Jackson v Ben Aulich and Associates Pty Ltd

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Jackson v Ben Aulich & Associates Pty Ltd

Citation:

[2018] ACTSC 93

Hearing Dates:

27 February, 15 March 2018

DecisionDate:

15 March 2018

Before:

Mossop J

Decision:

See [31]

Catchwords:

CIVIL LAW - PRACTICE AND PROCEDURE – Appeal – appeal against decision of Registrar – costs dispute – application for costs assessment – no delegation of functions by Law Society Council – no notification of entitlement to apply for costs assessment – costs not assessable – appeal allowed

Legislation Cited:

Legal Profession Act 2006 (ACT), ss 277, 277(1), 277(2), 291, 294A, 296, 304, 304(1), 304(2), 304(2)(a), 304(2)(a)(i), 304(2)(a)(ii), 304(2)(b), 399, 400, 409, 577(1), 577(2)

Legislation Act 2001 (ACT), ss 232, 233(1)(b), 242, 242(1)

Cases Cited:

Ben Aulich & Associates Pty Ltd v Jackson [2017] ACTMC 21
Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198; 280 FLR 118

Nicholl & Co Pty Ltd v Turner [2015] ACTSC 42; 10 ACTLR 291

Text Cited:

Macquarie Dictionary (Macquarie Dictionary Publishers, 6^th ed, 2013)

Parties:

Gary Jackson (Appellant)

Ben Aulich & Associates Pty Ltd (Respondent)

Representation:

Counsel

J Moffett (Appellant)

W Sharwood (Respondent)

Solicitors

Marjason & Marjason (Appellant)

Ben Aulich & Associates (Respondent)

File Number:

SC 222 of 2017

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Registrar Glover

Date of Decision:         29 November 2017

Case Title:  Ben Aulich and Associates v Jackson

Court File Number:       SC 222 of 2017

MOSSOP J:

Application

1. By a further Amended Notice of Appeal filed 15 March 2018, the appellant has appealed against a decision of the Registrar on 29 November 2017. The substantive proceedings are an application for assessment of costs made by the respondent pursuant to s 296 of the Legal Profession Act 2006 (ACT) (LP Act). The Registrar’s decision was a decision on an Application in Proceeding, filed 27 July 2017, seeking that the Originating Application be dismissed or alternatively permanently stayed. The Registrar dismissed that application with costs. The appeal from that decision is by way of a hearing de novo.

Background

1. The somewhat tortured history of the costs dispute leading to the filing by the respondent of the application for costs assessment is as follows.

1. In 2014, Mr Jackson (the appellant) engaged Ben Aulich & Associates (the respondent) to represent him in a criminal matter listed before the New South Wales District Court.  He was sent a bill in July 2015 and paid it in part. 

1. On 11 March 2016, the appellant lodged a complaint with the ACT Law Society against the respondent alleging non-disclosure of costs and excessive charging in relation to the matter.  The respondent wrote to the Law Society responding to the appellant’s complaint on 1 June 2016. 

1. On 16 January 2017, Mr Robert Reis, the “Professional Standards Manager” at the Law Society, wrote to the appellant in relation to the complaint. The letter said that the Complaints Committee of the Law Society considered the complaint at its meeting…