KAYA and WA SUMMIT LAWYERS
[2025] WASAT 22
•7 MARCH 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION UNIFORM LAW (WA)
CITATION: KAYA and WA SUMMIT LAWYERS [2025] WASAT 22
MEMBER: PRESIDENT GLANCY
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 MARCH 2025
FILE NO/S: VR 93 of 2024
BETWEEN: AVA KAYA
Applicant
AND
WA SUMMIT LAWYERS
Respondent
Catchwords:
Costs - Application for an extension of time for assessment of bill of costs - Whether just and fair to extend time - Where Applicant is self-represented - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA) (repealed), Div 7, Pt 10, Div 8, s 295, s 295(2), s 295(6), s 295(7), s 296
Legal Profession Uniform Law (Vic), s 198(4)
Legal Profession Uniform Law (WA), s 198(3), s 198(4), s 293
Legal Profession Uniform Law Application Act 2022 (WA), s 6(2), s 319
State Administrative Act 2004 (WA), s 46(1), s 60(2)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr B Heathershaw |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | WA Summit Lawyers |
Case(s) referred to in decision(s):
Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Lelas v Nigams Legal [2022] WASC 213
Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Applicant, Ms Ava Kaya, engaged the Respondent to provide her with advice and representation in a family law dispute. Ms Kaya is not happy with the representation she received or the cost of it. She seeks leave of the Tribunal under s 198(4) of Legal Profession Uniform Law (WA) (Uniform Law) to have particular bills of costs assessed in the Supreme Court of Western Australia (Supreme Court). Her application is opposed by the Respondent.
Outcome
For reasons which I have set out below I will grant the extension required for Ms Kaya to have the relevant bills of costs assessed by the Supreme Court.
Determination on the documents
After various directions hearings, I made an order on 5 November that, subject to any further order of the Tribunal, the matter would be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). I also ordered:
(a)that by 19 November 2024, the Applicant was to file and give to the Respondent any evidence and written submissions on which she intended to rely; and
(b)by 3 December 2024, the Respondent was to file and give to the Applicant any evidence on affidavit and any written submissions on which it intended to rely.
I subsequently extended the time for compliance by the Respondent with those orders.
It has not been necessary to make any further orders and this matter has been determined on the basis of the documents.
The documents to which I have had regard in determining Ms Kaya's application are:
Applicant's documents:
Ms Kaya provided a mixture of submissions and evidence under cover of a letter dated 13 November 2024.
Respondent's documents:
The Respondent relies upon an affidavit of Rebecca Vele sworn 16 December 2024. The Respondent filed no written submissions in opposition to the application, even though it opposes the grant of leave.
Ms Kaya as a litigant in person
Ms Kaya is a litigant in person. English is not her first language. Directions hearings have been conducted with the use of a Russian speaking interpreter. Although Ms Kaya can speak English reasonably well, an interpreter was used because of concerns that Ms Kaya's understanding of English would not be adequate for dealing with legal proceedings.
Ms Kaya's submissions are written in English. Ms Kaya's friend, Mr Pateman, attended directions hearings with her. Ms Kaya says he has been assisting her in dealing with her concerns about the bills and the various proceedings in which she has been involved. It may be that he assisted her with the preparation of these materials. Even if he did, Ms Kaya is to be given some latitude as a litigant in person.
Legal principles
Section 198(4) of the Uniform Law, which applies in Western Australia as a consequence of s 6(2) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) deals with applications for costs assessments. That section provides as follows:
198Applications for costs assessment
(1)Applications for an assessment of the whole or any part of legal costs payable to a law practice may be made by any of the following —
(a)a client who has paid or is liable to pay them to the law practice;
(b)a third party payer who has paid or is liable to pay them to the law practice or the client;
(c)the law practice;
(d)another law practice, where the other law practice retained the law practice to act on behalf of a client and the law practice has given the other law practice a bill for doing so.
(2)An application under this section is to be made in accordance with applicable jurisdictional legislation.
(3)An application under this section must be made within 12 months after —
(a)the bill was given to, or the request for payment was made to, the client, third party payer or other law practice; or
(b)the legal costs were paid if neither a bill nor a request was made.
(4)However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period.
(5)Subsection (4) does not apply to an application made out of time by a third party payer who is not a commercial or government client but who would be a commercial or government client if the third party payer were a client of the law practice concerned.
(6)If the third party payer is a non-associated third party payer, the law practice concerned must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.
(7)If an application for a costs assessment is made in accordance with this Division —
(a)the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application; and
(b)the law practice must not commence any proceedings to recover the legal costs until the costs assessment has been completed.
(8)A costs assessor is to cause a copy of an application for a costs assessment to be given to any law practice or client concerned or any other person whom the costs assessor thinks it appropriate to notify.
(9)A person who is notified by the costs assessor under subsection (8) —
(a)is entitled to participate in the costs assessment process; and
(b)is taken to be a party to the assessment; and
(c)if the costs assessor so determines, is bound by the assessment.
(10)If there is a non-associated third party payer for a client of a law practice, then, despite any other provision of this Division, the assessment of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice.
Under the Uniform Law, the State Administrative Tribunal is the designated Tribunal for the purposes of s 198(4). Before the Uniform Law came into operation in Western Australia, assessment of bills of costs were provided for under Pt 10 of Div 8 of the Legal Profession Act 2008 (WA) (LP Act). Applications for assessment of bills of costs by a client were provided for in s 295 of that Act. Section 295(2) permitted a client to apply to a taxing officer for an assessment of the whole or a part of a bill for legal costs. Section 295(6) provided that an application for assessment had to be made within 12 months after the bill was given in accordance with Div 7, or the request for payment was made to the client, or of the costs being paid if neither a bill was given nor a request for payment made and s 295(7) permitted applications to be made out of time (other than for a sophisticated client) if the Supreme Court determined, after having regard to the delay and the reasons for the delay, that it would be just and fair for the application for assessment to be dealt with after the 12 month period.[1]
[1] I can discern is no apparent policy reason for the conferral on the Tribunal in s 198(4) of the discretion to allow or refuse to allow applications for assessments of costs, which are undertaken by the Supreme Court, to be determined by the Tribunal. While a matter of policy, it is my view that the government should consider amending the Uniform Law to nominate the Supreme Court as the relevant tribunal for the purpose of the exercise of the discretion to allow costs assessments to proceed out of time to restore the position to that which existed before the National Law came into operation.
This is the first matter where the Tribunal has been called upon to determine whether a costs assessment should be permitted to proceed notwithstanding that it is an application made out of time. However, before the relevant provisions of the Uniform Law came into effect, the Supreme Court had power to grant leave to a party to permit the assessment of their bills of costs out of time. The relevant provisions were ss 295 and 296 of the LP Act.
Section 295(7) provided that an application to assess costs out of time could be dealt with by a taxing officer if the Supreme Court determined, after having regard to the delay and the reasons for delay, that it was just and fair for the costs to be assessed.
Accordingly, while the Tribunal now determines whether an application for assessment of a bill of costs can be dealt with by the Supreme Court, the test which is to be applied in the Tribunal is the same as that which was applied by the Supreme Court in determining such applications under the LP Act.
In determining the application, therefore, guidance is to be found in decisions of the Supreme Court about how the discretion is to be exercised.
In Lelas v Nigams Legal [2022] WASC 213 Acting Master McDonald identified the legal principles which applied to an application made for an assessment out of time under s 295(7). First, the Acting Master cited with approval the statement of Master Sanderson in Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184 at [16] - [17] of that decision in which Master Sanderson said:
The way in which these two subsections interact is clear. Section 295(6) provides a 12 month limitation period. Absent s 295(7), this application would fail. Under s 295(7), an extension of time is available provided the client is not a 'sophisticated client'. The discretion embodied in s 295(7) appears to embody three elements. They are:
(a)the length of the delay;
(b)the reasons for the delay; and
(c)whether an extension is just and fair in the circumstances.
In other words, the discretion, while unfettered, must pay particular regard to the length of the delay and the reasons for the delay. That can be implied from the fact that those two requirements are specifically mentioned in the subsection.
The Acting Master then referred to the factors to be taken into account as set out by Master Newnes (as he then was) in Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 at [101]. Those factors were:
1.the reasons for the delay in question;
2.whether there are valid reasons for believing that a refusal to enlarge time might result in injustice for the client;
3.whether there is evidence suggesting that the bill might be excessive;
4.the nature and degree of prejudice to the practitioner;
5.the practitioner's reasons for opposing the enlargement; it being of importance that as an officer of the court he be seen to be acting honestly, ethically and with proper motives and that he is not acting merely to prevent taxation of the bill taking place;
6.the statutory purpose of the relevant provisions of the Act, which was to provide machinery to protect a client against excessive charges by a practitioner, to ensure clients can be satisfied that bills of costs are not excessive, and to impose time limits to prevent clients from unfairly taking advantage of the provisions to delay the obligation to pay proper costs and to avoid frivolous objections.
The Acting Master then referred to the explanation of Hall J (as he then was) in Frigger v Murfett Legal Pty Ltd [2012] WASC 447 [26] of factor 2 as identified by Acting Master Newnes in Monopak. Hall J said:
Generally speaking there are good reasons why compliance with time limits of the type relevant here should be adhered to. Legal practitioners are entitled to assume that in circumstances where the client was aware of their rights to seek an assessment and more than 12 months has elapsed since the date of the bill an assessment will not be sought. It may well be that they will arrange their business on the basis of such an assumption. It is also possible that a delay in seeking an assessment may prejudice a legal practice because memories fade and the relevant personnel may move on to other positions.
In my view, the purpose of the relevant provisions remains the same and the criteria identified above and adopted by Acing Master McDonald are apposite to the Tribunal's resolution of this application.
In Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52 (13 February 2023) John Dixon J considered the application of s 198(4) of the Legal Profession Uniform Law (Vic), which is in the same terms as the Uniform Law. The issue in the matter was, of course, whether it was just and fair for an application for an assessment of costs to be dealt with after the 12 month period having regard to the delay and the reasons for it.
His Honour said at [22] - [25]:
22Section 198(4) requires me to form a view as to what is just and fair in all the circumstances, including considerations such as the length of delay, reasons given for it, and prejudice to the respondent. 'It requires a consideration of the right of one party to seek an assessment against the legitimate expectation of the other party that any request for an assessment will be made within the statutory period'.
23Other relevant considerations include whether the client was aware of the right to seek a costs assessment; whether there is evidence suggesting the bill may be excessive; whether the client has paid the bill without demur; and the lawyer's reasons for opposing the assessment, it being important that, as an officer of the court, the lawyer is seen to act honestly, ethically and with proper motives, not merely to prevent the assessment of a bill taking place. I would add to that list that the lawyer's conduct in dealing with the contest of the bill may also be relevant. For example, an unjustified reluctance to provide an itemised bill or a serious delay in providing one may tip the scales in favour of allowing an application for assessment out of time.
24The onus is on [the applicant] to persuade the court that it is just and fair for the application for assessment to be made out of time.
25Ultimately, the question requires the exercise of a broad discretion to ensure that the interests of justice are properly administered.
(footnote omitted)
In that case, his Honour found that an explanation for delay had been given, albeit not a very strong one. His Honour also found that while the respondent practitioner had submitted he was entitled to his fees for work he had performed, and claimed that it would be inconvenient to have to go back in time and respond to a contest of his entitlement, he had not identified any circumstances that demonstrated any relevant substantive prejudice, which his Honour noted could have included matters such as loss of documents or loss of relevant witnesses.
His Honour held that in circumstances where the applicant was an unrepresented litigant with some, but not complete knowledge of English, which had been a constraint in enforcing his rights, where the efforts of the Legal Practice Board to arrange a mediation had been unsuccessful and the parties had not had a real opportunity to debate the bill, and where he claimed there were efforts and falsehood in the bill, it was just and fair to extend the time.
Factual background
The following factual background to this application is not in dispute:
1.On 21 August 2021, Ms Kaya instructed the Respondent to act for her in Family Court of Western Australia (Family Court) proceedings.
2.The Respondent rendered invoices to Ms Kaya.
3.The affidavit of Ms Vele identifies that the six invoices were rendered to Ms Kaya on the following dates and for the following amounts:
a.27 August 2022 for $825;
b.9 September 2022 for $2,640;
c.10 October 2022 for $2,442;
d.2 December 2022 for $3,250;
e.2 January 2023 for $1,978.35; and
f.28 February 2023 for $4,644.75.
4.The invoice of 28 February is Invoice 107.
5.The attachment to Ms Kaya's application, however, identifies that she was given four invoices. They are identified as invoices numbered 42, 54, 72 and 107.
6.No issue was raised by Ms Kaya about the invoices at the time each was rendered and Ms Kaya made a number of payments to the Respondent's trust account for payment of the legal fees.
7.On 15 February 2023, Ms Kaya requested that the Respondent cease to act for her in the Family Court proceeding. On 18 February 2023, in compliance with that request, the Respondent filed a Notice of Ceasing to Act in the Family Court.
8.Invoice 107, issued on 28 February 2023, was the final invoice issued to Ms Kaya.
9.On 13 April 2023, a letter of demand for payment of the fees outstanding was sent to Ms Kaya by the Respondent.
10.Ms Kaya made a complaint to the Legal Practice Board of Western Australia (Legal Practice Board) in March 2023, in which she disputed some of the charges in Invoice 107.
11.In that complaint, and in the materials filed in support of Ms Kaya's application, are claims that essentially say that some work for which a charge is shown was not performed at all, and that the lack of action on some matters caused Ms Kaya problems in her Family Court proceedings.
12.The Legal Practice Board could not resolve the complaint and responded to Ms Kaya on 16 January 2024 informing her:
a.that its role in a costs dispute was only to attempt to resolve the dispute 'as informally as possible';
b.various settlement offers had been discussed with her but none had been successful in resolving the dispute;
c.the Respondent had offered to accept $7,000 as full and final settlement of all outstanding costs;
d.the Respondent had rejected her allegations that it had not provided her with proper service, had overcharged her or inflated its fees, and said that it had already discounted some of the fees such that she was not being charged for all of the time recorded on the invoices;
e.under the Uniform Law, where a matter cannot be resolved informally, the Legal Practice Board can inform the parties that 'they make take the dispute to the courts for a formal costs assessment';
f.accordingly, it had closed the complaint under s 293 of the Uniform Law and Ms Kaya could, therefore, consider seeking a costs assessment at the Supreme Court; and
g.that there are time frames and fees associated with applying to the Supreme Court and that details of those matters can be found on a link provided in the emailed letter.
13.Brett Pateman wrote to Summit Lawyers on Ms Kaya's behalf on a date which, in the email, is written in Russian. Doing my best to read the email, and using Google Translate, it appears to have been an email dated 24 January 2024. It is Exhibit 4 to Ms Vele's affidavit. Nothing really turns on the date.
14.In the email, Mr Pateman says that the Respondent knew when it took Ms Kaya on as a client that she was of limited means and the Respondent should, therefore, have appreciated there was a risk of non‑profitability in that business relationship. He said that the loss to the firm on its profit margins is:
likely inconsequential compared to the grief, turmoil and sense of injustice this will leave [Ms Kaya] with. Is it not hard enough for a poor immigrant… Now she has to face a justice system she doesn't trust and a rapacious law firm chasing money it feels it missed out on when it took a risk on a client with meagre means but a good case. Just because Summit Lawyers can stand behind the law to enforce its rights, does that mean it should do so with a client like [Ms Kaya]?
15.Mr Pateman then made an offer, on Ms Kaya's behalf, to settle the dispute by the payment of $3,615, by way of an initial payment of $1,500 and then payments in instalments of $500 until the debt was cleared. No time period for the payment of the initial sum or the instalments was specified in Mr Pateman's offer.
14.I infer that that offer was rejected.
15.On 6 May 2024, Ms Kaya made a further complaint to the Legal Practice Board.
16.On 24 May 2024, the Legal Practice Board responded to that complaint. Included in its response were links for the filing of an application in the Supreme Court for an assessment of costs.
17.On 1 September 2024, Ms Kaya lodged in the Tribunal an application which was expressed to be an application under s 319 of the Application Act for a review of a decision of the Legal Profession Complaints Committee under the LP Act. In the box on the application form entitled 'What order(s) do you want SAT to make?', Ms Kaya wrote 'Request for Costs Assessment'.
18.On 13 September 2024, Ms Kaya lodged a minute of orders which said that she would like me to review her invoices, consider her evidence and statements and attachments and for the review to find she should only have to pay $3,615 without any additional costs or interest fees to be added to the $3,615. She said that she would also like a refund of $1,385, given she has already paid the respondent $5,000.
19.That application was withdrawn by the Applicant with the leave of the Tribunal on 17 September 2024 pursuant to s 46(1) of the SAT Act at a directions hearing. This is because the Tribunal has no jurisdiction under s 319 of the Application Act to review the decision of the Legal Practice Board in relation to Ms Kaya's complaints about the Respondent's costs and could not have made the orders which she sought.
20.Ms Kaya then applied to the Supreme Court for an assessment of the costs. On 3 October 2024, the Supreme Court informed her that an application for the approval of the Tribunal would need to be made and granted before the assessment could occur because s 198(3) of the Uniform Law requires that applications for assessment of costs be made within 12 months of the bill being given to the client.
Resolution
I turn then to the resolution of Ms Kaya's application having regard to the applicable legal principles and the facts of this case.
Which bills is Ms Kaya seeking to have assessed?
In her application Ms Kaya says that she has no issues with the charges in invoices 72, 54 and 42 and that the only invoice which she disputes is Invoice 107.
While the Respondent has identified six invoices it says were issued to Ms Kaya (but not by reference to invoice numbers), I am satisfied from Ms Kaya's own materials that the only invoice which she disputes and seeks an extension of time to have assessed is Invoice 107.
Length of the delay and explanation for it
Invoice 107 was issued on 28 February 2023. Therefore, the application for an assessment of costs was brought approximately 7 and a half months out of time.
The delay is therefore significant.
Ms Kaya has given her explanation for the delay. Her position is that she does not accept that all of the work charged for was done and does not accept that the work was done properly. She says she endeavoured to negotiate a settlement with the Respondent for some time. She says she then endeavoured to have the Legal Practice Board assist her to resolve the matter and then sought to have the Tribunal undertake a costs assessment. She says that she had limited financial resources and could not afford to seek legal assistance to resolve this issue, and her difficulties with English also impeded her efforts. She says that so too did the fact that she was, at the same time, busy parenting her children and dealing with Family Court proceedings.
In my view, those circumstances provide sufficient explanation for the delay.
Prejudice to the Respondent
The prejudice to the Respondent is that it has not been paid in full for work which it claims it performed for Ms Kaya.
From the facts set out above I can conclude that the Respondent has been aware that Ms Kaya has been disputing Invoice 107 since at least the time when the Legal Practice Board became involved. It has not led any evidence to establish, nor made any submission about, any other prejudice which it would suffer if the late assessment of the bills of costs were to be permitted.
That said, law practices should be paid in a timely way for their services for the reasons identified by Hall J to which I have already referred.
Just and fair
In my view, despite the considerable delay, it is just and fair that Ms Kaya be permitted to have Invoice 107 assessed.
In my view it has been clear to the Respondent, since at least May 2023, when the Legal Practice Board informed the firm, that Ms Kaya disputes the work and the amount charged. She initially tried to resolve the matter with the assistance of the Legal Practice Board in March 2023. When that was unsuccessful she brought a misconceived application to the Tribunal. That error was of her own making because the Legal Practice Board did provide her with information about how to apply for a costs assessment. That fact tends against the grant of the approval to proceed to have the bill of costs assessed out of time.
Nevertheless, as a litigant in person without English as a first language, navigating the legal system would likely be difficult. Ms Kaya said that it was. At the directions hearing on 17 September 2024, Mr Pateman informed the Tribunal that he had assisted Ms Kaya to bring the initial application to the Tribunal because he had formed the view that that was what was required. He took responsibility for the misconceived application. That is, she was led into error, which extended the time taken to bring the proper application for an extension of time, by Mr Pateman's misunderstanding.
In her application Ms Kaya said that she had been told by the Legal Practice Board that she needed to apply to the Supreme Court for a costs review and she and her friend Mr Pateman began investigating how to do it. She said Mr Pateman told her she needed to apply to the Tribunal. After the application was withdrawn she applied to the Supreme Court and, after being told by the Supreme Court that she needed first to apply to the Tribunal for the extension of time, she applied as soon as she had her documents prepared. That represented a delay of approximately two weeks after she understood the proper process.
Ms Kaya also says she did not apply to the Supreme Court in time because her English is not good and she relies on the support of English speaking friends when she needs to draft or read legal documents; additionally she says the fact that she is a single mother to two children and her income is limited to Centrelink payments, has meant that she has not been able to afford to pay a lawyer to assist her with the dispute about the bill and the fact that she already owes a lot of money to lawyers has been a further disincentive to obtaining legal advice.
The only reason which, in my view, would justify a refusal of the required approval of an extension of time would be a finding that there was no basis to dispute the bills or the work. If I came to that view, then the costs assessment would be a waste of the resources of the Supreme Court and of the parties.
Ms Kaya asserts that the bills include costs for work which could not have been done on days for which costs are claimed. She says she knows she did not meet with her solicitors on days when they claim.
This is not a situation where I can be satisfied that an assessment of costs would be futile but nor can I resolve that specific contest. Ultimately it will be for Ms Kaya to satisfy the costs assessor as to that issue in the assessment.
Conclusion
For the reasons set out above, I am satisfied that it is just and fair to extend the time for Ms Kaya to seek an assessment of the costs sought in Invoice 107 in the Supreme Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JD
Associate to the Hon Justice Glancy
7 MARCH 2025
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