James (a pseudonym) v Taussig Cherrie Fildes - [2022] VSC 559

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S ECI 2020 02789

IN THE MATTER of section 3.4.38 of the Legal Profession Act 2004 (Vic)

BETWEEN:

BOYD JAMES (a pseudonym)	Applicant
v
TAUSSIG CHERRIE FILDES	Respondent

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2021
DATE OF JUDGMENT:	21 September 2022
CASE MAY BE CITED AS:	James (a pseudonym) v Taussig Cherrie Fildes
MEDIUM NEUTRAL CITATION:	[2022] VSC 559

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COSTS — Summons by applicant seeking review of bills of costs pursuant to s 3.4.38 of the Legal Profession Act2004 (Vic) of bills of costs rendered by the respondent in respect of professional services performed in the Family Court of Australia extending back to 1 July 2008 — Respondent objects to jurisdiction by reason that the Family Law Amendment Rules 2008 provided that the provisions relating to review of costs in chapter 19 of the Family Law Rules 2004 (Cth) continued to apply in respect of matters that commenced prior to 1 July 2008 and that the Costs Court had no jurisdiction to consider the application for review —Consideration of question whether respondent going off the record in Court proceedings while still continuing to provide legal advice had the effect of ending the applicant’s retainer of the respondent — Finding that retainer which commenced in August 2007 not terminated by respondent going off the court record — Finding that Costs Court was without jurisdiction to hear the application.

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NOTE: Publication of these reasons employs a pseudonym for the name of the applicant as the respondent acted for the applicant in Family Court Proceeding. This was ordered on 18 September 2020 having regard to the provisions and intention of s 121 of the Family Law Act (Cth) in order that there could not be identification of a party to a proceeding in the Family Court of Australia by reason of the publishing of these reasons.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Lenga of counsel	Coulter Roache Lawyers
For the Respondent	Ms S F Cherry of counsel	Taussig Cherrie Fildes

HIS HONOUR:

On 30 June 2020, the applicant commenced this proceeding by summons in the Costs Court pursuant to s 3.4.38 of the Legal Profession Act 2004 (Vic) (‘LPA’). The summons seeks to review the respondent’s costs contained in a bill of costs dated 10 July 2019 and all other bills of costs delivered between 1 July 2008 and December 2014. The bills of costs all arise by reason that respondent acted for the applicant in family law proceedings conducted in the Family Court of Australia (as that Court was then named and constituted) (‘Family Court Proceeding’).

In addition to the summons, a bill of costs dated 10 July 2019, which claimed a total of $166,669.78 for work performed on behalf of the applicant between 7 April 2014 and 22 June 2016, and a costs agreement between the parties dated 6 August 2007 were filed.

A preliminary issue arises by…

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: [2022] VSC 559
Decision Date: 21 September 2022

CaseChat Overview and Summary

In this case, the applicant, James, sought a review of the bills of costs rendered by the respondent, Taussig Cherrie Fildes, for professional services performed in the Family Court of Australia. The costs in question extended back to 1 July 2008. The respondent objected to the jurisdiction of the Costs Court to hear the application, arguing that the Family Law Amendment Rules 2008 provided that the provisions relating to the review of costs in chapter 19 of the Family Law Rules 2004 (Cth) continued to apply in respect of matters that commenced prior to 1 July 2008. Therefore, the Costs Court did not have the jurisdiction to consider the application for review.

The court was required to decide whether the respondent's actions of going off the record in court proceedings while still providing legal advice had the effect of ending the applicant's retainer of the respondent. The court also needed to determine if the Costs Court had the jurisdiction to hear the application for review of the bills of costs.

The court found that the retainer between the applicant and the respondent, which commenced in August 2007, was not terminated by the respondent going off the court record. Therefore, the Costs Court did not have the jurisdiction to hear the application for review of the bills of costs. Consequently, the court dismissed the application. The court held that the Family Law Amendment Rules 2008 provided that the provisions relating to the review of costs in chapter 19 of the Family Law Rules 2004 (Cth) continued to apply in respect of matters that commenced prior to 1 July 2008, and the Costs Court was without jurisdiction to hear the application.

Orders