Gregg Lawyers Pty Ltd v Viki Maree Farrar (Formerly Sweeney)
[2014] QDC 194
•11 September 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Gregg Lawyers Pty Ltd & Anor v Viki Maree Farrar (Formerly Sweeney) [2014] QDC 194
PARTIES:
GREGG LAWYERS PTY LTD
First Applicant
and
ANGELA JULIAN-ARMITAGE
Second Applicant
v
VIKI MAREE FARRAR (FORMERLY SWEENEY)
Respondent
FILE NO:
D319/11
DIVISION:
Civil
PROCEEDING:
Application for Review of Costs Assessments
DELIVERED ON:
11 September 2014
DELIVERED AT:
Southport
HEARING DATES:
12, 16 July, 4, 5, 6, 7 November 2013, 10, 11, 12, 13 February, 21 and 22 July 2014 at Southport
JUDGE:
Judge C. F. Wall QC
ORDERS:
1. The decision of the costs assessor in each case will be set aside.
2. Within 28 days of today the applicants are to file and serve written submissions as to what further orders should be made.
3. Within 56 days of today the respondent is to file and serve a written response to the submissions of the applicants.
4. Within 70 days of today the applicants are to file and serve a written reply to the response of the respondent.
5. Each party is given liberty to apply on 3 days notice.
6. The further hearing of the application is adjourned to a date to be fixed.
LEGISLATION:
Uniform Civil Procedure Rules 1999 Rules 715, 717, 720, 737, 738, 742, 743, 743A, 743G
Legal Profession Act 2007 Sections 300, 308, 309, 310, 315, 316, 319, 322, 323, 335, 340, 341, 342
2007 Barristers’ Rule, Rules 77, 78, 83
CASES:
Paroz v Clifford Gouldson Lawyers [2012] QDC 151
Connolly Lawyers Pty Ltd v Davis [2013] QCA 231
Wolfe v Willis (1911) 13 CLR 23
Body Corporate for Sunseeker Apartments v Jasen [2012] QDC 51
Southwell & Kennedy v Jackson [2012] QDC 65
Woolf v Willis (1911) 13 CLR 23
D.G. Ogle Pty Ltd v Bowdens (1979) Qd. R 507
Kennedy Miller Television Pty Ltd v Hancken, unrep, NSWSC 1.8.1997
Cassegrain v CTK Engineering (2008) NSWSC 457
Freeman v McNally & Anor [2003] NSWSC 780
Franklin v Barry & Nilsson Lawyers [2011] QDC 55
Willis v Edgar [1963] NSWR 664
CATCHWORDS:
COSTS – ASSESSMENT – Review of decisions of costs assessor in relation to a barrister and a solicitor – nature and extent of disclosure obligations under Legal Profession Act 2007 – consequences for non-compliance with disclosure obligations – whether barrister retained by a solicitor has an ongoing disclosure obligation under s 315 – onus of proof on assessment under s 341 – nature and extent of costs assessor’s duty to give reasons – whether oral hearing should have been held – costs of the costs assessment.
COUNSEL:
First and Second Applicants: Mr M.P. Amerena
Respondent: Mr C.P. Coulsen
SOLICITORS:
First and Second Applicants: Gregg Lawyers
Respondent: Lynn & Rowland Lawyers
Introduction
This is an application under r 742 of the Uniform Civil Procedure Rules 1999 (“UCPR”) by Gregg Lawyers Pty Ltd (“the solicitor”) and Ms Angela Julian-Armitage (“the barrister”) for the review of decisions in respect of each included in two costs assessor’s certificates of assessment.
The certificate concerning the barrister is dated 20 July 2012[1] and that concerning the solicitor is dated 23 July 2012.[2]
[1] Document 37 page 344; i.e. 37/344
[2] 37/346
Both practitioners acted for the respondent (“the client”) in property settlement proceedings instituted in the Family Court of Australia by her former husband.
The retainers of the barrister and the solicitor were terminated by the client on 17 March 2011. Their fees relate to the work done up to then. Other practitioners acted for the client thereafter including the hearing of the matter in the Family Court in April/May 2012. Judgment was delivered by Murphy J on 6 July 2012.[3]
[3] ex 13
The client entered into a costs agreement with the solicitor on 10 March 2010 which contained, as Schedule 5, a disclosure notice and offer to enter into a costs agreement, addressed to the solicitor by the barrister dated 9 March 2010 (The solicitor’s disclosure notice refers to this schedule as the barrister’s “fee disclosure and costs agreement”).[4] Each agreement provided for an uplift fee.
[4] 37/1-6, 8-10
The solicitor’s costs agreement was with the client and the barrister’s was with the solicitor at rates accepted by the client in her agreement with the solicitor. This is consistent with s 322(1)(a) & (c) LPA. The client could have entered into a costs agreement with the barrister retained by the solicitor (s 322(1)(b)) but this wasn’t how it was done here.
The solicitor sent two bills to the client dated 30 September 2010 and 7 April 2011 respectively. The first did not claim the uplift fee but the second did for both bills.[5]
[5] ex 12, ex MJL1
The barrister sent two bills dated 26 October 2010 and 1 April 2011 respectively. The first was for the period 6 October 2009 to 18 October 2010 and was addressed to the client. The second was for the period 20 October 2010 to 24 March 2011 and was addressed to the solicitor and charged the uplift fee for both bills.[6]
[6] ex 12, para 10 and ex MJL4
The client objected to these bills and her new solicitor, Michael Lynn of Lynn & Rowland, requested itemised bills from each practitioner.[7] These were not forthcoming and by application filed 22 July 2011 the client applied for an order for assessment of the costs charged by each and for directions.[8]
[7] Section 322(1) Legal Profession Act 2007 (LPA) and ex 12 paras 7 & 12
[8] Section 335 LPA, UCPR rr 743, 743A & 743G and ex 12
Before the application was heard each practitioner, on 31 August 2011, delivered an itemised account based on their costs agreements.
The solicitor’s itemised account was for 22 October 2009 to 24 March 2011 and claimed[9]
[9] 37/62-108
Professional fees $ 73,644.00
GST $ 7,364.00
1/3 uplift fee on both those amounts $ 27,002.80
Disbursements $ 4,130.23
$112,141.43
The barrister’s fees were not included as a disbursement.
The barrister’s itemised account was for 6 October 2009 to 24 March 2011 and claimed[10]
[10] 37/109-127
Professional fees $ 143,763.88
GST $ 14,376.38
Uplift fee $ 49,373.92
$ 207,514.18
On 5 September 2011 at Southport, Judge Newton appointed a costs assessor in respect of both bills on the basis that the grounds of dispute related only to the amount of costs.[11] No other orders were sought or were made.
[11]UCPR r 743G(3)(a)
On 30 January 2012 before the assessment commenced the solicitor withdrew the claim for an uplift fee and indicated that what was then claimed was $74,003.33 including GST and outlays.[12]
[12] 48/6-7
In his assessment[13] the costs assessor upheld the client’s objection to the uplift fee charged by the barrister and disallowed it. This fee is no longer sought by the barrister.[14]
[13] Which he commenced in about April 2012, see letter dated 17 April 2012, 37/50
[14] Outline 47/para 12
The costs assessor concluded that costs were not recoverable by either practitioner under the costs agreements and assessed the costs payable by the client as follows
Solicitor[15]
[15] See Cost Assessor’s Certificate dated 23 July 2012 at 37/346, UCPR r 737
Professional fees $ 38,320.00
Disbursements $ 3,912.57
Add GST $ 3,832.00
Sub-total $ 46,064.57
Deduct costs of assessment $ 8,250.00
Total $ 37,814.57
The client had already paid the solicitor $85,522.99 which meant the solicitor had a liability to repay the client $47,708.42.
Barrister[16]
[16] See Cost Assessor’s Certificate dated 20 July 2012 at 37/344-5, UCPR r 737
Professional costs $ 55,760.36
Add GST $ 5,576.03
Sub-total $ 61,336.39
Deduct costs of assessment $ 6,875.00
Total $ 54,461.39
The client had already paid the barrister $208,492.60 which meant the barrister had a liability to repay the client $154,031.21.
These assessments are the subject of the combined Further Application for Review by the solicitor and barrister. On 14 September 2012 I ordered that the costs assessor deliver marked up itemised bills[17] and reasons for his decision in respect of each bill.[18] He did so, and for each of the solicitor and barrister it is necessary to read each of these documents together to gain an understanding of the costs assessor’s approach.
[17] These are at 37/278-324 (solicitor) and 37/325-343 (barrister). See UCPR r 738
[18] These are at 37/421-532 (solicitor) and 37/348-420 (barrister). See UCPR r 738
To also understand the issues raised on the review it is necessary to list the material which was before the costs assessor for the purposes of the costs assessment.
The following documents were provided to the costs assessor by the parties
1. The solicitor’s itemised bill dated 31 August 2011[19]
[19] 37/62-108
2. The solicitor’s disclosure notice and costs agreement dated 10 March 2010[20]
[20] 37/1-6
3. The barrister’s itemised bill dated 31 August 2011[21]
[21] 37/109-127
4. The barrister’s costs agreement dated 9 March 2010[22]
[22] 37/8-10
5. The client’s outline of argument dated 15 November 2011[23]
[23] 37/128-147
6. Notice of Objection by client to items in the solicitor’s itemised bill dated 15 November 2011[24]
[24] 37/148-189
7. Notice of Objection by client to items in the barrister’s itemised bill dated 15 November 2011[25]
[25] 37/190-225
8. Reply by the solicitor to 5 and 6 dated 30 January 2012[26]
[26] 48/6-7
9. Reply by the barrister to 5 and 7 dated 27 January 2012[27]
[27] 48/8-9
10. Client’s response to solicitor’s Reply (8) dated 1 March 2012[28]
[28] 37/251-263
11. Client’s response to barrister’s Reply (9) dated 1 March 2012[29]
[29] 37/264-277
12. The Gregg Lawyers file provided by Lynn and Rowland[30] described by the costs assessor as “the complete file”[31] and “the relevant file”.[32] It was the cost assessor who described this as “the complete file of Gregg Lawyers Pty Ltd”. In their letter forwarding it to the assessor Lynn and Rowland described it as “original file and documents of Gregg Lawyers Pty Ltd”.[33]
[30] ex’s 7 (the box) and 7A (the purple file), 37/38
[31] 37/352 and 425
[32] 34/para 7, ex JSG1
[33] 37/38
13. Mr Lynn’s affidavit, ex 12.
14. The order appointing him costs assessor.
15. Affidavit of John De Blonk Smith, the client’s accountant and business advisor, sworn 22 February 2012.[34]
[34] 37/248
16. Affidavit of solicitor sworn 30 January 2012.[35]
[35] 48/10
17. Affidavit of client sworn 22 February 2012 responding to 16.[36]
18. Affidavit of barrister sworn 30 January 2012.[37]
19. Further affidavit of client sworn 22 February 2012 responding to 18.[38]
[36] 37/226
[37] 48/240
[38] 37/236
20. Further affidavit of barrister sworn 9 April 2012.[39]
21. A further affidavit of the solicitor sworn 10 April 2012.[40] This is not referred to by the costs assessor as one of the documents he received but there is a letter addressed to the costs assessor sending him the affidavit. The letter is incorrectly dated 24 January 2012 but the parties agree its correct date was 10 April 1012. The parties have proceeded on the basis that the costs assessor probably did receive the affidavit.[41]
[39] 48/24
[40] The affidavit is included in 48 at pp 35-153
[41] See ex 2A and T12-26, 27 and the order of Robin QC, DCJ, ex 3 para 3(b)
Document 37 is the client’s folder of documents for the review and document 48, the lawyers.
The costs assessment was governed by UCPR r 720 which provides, so far as is relevant
720 Procedure on assessment
(1)A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment.
(2)However, the procedure must be—
(a) appropriate to the scope and nature of the dispute
and the amount in dispute; and
(b) consistent with the rules of natural justice; and
(c) fair and efficient.
(3) …
(4) Without limiting subrule (1) or (2), the costs assessor may decide to do all or any of the following—
(a) hear the costs assessment in private;
(b)carry out the costs assessment on the papers without an oral hearing;
(c)not be bound by laws of evidence or procedure applying to a proceeding in the court;
(d)be informed of the facts in any way the costs assessor considers appropriate;
(e) not make a record of the evidence given.
The costs assessor proceeded on the basis of written objections, outlines and responses. At no stage after he commenced his assessment did he seek further submissions, written or oral, nor was he asked to.
Soon after 5 September 2011 the parties commenced to forward their material to the costs assessor. He advised the barrister (and presumably the other parties) by letter dated 19 December 2011[42] that he intended
to commence the assessment of this matter on the morning of 19 January 2012 (and) will not be receiving any further material after that date.
[42] 37/26
By letter to the costs assessor written on behalf of the barrister and solicitor dated 18 January 2012[43] a request was made for
[43] 37/28
an extension of 7 days to deliver a response to objections before the assessment commences.
This was opposed by the client.[44]
[44] 37/29
By letter to the costs assessor dated 19 January 2012[45] the barrister and solicitor requested
an extension of time” (8 weeks) to “deliver their outline of argument and response to the client’s notice of objection.
[45] 37/32
By letter to the parties dated 23 January 2012[46] the costs assessor gave the lawyers until 30 January 2012 to make “further submissions”, and gave the client until 13 February 2012 to make “submissions in response” and advised that
the assessment will commence when the further submissions of the client are received or alternatively on 13 February 2012.
[46] 37/36
The parties sent further material to the costs assessor. Lynn & Rowland forwarded material on 5 March 2012[47] following which the lawyers requested 28 days to respond.[48]
[47] 37/38
[48] 37/40
By letter dated 12 March 2012[49] Lynn & Rowland requested that “the costs assessment now commence”.
[49] 37/41
By letter to the parties dated 19 March 2012[50] the costs assessor gave the lawyers 21 days to make further submissions and advised that
at the conclusion of that period I propose to commence the assessment.
[50] 37/45
It would appear that the costs assessment commenced on about 10 April 2012. This date is important because of Mr Amerena’s submissions about what was then in issue or dispute, in particular, whether the “uplift fee’ charged by the solicitor but withdrawn on 30 January 2012 was “legal costs” for the purposes of s 342(2)(a).
The court’s powers on review are in UCPR r 742 which so far as is relevant provides
742 Review by court
(1)A party dissatisfied with a decision included in a costs assessor's certificate of assessment may apply to the court to review the decision.
(2)An application for review must be filed within—
(a) if reasons are requested under rule 738(1)—14 days after the party receives those reasons; or
(b) otherwise—14 days after the party receives the certificate.
(3)The application must—
(a) state specific and concise grounds for objecting to the certificate; and
(b) have attached to it a copy of any written reasons for the decision given by the costs assessor; and
(c) state any other matter required by a practice direction made in relation to this rule.
(4)The applicant must serve a copy of the application on all other parties to the assessment within 14 days after the application is filed.
(5)On a review, unless the court directs otherwise—
(a) the court may not receive further evidence; and
(b) a party may not raise any ground of objection not stated in the application for assessment or a notice of objection or raised before the costs assessor.
(6)Subject to subrule (5), on the review, the court may do any of the following—
(a) exercise all the powers of the costs assessor in relation to the assessment;
(b) set aside or vary the decision of the costs assessor;
(c) set aside or vary an order made under rule 740(1);
(d) refer any item to the costs assessor for reconsideration, with or without directions;
(e) make any other order or give any other direction the court considers appropriate.
Upon the review a further affidavit of the solicitor sworn 1 April 2013 was allowed as further evidence excluding paras 12-36 and 38-40.[51]
[51] Document 34
Basis for assessing costs – costs agreements or s 341 LPA?
If a costs agreement complies with relevant provisions of the LPA[52] it can be relied upon as the basis for charging, otherwise it can’t be and the practitioner is restricted to costs assessed under s 341 LPA on the basis of what is a fair and reasonable amount. See s 319(1)(c) & s 340(1)(c). The costs assessor found both costs agreements to be non-compliant and the applicants contend he was wrong in that conclusion. The respondent contends his decision in each case was correct.
The structure of Part 3.4 LPA
[52]Div 3
Division 3 of Part 3.4 (ss 308-318) is the division dealing with “costs disclosure”.
So far as is relevant ss 308, 309(1) & (2), 310(1) & (2) & 315 are in the following terms
308Disclosure of costs to clients
(1) A law practice must disclose to a client under this division—
(a) the basis on which legal costs will be calculated, including whether a scale of costs 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 315 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, a range of estimates of the total legal costs and 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 stated rate of interest or is a benchmark rate of interest as mentioned 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 under section 317; and
(h) details of the person whom the client may contact to discuss the legal costs; and
(i)the following avenues that are open under this Act to the client in the event of a dispute in relation to legal costs—
(i) costs assessment under division 7;
(ii) the setting aside of a costs agreement under section 328;
309Disclosure if another law practice is to be retained
(1) If a law practice intends to retain another law practice on behalf of a client, the first law practice must disclose to the client the details mentioned in section 308(1)(a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 308.
(2) A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under section 308, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1).
310How and when must disclosure be made to a client
(1) Disclosure under section 308 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
(2) Disclosure under section 309(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.
315Ongoing 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.
In the context of the present case, under div 3 of Part 3.4 LPA, before or as soon as practicable after the solicitor was retained by the client the solicitor was required to make written disclosure to the client of the matters referred to in s 308 so far as concerned the solicitor and the details mentioned in s 308(1)(a), (c) & (d) so far as concerned the barrister. The barrister was required to disclose those details to the solicitor but no time is specified for that disclosure, but it can be assumed that the barrister would have to provide them in time for the solicitor to comply with his obligation under s 310(2).
A barrister directly briefed or retained by a client has the same disclosure obligations to the client as a solicitor, namely those specified in s 308.
Leaving aside for the moment the question of whether s 315 applies also to a barrister retained by a solicitor, the LPA imposes certain adverse consequences on a law practice for “failing to disclose”.
In the present case the lawyers maintain that the solicitor was retained by the client on about 5 October 2009 and the solicitor (at the request of the barrister) retained the barrister on about 6 October 2009. The lawyers accept that they failed, until 10 March 2010, to comply with their div 3 disclosure obligations.
Regardless of whether there is a costs agreement (as to which see div 5) if the solicitor and barrister did not make the disclosure to the client required by div 3, the client need not pay the legal costs unless they have been assessed under div 7 and the legal practitioner may not maintain proceedings against the client for the recovery of legal costs unless the costs have been assessed under div 7 (s 316 (1) & (2)). For present purposes this requires assessment by a costs assessor pursuant to s 341 and on such an assessment the amount of costs may be reduced by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose (s 316(4) & (5)(a)).
Section 316(4), (5) & (7) provide
316 Effect of failure to disclose
(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 costs assessor to be proportionate to the seriousness of the failure to disclose.
(5)If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to the client solely because the retained law practice failed to disclose relevant information to the first law practice as required by section 309(2), then subsections (1) to (4)—
(a)…
(b)do apply to the legal costs owing to the retained law practice.
(7)Failure by a law practice to comply with this division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner…
In the present case the client contends that the disclosure made by the barrister and solicitor on 9 and 10 March 2010 respectively was not “as soon as practicable after” each was retained and therefore all of their costs must be assessed by reference to what is a fair and reasonable amount and not partly also by reference to their costs agreements. The client also contends that all of the work the barrister did was pursuant to a direct brief from the client (that is, she was directly retained by the client) or alternatively that some was direct brief work and some was performed pursuant to a traditional retainer by the solicitor.
The barrister and solicitor contend that the costs agreements by their terms cover fees from 10 March 2010 onwards and concede that because there was no complying costs agreement before then their legal costs for October 2009-10 March 2010 are to be assessed according to the fair and reasonable value of the legal services provided by them during that period.
Each practitioner needs to be considered separately in the first place.
Barrister
Mr Coulsen submitted that the barrister at all times was retained directly by the client and as such, was herself required to, but did not, comply with the disclosure requirements of s 308 and has never complied with them. Mr Amerena submitted that there was no ongoing direct briefing after the solicitor was retained by the client, which he initially submitted occurred on or about 22 October 2009[53] but later agreed was about 6 October 2009.
[53] Outline, 47, para 4
Mr Coulsen referred to the following evidence
· the barrister’s first memorandum of fees (dated 26 October 2010) is addressed to the client at her home address and is for 6 October 2009 to 18 October 2010 which, he submitted, is suggestive of a direct brief for that period. The barrister’s second memorandum of fees (dated 1 April 2011) is addressed to the solicitor and is for the period 20 October 2010 to 24 March 2011
· the barrister’s fees were not included as a disbursement in the solicitor’s itemised account
· a letter from the solicitor to the barrister dated 16 December 2009[54] gives the impression that each were acting independently for the client, with the solicitor attending to matters such as drafting documents, carrying out searches and the like. In that letter the solicitor asked the barrister to obtain certain details and particulars from the client and also enclosed a client agreement for signing by the client and asked the barrister “if Mrs Sweeney could put us in funds of $10,000 to cover initial search enquiry fees to be incurred”. The letter concluded saying “We thank you for your instructions to date”
[54] Part of ex 7A
· many emails from the Gregg Lawyers file, ex 7A, some of which are also referred to in ex 6, were relied upon as supporting the fact that the barrister was acting directly for the client after the solicitor was retained and also after the barrister’s disclosure letter to the solicitor of 9 March 2010 and was doing work normally done by a solicitor; in particular the following
· emails barrister to husband’s solicitors 17.2.10, 19.3.10, 10.6.10, 15.7.10, 22.7.10, 4.8.10, 12.8.10, 8.9.10, 18.2.11, 21.2.11 and 22.2.11;
· emails barrister to solicitor 25.3.10, 29.4.10, 13.9.10, 5.10.10 and 16.2.11;
· email barrister to accountant 22.4.10;
· email barrister to client 7.6.10;
· email solicitor to barrister 12.8.10;
· email barrister to client’s p.a. 20.1.11[55]
[55] The Gregg Lawyers file, ex 7A, was not before the costs assessor but he could, and should have, asked for it.
· the emails ex AJA1 to the barrister’s first affidavit.[56] In her email to the solicitor dated 25 March 2010 the barrister refers to certain matters needing “to be done and sent tomorrow at the latest” and then says “If you can’t do it let me know and I will attend to it just send me a letterhead”
[56] 48/243, para 21 and pp 248-301
· in her first affidavit[57] the barrister says that despite the solicitor being also engaged the client continued to deal personally with her and would call her direct. She says she received some 300 emails from the husband’s solicitors, accountants, valuers and the like; professionals dealt with her not the solicitor; the client preferred to deal with her and not the solicitor and would “specifically and directly instruct her”
[57] 48/240, paras 20-22, 24
· in her second affidavit the barrister says that from the outset the client wanted to deal with her directly and the husband’s solicitors “would also resort to me and cc Mr Gregg”[58]
[58] 48/24, para 16
· in his second affidavit the solicitor agreed that the client chose to deal with the barrister by contacting her directly and he received few direct communications from the client [59]
[59] 48/35, para 2
· in her Reply[60] the barrister said the client “…elected to direct brief (me) on many occasions” and she referred to her first affidavit at 48/240
· the fact that whilst the client initially denied “a direct dealing with the barrister as alleged” she then said the barrister “commenced acting for me on 6 October 2009 and the solicitor on 22 October 2009”.[61] She said “the initial appointment for me to see the solicitor was made by the barrister. I was advised by the barrister that I needed a solicitor”. She also said she “only met the solicitor three times, once when he attended a conference with the barrister at my home and on the Gold Coast and once in Brisbane with the barrister in late 2010”. On one occasion the barrister said to her, with reference to the solicitor, “we don’t have to use him, but he’s good behind the scenes”.[62] She also said the barrister was “insistent, saying she could not act for me unless a solicitor was engaged, however once engaged, she would act for me direct without requiring the services of Mr Gregg who would remain in the background… (She) made it clear to me that I was to deal with her alone and that I should not be concerned about Mr Gregg”.[63] The barrister agreed she initially acted for the client without a solicitor being involved but matters reached a stage where “she felt it best that the client engage the services of an experienced solicitor” and the client “agreed instructing me to contact Mr Gregg”.[64] This, she said, happened on 22 October 2009.[65] In her earlier Outline of Argument the client said “to a large extent the barrister dealt directly with (me) rather than on the instructions of the solicitor”[66]
· in his first affidavit[67] the solicitor said that the client “originally dealt with the barrister but I believe this was on an informal basis as the barrister contacted me in approximately October 2009 and requested that I become the lawyer for the (client) and under the (client’s) instructions, engage the barrister to be counsel in the matter”
[60] 48/8
[61] She used the same dates in her Outline of Argument, 37/128, para 19. I think it likely that she has merely taken these dates from the barrister’s and the solicitor’s itemised accounts and has no personal recollection of the dates.
[62] Affidavit, 37/226, paras 4(a), 8, 32(a) & (b)
[63] Affidavit, 37/236, paras 11(c), 23(d)
[64] Affidavit 48/240 paras 3-15
[65] Solicitor’s itemised bill 37/278
[66] 37/139, para 43
[67] 48/10 para 1
Mr Amerena maintained that the barrister was retained by the solicitor on about 6 October 2009 but conceded “that she may have performed some minimal work (most of which was not charged) before she introduced the client to the solicitor.[68] He denied any direct briefing rather he submitted there was direct contact which did not change the nature of her retainer by the solicitor.
[68] Outline, 47, para 4
The barrister’s itemised account has her first chargeable contact with the solicitor as occurring on 22 October 2009 when she drafted an email to the solicitor,[69] but she in fact charged for two earlier items of work namely
6 October 2009 Draft and settle two emails
[69] 37/109, item 3
7 October 2009 Teleconference with Viki Farrar
This work was charged pursuant to the rates specified in her costs agreement.
The solicitor’s itemised account commences on 22 October 2009 with two items, namely
(1) perusing the email from the barrister requesting that he act for Ms Sweeney; and
(2) letter to Cassandra Pullos Lawyers (CPL) advising that Gregg Lawyers now act for the client and requesting they provide “us with a copy of their file”.[70]
[70] 37/62, items 1 & 2
The solicitor’s file, ex 7A, indicates that the solicitor was in fact retained earlier in October 2009. On 5 October 2009 the client signed an authority for CPL to send the file to Mr Gregg. On 12 October 2009 the solicitor sent the authority to CPL and requested the file. I think the barrister is also mistaken about the date her retainer by the solicitor commenced.
Any earlier direct brief by the barrister appears to have been for such a very short time as to be inconsequential. In any event the barrister does not appear to have charged for anything before 6 October 2009 and, if her affidavits are any indication, she seems to have had some dealings with the client before then. Notwithstanding the stated commencement date in the solicitor’s itemised account, the documentary evidence supports the barrister’s retainer by the solicitor as having commenced on about 6 October 2009. The barrister in fact purported to charge, pursuant to the costs agreement, from 6 October 2009[71] and her costs agreement is predicated on a retainer by the solicitor commencing in October 2009. The barrister’s costs agreement is expressed to be pursuant to s 322(1)(c) LPA[72] i.e. one made between the barrister and the solicitor, not between the barrister and the client.[73]
[71] See itemised bill 37/109
[72] 37/8
[73] The client signed the solicitor’s costs agreement which included Sch 5 of the barrister’s offer/agreement, 37/1-10
In my view the barrister was not acting within Rule 83 of 2007 Barristers Rule (the direct brief rule). She was not accepting “instructions directly from” the client but from the solicitor; she was conferring with, contacting or speaking directly to the client, the husband’s solicitor and experts within the scope of her retainer by the solicitor. Rule 83 requires a barrister who proposes to accept instructions from a person who is not a solicitor to inform the prospective client in writing of certain specified matters and to obtain written acknowledgment, signed by the prospective client, that he or she has been informed of those matters.
A barrister conventionally retained by a solicitor is, by Rules 77 & 78, able to
· negotiate for the client with the opposing solicitor to compromise the case and carry out work properly incidental to that objective
· confer with the client, the instructing solicitor, prospective witnesses and experts
· examine documents provided by the instructing solicitor or the client, as the case may be and
· view things by arrangement with the instructing solicitor or the client as the case may be
It is in this sense that the documents in ex 6 should be understood. They do not, in my view, evidence a direct brief rather they show the barrister acting as she was entitled to do pursuant to current rules. Mr Amerena correctly points out that every document referred to in ex 6 is found in the solicitor’s file. They variously show the barrister keeping the solicitor informed of developments,[74] directly contacting the client,[75] negotiating with the husband’s solicitor[76] and conferring with experts in the absence of the solicitor.[77] There is no rule prohibiting a barrister from having direct contact with the client in the absence of instructing solicitor.
[74] ex 6, items 12, 13, 16-19, 21, 34, 36, 40, 51-53 and cc’d items 22, 37-39, 42-50, 54 and 55 for example, are communications between the barrister and the solicitor or vice versa and are not inconsistent with the existence of a traditional retainer
[75] ex 6, items 1, 2, 4-7, 13, 16 and 19
[76] ex 6, items 3, 20, 22, 23, 28, 31-33, 35, 38, 39, 41-47, 49, and 54-56
[77] ex 6, items 24, 25, 27, 30, 48 and 50
As to the barrister’s statement in her Reply that the client elected to “direct brief me” on many occasions, I agree with Mr Amerena that what she was in fact referring to her was direct contact which is explained by her in her first affidavit.[78] Such direct contact did not change the nature of her retainer by the solicitor. I am unable to accept Mr Coulsen’s submission that some of the work the barrister did was pursuant to a traditional retainer and some was pursuant to a direct brief.
[78] 48/240, paras 6, 10-16, 20-22, 24 and 31
I think the barrister erred in sending her first account direct to the client, the mistake occurring probably because of the more direct personal relationship which she had with the client than with the solicitor. In the circumstances I am unable to conclude that it meant the barrister was directly briefed by the client for the period covered by her account. The barrister did much work for the client on her own initiative and had much ongoing direct contact with the client but, in my view, this was with the concurrence of the solicitor and was encompassed by her retainer by the solicitor notwithstanding the somewhat non-traditional way in which the barrister went about her work. She didn’t comply with r 83 of the Barristers Rule for the simple reason that she was not directly briefed by the client.
Once retained by the solicitor, the barrister was not required to make disclosure to the client under s 308 LPA[79] but was required to disclose to the solicitor in writing before, or as soon as practicable after, being retained,[80] the information necessary for the solicitor to disclose to the client the details mentioned in s 308(1)(a), (c) & (d) LPA in relation to the barrister.
[79]Section 309(2) LPA
[80]Section 310(2) LPA
The barrister made disclosure of these details to the solicitor by letter dated 9 March 2010, which was included as a schedule in the solicitor’s costs agreement with the client.[81] Of particular relevance to the present review are the following details
[81] 37/8. A barrister retained by a solicitor is not required to make disclosure directly to the client.
· all preparation including conferences and consultations would be charged at an hourly rate of $550 plus GST
· she reserved the right to charge an uplift fee of one third of the amount billed from time to time due to the complex financial nature of the matter
· she provided an estimate of fees as follows:
It is not reasonably practicable on the material presently to hand for me to estimate the total fees payable to me under this retainer. Doing the best I can, and having regard to my hourly rates, my daily rates, my expectation that a range of 10 to 15 days of preparation may be required, and my expectation that the hearing may take from 5 days, I estimate that the total fees payable to me under this retainer will be in the range $60,000.00 (plus GST) to $100,000.00 (plus GST.
Major variables affecting the calculation of these amounts were then specified.
By itself s 316(4) seems to apply only to the solicitor because it is the solicitor who has the disclosure obligation to the client, including an obligation under s 315 to make ongoing disclosure. The barrister’s disclosure obligation is to the solicitor who then passes it to the client.
So far as a barrister retained by a solicitor is concerned s 316(5) extends the sub-section (4) consequence to the barrister limited though to a failure by the barrister to disclose to the solicitor what the barrister was required to do under s 309(2), namely, the basis on which legal costs would be calculated, an estimate or range of estimates of total legal costs and details of billing intervals.
In the case of the barrister the costs assessor assessed all of her costs under s 341 (i.e. what was fair and reasonable) and he seems to have assumed there was also an ongoing disclosure obligation under s 315.
In his reasons in relation to the barrister[82] the costs assessor said
[82] 37/373 para 23
23.Between 6 October 2009 and 9 March 2010 the barrister provided legal services… without having complied with r 83 of the Barristers Rule 2007 or her costs disclosure obligations under the LPA.
I accepted the submissions in paragraphs 22-31 of the Outline of Argument and for the period to 6 October 2009 to 9 March 2010 assessed the (barrister’s) fees according to what may be regarded as fair and reasonable…
I … adopted …$350 per hour plus GST as a reasonable rate.
This rate was adopted throughout the assessment for the reasons specified in para 19 and because of the (barrister’s) breach of her continuing disclosure obligations.
Paragraphs 22-31 of the client’s Outline of Argument concede a retainer by the solicitor of the barrister commencing in October 2009 and contend there was then no compliance by the solicitor with s 310(2) and no disclosure “as required by the barrister until 9 March 2010, some 6 months after the barrister was retained in the matter” (see also para 54 of the Outline). The client submitted, for these reasons, that the barrister’s fees for this period should be limited to what was fair and reasonable.
In paras 19-21 of her Outline of Argument the client contended that she directly retained the barrister but only between “6 and 22 October 2010” [sic]. 2010 is obviously a mistake and should read 2009 (the mistake being confirmed in paras 1 and 2 of the Outline).
In paras 32-36 of her Outline of Argument the client contended that the barrister was subject to an ongoing disclosure obligation and breached it by not disclosing the substantial increase in her estimated fees. This was the only reason the client contended the barrister could not rely on her costs agreement from 10 March 2010 onwards.[83]
[83] See also Mr Lynn’s letter to the barrister dated 27 May 2011, ex 12, referred to in para [179] hereof
If the costs assessor accepted the client’s submissions, which I have summarised, he was clearly wrong in thinking that a direct brief was contended for 6 October 2009-9 March 2010. Further, his reliance on para 19 takes the matter no further and if anything, highlights the flaws in his reasoning process (para 19 of his reasons merely recites s 341 LPA and para 19 of the client’s Outline of Argument, if he meant that, refers to a direct retainer for 6-22 October 2009).
Mr Coulsen’s argument as to a direct brief for the entirety of the barrister’s retainer or alternatively until 10 March 2010 is inconsistent with the client’s case to the costs assessor that any direct brief was only between 6 and 22 October 2009.
The costs assessor did not specifically identify the nature of the “barrister’s continuing disclosure obligations” or particularise the manner in which the obligation was breached by her but the breach seems to have been failing to update the estimated fees payable under her retainer. This assumes that s 315 applies to a barrister retained by a solicitor.
On its face s 315 seems to apply to a law practice, here the solicitor, which has a direct disclosure obligation to the client rather than the disclosure which a barrister retained by a solicitor is required to make to the solicitor.
Whilst a barrister is clearly a law practice the disclosure “already made” by the barrister under div 3 is that required to be made to the solicitor under s 309(2) and not directly to the client.
Mr Coulsen submitted that s 315 required the barrister to update the solicitor on any material change to the disclosure she had previously made under s 309(2) so that the solicitor could then update the client accordingly. This, he contended, required the barrister
(a) to disclose in writing the upward change in her fee estimates. Her first bill totalled $109,333.29[84] which far exceeded her original estimate; and
(b) to disclose in writing what Mr Coulsen referred to as the barrister’s “creeping retainer”, highlighting her appointment as a director of companies involved in the property settlement and related work which was not the subject of her initial retainer or of further disclosure by the barrister. Her work as a company director commenced early in her retainer. Her first charge for this work was for work done on 10 November 2009.[85] In her first affidavit[86] she says that “not long after being engaged in the matter the client told her she wanted her to be her alternate company director which she agreed to do and agreed to attend all board meetings”. She did “this work in order to protect the client’s legal interest in the Coral Homes companies…” (assets for the purposes of the property proceedings). In this capacity she contributed her “extensive legal and company directorship experience” charged at her legal costs rate. Exhibit AJA2 to her affidavit[87] contains emails relating to this work which she would have expected to perform from the time she became an alternate director.
[84] ex 12 – dated 26 October 2010
[85] 37/109, ex 12
[86] 48/240, paras 25, 26 and 35
[87] 48/302-315
In one sense, because the company work performed by the barrister was not legal work and the fees charged were not legal costs, the work was not encompassed by her retainer or later costs agreement in which case it was not subject to the disclosure requirements of the LPA even if s 315 applied to a barrister retained by a solicitor. The barrister’s bills included charges totalling $42,626.50 for this type of work. The barrister was entitled to charge for this work according to her normal fees as a barrister but was wrong, as I will mention later, to charge the work as legal costs in her bills to the client.
In her Outline of Argument, the client said “no further disclosure (by the barrister) was made to (her) or the solicitor”, other than that made on 10 March 2010[88] and that is clearly so.
[88] 37/128, para 35
Section 315 does not seem to impose an ongoing obligation to disclose “any substantial change to anything included in a disclosure already made under div 3” on a barrister retained by a solicitor.
A barrister retained by a solicitor “is not required to make disclosure to the client under s 308”.[89] The barrister’s disclosure obligation is to the solicitor and is limited to the details mentioned in s 308(1)(a), (c) & (d). There would appear to be no requirement that the barrister disclose to the instructing solicitor any substantial change to the disclosure already made by the barrister to the solicitor under s 309(2). Mr Amerena submitted that s 315 does not apply to a conventionally retained barrister and I am inclined to agree. He submitted that
a conventional barrister being under no obligation in the first place to disclose anything in writing or otherwise to the client, can hardly have an ‘ongoing’ obligation of disclosure to the client[90]
[89]s 309(2)
[90] 47/para 29
Mr Coulsen was unable to identify any statutory provision requiring a barrister retained by solicitor to make ongoing disclosure, either to the instructing solicitor or the client.
The barrister’s disclosure obligation under div 3 (“this division- s 315”) was that required by s 309(2) and included the basis on which the legal costs would be calculated and an estimate or range of estimates of the total legal costs. This was done by the letter to the solicitor which became schedule 5 to the solicitor’s costs agreement[91] and was followed by her costs agreement which was between her and the solicitor, not her and the client.
[91] 37/8
The solicitor is required by s 308(1)(b)(iv) to disclose to the client the client’s right to “be notified under s 315 of any substantial changes to the matters disclosed under this section”. This is not also part of the disclosure a barrister retained by a solicitor is required to make. The barrister’s obligation is to disclose to the instructing solicitor those details mentioned in s 308(1)(a), (c) & (d) and not also (b). A barrister retained by a solicitor is not, as a result of s 309(2), required to make disclosure to the client under s 308.
The only disclosure which the barrister had made (and was required to make) under div 3 for the purposes of s 315 was that which she had made under s 309(2) and that did not include an obligation such as is imposed on a solicitor under s 308(1)(b)(iv).
Solicitor
Of importance, for present purposes, the solicitor’s costs agreement provided as follows
1. $400 per hour plus GST;
2. estimated professional fees –
(a) should the matter settle: $30,000 - $50,000 plus GST;
(b) should the matter go to trial: $100,000 - $150,000 plus GST;
3. circumstances which could cause these estimates to vary;
4. that the solicitor reserved the right to charge an uplift fee calculated at one third of the amount billed due to the complex financial nature of the matter.[92]
5. the solicitor would notify the client of any substantial changes to any matters disclosed under this notice.[93]
[92] This was not though an “uplift” fee as defined in s 300 LPA as the costs agreement was not a conditional costs agreement. The uplift fee in the present case is better described as a complexity fee. Schedule 3 of the costs agreement reserved to the solicitor the right to charge an uplift fee “due to the complex financial nature of this matter”
[93] An equivalent para to no. 5 is not part of the barrister’s costs agreement
In relation to 2 and 3, the costs agreement was in these terms
The estimated total amount of fees and outlays payable for the work to be performed for the client is between:- Due to the complexity and size of the matter we are unable to advise of what our professional fees will be but we approximate $30,000 - $50,000 should the matter settle and $100,000 - $150,000 should the matter go to trial.
The figure will vary depending on the amount of time that is required to complete the work, and that can vary depending on how frequently the client contacts the lawyers, how complex the matter becomes as a result of the actions of any other party, the need to gather additional evidence or unforeseen developments. The lawyers will provide the client with an updated estimate upon request during the course of the matter, and the lawyers shall notify the client of any substantial changes to any matters disclosed under this notice. Your Lawyers are not bound by the estimates given in this Notice.
The matter did not settle. The solicitor initially rendered two bills,[94] the first dated 30 September 2010 for $53,619.33 and the second dated 7 April 2011 for $31,903.66, a total of $85,522.99. Neither bill charged an uplift fee. The first bill claimed:
[94] ex 12
Professional fees $ 45,000.00
GST $ 4,500.00
Total outlays plus GST $ 4,119.33
$ 53,619.33
His second bill claimed:
Professional fees $ 29,003.33
GST $ 2,900.33
$ 31,903.66
His retainer was terminated on 17 March 2011, well before the trial took place.
In her Outline of Argument[95] the client submitted
57.No further disclosure was made to (her) subsequent to 10 March 2010 despite the estimates initially provided proving to be wholly inadequate.
[95] 37/141 para 57
This is not entirely fair to the solicitor bearing in mind the qualified nature of his costs estimates. In his first affidavit[96] the solicitor said that his estimated professional fees “did not allow for the issues highlighted in de Blonk Smith Young’s forensic report and the time and effort of working through all the financial records which was required after receiving the report” and the estimate “was delivered to the (client) without any contemplation of the complexities that were encountered.” He also said “irregularities” were discovered and that it was “a large estate with voluminous relevant financial material and information that had to be assessed.” In his second affidavit[97] he again said the “matter had unforseen complexities and difficulties unforseen by all parties”. The impression I also get is that the client would have been aware of these emerging complexities and difficulties.
[96] 48/10 at paras 5, 34 and 37(a)
[97] 48/35 at para 37
Consequences of failure to disclose
Mr Amerena conceded that timely disclosure was not made by the barrister and the solicitor before 10 March 2010 thereby rendering each subject to s 316(4) in respect of charges for the period leading up to then. He conceded that they did not, as required by s 310(1) & (2), make disclosure “as soon as reasonably practicable” after being retained.
By s 340(1)(c) a costs assessor
must assess any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement... unless the costs assessor is satisfied that the costs agreement does not comply in a material respect with any disclosure requirements of div 3.
For the purposes of s 310 a law practice would be “retained in the matter” when the law practice “first receives instructions from or on behalf of the client” (s 305).
Section 316 does not provide that non-compliance with any disclosure requirements (here that disclosure must be made as soon as practicable after the law practice was retained) prevents a costs agreement entered into later, after complying disclosure, from having effect. It provides certain other consequences such as non-recovery of costs unless first assessed under div 7 (i.e. what’s fair and reasonable),a reduction in costs (because of non-disclosure), and/or the risk of a finding of unsatisfactory professional conduct or professional misconduct.
For present purposes this has the consequence that the costs agreements so far as they concern the period between early October 2009 and 10 March 2010, do not comply in a material respect with the disclosure requirements of div 3, in particular s 310(1) for the solicitor, and s 310(2) for the barrister, in which case their costs for that period are to be assessed under s 341 according to what is fair and reasonable (and not the costs agreements) with the risk also of a reduction under s 316(4) and sanctions under s 316(7).
Because of disclosure on 10 March 2010, the costs agreements ceased to be non-compliant for charges thereafter. The client was then informed in proper detail of what fees the practitioners would charge. That seems to be the purpose of div 3. The practitioners are penalised in respect of their charges before that date. If it were otherwise the practitioners would, for the entirety of their retainer, be prevented from the benefits associated with making proper disclosure to the client. Faced with that consequence, it is artificial to suggest, as Mr Coulsen did, that the practitioners should terminate their retainer and start afresh. The fact is that the barrister and solicitor are not able to charge pursuant to their costs agreements for the period up to 10 March 2010 not because there was no costs agreement covering charges for that period but because they did not until then comply with their div 3 disclosure obligations. The costs agreements are valid once the div 3 disclosure obligations were satisfied but only for fees from then on, not before. Those before are to be assessed according to what was fair and reasonable.
The client appears to have accepted that this is how the disclosure requirements should be understood. In her Outline of Argument to the costs assessor[98] she submitted that the solicitor “made no disclosure as required until 10 March 2010, some 6 months after the solicitor was retained” and no “further disclosure was made to the client subsequent to 10 March 2010 despite the estimates initially provided and proving to be wholly inadequate”. Also, Mr Lynn in his letter to the barrister dated 27 May 2011, ex 12, “noted” that her costs agreement commenced on 9 March 2010.
[98] 37/128-147, paras 52-58
It follows from what I have said, that I am unable to accept Mr Coulsen’s argument that a failure to comply with disclosure requirements as soon as practicable after the practitioners were retained forever means they cannot charge pursuant to a subsequent costs agreement made after compliant disclosure.
For the barrister the costs assessor correctly assessed her costs for the period 6 October 2009 to 9 March 2010 according to what was fair and reasonable, but for the wrong reasons; she was not in fact directly briefed for that period, rather her disclosure was non-compliant. His decision to effectively do the same for the balance of the retainer because of the barrister’s “breach of her continuing disclosure obligations” was wrong. If he reached that conclusion because she continued to be directly briefed, he was wrong. If he did so because she was in fact retained by the solicitor after 9 March 2010 and was subject to continuing disclosure obligations, which she breached, he was also wrong. It follows that the barrister’s costs for 10 March 2010 onwards should have been assessed according to her costs agreement and the costs assessor’s decision to the contrary must be set aside.
Mr Amerena also argued that up to March 2010 there should be no discounting under s 316(4) because no legal costs were “owing to the barrister” as they had already been paid and he referred to s 316(5).[99] What was owing by the client was what the costs assessor determined regardless of whether the amount initially charged by the barrister had been paid. There is no substance in Mr Amerena’s argument.
[99] Outline 47, paras 72-74
For the solicitor, the costs assessor, without saying why, assessed all of the costs claimed according to what was fair and reasonable and adopted the rate in fact charged by the solicitor of $400 per hour plus GST. He first specifically dealt with “work done prior to disclosure agreement” and found that between 22 October 2009 and 9 March 2010, the solicitor provided legal services “without having complied with its costs disclosure obligations under the LPA”. He seems to have distinguished between work done before and after 9 March 2010, but has given no reasons for not assessing costs pursuant to the costs agreement after that date.
Despite the submissions made to him by the client that he should, the costs assessor made no finding that the solicitor had breached his ongoing obligation of disclosure under s 315.
His decision to assess costs for the solicitor up to 9 March 2010 according to what was fair and reasonable was correct but his apparent decision not to assess them pursuant to the costs agreement from 10 March 2010 was not and must also be set aside. Curiously in his reasons in relation to Items 1-57 of the solicitor’s bill of costs (i.e. items up to and including 10 March 2010) he seems to have assumed a valid costs agreement thereafter even though he didn’t give effect to it.[100]
[100] See 37/455, para 47
In any event I am not satisfied that the fees charged by the solicitor for the period after 10 March 2010 necessarily indicate that the very qualified estimates given by him on 10 March 2010 for a very large property settlement had substantially changed and that his costs agreement was non-compliant “in a material respect” (s 340(1)(c)). The matter was heading for a trial.
In deciding on a fair and reasonable hourly rate the costs assessor reduced the barrister’s rate from $550 p/h to $350 p/h but left the solicitor’s at $400 p/h. Presumably (though this is by no means clear because he made no finding to this effect and gave no reasons), he considered such a reduction for the barrister to be “an amount… proportionate to the seriousness of the (barrister’s) failure to disclose” (s 316(4) & (5)(b)). The absence of an equivalent reduction for the solicitor is consistent with the fact that the costs assessor made no finding that the solicitor breached his ongoing obligation of disclosure.
Onus of proof on costs assessment under s 341
The barrister and solicitor each bore the onus of proving that
(a) they performed the work they charged for;
(b) it was reasonable to carry out that work;
(c) the work was carried out in a reasonable way; and
(d) their costs were fair and reasonable.[101]
[101]Section 341(1) LPA
In Wolfe v Willis (1911) 13 CLR 23 at 27 Griffith CJ said
The solicitor must prove that he did the work, and if the fact is denied, that it was necessary and proper to be done. That onus is usually discharged without any difficulty.
Notwithstanding the submissions of Mr Amerena[102] there was no complaint here of or akin to negligence on the part of the barrister and solicitor such as would shift the onus of proof to the client.[103]
[102] And see 47/para 110
[103]Wolfe v Willis, supra at 27
In relation to the solicitor, the costs assessor made much of his claim for an uplift fee and his attempt to blame it on his costs consultant. There was also no reliance on any failure to comply with div 3.
Discretionary considerations
In any event an order as to the payment of costs under s 342 is discretionary and requires a consideration of the various issues involved in the assessment and the extent to which the parties have succeeded or failed on those issues.
Result
For these reasons the decision of the costs assessor in each case must be set aside, but it is not possible without further submissions to make any other orders at this stage.
Orders
I make the following orders
1. The decision of the costs assessor in each case will be set aside.
2. Within 28 days of today the applicants are to file and serve written submissions as to what further orders should be made.
3. Within 56 days of today the respondent is to file and serve a written response to the submissions of the applicants.
4. Within 70 days of today the applicants are to file and serve a written reply to the response of the respondent.
5. Each party is given liberty to apply on 3 days notice.
6. The further hearing of the application is adjourned to a date to be fixed.
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