Kidd v Mitchell Frederick Artus Trading As Downings Legal
[2013] WASC 264
•15 JULY 2013
KIDD -v- MITCHELL FREDERICK ARTUS TRADING AS DOWNINGS LEGAL [2013] WASC 264
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 264 | |
| Case No: | CIV:1723/2012 | 30 MAY 2013 | |
| Coram: | ALLANSON J | 15/07/13 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Strike out application successful in part Plaintiff given leave to re-plead | ||
| B | |||
| PDF Version |
| Parties: | JAMES ALEXANDER KIDD MITCHELL FREDERICK ARTUS TRADING AS DOWNINGS LEGAL ANDREW JOHN DAVIDSON TRADING AS DOWNINGS LEGAL VERONICA KAY JUMEAUX TRADING AS DOWNINGS LEGAL MICHAEL DAMIEN SONTER TRADING AS DOWNINGS LEGAL DOWNINGS LEGAL PTY LTD |
Catchwords: | Practice and procedure Application to strike out parts of amended statement of claim Costs agreement Fiduciary obligation of solicitor making costs agreement Taxation of bills Supervisory jurisdiction of court |
Legislation: | Federal Court Rules Legal Practice Act 2003 (WA), s 221, s 222(2), s 229 Legal Practitioners (Local Court) (Contentious Business) Determination Legal Practitioners (Supreme Court) (Contentious Business) Determination Legal Practitioners Act 1893 (WA), s 68A Legal Profession Act 2008 (WA), s 295 Rules of the Supreme Court 1971 (WA), O 20 r 19 |
Case References: | Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v BellABike Rottnest Pty Ltd [2005] WASCA 157 Clare v Joseph [1907] 2 KB 369 Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 D'Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 Harrison v Hocking [2000] WASC 188 Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405 Pryles & Defteros v Green (1999) 20 WAR 541 Woolf v Snipe (1933) 48 CLR 677 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MITCHELL FREDERICK ARTUS TRADING AS DOWNINGS LEGAL
ANDREW JOHN DAVIDSON TRADING AS DOWNINGS LEGAL
VERONICA KAY JUMEAUX TRADING AS DOWNINGS LEGAL
MICHAEL DAMIEN SONTER TRADING AS DOWNINGS LEGAL
First Defendants
DOWNINGS LEGAL PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application to strike out parts of amended statement of claim - Costs agreement - Fiduciary obligation of solicitor making costs agreement - Taxation of bills - Supervisory jurisdiction of court
(Page 2)
Legislation:
Federal Court Rules
Legal Practice Act 2003 (WA), s 221, s 222(2), s 229
Legal Practitioners (Local Court) (Contentious Business) Determination
Legal Practitioners (Supreme Court) (Contentious Business) Determination
Legal Practitioners Act 1893 (WA), s 68A
Legal Profession Act 2008 (WA), s 295
Rules of the Supreme Court 1971 (WA), O 20 r 19
Result:
Strike out application successful in part
Plaintiff given leave to re-plead
Category: B
Representation:
Counsel:
Plaintiff : Mr A Metaxas
First Defendants : Mr D H Solomon
Second Defendant : Mr D H Solomon
Solicitors:
Plaintiff : Metaxas & Hager
First Defendants : Solomon Brothers
Second Defendant : Solomon Brothers
Case(s) referred to in judgment(s):
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v BellABike Rottnest Pty Ltd [2005] WASCA 157
Clare v Joseph [1907] 2 KB 369
Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171
D'Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
(Page 3)
Harrison v Hocking [2000] WASC 188
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41
Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405
Pryles & Defteros v Green (1999) 20 WAR 541
Woolf v Snipe (1933) 48 CLR 677
(Page 4)
1 ALLANSON J: James Alexander Kidd brings these proceedings against his former lawyers, Downings Legal. The first defendants are the practitioners who carried on business as a firm until about 23 May 2008. The second defendant has carried on business as an incorporated legal practice since about that time.
2 By writ with an indorsed claim, filed 27 April 2012, Mr Kidd seeks relief against the first defendants:
1. a declaration that a costs agreement dated 8 April 2004 with the first defendants was limited to the firm advising him regarding five specified matters;
2. a declaration that the costs agreement was not applicable to the first defendants acting for him or Evertop Investments Pty Ltd in nine actions in which Mr Kidd or Evertop Investments were parties in the Federal Court of Australia, the District Court of Western Australia, and the Local Court (now Magistrates Court);
3. an order that the costs agreement be cancelled under s 222(2) of the Legal Practice Act 2003 (WA) by reason of it being unreasonable, alternatively that it be set aside by reason of:
a. breaches of fiduciary duty;
b. breaches of contract;
c. breaches of duty of care;
d. misleading or deceptive conduct;
by the first defendants in procuring the execution of the costs agreement;
4. an order that bills from the first defendants to the plaintiff between 23 May 2006 and 22 April 2008 be 'cancelled';
5. an order that the first defendants repay all monies paid by Mr Kidd with interest;
6. an order that the first defendants deliver bills in accordance with either the relevant cost determination made under the Legal Practice Act, or the second schedule to the Federal Court Rules.
(Page 5)
3 Against Downings Legal, Mr Kidd claims:
1. a declaration that the costs agreement with the first defendants was not applicable to Downings Legal Pty Ltd acting for him and/or Evertop Investments;
2. an order that bills from Downings Legal to Mr Kidd after 22 April 2008 be cancelled;
3. an order that Downings Legal repay to Mr Kidd all monies paid by him to Downings Legal in respect of those bills together with interest;
3. an order that Downings Legal deliver to Mr Kidd bills for services provided by Downings Legal to him or at his request, such bills to be prepared in accordance with scales published by the Legal Costs Committee or the second schedule to the Federal Court Rules.
4 The defendants entered appearances in May 2012. Following an unsuccessful mediation, in January 2013 it was admitted into the CMC list. After a strategic conference on 1 February 2013 the plaintiff filed an amended statement of claim on 12 March 2013.
5 The statement of claim was met immediately with a letter on behalf of the defendants claiming, in effect, that part of the relief sought was untenable and doomed to fail; that the amendments fell outside the scope of the writ; and that if the writ was amended, preliminary relief seeking extensions of time to seek taxation of bills would be needed. The solicitors for the defendants suggested that the plaintiff should discontinue its claim in part and should agree to the amended statement of claim being disallowed and replaced by an amended writ and statement of claim complying with the arguments set out in the letter. The letter dated 22 March 2013 concluded:
We await your response, and request the response within 7 days. In accordance with the Court's standard procedures, if your client is not prepared to proceed as above, please contact us to arrange a convenient time to meet in person and confer.
6 On 24 March, the solicitor for the plaintiff responded by email. The body of the email was one sentence:
Please file a defence or I will apply for judgment in default.
(Page 6)
7 On 25 March the solicitor for the defendants replied asserting among other things a 'blatant refusal to confer'. The letter continued:
Accordingly, if you do not provide a meaningful response within 7 days of the date of this letter, or if you proceed to make an application for default judgment, we will proceed to apply to have the amended statement of claim struck out and rely on your response and this letter to seek indemnity costs against you personally.
8 The defendants did not, however, bring any application until 18 April 2013. By that application they sought an extension of time for the strike out application and an order pursuant to O 20 r 19(1)(a) and (c) of the Rules of the Supreme Court 1971 (WA) that pars 48, 49, 57.2 and 58.2 of the amended statement of claim be struck out on the grounds they are embarrassing and disclose no reasonable cause of action. The minute contained the grounds for striking out in these terms:
2.1 By seeking cancellation of bills and repayment in full as sought in paragraphs 57.2(a) - (d) and 58.2(a) - (d) of the amended statement of claim, the plaintiff seeks rescission of the costs agreement without doing equity by allowing proper remuneration as a condition of rescission.
2.2 The amended statement of claim seeks relief exceeding the scope of the relief sought in the writ of summons in that paragraphs 57.2(e) and 58.2(e) seek relief in the form of taxation and repayment of the excess.
2.3 Because the amendments made by paragraphs 57.2(e) and 58.2(e) of the amended statement of claim seek taxation outside the statutory time limits in ss 232 and 233 of the Legal Practice Act 2003 and s 295(6) of the Legal Profession Act 2008, the plaintiff's claim for taxation, if sought and allowed, is to be taken to have commenced only on the date that the writ is amended to include a claim for taxation.
2.4 As a result of paragraph 2.3 above, the plaintiff's claim for taxation cannot succeed without the plaintiff obtaining preliminary relief allowing an extension of time to seek taxation. The plaintiff has not sought the requisite extension of time in either the writ of summons or the amended statement of claim.
9 None of the grounds set out in the minute apparently relate to the striking out of pars 48 and 49. In written submissions filed in support of the application, the defendants submitted:
(Page 7)
- 1. Paragraphs 47 to 49 of the amended statement of claim plead breaches of fiduciary duty owed by the plaintiff in entering into a costs agreement.
2. The contention of breach of fiduciary duty is misconceived as the statement of claim does not identify any grounds giving rise to the alleged fiduciary duty 'other than the relationship of solicitor and client'.
3. When entering a costs agreement, a solicitor is not burdened by fiduciary obligations merely because the relationship of solicitor and client is to be governed by the costs agreement.
10 The argument relating to pars 48 and 49 had not been included in the initial letter inviting conferral. Nor was it outlined in the grounds of the proposed application. The submissions were, however, lodged shortly after the application was made and the plaintiff had considerable notice of the argument.
An outline of the plaintiff's claims
11 Although these proceedings have been on foot for over a year, there has yet to be a defence filed. Accordingly, there is no indication of the extent to which the facts asserted by the plaintiff, are in dispute. For the purposes of this application, I should assume that the facts are as pleaded.
12 The first defendants carried on business as a firm of barristers and solicitors until about 23 May 2008. Since then, the second defendant has carried on business as an incorporated legal practice.
13 Evertop Investments was incorporated in 2000 and Mr Kidd has been its sole director and shareholder. On 8 April 2004, the plaintiff entered into a verbal agreement with the first defendants that they would advise him in relation to five specified matters. The plaintiff executed a costs agreement in relation to that retainer.
14 Over the following years, the plaintiff verbally agreed with the first defendants that they would act for him and Evertop Investments in various proceedings in the Federal Court (five actions), District Court, and Local Court (three actions). On each occasion, there was a verbal agreement, each of which is pleaded as a separate retainer of the first defendants. Accordingly, there were nine retainers with the first defendants under which the first defendants provided services and rendered bills at the rates set out in the costs agreement. On 1 August 2007, the first defendants by
(Page 8)- letter notified the plaintiff that they had increased the rates in the costs agreement.
1. after 8 April 2004, he did not sign any other document which purported to be a costs agreement as defined in s 221 of the Legal Practice Act;
2. on its proper construction, the costs agreement he made on 8 April did not apply to the nine retainers made between 20 July 2004 and 31 August 2006;
3. the first defendants were not entitled to render bills at the rates in the costs agreement, or at the rates set out in the letter of August 2007;
4. between August 1979 and August 2011, O 62 r 12 of the Federal Court Rules limited the costs that solicitors were entitled to charge in proceedings in the Federal Court. No orders were made in any of the five Federal Court actions permitting the first defendants to charge fees other than in accordance with the scale in the second schedule to the Federal Court Rules.
16 The plaintiff says, that as a result, the first defendants were entitled to render bills for services in the Federal Court actions only in accordance with the scale in the second schedule to the Federal Court Rules. The bills provided were in contravention of O 62 r 12 of the Federal Court Rules. This conclusion affects the first, fifth, seventh, eighth and ninth retainers.
17 After 8 April 2004, the plaintiff did not sign any other document which purported to be a costs agreement as defined in s 221 of the Legal Practice Act. The costs agreement did not apply to the retainers pleaded, and the first defendants were not entitled to render bills other than in compliance with the current Legal Practitioners (Supreme Court) (Contentious Business) Determination. That determination was amended from time to time during the relevant period. The first defendants were not entitled to render bills at the rates in the costs agreement, or the rates set out in the letter of August 2007, for the proceedings in the District Court (the second retainer) as those rates exceeded the rates in the Supreme Court Determinations. Similarly, the first defendants were not entitled to render bills for services at rates exceeding the rates set out in the Legal Practitioners (Local Court) (Contentious Business)
(Page 9)- Determination in force at various times during the third, fourth and sixth retainers.
47. By reason of the relationship of solicitor and client which subsisted between the plaintiff and the first defendants the first defendants owed a fiduciary duty to the plaintiff not to prefer the first defendants' interests or the interests of any other person to the interests of the plaintiff ('First Defendants' Fiduciary Duty').
48. If, which is denied, the Costs Agreement applied to each of the Seventh Retainer, the Eighth Retainer and the Ninth Retainer then the plaintiff says in the alternative … that in pursuance of the First Defendants' Fiduciary Duty the first defendants were required prior to commencing to act in [the Federal Court actions the subject of those retainers] to:
48.1 inform the plaintiff that the remuneration of solicitors in actions in the Federal Court of Australia was governed by the Federal Court Scale which limited the amount of solicitor and counsel costs which could be recovered irrespective of the amount of time devoted by solicitors and counsel to proceedings;
48.2 inform the plaintiff that the Federal Court Scale limited both the costs which the plaintiff could recover from other parties, if the plaintiff was successful, and the costs payable by the plaintiff to the first defendants as the plaintiff's solicitors;
48.3 inform the plaintiff that the Federal Court Scale was based on the time a competent solicitor or counsel should take to carry out different categories of work usually undertaken in civil litigation, in some categories the Federal Court Scale provided for a range of costs and in all instances the Federal Court Scale provided an upper limit for costs absent an order from the court;
48.4 provide to the plaintiff reasonable estimates of the approximate amounts of solicitors costs and counsel costs (on a solicitor/client basis) which could be recovered on taxation under the Federal Court Scale.
48.5 inform the plaintiff of the approximate amount recoverable under the Federal Court Scale from the other parties if the plaintiff was successful;
- 48.6 provide to the plaintiff a reasonable estimate of the amount the plaintiff would have to pay the first defendants (as the plaintiff's solicitors) in the Federal Court Actions if the plaintiff was successful and costs were recovered;
- 48.7 provide to the plaintiff an estimate of the amount the plaintiff would have to pay the other parties if the plaintiff was unsuccessful in the Federal Court Actions; and
48.8 inform the plaintiff, if the estimates in 48.6 and 48.7 above could not reasonably be provided, whether there was a real risk of the costs in the Federal Court Actions being more - and significantly more, if such be the case - than under the Federal Court Scale.
- 49. In breach of the First Defendant's Fiduciary Duty the first defendants did not prior to commencing to act in the Federal Court Actions inform the plaintiff of any of the matters pleaded in paragraphs 48.1, 48.2, 48.3, 48.5 and 48.8 above nor provide to the plaintiff any of the estimates in paragraphs 48.4, 48.6 and 48.7 above.
19 Part 11 of the amended statement of claim deals with the claim against the second defendant, that is the claim for services rendered by the incorporated practice after about 23 May 2008. The plaintiff pleads that he did not make a costs agreement with the second defendant. The second defendant's bills were rendered on the basis that the costs agreement made between the plaintiff and the first defendant in 2004 applied to the services provided by the second defendant. The plaintiff says that the second defendant was not entitled to render bills at the rates in the costs agreement or as adjusted pursuant to the costs agreement. It was entitled to render bills for services that it provided in the Federal Court actions in accordance with the Federal Court scale and was entitled to render bills for the services it provided otherwise in accordance with the relevant determination made under the Legal Practice Act.
20 Part 13 sets out the relief sought against the first defendants. The plaintiff claims:
57.1 a declaration that the Cost Agreement did not apply to the services provided by the first defendants pursuant to the Retainers;
57.2 orders as follows:
a. cancelling all of the first defendants' bills rendered to the plaintiff after 1 May 2006;
- b. that the first defendants repay to the plaintiff all monies paid by the plaintiff to the first defendants for services provided after 1 May 2006;
c. that the first defendants within 90 days serve the plaintiff with bills for the first defendants' services after 1 May 2006, such bills drawn in accordance with the Federal Court Scale or any applicable Supreme Court Determination or any applicable Magistrates Court Determination;
d. that the first defendants pay interest on all monies found payable by the first defendants to the plaintiff at 6% per annum from the date of payment by the plaintiff to the date of judgment pursuant to section 32 of the Supreme Court Act;
e. in the alternative to a, b, c and d:
1. within 21 days the first defendants submit all of their bills for services after 1 May 2006 to the plaintiff for taxation by a taxing officer of this Court; and
2. the first defendants repay to the plaintiff the amount paid to the first defendants for their services after 1 May 2006 in excess of the amount allowed on taxation together with interest at 6% per annum from the date of payment by the plaintiff to the date of repayment.
22 The plaintiff does not apply to set aside the costs agreement. His primary position is that the agreement does not apply to the services provided by Downings Legal, either the partnership or the incorporated practice, after the initial retainer to advise.
The principles on an application to strike out
23 The defendants apply to strike out pars 47 to 49, and 57.2 and 58.2 on the grounds that they are embarrassing and disclose no reasonable cause of action.
24 Under O 20 r 19 the court may strike out a pleading on the grounds that it discloses no reasonable cause of action, or that it may prejudice,
(Page 12)- embarrass or delay the fair trial of the action. The principles to be applied in such an application, including the need for caution in exercising this power, are settled: see, for example, Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 [28] - [29] and Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 [6].
26 The ground that a plea may prejudice, embarrass or delay the fair trial of the action evokes a composite phrase. Pleadings may be struck out on this ground 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general': see Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998).
Paragraphs 47 to 49
27 The defendants submitted that the Legal Profession Act 2008 and its predecessors have removed the disability caused by fiduciary obligations preventing a solicitor from making a costs agreement with a client: citing Clare v Joseph [1907] 2 KB 369; Pryles & Defteros v Green (1999) 20 WAR 541, 547. Any obligation a solicitor now has to provide disclosure to a prospective client with regard to the making of a costs agreement is imposed by statute and not a fiduciary obligation. Because no special facts upon which a fiduciary duty allegedly arose are pleaded, pars 47 to 49 are embarrassing and disclose no reasonable course of action.
28 The defendants submitted that the statement of claim does not identify any grounds giving rise to the alleged fiduciary duty 'other than the relationship of solicitor and client'. Specifically, they argued that:
(1) any obligation on a solicitor to provide disclosure to a client with regard to a costs agreement is statutory and, in the absence of
(Page 13)
- specific facts giving rise to a fiduciary duty, not a fiduciary obligation arising from the relationship of solicitor and client;
(2) while the relationship of solicitor and client is one of the accepted fiduciary relationships, at the time of making the costs agreement the relationship has not been completed. Until there is a concluded retainer, the solicitor owes no fiduciary duty to a prospective client.
29 The challenge to these paragraphs must fail.
30 First, the authorities referred to by the defendants do not support the premise that the statutory regulation of costs agreements excluded fiduciary obligations.
31 Second, for the purposes of a strike out application, I cannot accept that the plaintiff's claim is so untenable that it must fail. The relationship of solicitor to client has been described as 'classically' fiduciary: Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, 463; Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 68. The obligations also apply to the solicitor entering into a costs agreement with the client, particularly where the costs agreement provides for the payment of fees other than in accordance with a usual or statutory scale: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 436; Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 [87]. Where the solicitor and client relationship is pleaded, the plea does not fail for failing to set out other facts from which the conclusion may be drawn that the first defendants owed Mr Kidd a fiduciary obligation that extended to disclosure in relation to the costs agreement.
32 Third, the plea in par 48 is directed to the seventh, eighth and ninth retainers, well after there was an existing relationship of solicitor and client. The first defendant's assertion that at the time of making the costs agreement the relationship had not been completed is contrary to the facts pleaded. On an application to strike out, the court should accept as true the facts alleged in the statement of claim.
Paragraphs 57.2 and 58.2
33 The consideration of the challenge to these paragraphs has been hindered by the failure of the parties to confer, a failure primarily attributable to the response of the solicitor for the plaintiff.
(Page 14)34 The defendants, in their letter to the solicitors for the plaintiff on 22 March 2013, and in their submissions on this application, characterise the plaintiff's claim, before the inclusion of pars 57(2)(e) and 58(2)(e) in the amended statement of claim, as a claim for rescission. They submit that it is flawed by the failure of the plaintiff to do equity by claiming repayment of all money paid without allowing proper remuneration for work performed.
35 The defendants then argue that the relief sought in (e) of each paragraph, while it remedies that defect in the claim, is:
(1) a claim for taxation after the expiry of the statutory time limits to seek taxation of a bill of costs; and
(2) relief which is outside the relief claimed in the writ, requiring an amendment of the writ.
36 The plaintiff, however, does not agree that his claim is properly characterised as a claim in equity for rescission of the costs agreement. Counsel for the plaintiff argued that the paragraphs challenged do not plead a cause of action but are part of the prayer for relief. The plaintiff does not rely on an equitable cause of action, but relies on the court's jurisdiction to supervise solicitors as officers of the court. This supervisory jurisdiction is not limited to the remedies and procedures available under the statutes which from time to time regulate legal practice.
37 The court has jurisdiction, both inherent and general, to secure that a legal practitioner (being an officer of the court) is remunerated properly, and no more, for work undertaken as a legal practitioner: see Woolf v Snipe (1933) 48 CLR 677, 678 - 679, where Dixon J referred to three sources of jurisdiction: the jurisdiction founded on the relation to the court of its officers, the jurisdiction to determine a contested claim for costs before the court by taxation or analogous proceedings, and the statutory jurisdiction. In Pryles & Defteros v Green, Parker J described the statutory scheme in the Legal Practitioners Act 1893 (WA), as complementary to and in part dependent on the inherent jurisdiction.
38 The jurisdiction on which the plaintiff relies is quite distinct from that with regard to discipline of practitioners. The legal rules governing the determination of costs payable to practitioners, and the ethical rules relating to misconduct are 'fundamentally different concepts': D'Allesandro v Legal Practitioners Complaints Committee(1995) 15 WAR 198, 209; and see Harrison v Tew [1990] 2 AC 523, 537 - 538.
(Page 15)- Counsel for the plaintiff expressly disavowed any allegation that the amounts charged by the defendants were 'exorbitant demands' so as to amount to serious professional misconduct. The plaintiff's claim is more moderate: the remuneration is more than proper remuneration. In this case, absent a costs agreement permitting charges outside the scale in the relevant determinations, proper remuneration is confined to those scales.
40 The Legal Profession Act 2008 (which came into force 1 March 2009) differs significantly from the earlier legislation, with no close equivalent to s 68A and s 229. Section 295 provides that a client may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs, even if the costs have been wholly or partly paid: s 295(2) and (4). The application must be made within 12 months after the bill was given, a request for payment was made, or the costs were paid (if neither a bill was given nor a request was made). An application made out of time, otherwise than by a 'sophisticated client', may be dealt with by the taxing officer 'if the Supreme Court, on application by the taxing officer 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': s 295(7).
41 Neither party addressed me on the transition from the 2003 to the 2008 Act, and it is not appropriate for me to express any view on it. But, following Harrison v Hocking, I should hold that any inherent power of the court to extend time was displaced in relation to matters governed by the earlier Act. The current Act empowers the court to extend time (if it applies to bills rendered before 2009), but no application has been made for the court to exercise its power under s 295(7).
(Page 16)42 The result, in my opinion, is that except for the declarations sought by the plaintiff, the relief claimed in parts 13 and 14 of the statement of claim cannot be granted unless the plaintiff applies for and is granted an extension of time. At least to that extent, the inherent jurisdiction of the court to regulate solicitors' charges has been displaced. I express no view on whether the statutory regime has otherwise codified the area to the exclusion of the court's inherent jurisdiction. Nor do I express any view on whether an extension of time can or should now be granted for bills delivered in 2006. Neither of those matters was argued.
Conclusion
43 For these reasons, I would strike out pars 57.2 and 58.2. The relief claimed in them is not available on the claim as it is now formulated. The declarations sought, standing alone, would appear to be of limited practical utility, but that is not a reason to now strike out the whole claim. The plaintiff will have leave to re-plead.
44 The limitation point put forward on behalf of the defendants cannot be determined hypothetically, and should await any reformulation of the claim.
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