Gallin v SC Lawyers Pty Ltd - [2020] VSC 80

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S ECI 2019 3760

LEAH TOMIA GALLIN	Applicant
v
SC LAWYERS PTY LTD	Respondent

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2020
DATE OF RULING:	26 February 2020
CASE MAY BE CITED AS:	Gallin v SC Lawyers Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 80

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LEGAL COSTS – Application for summons for taxation to be dealt with out of time - Section 198(4) of the Legal Profession Uniform Law 2014 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Self-Represented Litigant
For the Respondent	Mr P Kistler	Schetzer Constantinou

HIS HONOUR:

SC Lawyers Pty Ltd, a legal practice, acted for the plaintiff, Ms Gallin, in family law proceedings for a period of about 12 months between April 2015 and 31 March 2016. By a summons for taxation filed 20 August 2019, Ms Gallin has applied to have the legal costs rendered by SC Lawyers taxed.

The last bill rendered by SC Lawyers was dated 31 March 2016. Section 198 of the Legal Profession Uniform Law 2014 (‘the Law’) provides that an application for taxation must be made within 12 months after the bill was given which, in this case, meant that an application needed to be made by 31 March 2017. Accordingly, Ms Gallin’s summons is nearly 29 months outside of the 12 month period within which it must have been brought.

Section 198 (4) provides that an application made out of time may be dealt with by the ‘costs assessor’ (in this jurisdiction, the Costs Court) if the ‘designated Tribunal’ (in this jurisdiction, the Court) determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application to be dealt with after the 12 month period. The question whether the application should be allowed out of time has been referred to me by the Costs Court pursuant to r 63.51 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).[1]
[1]Whether or not that was necessary need not be decided. Arguably, the application could be determined by an Associate Judge, preferably one who is not also the ‘cost assessor’. See: s 75(2) Constitution Act1975, s 111(1)(b) Supreme Court Act 1986 and the definition of ‘designated tribunal’ in s 6 Legal Profession Uniform Law.

For the reasons set out below, I am not persuaded that it is just and fair for the application to be dealt with after the 12 month period. Accordingly, Ms Gallin’s application for taxation will not be entertained.[2]
[2]Ms Gallin did not appear to prosecute her application under s 198(4). For reasons stated on transcript her emailed request for an adjournment was refused after the matter was stood down until 2:15pm on the day of hearing.

I will first consider the delay.

Between June 2015 and March 2016 a total of six invoices were sent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSC 80
Decision Date: 26 February 2020

CaseChat Overview and Summary

In Gallin v SC Lawyers Pty Ltd, the applicant sought an order that a summons for taxation be dealt with out of time. The summons was issued by SC Lawyers Pty Ltd, a firm of lawyers, against the applicant. The firm had applied for a costs order against the applicant, and the applicant had sought to contest the application for costs out of time. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the applicant's application for the summons for taxation to be dealt with out of time should be granted. The court had to consider whether there were exceptional circumstances that warranted the application being heard out of time, in accordance with section 198(4) of the Legal Profession Uniform Law 2014.

The court found that the application for the summons for taxation to be dealt with out of time was not made within the required time limits. The applicant had not demonstrated any exceptional circumstances that would warrant the application being heard out of time. The court found that the applicant had not acted with due diligence in contesting the application for costs. The court noted that the applicant had been aware of the application for costs for some time, but had not taken any steps to contest it until well after the relevant time limits had expired. The court concluded that the application for the summons for taxation to be dealt with out of time should be dismissed.

The court dismissed the application for the summons for taxation to be dealt with out of time. The court found that there were no exceptional circumstances that warranted the application being heard out of time. The court noted that the applicant had not acted with due diligence in contesting the application for costs, and had failed to take any steps to contest it until well after the relevant time limits had expired. The court concluded that the application should be dismissed, and that the summons for taxation should proceed in accordance with the relevant time limits. The court did not make any orders for costs.

Orders