier referred, the proviso stated in the summons for taxation of costs in parentheses cannot be accepted as having been made out. It follows that the premise for the applicant’s entire application essentially fails at its own identified threshold.
Further, as I have indicated, none of the identified provisions of the Uniform Laws presently apply. It follows that there is essentially no argument presently advanced by the applicant which is capable of being accepted such as to give him any entitlement to relief. In that sense, his claim is futile.
I should add, perhaps for completeness, that the earlier and equivalent provisions of the Legal Profession Acts were in quite different terms.
In that regard, s 309(1)(c) of the Legal Profession Act 2004 (NSW) obliged a law practice to disclose to a client –
an estimate of the total legal costs if reasonably practicable or, if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs …
Section 313(1) of the Legal Profession Act 2004 (NSW), in substance, required a law practice to give the client a reasonable estimate of the legal costs payable if the matter is settled.
Further, in respect of any ‘failure to disclose’, s 317 of the Legal Profession Act 2004 (NSW) provided that –
(1)If a law practice does not disclose to a client anything required by this Division to be disclosed, the client need not pay the legal costs unless they have been assessed under Division 11.
(2)If a law practice does not disclose to a client anything required by this Division to be disclosed and the client has entered a costs agreement with the law practice, the client may also apply under section 328 for the costs agreement to be set aside.
…
In short, while the relevant provisions of the Uniform Laws now operate to render a costs agreement ‘void’ for non-compliance with non-disclosure obligations, the earlier provisions of the Legal Profession Act 2004 (NSW) were considerably less absolute and prescriptive.
In particular, the earlier provisions only rendered the client liable to pay if the costs were assessed and, in that context, only gave the client a right to apply to have a costs agreement set aside.
In that context, perhaps unsurprisingly –
(a) clause 2 of the Costs Disclosure Agreement was entitled ‘[o]ur fees and charges’ and stated, among other things, that it was ‘impractical to provide you with an estimate of our total fees and disbursement in advance’ and thereafter referred to the ‘major variables’ that might affect the calculation of those costs;
(b) as earlier noted, clauses 7 and 8 of the Costs Disclosure Agreement referred to ‘The Legal Profession Act 2004’ and the right of the client to have the costs charged assessed by an assessor; and
(c) the evidence received in the course of the hearing at VCAT suggests that at the time of the settlement of the applicant’s claim, the respondent seems to have complied with s 313(1) of the Legal Profession Act 2004 (NSW) by giving to the applicant ‘a reasonable estimate of the amount of legal costs payable by the client if the matter is settled’.[71]
[71]See especially VCAT Transcript (n 8), transcript pages 33-35.
In such circumstances, even if he were to consider bringing claims with reference to the statutory provisions that are actually applicable, it does not seem to be terribly likely that that could result in the applicant recovering any of the roughly $50,000 again sought.
I should add, perhaps for completeness, that whilst there might be said to be little or no evidence of specific prejudice to the respondent,[72] there must plainly be a degree of presumptive prejudice owing to the long passage of time.[73] Further, one should perhaps not entirely discount the strains associated with long running litigation as a general form of prejudice applicable in the present context.[74]
[72]I note that the Respondent’s outline of submissions dated 14 May 2024 purport to identify and rely upon aspects of claimed prejudice to the respondent: see [35].
[73]Cf Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-556.
[74]Cf AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [100]-[101].
In the circumstances described –
(a) the delay has been extraordinarily long;
(b) the applicant’s explanation for the delay must be treated with a degree of caution;
(c) in a practical sense, there is a very real risk that now proceeding to hear and determine the applicant’s summons for taxation would give rise to an abuse of process;
(d) in any event, the arguments pursued by the applicant are futile because the only statutory provisions relied upon are inapplicable;
(e) indeed, the applicant’s summons for taxation does not clear its own self-imposed threshold;
(f) it is far from clear – to the point of seeming to be unlikely – that any claim sought to be advanced by reference to the earlier statutory provisions could be availing;
(g) a degree of presumptive and perhaps other prejudice to the respondent should be accepted; and
(h) it is appropriate to consider a just and fair balance as between the applicant’s right to seek a review of the respondent’s costs and the right of the respondent to have that review conducted within the statutory period.
In the circumstances, I do not accept that it is ‘just and fair’ that the summons for taxation now be dealt with.
It follows that –
(a) the application for an extension of time must be rejected; and
(b) the applicant’s summons for taxation filed on 1 March 2021 must be dismissed.
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