Gillis Delaney v. Rehfeld, M.A.F.

[1986] FamCA 10

GILLIS DELANEY v. REHFELD, M.A.F.

(1986) FLC ¶91-750

Other publishers' citations: (1986) 10 FamLR 1063

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 20 June 1986.

Before: Strauss, Nygh and Treyvaud JJ.

Strauss, Nygh and Treyvaud JJ.: The judgment of the Court was delivered by Treyvaud J.

This is an appeal by solicitors from the judgment and consequent order of Hogan J. delivered and made on 24 October 1985 when his Honour discharged an order of the Deputy Registrar granting to the wife respondent an extension of time within which to file a notice disputing two accounts for costs rendered to the wife by the appellant solicitors.

The relevant facts may be set out as follows. In November 1981 the wife retained the appellant solicitors to act for her in applications for dissolution of marriage and for alteration of property interests. The wife's application for dissolution of marriage was filed by those solicitors in December 1981. A decree nisi dissolving the marriage was made in February 1982; it became absolute in due course. The solicitors filed the wife's application for alteration of property interests in July 1982. Final orders in that regard were made in March 1983.

Between 5 February 1982 and 20 May 1983 the solicitors rendered to the wife five accounts for work done in those proceedings and in relation to disbursements incurred. The total of those five accounts was $6,950.79. Each account specified the general nature of the work done for the wife by the solicitors. Only one account provided any detail or itemisation showing how the charge for work done was calculated. Each account detailed the disbursements incurred. The wife paid one account, and made payments on account of others.

On 20 June 1983 the wife filed a notice disputing the whole of the accounts for costs, and simultaneously made application for leave to file such notice out of time. The wife's application was heard by a deputy registrar who, on 17 October 1983, extended the time for filing a notice disputing the costs charged in the solicitors' accounts of 30 July 1982, 19 January 1983 and 10 May 1983. On 27 October 1983 and within the time limit as extended, the wife filed a notice disputing the whole of the costs charged in and by those accounts.

The solicitors sought a review of the Registrar's decision. The application for review came before Hogan J. on 21 February 1984, 28 May 1984 and 24 October 1985 on which later date his Honour gave judgment (Rehfeld and Rehfeld (1986) FLC ¶91-725). His Honour affirmed the Deputy Registrar's decision extending the time to dispute the costs charged by the account of 10 May 1985, which account was the one which particularised and charged separately for the items of work done by the solicitors. His Honour held that the accounts of 30 July 1982 and 19 January 1983 were not ``accounts'' within the meaning of O. 38 r. 20, thus the procedure provided by those rules, enabling the solicitors to recover against the wife their solicitor and client costs, had not been commenced and, accordingly, it was unnecessary for the wife to give notice disputing those costs.

By notice dated 22 November 1985 the solicitors appealed against his Honour's judgment, seeking a discharge of his Honour's orders, and seeking orders that the order of the Deputy Registrar granting to the wife an extension of time to file the notice disputing costs accounts be discharged.

The only ground of appeal argued before us was whether ``an account'' for the purposes of O. 38, ``must contain charges specified in the account for each item charged''. No submission was made relating to any other matter of law raised by his Honour's reasons for judgment, nor are any of those matters of law relevant to the determination of this appeal.

Matters relating to costs charged by a solicitor, engaged by a private client, for work done in proceedings, being a matrimonial cause, are governed by O. 38 of the Family Law Rules. This Order relates both to party and party costs and to solicitor and client costs.

Division 1 of O. 38 provides for a basic composite scale of solicitor and client costs in many common proceedings under the Family Law Act. It provides for charges additional to the basic composite amount, including additional charges in special circumstances. It makes provision in relation to agents' fees, counsels' fees and witnesses' expenses.

Division 2 of O. 38 makes provision for circumstances where a court proposes to make an order for costs pursuant to sec. 117(2), and by r. 20 provides for the recovery by a legal practitioner, against a client or former client, of costs of proceedings. [Their Honours set out the terms of O. 30 r. 20 and Form 56 and continued:]

The provisions of r. 20 are mandatory. It is not lawful for a legal practitioner by action to recover against his client or a former client costs of proceedings under the Family Law Act without firstly serving on that client ``an account for the costs''. However, this restriction does not prevent a legal practitioner from rendering to his client an account for costs framed in the most general way and with little or no particularity. Likewise, the restriction does not prevent a legal practitioner lawfully retaining costs paid to him by a client as a result of the rendering of such ``rolled up'' accounts.

The only relevance and significance of this decision is the interpretation of the words, ``an account for the costs'' which must be rendered and served on the client, which may be disputed by the client, which must then be taxed and assessed by a registrar.

When the r. 20 procedure is completed, by r. 21(4) the legal practitioner has obtained a deemed judgment for a debt immediately due and payable and recoverable in accordance with law.

The submission on behalf of the appellant solicitors, was that there is no special meaning attributable to the word ``account'' in O. 38 r. 20. Reliance was placed by the appellant on the decision of Lindenmayer J. in Butler and Glendowan; re Bowdens Bill of Costs, (1980) FLC ¶90-855; (1980) 6 Fam.L.R. 502. Lindenmayer J. was there considering reg. 174 of the Family Law Regulations which in all practical respects is to the same effect, and is generally in similar language, to the wording, of O. 38 r. 20(1) to (6). In that decision, in defining ``account'' his Honour had resort to the definition of that word contained in the Shorter Oxford English Dictionary. He was entitled to do so. In Camden (Marquis) v. I.R.C. (1914) 1 K.B. 641 at p. 647 Cozens-Hardy J. said:

``It is for the Court to interpret the statute as best they can. In so doing the Court may no doubt assist themselves in the discharge of their duty by any literary help which they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries.''

See also Falconer v. Pedersen (1974) V.L.R. 185 at p. 187.

However, the view taken by courts of the United Kingdom and by a Full Court of this Court is that the authoritative dictionary to be relied on ought to be that of the relevant country. See Hardwick Game Farm v. Suffolk Agricultural Producers Assoc. (1966) 1 W.L.R. 287 at p. 310. Further see L. and L. (1984) FLC ¶91-563 particularly at p. 79,544. We find ourselves in sympathy with those views, and turn therefore to The Macquarie Dictionary.

That dictionary provides 22 definitions of the word ``account'', including, as a general definition, the definition, ``a statement of pecuniary transactions''. We are driven to the conclusion that the shades of meaning of the word ``account'' are so wide and varied, that for the purposes of O. 38 r. 20 we must seek its meaning by reference to that rule, its tenor and purport. Accordingly we are not persuaded that the word ``account'' must be given the wide and general meaning given to it by Lindenmayer J. in Butler's case.

It is a well known canon of statutory interpretation that the meaning of the word may be affected by the occasion of its use. See The Dunelm (1884) 9 P.D. 164 at p. 171 per Brett M.R. Accordingly, tracing the word ``account'' in O. 38 r. 20 we find firstly, that it must be served on the person to be charged (r. 20(1)); secondly, it may be disputed by the person in whole or in part (r. 20(3) and (4)); thirdly, it is then to be taxed by a registrar in accordance with the practice and procedure for taxation in the court (r. 20(5) and (6)).

It follows then that the document which is served on the client and disputed by the client is the same document as that which is to be taxed. The framers of O. 38 r. 20 must, in our opinion, be taken to have intended to equate the word ``account'' with the words ``bill of costs'', that word being qualified as will later appear in this judgment.

Accordingly, we endorse the views of Hogan J., when his Honour said at p. 75,270:

``In my view then, an account for the purposes of O. 38 r. 20(1) must comply with certain requirements. Without necessarily being exhaustive, these do include the following:

(1) It must contain sufficient details to enable a taxation to take place.
(2) Its form must be such as to enable the parties to the taxation to define the issues, that is, the parts of the account which are in dispute.
(3) It must contain sufficient details to enable the client to make a conclusion as to what parts he wishes to dispute or as to which he wishes to seek advice and to crystallise the nature of the dispute, e.g. as to the work allegedly done.
(4) It must be such as to not place the client in a position of dilemma as to his possible liability for costs should he file a notice disputing the account without being aware of the charges made in respect of the various items contained therein.''

Counsel for the solicitors submitted that the proper interpretation of the words in r. 20(5) ``tax in accordance with the practice and procedure of the court'', brings about the result that the account which is served on the client and disputed by him is not necessarily the same account as that which is taxed, as the Registrar may require particularity in the account to be taxed, which is not provided for in or by the account served upon the client. We cannot accept that submission. The practice and procedure for taxation cannot, in our view, alter the clear and unambiguous purpose, purport and consequences of r. 20(1), (3), (5) and (6).

Accordingly, we hold that the effect in its present form of O. 38 r. 20 is to require that a solicitor who seeks to recover against a client costs of Family Law Act proceedings must serve on the client an account sufficiently detailed that it is able to be considered by the client, disputed in whole or in part if desired, and taxed by a registrar.

The provision made by O. 38 enabling a solicitor to charge a basic composite fee relieves the solicitor from providing the very substantial detail and particularity of items charged which is required in the taxation of a bill of costs in other civil courts. Thus, the burden cast by this decision upon a solicitor seeking to recover costs should not be regarded as heavy or onerous.

We are confirmed in our view as to the interpretation of the word ``account'' by the general nature and purpose of O. 38, especially r. 3, which prevents a solicitor from charging, that is, from recovering, costs except as provided by these Rules. In our view the purpose of the Rules clearly is to provide protection to the client as against the solicitor. Clearly then an account for costs sought to be recovered by action ought to provide that degree of detail and particularity of work done and charges made which Div. 1 of O. 38 encourages, and for which it provides.

Accordingly then, in our view, the appeal must be dismissed and his Honour's order. confirmed.