Kinnear v Haynes Robinson Pty Ltd
[2012] WASC 448
•23 NOVEMBER 2012
KINNEAR -v- HAYNES ROBINSON PTY LTD [2012] WASC 448
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 448 | |
| Case No: | CIV:1789/2012 | 18 OCTOBER 2012 | |
| Coram: | MASTER SANDERSON | 23/11/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out originating summons dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHELLEY IRENE KINNEAR PETER JAMES KINNEAR CANDICE LEANNE SMITH CAROLINE JANE JONES HAYNES ROBINSON PTY LTD |
Catchwords: | Practice and procedure Method of bringing dispute on bill of costs before the court Whether originating summons procedure appropriate |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- PETER JAMES KINNEAR
CANDICE LEANNE SMITH
CAROLINE JANE JONES
Plaintiffs
AND
HAYNES ROBINSON PTY LTD
Defendant
Catchwords:
Practice and procedure - Method of bringing dispute on bill of costs before the court - Whether originating summons procedure appropriate
Legislation:
Nil
Result:
Application to strike out originating summons dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr L Hager
Defendant : Mr P A Kyle
Solicitors:
Plaintiffs : Metaxas & Hager
Defendant : Haynes Robinson
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: By originating summons filed 7 May 2012 the plaintiffs sought the following orders:
(1) the Court declares that the defendant is required to submit the bills of costs issued to the plaintiffs in relation to Albany District Court No 10 of 2009 (bills) for assessment to a taxing officer in accordance with s 295(2) of the Legal Profession Act 2008 (WA) (LPA);
(2) in the alternative, the Court declares that it is just and fair for the plaintiffs application for assessment to be dealt with within the 12 month period in s 295(6) of the LPA;
(3) the defendant deliver the bills to a taxing officer for assessment within seven days from the date of this order; and
(4) costs.
2 The matter came on for a status conference before a registrar on 9 August 2012. The matter was adjourned until 24 September 2012. By that stage a dispute had arisen between the parties as to whether the originating summons was the proper procedure to bring this dispute before the court. The learned registrar heard argument on the matter. On 25 October 2012 the learned registrar published reasons for her decision and referred the matter to the master for determination. It is important to note this is not an appeal against the registrar's decision. Rather, it is an application by the defendant to strike out the proceedings.
3 The defendant puts its position in this way. They say the procedure for a costs assessment pursuant to the LPA s 295(2) is governed by practice directions 4.7.4 and 4.7.5. Section 295(2) of the LPA gives a client the right to apply to a taxing officer for 'an assessment of the whole or any part of the bill for legal costs'. Neither s 295 nor any other provision of the act indicates how the application is to be made. It is the way in which this application has been initiated that is at the heart of the defendant's complaint.
4 Before leaving s 295, I should mention two other sub-sections of the provisions. Pursuant to s 295(6), an application for taxation must be made within 12 months after the bill was given in accordance with div 7 or the costs were paid if a bill was not given. Pursuant to s 295(7) an extension of time to allow for taxation can be granted by the Supreme Court provided the application is not made by 'a sophisticated client'. It is not
(Page 4)
- suggested here that the plaintiffs would fall within the definition of 'a sophisticated client'.
5 Practice Direction 4.7.4 deals with 'applications for a costs assessment'. Under the heading 'Conferral' there are the following directions:
(4) prior to applying for an assessment by a taxing officer the applicant in relation to an invoice or invoices for legal services (the invoice) must confer with the other party. This conferral can be in writing, in person or by telephone.
(5) in order to constitute sufficient conferral it is necessary for the applicant to adequately identify:
(a) the bill;
(b) the items in the bill in dispute;
(c) the total value of the items in dispute; and
(d) the reason that each item is in dispute.
(6) the applicant must then prepare a memorandum ... to be filed with the Court describing the conferral.
6 Sub-directions 7, 8, 9 and 10 then deal with 'application to the Court for assessment'. A sample of the form is given. It is clear what is not intended is the process will be commenced by way of a originating summons. That is the defendant's first complaint - the wrong initiating process has been used. The second complaint is there has been no conferral which could possibly comply with the sub-rules. Against that background they say the application should be dismissed.
7 Before detailing the plaintiffs' response, it is appropriate to say something more about the nature of the dispute. The originating summons was supported by an affidavit of the second-named plaintiff. He says he is authorised to swear the affidavit on behalf of all the plaintiffs. His evidence is that the plaintiffs engaged the defendant to recover an amount of $75,000 from a third party. The second-named plaintiff says he was advised the action would cost between $13,000 and $15,000. He says he did not sign a costs agreement or anything like it.
8 On 6 November 2009 the defendant filed proceedings on behalf of the plaintiffs in the Albany District Court. Between 30 November 2009 and 28 July 2011 the defendant rendered the plaintiffs' invoices of $69,123.46. There were 17 separate invoices. The district court
(Page 5)
- proceedings were eventually transferred to the Supreme Court and are presently unresolved. All amounts the subject of the invoices, have been paid with the exception of $11,572.58. The defendant has commenced proceedings in the Albany Magistrates Court to recover this sum.
9 On 27 January 2012 the plaintiffs' present solicitors wrote to the defendant and asked the defendant to tax its bills. In response the defendant wrote advising the plaintiffs would need to apply for an order to require the defendant to lodge bills for taxation. It was subsequent to that advice the originating summons was issued.
10 Section 293(2) of the LPA is in the following terms:
Interim bills
(2) Legal costs that are subject of an interim bill may be assessed under Division 8, either at the time of the interim bill or the time of the final bill, whether or not the interim bill has been paid.
11 The invoices were rendered between 30 November 2009 and 28 July 2011. The application to have the invoices assessed was filed on 7 May 2012. The plaintiffs say that the invoices are 'interim bills' pursuant to s 293(1) of the LPA. If that is so, time runs from the date of the 'final bill' which was 28 July 2011. Therefore the plaintiffs' application is within the 12 month period.
12 However, if the plaintiffs are wrong about that and there were a series of final bills, an extension of time would be needed in relation to some of the bills. So there is a live issue between the parties as to whether the rendered accounts are interim accounts or final accounts. The plaintiffs say this goes beyond what is generally to be determined in an application for taxation and the originating summons procedure is appropriate.
13 The plaintiffs' argument ought be accepted. The aim of the practice direction is to offer a streamlined approach to taxation of solicitor's bills and to ensure before any application is made there is full and frank discussion. But the directions do not cater for disputes of law which arise. It is true practice direction 4.7.5 concerns applications which are 'out of time'. But that rule would seem to anticipate there is no question but that the application is out of time and it is a matter of determining whether the extension ought be granted. That is not this case.
14 It is unfortunate a dispute should have arisen on this question. The whole point of the practice direction was to simplify the procedure and
(Page 6)
- bring the parties before either the taxing officer or the master with the least possible fuss. As it is, process which was lodged on 7 May 2012 has not progressed beyond the point of arguing whether the form is appropriate. Six months have been wasted and costs have been expended for no purpose. It would have been far better if the parties had simply got on with the matter.
15 The defendant's application to strike out the originating process will be dismissed. The defendant's ought pay the plaintiffs' costs of the application including the reserve costs.
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