Frigger v Shepherd - [2014] WASC 477

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIGGER -v- SHEPHERD [2014] WASC 477

CORAM: JENKINS J

HEARD: 20 MAY 2014

DELIVERED : 18 DECEMBER 2014

FILE NO/S: CIV 1705 of 2014

BETWEEN: ANGELA CECILIA THERESA FRIGGER
HARTMUT FRIGGER
Applicants
AND
STUART KENNETH SHEPHERD
Respondent

Catchwords:

Solicitor's costs agreement - Whether the agreement is not fair or reasonable - Failure to make disclosure required under the Legal Profession Act 2008 - Experience of clients in litigation and legal costs disputes

Legislation:

Civil Judgments Enforcements Act 2004 (WA), s 104
Interpretation Act 1984 (WA), s 17
Legal Profession Act 2008 (WA), s 260, s 262, s 267, s 268, s 288
Rules of the Supreme Court 1971 (WA), O 18 r 17, O 33 r 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: In person
Respondent: In person

Solicitors:

Applicants: In person
Respondent: In person

Case(s) referred to in judgment(s):

Alman v Macdonald Rudder (a firm) [2001] WASCA 375
Alman v Macdonald Rudder [2001] WASC 65
Brown v Talbot & Olivier (1993) 9 WAR 70
Clare v Joseph [1907] 2 KB 369
Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
Forbes v Frigger [2009] WASC 77
Frigger v Lean [2012] WASCA 66
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 3] [2014] WASC 24
Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Frigger v Nigam [2005] WADC 127
Frigger v Nigam [2007] WADC 10
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2011] WASCA 80
Re Stuart; Ex parte Cathcart [1893] 2 QB 201

JENKINS J: Mr and Mrs Frigger apply to set aside a costs agreement entered into around 14 June 2013 with Mr Shepherd (the practitioner). The application is made pursuant to the Legal Profession Act 2008 (WA) (the Act) s 288.

Non‑appearance at hearing of Mr Frigger

There are two preliminary issues. The first relates to the non‑appearance at the hearing of Mr Frigger. Mr Frigger was aware that the application was listed for hearing but it seems that he thought that it could proceed in his absence if his wife and co‑applicant, Mrs Frigger, was present. Mrs Frigger requested that the hearing in respect of both applicants proceed. I agreed that the hearing of the application could proceed and that if Mr Frigger wanted to do so he could send a letter to the court advising me that he adopted Mrs Frigger's oral submissions. I said that I would reserve my decision as to whether such a letter would cure his non‑appearance.
On 28 May 2014, I received a letter from Mr Frigger which said that he accepted and relied upon the oral submissions made at the hearing by Mrs Frigger.
In written submissions made after the hearing, the practitioner submits that there are in fact two applications to have the costs agreement set aside, one by Mrs Frigger and one by Mr Frigger and that the applications are being heard together. He submits that it is for each applicant to establish sufficient unfairness to enliven the discretion to grant relief to that particular applicant. Thus he says that it is not open to Mr Frigger to abide by the outcome of Mrs Frigger's application. The practitioner says that by failing to appear in person or by a legal representative, Mr Frigger has effectively abandoned his application.
Mr and Mrs Frigger also made written submissions after the hearing. They say that given the background of this matter, the grounds for the application are exactly the same for both of them. They submit that it was not practical for Mr Frigger to attend the hearing and to make oral submissions. Further, even if Mr Frigger had done so, he would not have made separate submissions and would simply have relied upon Mrs Frigger's oral submissions. They reject the practitioner's contention that Mr Frigger is abiding by the outcome of Mrs Frigger's application. Rather, they submit that the circumstances in which Mrs Frigger says that the costs agreement was unfair and unreasonable are the same circumstances that make the agreement unfair and unreasonable for Mr Frigger.
At the hearing I gave Mrs Frigger the opportunity to apply for an adjournment so that Mr Frigger could be present. Mrs Frigger did not take up that opportunity and Mr Frigger, neither by his letter or by the written submissions, seeks a further opportunity to be heard orally.
Mr and Mrs Frigger's written submissions do not say why it was impracticable for Mr Frigger to be present at the hearing. However, at the hearing, Mrs Frigger submitted that the small business which she and her husband run would not be able to operate if they were both at court.
Although the Rules of the Supreme Court 1971 (WA) (SCR) O 33 r 2 provides that the court may proceed with a hearing in the absence of a party, that provision would not on its own permit a non‑appearing party, like Mr Frigger, who bears the onus of proof to present a positive case. However, it seems that SCR O 18 r 17, when read together with O 33 r 2, enables me to give the conduct of the application to Mrs Frigger on behalf of her and Mr Frigger, and to permit the hearing to proceed in the absence of Mr Frigger.
I should only take this unusual course if I am satisfied that it is in the interests of justice to do so. First, there are the interests of the practitioner to be considered. At the hearing, the practitioner expressed reservations about whether the hearing could proceed in Mr Frigger's absence, but he also said that he would prefer the matter to be dealt with on the hearing date, to the extent that it could be. It is only in subsequent written submissions that the practitioner submits that Mr Frigger has abandoned his application by failing to appear at the hearing. I am not prepared to dismiss Mr Frigger's application on the basis that he failed to appear at the hearing as I undertook to Mrs Frigger, without objection from the practitioner, that if I came to the view that Mr Frigger had to be present at the hearing that I would not dismiss the application without giving Mr Frigger a further opportunity to be heard.
As Mr Frigger has said that he relies on the same case as presented by Mrs Frigger and given that I have decided that Mrs Frigger's case does not establish grounds for relief, the practitioner will not be prejudiced by the hearing having been conducted in the absence of Mr Frigger.
The other interest I have to take into account is that of Mr Frigger. In many respects his interests deserve little consideration given that he was aware that his application was listed for hearing and he failed to attend, apparently because it was inconvenient for him to do so. In any event, Mr Frigger has made it plain that he considers his case to be adequately put by Mrs Frigger and he does not wish to be heard independently.
Also relevant to the interests of justice, is the public interest in having the litigation finalised in a timely and efficient manner.
Taking into account all relevant matters, I have decided that the hearing which took place on 20 May 2014 should stand as the hearing of the applications by both Mr and Mrs Frigger. In effect, pursuant to SCR O 18 r 17 Mrs Frigger was permitted to conduct the application on behalf of Mr and Mrs Frigger and pursuant to SCR O 33 r 2 I permitted the hearing of the application to proceed in the absence of Mr Frigger.

The identification of the costs agreement

The second preliminary issue is the need to clarify the costs agreement or agreements the subject of the application. The application, as filed, seeks orders that:
The fee agreements attached to the solicitor's application for assessment dated 24 September 2013 be set aside.
There were a number of documents attached to the practitioner's application for assessment dated 24 September 2013. At the commencement of the hearing of this application the practitioner submitted the only document which constitutes a costs agreement between Mr and Mrs Frigger and himself and which was subject to his application for assessment is the document attached to an email from the practitioner to Mr and Mrs Frigger dated 14 June 2013. However, as will become clear, the costs agreement did not come into effect in relation to the relevant court proceedings until 26 June 2013.
At the hearing of the application, Mrs Frigger conceded that the document identified by the practitioner was the only relevant costs agreement between herself, Mr Frigger and the practitioner. Consequently, I will determine the application as an application to set aside the costs agreement between the parties dated 14 June 2013 (the costs agreement).

Basis of the application

Mr and Mrs Frigger say that the costs agreement is unreasonable because it does not disclose an estimate of costs that would be payable under it, as required by the Act s 260(1)(c). Mr and Mrs Frigger say that without being given an estimate of the practitioner's total costs, they were unaware that they would be charged for some of the work which the practitioner completed.
Mr and Mrs Frigger further say that the effect of the costs agreement on them is unreasonable because they have been charged significantly more than they would have been charged under the relevant costs determination, in circumstances where the practitioner did not have to do any work over and above that which would have been adequately remunerated under the relevant costs determination.
No complaint is made about the form of the costs agreement. I will determine the application on the basis of the complaints raised in Mr and Mrs Frigger's application.

The Act s 288

This application is made pursuant to, and is governed by, the Act s 288 which relevantly states:
(1)In this section -
'client' means a person to whom or for whom legal services are or have been provided.
(2)On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.
(3)In determining whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court can have regard, the Supreme Court may have regard to any or all of the following matters -
...
(c)whether the law practice has failed to make any of the disclosures required under Division 3;
(d)the circumstances and the conduct of the parties before and when the agreement was made;
(e)the circumstances and the conduct of the parties in the matters after the agreement was made;
(f)whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;
(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.
…
(5)If the Supreme Court determines that a costs agreement be set aside, the Court may make an order in relation to the payment of legal costs the subject of the agreement.
As Mr and Mrs Frigger's complaint is that the practitioner failed to make adequate disclosure, it is necessary also to have regard to the Act pt 10 div 3. The relevant sections of pt 10 div 3 are as follows:
260Disclosure of costs to clients
(1)A law practice must disclose to a client in accordance with this Division -
(a)the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and
(b)the client's right to -
(i)negotiate a costs agreement with the law practice; and
(ii)receive a bill from the law practice; and
(iii)request an itemised bill after receipt of a lump sum bill; and
(iv)be notified under section 267 of any substantial change to the matters disclosed under this section;
and
(c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable -
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs;
and
(d)details of the intervals (if any) at which the client will be billed; and
(e)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and
(f)if the matter is a litigious matter, an estimate of -
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful;
and
(g)the client's right to progress reports in accordance with section 269; and
(h)details of the person whom the client may contact to discuss the legal costs; and
(i)the following avenues that are open to the client in the event of a dispute in relation to legal costs -
(i)costs assessment under Division 8;
(ii)the setting aside of a costs agreement under section 288;
(iii)making a complaint under Part 13;
and
(j)any time limits that apply to the taking of any action referred to in paragraph (i); and
(k)that the law of this jurisdiction applies to legal costs in relation to the matter; and
...
(4)For the purposes of subsection (1)(f), the disclosure must include -
(a)a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and
(b)if applicable, a statement that disbursements may be payable by the client even if the client enters into a conditional costs agreement.
(5)A law practice is taken to have complied with the requirement to disclose the details referred to in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subsection at the same time as the other details are disclosed as required by this section.
(6)A form prescribed for the purposes of subsection (5) may, instead of itself containing details of the kind referred to in that subsection, refer to publicly accessible sources of information (such as an internet website) from which those details can be obtained.
262How and when disclosure must be made
(1)Disclosure under section 260 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
(2)Disclosure under section 261(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.
(3)Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the person as a client for the purposes of sections 260 and 261.
267Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.
268Effect of failure to disclose
(1)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 8.
...
(3)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed and the client or associated third party payer has entered a costs agreement with the law practice, the client or associated third party payer may also apply under section 288 for the costs agreement to be set aside.
(4)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose.

Legal principles

A client who applies to have a costs agreement set aside pursuant to the Act s 288 bears the burden of proving that the costs agreement is not fair or reasonable: Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [30]. Although this principle was established under repealed statutory provisions which empowered this court to set aside a costs agreement made when those statutory provisions were in effect, there is no reason for me to diverge from this principle. The repealed statutory provisions are the Legal Practice Act2003 (WA) (repealed) s 222 and the Legal Practitioners Act 1893 (WA) (repealed) s 59.
A significant difference between s 288 and the repealed statutory provisions is that the earlier provisions said that this court may order that a costs agreement be set aside if the agreement was unreasonable. Whereas, s 288 states that the court may not set aside a costs agreement unless it is satisfied that the agreement is 'not fair or reasonable'. The parties did not submit that the change in wording altered the circumstances that have been found previously to justify the setting aside of a costs agreement. They argued this application on the basis that the approach which the court had taken in the past to decide whether a costs agreement was unreasonable was now to be taken in deciding whether an agreement was not fair or reasonable.
Despite the parties' approach, it is necessary to consider the significance, if any, of the change in the wording of the statutory test. The Act s 288 echoes the wording of the circumstances in which a costs agreement between a solicitor and a client was determined to be enforceable at common law. At common law a solicitor could enforce a costs agreement if he or she satisfied the court that it was fair and reasonable: Clare v Joseph [1907] 2 KB 369. In England this requirement was first embodied in a statute in 1870. In Re Stuart; Ex parte Cathcart [1893] 2 QB 201, 204 ‑ 205 Lord Escher MR said:
With regard to the fairness of such an agreement, it appears to me that this refers to the mode of obtaining the agreement, and that if a solicitor makes an agreement with a client who fully understands and appreciates that agreement that satisfies the requirement as to fairness. But the agreement must also be reasonable, and in determining whether it is so the matters covered by the expressing 'fair' cannot be re‑introduced. As to this part of the requirements of the statute, I am of the opinion that the meaning is that when an agreement is challenged the solicitor must not only satisfy the Court that the agreement was absolutely fair with regard to the way in which it was obtained, but must also satisfy the Court that the terms of that agreement are reasonable.
Given that the test of unreasonableness under the repealed statutory provisions had been construed to include the principle that a costs agreement may be unreasonable because of the 'mode of obtaining the agreement' or in other words, the circumstances in which it came into existence (see for example, Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 [83]) it is difficult to understand how, or, if at all, the addition of the words 'not fair' have altered the circumstances in which a costs agreement under the Act as opposed to under the repealed statutory provisions may be set aside by the court. In other words, judges of this court have construed the test of unreasonableness as including, at a minimum, all the circumstances which the common law had embraced in the requirement that a costs agreement be 'fair and reasonable'. Further, s 288(3), which did not have a counterpart in the repealed statutory provisions, identifies as matters that the court may have regard to under s 288 the same matters which the common law regards as relevant to the requirements of fairness.

I conclude that in order to be fair to the parties and as I did not hear submissions on the meaning of s 288(2), I will determine the application on the basis that I may set aside the costs agreement if it is not fair or reasonable taking into account the matters in s 288(3) and any other matter I consider relevant. My view of what is 'not fair or reasonable' can be informed by the reasoning in cases dealing with the repealed statutory provisions and the common law requirements of reasonableness stated in Re Stuart.
Thus, I will determine the application on the basis that the onus is on the client wishing to set aside the costs agreement to satisfy the court that the costs agreement should be set aside. As the disjunctive 'or' is used in s 288(2), the discretion to set aside a costs agreement on the basis that it is not fair is separate from and in addition to the discretion to set aside a costs agreement on the basis that it is not reasonable; Interpretation Act 1984 (WA) s 17. This is consistent with the common law requirement that a costs agreement be both fair and reasonable in order for it to be enforceable. The client, in order to invoke the discretion of the court to set aside a costs agreement, only has to satisfy the court that the costs agreement is not fair or is not reasonable, not both.
The circumstances in which the court may determine that a costs agreement is not fair or reasonable are 'not susceptible to precise definition': Moleirinho [31]. A costs agreement may not be fair or reasonable because of the circumstances in which it came into existence, because the terms of the costs agreement are not fair or reasonable, or because the effect on the client of the costs agreement is not fair or reasonable: Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [83].
Even if the court finds that a costs agreement is not fair or reasonable, the court retains a discretion to refuse relief: Alman v Macdonald Rudder [2001] WASC 65 [18] which was referred to without adverse comment in Alman v Macdonald Rudder (a firm) [2001] WASCA 375 [23].
Even if the total costs charged under a costs agreement substantially exceed an estimate provided by the practitioner, that does not of itself establish that the costs agreement was unreasonable. It would be relevant to consider whether the costs agreement made it clear that the estimates contained in it were no more than estimates and that they might require revision as the matter developed. Further, it would be relevant to take into account whether work was done which was unnecessary or outside the scope of the clients instructions, or whether the costs charged for the work which was done was excessive, were matters for taxation and not matters justifying the setting aside of the costs agreement: Moleirinho [36].
In Brown v Talbot & Olivier (1993) 9 WAR 70, 77 ‑ 78 Ipp J listed material circumstances which would 'ordinarily' require disclosure to a client. That case was decided well before the commencement of the Act. In view of the prescriptive terms in pt 10 div 3 about what a practitioner has to disclose in a costs agreement, it is relevant to have regard to the terms of div 3 rather than to those matters outlined by Ipp J. However, the result of an application under s 288 is not determined by whether a practitioner has failed to make any of the disclosures required under div 3. If there are any such failures they are but one matter to be taken into account in determining the application.
As is stated in s 288(3)(d) the circumstances of the parties are also relevant matters to be taken into account. This provision is statutory recognition of what was said in earlier cases about the relevance of the sophistication or business experience of the client: Computer Accounting Pty Ltd v Bowen Buchbinder Vilensky [95]. In that case, Murphy J, as he then was, said that:
[P]ersonal knowledge and experience of litigation and what it entails, and of the bases upon which solicitors commonly charge fees, and of the existence, nature and purpose of court scales in relation to fees, and of the nature and purpose of taxation of costs, and the recency and currency of the client's knowledge and experience of such matters, may, depending on all the circumstances, be relevant to a consideration of the scope and content of disclosure required in a particular case in order for the client to exercise an independent and informed judgment about whether to enter a costs agreement [96].

The facts

The costs agreement relates to the practitioner's representation of Mr and Mrs Frigger in their claim for compensation against Graeme Trevor Lean which was a separate application made in CIV 2265 of 2006 (the compensation claim).
The detailed background to the compensation claim can be found in Simmonds J's judgment in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd[No 6] [2014] WASC 105 which, as the title to the proceedings states, was a matter between Computer Accounting & Tax Pty Ltd (CAT Pty Ltd), of which Mr and Mrs Frigger were directors and shareholders, as plaintiff, Professional Services of Australia Pty Ltd, as first defendant, and Donald Campbell Smith as executor of the estate of Martin Paul Banning as second defendant. I will refer to the substantive action as CIV 2265 of 2006 in order to distinguish it from the compensation claim.
For reasons which are unnecessary to detail, Simmonds J permitted Mr and Mrs Frigger to make the compensation claim within CIV 2265 of 2006. The compensation claim was against Mr Lean who had been appointed as receiver of one 50% share of Banning Holdings Pty Ltd. The share was an asset of the late Mr Banning. CAT Pty Ltd obtained judgment in CIV 2265 of 2006 against Mr Smith as executor of the estate of Mr Banning and, at the time the compensation claim was made, it had not been satisfied.
The compensation claim was an application for directions from the court pursuant to the Civil Judgments Enforcement Act 2004 (WA) s 104. Mr and Mrs Frigger claimed compensation for losses they had allegedly suffered resulting from the enforcement of the judgment by Mr Lean. The compensation claim was heard and dismissed. Mr and Mrs Frigger were ordered to pay Mr Lean's costs of the application.
The practitioner is, and was at all relevant times, a barrister practising from Francis Burt Chambers in Perth.
During 2012, Mr Thompson, Mr and Mrs Frigger's then solicitor, retained the practitioner to represent Mr and Mrs Frigger in several proceedings (but not in CIV 2265 of 2006).
On 3 September 2012, Mr Thompson provided Mr and Mrs Frigger with an estimate of costs and disbursements in the compensation claim from the conclusion of a mediation conference up to and including the hearing of the compensation claim. Mr Thompson advised Mr and Mrs Frigger as follows:
On the basis that you have indicated that you wish to brief [the practitioner] to argue your case at hearing, and on the assumptions that the hearing lasts 2 days, I estimate that your costs and disbursements will amount to $15,850.00. It should, in fact be possible to dispose of the hearing in a day, and if that were to happen my estimate for this phase of the proceedings would be considerably lower. However, recent experience suggests that the judge will require longer than one day. It is also possible that there will be an application to cross‑examine a deponent on their affidavit. If such orders were granted, the hearing would almost certainly last 2 days (emphasis added).
In mid‑January 2013, Mr Thompson told the practitioner that he was ceasing to act for Mr and Mrs Frigger. The practitioner's instructions to represent Mr and Mrs Frigger in those proceedings in which he had been retained by Mr Thompson's firm, Thompson Downey Cooper, terminated when Mr Thompson ceased to act.
In early 2013, the practitioner had a telephone conversation with Mrs Frigger in which he said that he would not act in matters in which he had been instructed by Thompson Downey Cooper unless he was formally instructed by a firm of solicitors which was on the record in the relevant proceedings.
On 15 February 2013, there was a hearing in CIV 2765 of 2010, which were other proceedings in this court in which Mr and Mrs Frigger were parties. The practitioner attended court because he was concerned that Mrs Frigger would be unrepresented. Shortly before the hearing was due to commence, Mrs Frigger arrived at court and indicated that she intended to appear in person. The practitioner then withdrew. Despite this, following the hearing, Mrs Frigger sent an email to the practitioner advising him of the orders that the court had made that morning and asking him to take certain steps in that action.
On the same date, Mrs Frigger emailed the practitioner and said that she definitely wanted him to be instructed by her solicitors (who she had not then engaged) in CIV 2765 of 2010. She asked him whether he was prepared to work directly with her 'at least until another solicitor was found'. She said that she had telephoned several law firms and was waiting for return calls as to their willingness to take on the matter. She said that, no doubt, he would hear from one of them shortly.
On 6 March 2013, the practitioner advised Mrs Frigger by email that he would represent her in CIV 2765 of 2010 once he was instructed by a solicitor and that it was not appropriate for him to take instructions whilst a retainer was being negotiated.
On 10 March 2013, Mrs Frigger emailed the practitioner and expressed her hope that he was accepting instructions from a proposed solicitor. In this email, Mrs Frigger said she would like to discuss with the practitioner the hearing on 4 and 5 April 2013 of the compensation claim. The following day the proposed solicitor told the practitioner that he would not be acting for Mr and Mrs Frigger.
On about the same date, Mrs Frigger and the practitioner had a telephone conversation in which Mrs Frigger told him that she intended to instruct another solicitor, Andreas von Altenstadt of AVA Legal. Mr von Altenstadt told the practitioner that he had received instructions from Mrs Frigger and that he would be instructing the practitioner in both CIV 2765 of 2010 and the compensation claim. The practitioner told Mr von Altenstadt that he would charge his time on the matters on which he instructed him at the rates of $450.00 per hour, $4,200.00 per day in court and $450.00 for any straightforward directions hearings.
Mr von Altenstadt sent Mrs Frigger a costs agreement between AVA Legal and Mr and Mrs Frigger for their signature. The costs agreement related to CIV 2765 of 2010 (the AVA Legal Costs Agreement).
The AVA Legal costs agreement said that in addition to the professional fees charged by AVA Legal, the client agreed to pay all costs properly incurred by the firm, including barrister's fees. The charge out rates contained in the AVA Legal costs agreement were $400.00 per hour for Mr von Altenstadt and $70.00 per hour for a paralegal, each exclusive of GST. No costs estimate was contained in the AVA Legal costs agreement, but AVA Legal undertook to provide a costs estimate upon a review of the file and once informed of likely counsel fees.
On 16 March 2013, Mr and Mrs Frigger returned the schedule attached to the AVA Legal costs agreement and the executed signature page. The schedule had been amended by Mr and Mrs Frigger to include in the services to be provided by AVA Legal the 'compensation hearing' on 4 and 5 April 2013. This was a reference to the compensation claim. The handwritten amendment stated that 'no attendance' at the hearing on 4 and 5 April 2013 was required by AVA Legal. The accompanying email from Mr and Mrs Frigger noted that the schedule had been amended and that the practitioner would be appearing for Mr and Mrs Frigger at that hearing of the compensation claim. The email said:
All the paperwork has been completed by David Thompson, so there is no input required from you. This email confirms that we will pay in full [the practitioner's] fees for that attendance.
On 15 March 2013, the practitioner met with Mr von Altenstadt and Mrs Frigger. The conference related to both CIV 2765 of 2010 and the compensation claim but more time was devoted to CIV 2765 of 2010 because there was an imminent directions hearing for it.
In late March 2013, the practitioner was provided with papers relating to the compensation claim. He was not provided with a formal brief. The practitioner says that as a consequence of the late provision of the material, the preparation undertaken by him for the hearing on 4 and 5 April 2013 was performed at short notice. Mrs Frigger disputes that the documents were provided to the practitioner at late notice. Mrs Frigger says that she provided the practitioner with the file containing documents relevant to the compensation claim in mid‑March 2013. The result of this application does not turn on the timing of the delivery of the papers to the practitioner.
Mrs Frigger says that she relied on the previous costs disclosure made by Mr Thompson and took into account in assessing the likely costs of the compensation claim that she would be instructing the practitioner directly and, thus, there would be no costs for an instructing solicitor.
On 26 March 2013, the practitioner emailed Mrs Frigger asking whether he had all of the papers relating to the compensation claim. He also inquired as to whether Mr von Altenstadt was going to be instructed and if so, whether he was on the record. The practitioner stated:
If I am going to be instructed on the hearing, we will need to resolve these matters.
A directions hearing in the compensation claim was scheduled for 28 March 2013 and the practitioner proposed a conference on 27 March 2013.
Mrs Frigger asserts that all affidavits, case statements and submissions were prepared by her former solicitor and not by the practitioner. The practitioner disputes this. This dispute will be relevant to the assessment of the practitioner's costs and I expect that it will be resolved at the relevant assessment.
The practitioner says that in the days preceding the hearing of the compensation claim, he was in frequent telephone and email contact with Mrs Frigger regarding the preparation of the application for hearing. An example of that is an email of 28 March 2013 where Mrs Frigger refers to hearsay in Mr Lean's affidavit and the need for an objection to be made to its admissibility. She asked whether the practitioner would be able to put submissions together before the hearing, as well as the practitioner preparing objections to Mr Lean's affidavit. I note that the same email refers to other legal issues which indicate that Mrs Frigger has quite a sophisticated knowledge of the law for a lay person. Another email from Mrs Frigger dated 2 April 2013 to the practitioner concerns the points he should make in his oral submissions to the court. This email also shows that Mrs Frigger has a well‑developed understanding of legal issues, for a person without formal legal qualifications.
On 2 April 2013, the practitioner asked Mrs Frigger for confirmation that Mr von Altenstadt was on the record in the compensation claim. AVA Legal were not on the record when the practitioner made that enquiry but by a letter of the same date, AVA Legal advised the court that it acted for Mr and Mrs Frigger and had instructions to go on the record. On Friday 5 April 2013 AVA Legal filed its memorandum of appearance.
The compensation claim was part‑heard by Simmonds J on 4 and 5 April 2013. The practitioner appeared as counsel for Mr and Mrs Frigger. Mrs Frigger was present in court on both days. At the end of the second day of hearing, the hearing was adjourned for a further day. This date was later confirmed by his Honour's associate as having been set for 7 May 2013.
On 23 April 2013, the practitioner rendered his account to AVA Legal for the first two days of the compensation hearing. The account was in the sum of $13,050 plus GST.
The practitioner's invoice was broken down into the following amounts:

29 March 2013	Attending directions hearing	1 hour	$450.00
3 April 2013	Preparing for hearing including conferral with respondents counsel	1 day	$4,200.00
4 and 5 April 2013	Attending hearing of the application for compensation	2 days	$8,400.00

In early May 2013, the practitioner commenced preparation for the adjourned hearing of the compensation claim.
On Monday 6 May 2013, Mr Lean's solicitor advised that Mr Lean was unable to give evidence at the resumed hearing because of a medical issue and that he would like the hearing to be adjourned to another date. Mrs Frigger agreed to an adjournment on the basis that there would be an order that Mr Lean pay Mr and Mrs Frigger's costs thrown away by the adjournment. On 7 May 2013, the practitioner appeared before Simmonds J. Mrs Frigger was also present. His Honour ordered that the hearing be adjourned and made the costs order as sought by Mr and Mrs Frigger. Subsequently, the adjourned hearing was re‑listed for 3 July 2013.
On or about 7 May 2013, AVA Legal ceased to act for Mr and Mrs Frigger. From that date the practitioner considered that he was no longer instructed by AVA Legal to represent Mr and Mrs Frigger in the compensation claim. However, at Mrs Frigger's request, the practitioner agreed to meet Mr and Mrs Frigger on 17 May 2013 to discuss their various legal actions and their lack of an instructing solicitor.
At the meeting Mrs Frigger told the practitioner that despite many attempts, she had been unable to find another solicitor. Mrs Frigger said that she would continue to try and find a solicitor and asked the practitioner whether until she did, and for a short period, he would be prepared to act without an instructing solicitor. The practitioner told Mr and Mrs Frigger that he would consider doing so in the compensation claim because the hearing of the application was part‑heard. He also said that he would do so only on the basis that his outstanding fees were paid and that any accounts rendered by him would be paid promptly. The practitioner's account rendered to AVA Legal was still outstanding.
On 14 June 2014, the practitioner sent a letter to Mr and Mrs Frigger setting out the basis on which he was prepared to act for them in CIV 2765 of 2010, without an instructing solicitor. The letter, by its terms, did not apply to the compensation claim. The practitioner has deposed that at that time he understood that Mrs Frigger was going to obtain an instructing solicitor for the compensation claim. This understanding was confirmed by an email from the practitioner to Mrs Frigger on 20 June 2013 in which he stated that his retainer in that matter terminated upon the termination of the arrangement with AVA Legal. The practitioner enquired whether Mrs Frigger had progressed the instruction of a solicitor. On the same date, Mr and Mrs Frigger emailed the practitioner and informed him that they did not intend to retain an instructing solicitor in the compensation claim. They noted that the practitioner had already prepared for the hearing and asked whether he was suggesting that he would not complete the hearing unless there was an instructing solicitor. They stated that if that was the case, they would advise the court and seek another adjournment.
The practitioner replied within an hour stating that he had explained on several occasions that his retainer to appear in the compensation claim was with AVA Legal and that it terminated when Mr and Mrs Frigger ceased instructing that firm. The practitioner stated that he was not currently retained to appear in the compensation claim. He also advised that appearing for Mr and Mrs Frigger on the adjourned hearing would, due to the adjournment, require further preparation by him. He said that in the circumstances he would, if requested, consider accepting a direct brief from them if his current outstanding account was paid and on the terms set out in his letter of 14 June 2013 in respect of CIV 2765 of 2010. The practitioner invited Mr and Mrs Frigger to call him if they wished to discuss any of the terms of that letter.

On 24 June 2013, Mrs Frigger emailed the practitioner and advised that in the compensation claim she and Mr Frigger accepted the terms of the retainer in the practitioner's letter of 14 June 2013. Mrs Frigger also referred to further preparation for the hearing on 3 July 2013.
It appears that there was some confusion between the parties as the practitioner responded saying that he had not agreed to continue to act in the compensation claim. Rather, he said that he would not 'consider' a request to accept a direct brief until his outstanding fees had been paid. Once his fees had been paid, he would only consider a request that he accept a direct brief if it was made on the terms set out in the letter of 14 June 2013 and it might be that additional arrangements were required by him in respect of any fees.
In the week commencing Monday 24 June 2013, Mrs Frigger contacted the court and Mr Lean's solicitor and advised that she would have to apply for an adjournment because the practitioner was not prepared to represent her and Mr Frigger. She said that she had been unable to obtain other representation. Mr Lean's solicitor advised that any application for an adjournment would be opposed.
The practitioner has deposed that although it appeared to him that Mr and Mrs Frigger had not taken steps to engage an instructing solicitor and had left the resolution of their representation until shortly before the adjourned hearing, he considered that it was not in the interests of the parties or the court for there to be a further adjournment of the hearing. Consequently, on 26 June 2013 the practitioner advised Mrs Frigger that he would represent her and Mr Frigger on the basis set out in his letter dated 14 June 2013.
At the resumed hearing of the compensation claim on 3 July 2013 Mr Lean was called for cross‑examination. The cross‑examination took most of the day. At the end of the day, Simmonds J made orders for the filing of written final submissions and for a further day of hearing. Mrs Frigger was present in court throughout the day including when his Honour made the orders for further written submissions.
On 5 July 2013, the practitioner rendered a further invoice 225 containing the following itemised account:

3 May 2013	Preparing for adjourned hearing	$1,350.00
5 May 2013	Preparing for resumed hearing	$900.00
6 May 2013	Preparing for adjourned hearing	$450.00
6 May 2013	Attending to email correspondence and discussions regarding adjournment	1 hour	$450.00
1 July 2013	Conference with Mrs Frigger and preparation for hearing	$562.50
2 July 2013	Preparing for hearing	$2,250.00
3 July 2013	Attending adjourned hearing	$4,000
6 July 2013	Less discount	($962.50)

The total of the invoice including GST was $9,900.

The practitioner says that he included the preparation work undertaken for the hearing listed on 7 May 2013 in that account, even though it was work undertaken by him prior to the termination of AVA Legal, because he knew of the dispute between that firm and Mr and Mrs Frigger.
The practitioner prepared written submissions and attended before Simmonds J on 27 July 2013 to make oral closing submissions.
On 30 July 2013, Mr and Mrs Frigger paid the practitioner's invoice 225 dated 5 July 2013. On 31 July 2013 the practitioner rendered his invoice 228 to Mr and Mrs Frigger. The total of the invoice was $15,950.00 including GST.
The practitioner submitted an amended bill of costs for assessment which replaced invoice 228. The amended bill of costs excludes items which were included in invoice 225 and duplicated invoice 228. It contains the following items:

Undated	Preparation of closing submissions	8 hours	$3,600.00
26 July 2013	Hearing and out of court preparation	1 day and 2 hours	$4,500.00
15 November 2013	Drawing of bill of costs, copies and service	$450.00
Undated	Taxation of costs	$450.00

The total amount of the amended bill is $9,000.00 and it has not been paid. The items invoiced under the costs agreement are those contained in invoice 225 from 1 July onwards and all those contained in the amended bill of costs, which replaced invoice 228.

Terms of costs agreement dated 14 June 2013

The practitioner's letter of 14 June 2013 contained the following provisions relating to costs:
The costs basis upon which I propose to represent you in this matter is as follows:
1.I will charge my time at the rate of $450.00 per hour for:
(a)preparation - including pleadings, submissions and preparation for trial;
(b)conferences;
(c)other attendances;
(d)advices; and
(e)short court appearances
2.I will charge $400 for appearances at directions hearings in the CMC list save for hearings at which contested matters argued which will be charged at the above rate;
3.I will charge $4,200.00 per day (8 am to 6 pm) in Court and otherwise at the hourly rate $450 per hour;
4.Ten per cent (10%) will be added to the total of each memorandum of fees rendered to take into account the Goods and Services Tax.
Whilst the matter remains on direct brief you are responsible for payment of my fees and expenses and the 10% GST.

Discussion

Mr and Mrs Frigger say that by the time the costs agreement came into existence, which was after the initial two days of hearing of the compensation claim, the practitioner knew or should have known what work was required to complete the matter. Thus, they say that there is no excuse for his failure to provide an estimate of his costs. Further, when the matter was adjourned to 3 July 2013 it was incumbent on the practitioner to disclose his further estimated costs to complete the matter.
In addition to the practitioner's failure to disclose an estimate of his costs, Mr and Mrs Frigger say that as all the court documents for the compensation claim, including Mrs Frigger's affidavit, their case statement and written submissions, had been completed by their first solicitor, Mr Thompson, after the costs agreement came into effect, the practitioner was only required to prepare for oral arguments and cross‑examination on the affidavits. They say that his charges for the work which he did under the costs agreement were unreasonable. They say that, as the practitioner did not provide an estimate of his costs, they were unaware that they would be charged an additional 19 hours of preparation plus $4,200.00 per day for the final two days of hearing.
This submission must be based on the original invoice 228. Pursuant to invoice 225 and the amended bill of costs which replaced invoice 228, the practitioner has now charged for 15 hours preparation (including preparation of written submissions) and for two hearing days ($4,000 and $3,600 respectively) under the costs agreement. The total charged by the practitioner under the costs agreement is approximately $14,912.50.
Mr and Mrs Frigger say that the maximum costs that would be allowed under the relevant Supreme Court scale of costs would be $21,450.00 and, as they have already paid Mr Thompson $11,830.00, the practitioner's invoices in totalling $42,187.50 is unreasonable. I note that the latter amount includes charges for work done prior to the costs agreement.
Mr and Mrs Frigger say that the practitioner did not provide the following disclosure to them:
(1)an approximate amount of fees payable by them to the practitioner, irrespective of their success or otherwise;
(2)an approximate amount of fees that would be recovered if they were successful and Mr Lean was ordered to pay their costs;
(3)an approximate amount that Mr and Mrs Frigger would have to pay the practitioner under the costs agreement if Mr and Mrs Frigger were successful and Mr Lean was ordered to pay costs;
(4)an approximate amount that Mr and Mrs Frigger would have to pay Mr Lean if the litigation was unsuccessful.
In determining this application it is important to focus on the work that is covered by the costs agreement. Although the practitioner's letter containing the terms of the costs agreement is dated 14 June 2013, it was only on 26 June 2013 that the practitioner agreed to represent Mr and Mrs Frigger on the basis of those terms. Thus, only work done by the practitioner following that date is covered by the costs agreement.
Given the content of the letter of 14 June 2013, Mr and Mrs Frigger were aware that the practitioner would charge for preparation, conferences, other out of court work and short court appearances at the rate of $450.00 per hour. They were further aware that he would charge a daily rate of $4,200.00 per day in court and that a court day was between 8.00 am and 6.00 pm. If work was outside of these hours it would be charged at the hourly rate of $450.00 per hour. They were further aware that GST would be added to those charges.
Mr and Mrs Frigger were further aware that the practitioner would have to prepare for the hearing on 3 July 2013 and appear as counsel on 3 July 2013. Whilst there may be a disagreement between the parties as to the amount of preparation the practitioner had to do, it was obvious that he had to spend time prior to the hearing preparing for it. The dispute as to whether the amount of time he spent was justified or not can be resolved at the assessment of his bills.
Following the hearing of 3 July 2013, Mr and Mrs Frigger were aware that the practitioner had to prepare written submissions and then appear in court to make oral closing submissions. This was not work that was envisaged would be required initially. It became apparent that it was necessary after Simmonds J made orders at the conclusion of the hearing on 3 July 2013.
My assessment of Mr and Mrs Frigger's knowledge of the amount and type of work the practitioner would have to complete and the way in which it would be charged must also be determined against the background of their familiarity with legal proceedings and the costs involved in them. The practitioner attached to his written submissions a schedule of legal actions involving Mrs Frigger, Mr Frigger and/or CAT Pty Ltd. The following cases or decisions are sufficient to indicate that Mr and Mrs Frigger are experienced litigants who are very familiar with the costs involved in litigation and the manner in which legal costs are invoiced:
(1)Frigger v Nigam [2005] WADC 127 - Mrs Frigger sued a previous solicitor for wrongful detention and failure to return her property, as well as for damages. Mrs Frigger appeared in person. The judgment discloses that Mrs Frigger deposed that she dismissed her solicitor and told him that she would continue the case with the assistance of a barrister. In an affidavit she set out her dissatisfaction with the services received from the solicitor; in particular, that he did not follow her instructions and charged excessive fees without making any progress in the action [3].
(2)Frigger v Nigam [2007] WADC 10 - Mrs Frigger applied for a review of a taxation of bill of costs. Mrs Frigger appeared in person.
(3)Forbes v Frigger [2009] WASC 77 - Mrs Frigger applied for a review of taxation of a bill of costs.
(4)Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd[No 3] [2011] WASCA 80 - CAT Pty Ltd applied for an order suspending the enforcement of a costs order. Mr and Mrs Frigger were the intervening applicants and appeared in person.
(5)Computer Accounting and Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 - CAT Pty Ltd (controlled by Mr and Mrs Frigger) applied to set aside a costs decision.
(6)Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 - Mr and Mrs Frigger appealed from costs orders against them.
(7)Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 3] [2014] WASC 24 - Mr and Mrs Frigger applied for costs. Mr and Mrs Frigger appeared in person.
(8)Frigger v Lean [2012] WASCA 66 - Mr and Mrs Frigger appealed against costs orders.
(9)Frigger v Murfett Legal Pty Ltd [2012] WASC 447 - Mr and Mrs Frigger applied for an extension of time for an assessment of costs.
The above matters all relate to legal costs. In addition, the schedule provided by the practitioner includes 20 decisions in actions or applications of various kinds which have involved Mr and/or Mrs Frigger in some manner. In the majority of these they have been represented by legal practitioners at some point in the relevant proceedings.
I now turn to consider the matters specifically referred to in the Act s 288(3).
There is no dispute that the practitioner failed to make many of the disclosures required under the Act div 3, including the specific matters of which Mr and Mrs Frigger complain. However, most of those failures did not impact on Mr and Mrs Frigger in a negative sense, especially as, by the time the costs agreement was entered into, the compensation claim was part heard. For example, Mr and Mrs Frigger do not complain that the practitioner's failure to disclose these matters caused or contributed to them commencing or continuing the compensation claim under a false understanding of the likely cost of it. No doubt this is because Mr and Mrs Frigger were committed to the compensation claim by the time the costs agreement was entered into. The specific failure which Mr and Mrs Frigger say impacted on them is the failure to provide an estimate of the practitioner's total legal costs or, if that was not reasonably practicable, a range of the estimates of the total legal costs and an explanation of the major variables that would affect the calculation of those costs (the Act s 260(1)). Their argument appears to be that if they had been aware of the estimate, they may have chosen to represent themselves or instruct a different practitioner.
In general, it is important for the disclosure provisions of the Act to be complied with. However, a failure to do so is but one matter to be taken into account in determining whether I am satisfied that the costs agreement was not fair or reasonable.
Mr and Mrs Frigger are experienced litigators. Through that experience and their experience in conducting applications relating to legal costs, they must have had personal knowledge of the approximate amount of work required by the practitioner to prepare for each day's hearing, to prepare written submissions and to appear in court. I am also satisfied that through their personal experience in litigation and in particular litigation involving legal costs, Mr and Mrs Frigger must have been aware at the time they entered into the costs agreement of the existence of the relevant Supreme Court scale of costs and that in the absence of a costs agreement such a scale would apply to their legal fees.
It is true that when Mr and Mrs Frigger entered into the costs agreement they would have been unaware that a further two days of hearing would be required to complete the compensation claim and that written submissions would have to be prepared. However, this became known to them and the practitioner, at the same time, around the time of the hearing on 3 July 2013. Thereafter, Mr and Mrs Frigger must have been aware that not only would the practitioner have to prepare for the final day of hearing but that he would also have to spend a considerable period of time preparing final written submissions.
When Mr and Mrs Frigger entered into the costs agreement they were finding it difficult to obtain legal representation. In those circumstances it may be thought that they were vulnerable to being exploited by an unscrupulous legal practitioner. On the other hand, the practitioner says that it was his knowledge of their difficulty in obtaining legal representation that, in part, influenced him to help Mr and Mrs Frigger by acting for them without an instructing solicitor. Taking into account all the circumstances and the conduct of the parties before, when and after the costs agreement was made, I am not satisfied that the circumstances give rise to any concern that the practitioner exploited Mr and Mrs Frigger's lack of legal representation to pressure them into entering into a costs agreement which was not fair or reasonable.
Mr and Mrs Frigger's lack of legal representation helps to explain why the practitioner, a member of the bar, agreed to act for them on the terms of the letter of 14 June 2013. It also helps to explain why the practitioner did not make full disclosure as required under the Act div 3. It remains desirable for a member of the bar who agrees to act directly for a client to ensure that they make the disclosure as required under the Act div 3. If Mr and Mrs Frigger were not the experienced litigators that they are, the failure to make such disclosure may well have rendered the costs agreement not fair or reasonable.
In respect to Mr and Mrs Frigger's complaint that the costs agreement failed to alert them to the possibility that they would be charged as much as they were by the practitioner, I also take into account that the Act s 268(4) provides that if a law practice does not disclose to a client anything required by the Act div 3 to be disclosed then on an assessment of the relevant legal costs the amount of the costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose. I am not suggesting that the relevant taxing officer should reduce the practitioner's bill but it is relevant for me to take into account that Mr and Mrs Frigger may not be without a remedy for the practitioner's failure to make complete disclosure as required by the Act.
I conclude that, when the costs agreement came into effect, Mr and Mrs Frigger fully understood and appreciated that the practitioner would not only appear in court on their behalf at any hearing of the compensation claim, but that he would also spend time out of court in preparing for any such hearing. They were aware of the hourly and daily amounts he would charge for his time. Further, after the hearing on 3 July 2013 they were aware that he would charge them for time spent out of court preparing written submissions and time spent in court for the final day of hearing.
Mr and Mrs Frigger had been told by Mr Thompson that, on the assumption that the hearing of the compensation claim lasted two days, their costs and disbursements would amount to $15,850. As it transpired, the claim was heard over four days and a period of nearly four months. When Mr and Mrs Frigger entered into the costs agreement, by its terms, they were aware that the practitioner would charge approximately $4,000 for each subsequent day he appeared in court for them. They were also aware that he would charge $450.00 per hour for time spent out of court in preparation. Given these circumstances, Mr and Mrs Frigger could not reasonably have believed that the practitioner's costs under the costs agreement would not exceed, by a considerable amount, the relevant Supreme Court costs scale for a typical application of that type and the estimate given by Mr Thompson. Mr and Mrs Frigger have not adduced any evidence that would support a view that the amounts charged by the practitioner were beyond the top of the range of fees usually charged by practitioners with the practitioner's years and type of experience.
Therefore, Mr and Mrs Frigger have failed to satisfy me that the costs agreement was not fair. Further, I conclude that the terms of the costs agreement are reasonable in that the letter of 14 June 2013 sets out the basis on which the practitioner would charge for his work both in court and out of court.
For the above reasons I dismiss the application.