Firth v Yang

[2014] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Firth v Yang [2014] NSWCA 92

Hearing dates:

26 March 2014

Decision date:

31 March 2014

Before:

Macfarlan JA
Ward JA

Decision:

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - application for leave to appeal - refusal by solicitor to provide bill of costs in itemised form where request made after expiration of twelve months - Legal Profession Act 2004 (NSW), ss 332A and 350 - primary judge's order for delivery of itemised bill complied with - question sought to be pursued on appeal hypothetical - leave to appeal refused

Legislation Cited:

Legal Profession Act 2004 (NSW), ss 332A, 350, 728

Category:

Procedural and other rulings

Parties:

Stephen P Firth trading as Firths The Compensation Lawyers (Applicant)
Da Guo Yang (Respondent)

Representation:

Counsel:
R Goodridge (Applicant)
M Castle (Respondent)
Solicitors:
Firths The Compensation Lawyers (Applicant)
Diamond Conway Lawyers (Respondent)

File Number(s):

2013/195002

 Decision under appeal 

Jurisdiction:

9111

Citation:

Yang v Stephen Paul Firth trading as Firths The Compensation Lawyers [2013] NSWSC 676

Date of Decision:

2013-05-30 00:00:00

Before:

Hall J

File Number(s):

2012/82142

Judgment

1. THE COURT: By Summons filed on 12 December 2013, Mr Firth, a solicitor trading as Firths The Compensation Lawyers, seeks leave to appeal from a decision of Hall J requiring Mr Firth to give to the respondent (Mr Yang) a bill of costs in itemised form in respect of legal services provided by Mr Firth to Mr Yang. Mr Firth acted for Mr Yang in connection with the latter's claim for damages arising from a work injury sustained in February 2007. His Honour made the order under s 728 of the Legal Profession Act 2004 (NSW).

1. In exercising his discretion under s 728, the primary judge took into account non-compliance by Mr Firth with an earlier request by Mr Yang under s 332A of the Legal Profession Act for an itemised bill. His Honour considered that Mr Firth had been obliged to comply with that request notwithstanding that it was made more than 12 months after Mr Firth provided a lump sum bill to Mr Yang. His Honour rejected Mr Firth's arguments that a client's right under s 332A to request an itemised bill only exists if a client has an entitlement under s 350 of the Act to have the bill assessed and that Mr Yang did not have such a right because 12 months had passed since the delivery of the lump sum bill and Mr Yang had not obtained an order from the Supreme Court under s 350(5) of the Act permitting the application to be dealt with after the expiration of the 12 month period.

1. Section 332A, which gives a right to itemisation of a lump sum bill, clearly cross-refers to s 350 because the right is given to a person "who is entitled to apply for an assessment of the legal costs to which the bill relates". However the extent of the role s 350 plays in relation to s 332A is a matter for argument. In particular, there is a question, relevant here, of whether the time limitations in s 350 restrict the right given by s 332A.

1. After delivery of Hall J's judgment, Mr Firth complied with his Honour's order for delivery of an itemised bill to Mr Yang. As this is not a case in which the order made and complied with below can, in any practical sense, be reversed on appeal, the question that Mr Firth wishes to raise on appeal is hypothetical and a judgment in his favour would have no consequence other than as to costs. Whilst we accept that the point is one of general application, we do not consider that it is appropriate for the Court to determine it by what would in essence be an advisory opinion, the question being academic so far as the issues in these proceedings are concerned.

1. Accordingly, the application for leave to appeal is dismissed with costs.

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Decision last updated: 31 March 2014