LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI
[2010] WASAT 166
•12 NOVEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2010] WASAT 166
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS B WEBSTER (SESSIONAL MEMBER)
HEARD: 27 OCTOBER 2010
DELIVERED : 12 NOVEMBER 2010
FILE NO/S: VR 147 of 2009
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
LEONARD GANDINI
Respondent
Catchwords:
Legal practioners - Disciplinary proceedings - Allegation of failure to provide itemised account - What constitutes itemised account
Legislation:
Legal Practice Act 2003 (WA), s 230, s 231, s 231(2), s 231(3), s 232, s 233, s 234, s 237, s 237(1), s 237(2), s 252, Pt 13 Div 3
Motor Vehicle (Third Party) Insurance Act 1943 (WA), s 27A
Rules of the Supreme Court 1971 (WA), O 66, r 42
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms P Cahill SC and Ms P Le Miere
Respondent: Self-represented
Solicitors:
Applicant: Legal Profession Complaints Committee
Respondent: Self-represented
Case(s) referred to in decision(s):
Malleson Stewart, Stawell & Nankivell v Williams [1930] VLR 410
Patel v Sica [1982] VR 273
Re Flower & Hart's Bill of Costs [1991] 2 Qd R 20
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Legal Profession Complaints Committee made a complaint against a legal practitioner Mr Leonard Gandini of unsatisfactory professional conduct. The Complaints Committee alleged that Mr Gandini failed to provide an itemised account requested by solicitors who had assumed the conduct of a personal injuries claim on behalf of a client for whom Mr Gandini had acted. In addition, the Complaints Committee alleged that, Mr Gandini had failed to provide an itemised account when requested to do so by the Complaints Committee, following complaint by the client's new solicitors.
Mr Gandini had in fact provided what he described as an itemised account both to the client's new solicitors, and to the Complaints Committee. The question for determination in the proceedings was whether or not that document contained detailed items as required by s 231 of the Legal Practice Act 2003 (WA).
The Tribunal examined the description of the items contained in the accounts provided to the new solicitors and to the Complaints Committee and determined that those accounts met the description of a 'bill containing detailed items' and thus met the requirements of the obligation of the practitioner under the Legal Practice Act 2003 (WA). Accordingly, the complaints were dismissed.
The allegation
The Legal Profession Complaints Committee (Committee) alleges that Mr Leonard Gandini (the practitioner) has been, since about September 2007, guilty of unsatisfactory professional conduct by:
i)unprofessional conduct;
ii)a contravention of the Legal Practice Act 2003 (WA);
iii)conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner; or
iv)all of the conduct referred to i) - iii)
in relation to his dealings with a former client, (JS), consequent upon her termination of the practitioner's retainer.
That general allegation is more fully explained in the 'statement of facts and contentions' which is set out in the grounds of complaint. Those grounds assert that, from about February 2004, the practitioner's firm, Chapmans, commenced acting for JS with respect to her claim for damages for personal injuries arising out of a motor vehicle accident on 19 February 2004. JS terminated Chapmans' retainer in respect of the claim in or about July 2007, and instructed John Rando & Co (JRC). In July 2007, JRC, on behalf of the client, wrote to the practitioner requesting an itemised account of Chapmans' fees and disbursements for acting for the client.
On 13 August 2007, the practitioner rendered to the client a lump sum bill in an amount of $8,580. JRC subsequently requested an itemised account pursuant to s 231(3) of the Legal Practice Act 2003 (WA) (LP Act). On 6 September 2007, the practitioner rendered an account which he referred to as his 'itemised account', in the sum of $9,460 (6 September account). That factual background is all common ground.
The Committee's grounds then assert the following:
11.The (6 September account) did not provide details of the times spent and the cost of each item of work carried out.
12.The (6 September account) did not contain sufficient detail as set out in paragraph 11 above to constitute an itemised account.
13.The (6 September account) did not provide sufficient detail with respect to the claim to enable the client to determine if the purported itemised account should be taxed.
It can be seen that the nub of the Committee's allegations is that the 6 September account needed to contain the 'details of the time spent and the cost of each item of work carried out'.
A complaint about the practitioner's failure to provide an itemised account was then referred by JS to the Committee. A chain of correspondence then followed between the Committee and the practitioner in which the Committee requested the practitioner to provide a 'properly itemised account' setting out the details of each item of work carried out by his firm, including the date the work was carried out, the time taken, the fee earner who carried out the work and the cost of each item.
On 29 October 2008, the practitioner provided a further account entitled 'Bill Containing Detailed Items' in the sum of $12,262.20. The Committee then asserts:
16.The bill did not provide details of the time spent and the cost of each item of work carried out and therefore did not constitute an itemised account.
On the basis of those allegations, the unsatisfactory conduct is particularised as follows:
17.The practitioner, notwithstanding JRC's request on behalf of the client and the Committee's requests did not within a reasonable time thereof or at all render an itemised account in respect of the claim in contravention of s 231(3) of the LP Act.
The relevant statutory provisions
Part 13 Div 3 of the LP Act deals with 'taxation and recovery of costs'. Section 230 provides that a legal practitioner must not sue for the recovery of any fees or charges until a bill for those fees and charges has been served upon the person responsible for payment of the fees or charges. The bill may be 'a bill containing detailed items' or 'a bill for a lump sum'.
Section 231(3) provides:
At any time within 30 days from the service of the bill for a lump sum the party charged may require the legal practitioner to serve upon the party charged, in lieu of the lump sum bill, a bill containing detailed items.
Section 232 permits a person charged with a bill of costs, within 30 days from service of an itemised bill, to serve written notice of intention to have the bill taxed and to have the bill taxed by a taxing officer.
Section 233 and s 234 deal with a situation where an itemised bill is not provided by a practitioner as required, or where an itemised bill does not contain adequate detail to enable the taxing officer to tax the bill. Those sections read:
233.Party not served with requested itemised bill may have lump sum bill taxed
If -
(a)a person, under section 231(3), has requested a legal practitioner to serve a bill of costs containing detailed items in lieu of a lump sum bill; and
(b)the itemised bill is not served upon that person within 30 days from the serve of the request upon the legal practitioner,
the person may apply to have the lump sum bill taxed by the taxing officer by lodging the bill with the taxing officer.
234.Taxing officer may order more detailed bill
If a lump sum bill or an itemised bill of costs does not contain adequate detail to enable the taxing officer to tax the bill, the taxing officer may -
(a)order the legal practitioner to remedy the deficiency within a time specified in the order; and
(b)in default of a sufficiently detailed account being filed, reduce the amount of the costs that might otherwise have been certified by a proportion not greater than 25%.
Section 237 requires the practitioner, upon being provided with a notice requiring a bill to be taxed, to lodge the bill of costs, or an amended bill of costs, with the taxing officer within one month. Section 237 provides:
237. Bill of costs to be lodged with taxing officer
(1)Within one month after service of the notice referred to in section 232(3) the legal practitioner must lodge the bill of costs with a taxing officer.
(2)Within the period of one month permitted under subsection (1) the legal practitioner may serve upon the party charged an amended bill of costs.
(3)If an amended bill of costs is served under subsection (2), the amended bill must be treated as, and be in lieu of, the original bill of costs and be subject to the provisions of the Division as to taxation, except this subsection.
It can be seen that that Pt 13 Div 3 uses the expressions 'a bill containing detailed items', 'itemised bill' and a 'bill of costs'. Counsel for the Committee submitted, and we accept, that the expressions 'bill containing detailed items' and 'itemised bill' are effectively used interchangeably and have the same meaning. The expressions 'bill of costs' and, in s 230, 'bill' are also interchangeable, and are a reference to either a bill containing detailed items or a bill for a lump sum.
The relevant facts
As earlier indicated, there is no dispute as to the material facts relevant to the Committee's allegations. The matter was argued on the basis of documents contained in bundles prepared by each of the Committee and the practitioner. It is necessary to examine more closely the precise terms of some communications between either JRC or the Committee on the one hand, and Chapmans on the other, in order to understand the parties' respective positions.
On 11 July 2007, JRC wrote to Chapmans advising that they had received instructions from JS to take over the conduct of her personal injury claim, and enclosing an authority signed by the client for JRC to take over the matter from Chapmans. The letter concluded 'Would you please provide us with an itemised break-down of your costs, an Irrevocable Authority, and if you agree, her complete file at your earliest convenience'.
On 16 July 2007, Chapmans responded advising that they hope to have the account and/or irrevocable authority available for JRC's client's consideration 'in the next few days'.
On 7 August 2007, JRC wrote again to Chapmans asking Chapmans 'urgently [to] provide us with your itemised account'.
On 9 August 2007, Mr Gandini on behalf of Chapmans wrote to JRC expressing the hope to have the documents ready for consideration in the next few days and adding 'Please note, your office ought to be aware that an 'itemised account' is only produced after the lump sum account is first produced.' Mr Gandini accepted at the hearing that that assertion was an inaccurate statement of the effect of Pt 13 Div 3 of the LP Act which contemplates that an itemised bill might be produced without there having been first a lump sum bill provided.
On 13 August 2007, Chapmans wrote to JRC enclosing a lump sum account and an authority for JS's signature and return. The account was expressed to be for a total 'in excess of but say' $7,500 plus GST and a counsel fee of $330 making a total of $8,580.
On 14 August 2007, JRC responded suggesting that they were not in a position to suggest their client sign the acknowledgement and authority until they had the opportunity to properly assess Chapmans' itemised account. They therefore asked:
Please urgently provide us with an itemised account fully detailing the work you have done and the time taken in order that we may present it to [JS] and seek her instructions.
On 20 August 2007, Mr Gandini replied saying:
We hope you are advising your client that should we be put to the time to prepare a fully itemised account, that account will then be substituted for the lump sum bill provided. Your office should know already that your client's action has proceeded at least to the Statement of Claim stage, and our lump bill, particularly given your client's incessant letter writing and dealings with our office, is more than reasonable in the circumstance.
In response, JRC wrote to Chapmans on 29 August 2007 advising of their instructions to request an itemised account and to assess that account before signing the acknowledgement and authority provided by Chapmans.
Mr Gandini replied by letter dated 10 September 2007. Mr Gandini's somewhat inflammatory reply was in the following terms:
We refer to your previous correspondence, and note your recent facsimile.
We do not waste time returning phone calls that are designed to harass this firm. Your client's request for an itemised account was noted, and there is simply no need to have someone from your office continue to ring our office and harass us over the issue.
Perhaps your office ought to counsel the person who was making the phone calls that such conduct is unnecessary.
We note you also copied a copy of your jaundiced facsimile of 29 August 2007 to [JS]. Properly you should send her a copy of this correspondence with the itemised account, which of course is enclosed.
The account enclosed with the letter of 10 September 2007 was dated 6 September 2007 being the document referred to above as the '6 September account'. The account read as follows:
In response, JRC wrote to Chapmans by letter dated 11 September 2007. That letter said:
With all due respect the account is not 'itemised'. Please let us have full details of the work carried out, and a break-down of the time recorded in performing this work in order that we can properly advise our client regarding this matter.
Mr Gandini replied by letter dated 14 September 2007, saying;
On what basis do you claim that the account is not 'itemised'? Does the person who has been sending these letters/facsimiles have any experience in this area? If not, a more appropriate person should deal with this matter.
Either your client wants to transfer this file or she doesn't.
There's nothing further for us to do. Please confirm [JS's] position without further delay.
At that point, JS referred the matter to the Committee. The complaint concerned a number of matters in addition to the failure to provide an itemised account, but those matters are now not pursued by the Committee. The legal officer of the Committee, Ms Chandran, wrote to Mr Gandini, seeking his response to the complaint. In that letter, Ms Chandran said that she had noted that the 6 September 2007 account appears not to have been properly itemised.
Mr Gandini replied by letter dated 30 November 2007. He described Ms Chandran's observation as 'mystifying' and asked 'What legal authority does Ms Chandran have to support the suggestion that the itemized account was not '… properly itemised [sic]?'
Ms Chandran responded on behalf of the Committee on 7 February 2008. In that letter she said:
An itemised account should provide sufficient details of each item of work carried out with respect to the complainant's matter setting out the time spent and the cost of each letter, telephone call, etc to enable the complainant to decide if she wishes to have the account taxed. Please provide your itemised account.
Mr Gandini replied by letter dated 27 February 2008 asserting that the 6 September 2007 account 'is more than sufficient to constitute an itemised account and we will not provide anything further at this point in time'.
Ms Chandran wrote to Mr Gandini on 10 April 2008, advising that the complaint concerning the itemised account, and one other matter was to be referred to the Committee for determination. On 16 April 2008, Mr Gandini replied to that letter saying:
With respect to the second suggestion of a failure to provide an itemised account, we note that Ms Chandran appears not to accept that what was produced (to the extent it was required to be produced in any event) constituted an itemised account. We can only urge more experienced members of the Committee to consider the various authorities which have commented on what constitutes an itemised account. A taxing officer never relies on unit-based time sheets.'
There followed certain correspondence between the Committee, JRC and Chapmans in an effort to resolve the question of transfer of the client's file and the appropriate arrangements in relation to costs. On 6 June 2008, Mr Gandini wrote to the Committee in the following terms:
As an aside, we suggest that Ms Chandran, whom we understand continues to maintain that the itemised account sent by this office is not, what Ms Chandran would consider, an itemised account, peruse relevant authorities on this question. We rely heavily on the opinions of Mr David Garnsworthy. In one of Mr Garnsworthy's Law Society publications he says the following:
'The bill must contain enough detail to decide whether to tax' and
'These authorities show that the courts have repeatedly held that a bill of costs must contain such details as will enable the client to make up his mind on the subject of taxation, and will enable those advising him to advise him effectively as to whether taxation is desirable or not'. (Per Mann J in Malleson & Ors versus Williams [1930] VLR 410.)
'If the test be what is adequate in order to enable the client to determine on advice whether to seek taxation, it is reasonable to take into account the degree of business and legal sophistication of the client, whether the client has in-house legal advice, whether another firm of solicitors is also advising, and any agreement reached between the parties as to the basis for charging.' (Re Walsh Halligan Douglas' Bills of Costs [1990] 1QdR288, per Mr Justice Dowsett, at p294.)
Finally, Mr Garnsworth points out a person such as [JS] can seek a taxation of the itemised bill of costs, and Section 234 of the Legal Practice Act 2003 then allows a Taxing Officer to order more detail in either a lump sum or an itemised account, if the Taxing Officer believes it to be deficient.
Can you please ensure this correspondence is also placed before the Committee.
Eventually, in Sept 2008, the Committee considered the two matters that had been referred to it. The outcome of that consideration was reported to Mr Gandini by letter dated 16 September 2008. In relation to the question of costs, the Committee advised:
The complainant also alleged that you failed to provide an itemised account despite requests from her current solicitors dated 14 and 29 August 2007. The Committee noted that you say you have provided an 'itemised account' however, it considered that the account was not properly itemised. The Committee directed that you provide an itemised account with respect to the complainant's matter within 14 days setting out details of each item of work carried out by your firm including the date the work was carried out, the time taken, the fee earner who carried out the work and the cost of each item.
In early September 2008, the arrangements for the transfer of the file to JRC were resolved as between JRC and Chapmans. The file was transferred on the basis that JS agreed that, upon settlement of her claim, she would pay Chapmans the costs and disbursements 'to be agreed at that time, or otherwise to have Chapmans' … costs taxed.' Upon that resolution, Mr Gandini wrote to the Committee by letter dated 2 October 2008 enquiring whether the Committee still required a further 'itemised account', and if so whether or not that could be deferred until the end of JS's claim. He suggested that deferral would enable the question of costs to proceed before a taxing officer who could decide whether or not any account already provided was adequate for the purposes of the LP Act.
The Committee responded by letter dated 6 October 2008 advising that it still required an itemised account and that its provision could not be deferred until the end of JS's claim. A request was made for the provision of an itemised account within seven days of the date of the letter.
On 7 October 2008, Mr Gandini wrote to the Committee advising that as the file had now been delivered to JRC, it would have to be retrieved in order to 'complete what you continue to call the 'itemised account''.
On 21 October 2008, the Committee provided a copy of JS's client file to Mr Gandini to enable him to provide his 'itemised account'.
On 29 October 2008, Mr Gandini replied saying that he had given the matter further consideration. In that letter, Mr Gandini said:
Not surprisingly, we maintain our view that the account of 6 September 2007 complied with the Legal Practice Act 2003, and we refer Ms Chandran to s 230 and 231 in that regard, an in particular s 231(3). In any event, its inadequacy or otherwise is an issue first for a judicial officer, such as a taxing officer, if the costs on this matter ever proceed to taxation. Accordingly why would Ms Chandran on behalf of the LPCC be involved in this matter in the way she is?
It goes without saying therefore that we do not agree with Ms Chandran's suggestion in her letter to us of 16 September 2008 that the account we provided of 6 September 2007, was '… not properly itemised'.
Notwithstanding the above, please find enclosed a document we have headed 'Bill Containing Detailed Items' (s 231(3)) in relation to [JS's] file, in response to Ms Chandran's letter of 16 September 2008. In putting together the attached document, we noted that there was some work which had been omitted, and the hourly rates we had used in the account of September 2007, were well under the correct hourly rates for the time periods when the work was done.
This firm will not be providing any further documentation to Ms Chandran in relation to her request for an 'itemised account'. The request is ultra vires. Any further requests for documents will need to come from the Law Complaints Officer herself.
One way of course for this matter to be resolved is that [JS] immediately ask for the matter to be set down for a solicitor/client taxation and at that point, if the relevant taxing officer has concerns about our account of 6 September 2007, then we are happy for the transcript of those proceedings to be provided to the LPCC.
The account enclosed with that letter was dated 29 October 2008 and read as follows:
The Committee replied to Mr Gandini by letter dated 17 November 2008 saying that the document provided was not sufficiently itemised as requested by the Committee and set out in Ms Chandran's letter of 16 September 2008. In response, Mr Gandini wrote on 24 November 2008 suggesting the question of the account be referred to a taxing officer so that the taxing officer could decide on the adequacy or otherwise of the accounts provided. He indicated that Chapmans would concede an extension of time to enable that to occur.
Some further correspondence passed between Mr Gandini and the Committee in which Mr Gandini suggested that the concerns being expressed in correspondence were apparently Ms Chandran's concerns, rather than the concerns of the Committee. In response, by letter dated 16 January 2009, the Committee's senior legal officer wrote to Mr Gandini saying:
However you have previously been advised by the Committee what information the Committee considers is necessary for a bill for it to be considered itemised and that the Committee requested you provide that information namely, details of the work carried out, the time taken, the fee earner who carried out the work and the cost with respect to each item. It is of course your decision as to whether or [sic] you comply with a request of the Committee and for the State Administrative Tribunal to decide if a failure to do so amounts to unsatisfactory conduct. (original emphasis)
The letter also raised a suggestion that there was 'possibly evidence of gross overcharging' and sought details as to how the charges set out in the bill were calculated. It also enclosed a summons for production of Chapmans' client file and 'all documents you hold in respect of [JS's] matter'.
On 23 January 2009, Mr Gandini wrote to the Committee suggesting that the adequacy or otherwise of an itemised bill is a matter for a judicial officer, not for an employee of the Committee. The letter asserted that the accounts provided complied with the requirements of the LP Act, and that the Committee was acting beyond its jurisdiction to demand an itemised account and to 'suggest it has the ability to proceed to tax' Chapmans' account. Mr Gandini wrote again to the Committee on 9 February 2009 providing a copy of 'what we have left of our file' and advising that the basis of calculation of charges was the relevant costs determinations made under the LP Act.
After further correspondence, the contents of which is not necessary to set out detail, the Committee referred the present complaint to the Tribunal.
The basis of Chapmans' charges
Section 27A of the Motor Vehicle (Third Party) Insurance Act 1943 (WA) provides that, where a legal practitioner is acting in relation to an action for damages in respect to personal injury arising from a motor vehicle accident, an agreement may not be made to charge any greater reward than is provided for a cost determination, as defined in s 252 of the LP Act, that is in force. Mr Gandini explained that he did not bill on a time costing basis and charged on the basis of the scale of costs provided in the Legal Practitioners (Supreme Court) (Contentious Business) Report/Scale of Costs applicable from time to time. It was common ground between the parties that that cost determination was an appropriate basis upon which to charge in relation to JS's matter. Over the period that Chapmans acted for JS, the Determinations of 2002, 2004 and 2006 each had application in turn. Each of those Determinations contained what is described as an 'item' being:
(a)time reasonably spent by a practitioner on work requiring the skill of a practitioner (of the standing indicated) but not covered by any other item - per hour;
(b)time reasonably spent by a practitioner, or by a clerk or a paralegal of a practitioner, on work not covered by any item or by paragraph (a) - per hour.
No upper limit of time for that item is specified in the Determinations and different hourly rates of practitioners of different standing are prescribed. (see 2002 Determination - Item 13A, 2004 Determination - Item 32, 2006 Determination - Item 32).
In addition, each determination contains a number of other items including an item for the writ of summons, a statement of claim, an originating motion or summons, proceedings in court not otherwise provided for, and proceedings in chambers.
As we understand it, counsel for the Committee accepted that the first three items in the 6 September account related to work of the nature of that which came within Item 13A or Item 32 of the respective applicable scales and that the remainder of the items in the 6 September account reflected items on the applicable scales.
The Committee's contention
Mr Gandini complained, we think with some justification, that the case as put at the hearing by the Committee differed from what he had always understood the Committee's case to be. He understood that the allegation against him was that he should have provided detailed itemisation of each individual item of work carried out for the client, such as each letter, and telephone call, consideration of the file and so on. He formed that view having regard to:
•the contents of JRC's letter to him of 11 September 2007 following receipt of the 6 September 2007 account which asked for 'full details of the work carried out, and a breakdown of the time recorded in performing this work';
•the letter to him from the Committee dated 7 February 2008 which said 'an itemised account should provide sufficient details of each item of work carried out with respect to the complainant's matter setting out the time spent and the cost of each letter, telephone call etc to enable the complainant to decide if she wishes to have the account taxed'; and
•the Committee's letter of 16 September 2008 which conveyed the Committee's 'direction' to provide an itemised account 'setting out details of each item of work carried out by your firm including the date the work was carried out, the time taken, the fee earner who carried out the work and the cost of each item'.
In addition, the practitioner noted that the particulars of the grounds of the allegation against him asserted that the deficiency in the account provided by him was that it 'did not provide details of the time spent and the cost of each item of work carried out'.
We agree with the practitioner, that the case he was called upon to meet was that his account should have set out each individual item of work carried out, the time spent on each item, the fee earner who carried out the work, and the cost.
At the hearing, the case put by the Committee departed from that allegation. As we understand it, the Committee accepted at hearing that the items shown in the 6 September 2007 account as 'writ of summons', 'attend chambers, prepare etc' and 'prepare, settle and file and serve statement of claim' all represented adequate itemisation. It was submitted, however, that the first three items of the 6 September 2007 account were not adequately itemised, and should have contained greater detail as to the general heads of work performed and the time spent on each head of work and the amount allocated to each head of work. As we understand it, the Committee did not submit, at the hearing, that each letter, telephone call, and unit of time expended in relation to the client's affairs was required to be set out.
In making its submissions, the Committee accepted that, for example, in relation to a writ of summons, it is not necessary to breakdown each individual item of work associated with the preparation and issue of the writ of summons, but that an indication of the total cost referrable to the writ of summons was adequate. We understood the Committee to submit that, in relation to most items in the relevant scales, an indication of the total time spent on work related to that item was a sufficient particularisation. The position was, it was submitted, different however in relation to Item 13A of the 2002 scale and Item 32 of each of the 2004 and 2006 scales. The difference was that those items potentially cover a broad range of services, and until the precise nature of those services is fully detailed, it is not possible for the party liable to consider whether or not to seek taxation. Furthermore, the Committee argued that the itemised bill should, in order to meet the description of a bill containing detailed items contained in s 231 of the LP Act, be a bill in taxable form.
The requirements of an itemised bill
In our view, it is not correct to say that, in order to comply with s 231 of the LP Act, the bill provided to the party liable needs to be in a form for taxation, although it may, and often will, be.
Counsel for the Committee advised that the Committee, in asserting that an itemised bill should be in taxable form, did not contend that the bill must refer to item numbers identified in the relevant scale, notwithstanding that O 66 r 42 of the Rules of Supreme Court 1971 (WA) requires a bill of costs for taxation to be prepared so as to show clearly 'items consecutively numbered, together with a reference to the item in the scale to which the item and the bill relates'. The Committee's position that reference to the item in the scale is not a requirement of an itemised bill provided under s 231 of the LP Act, is inconsistent with its submission that an itemised bill must be in taxable form.
We do not consider that an itemised bill provided pursuant to s 231(3) must necessarily be in a taxable form. The entitlement under s 237(2) to serve an amended bill of costs within the one month period permitted under s 237(1) for lodgement of the bill of costs with the taxing officer is, in our view, designed to enable a legal practitioner to put the itemised bill into a taxable form complying with the requirements of the O 66 r 42, or to make any other amendments which he or she wishes.
The practitioner argued that the purpose of providing details in a bill of costs is to enable the client to make up his or her mind as on the subject of taxation and to enable those advising the client to do so effectively as to whether taxation is desirable or not - see Malleson Stewart, Stawell & Nankivell v Williams [1930] VLR 410 at 411; Patel v Sica [1982] VR 273 at 278; Re Flower & Hart's Bill of Costs [1991] 2 Qd R 20 at 24.
The Committee agreed that that was the purpose of an itemised bill.
On 10 March 2000, a note to practitioners was published by the Supreme Court. The comments contained in the note were said to apply to both party and party and solicitor and client bills of costs drawn pursuant to the scales in force from time to time in respect of work performed in the Supreme Court. Paragraph 3 of the note read as follows:
Where an allowance is claimed in a bill by reference to any of the following scale items:
(a)item 13;
(b)item 13A;
(c)item 21;
(d)item 22;
(e)item 23;
A schedule may be attached to the bill that provides additional information regarding the work carried out in respect of the item and the allowances sought. The schedule should set out the various general heads of work performed in respect of the scale item, the amount of time spent on each head, and the amount allocated to each head. It should not take the form of a breakdown of each and every piece of work performed in respect of an item in the bill and the cost thereof and nor [sic] is it appropriate to attach to a bill a computer printout of time spent on any item in the bill.
Attached to the note was an example of a schedule drawn by reference to Item 13 of the scale as a guide. The schedule reads as follows:
That note to practitioners has now, in substance, been incorporated at 4.7.3 of the Consolidated Practice Directions issued by the Supreme Court in January 2009. The schedule utilised in the Consolidated Practice Directions is the same schedule as in the original note to practitioners of March 2000.
It can be noted that the note to practitioners indicates that a schedule 'may be attached to the bill'. It is not obligatory to do so. If it is not obligatory to attach a schedule containing the level of detail shown in the example for a bill for taxation, it follows that it is not necessary to include a schedule containing that detail in a bill provided pursuant to s 231(2) of the LP Act. It can also be observed that the items contained in the example schedule do not contain a breakdown of each and every piece of work performed, and the text of the note makes it clear that such a breakdown should not be provided.
The correspondence from both JRC and the Committee requesting further itemisation of Chapmans' 6 September account called for a breakdown of each and every piece of work performed, the person performing the work, the times spent and the cost involved. That level of itemisation is not only not mandatory in relation to a itemised bill provided pursuant to a request under s 231(2), but is specifically identified as undesirable (for the purposes of taxation) in the note to practitioners issued by the Supreme Court.
The Committee's position was that, because Item 13A of the 2002 scale, and Item 32 of the 2004 scale and 2006 scale covered a broad range of work not otherwise covered by an item in a scale, an itemised bill in relation to that work should reflect a breakdown of the type reflected in the example schedule. The reference to Item 13A in the text of para 3 of the note to practitioners confirms that the Court does not consider any different approach should be taken in relation to Item 13A, than is taken in relation to Item 13, Item 21, Item 22 and Item 23. Accordingly, we do not accept the Committee's submission on that point.
Item 13A (and in turn Item 32 of the latter scales) gives a description of 'time reasonably spent by a practitioner on work of a particular kind'. The cost of that work is measured by the number of hours spent at a particular rate. Where a charge is being levied by reference to that scale, a description of the work referrable to that scale item of the type given by the practitioner in the 6 September account, and later in the 29 October 2008 account is an adequate itemisation of the work. It might well be appropriate for a practitioner to support that claim by a schedule, particularly if the matter is to proceed to taxation, but it is not obligatory.
A decision as to whether or not a client should proceed to taxation is not a decision taken in a vacuum. We do not accept the practitioner's submission that the test as to whether an account is sufficient to enable the client to make a decision on taxation is an entirely subjective one. But the decision will be informed by the context of the particular services performed. Whether or not a particular number of hours might have reasonably been required to be spent by a practitioner on matters not otherwise covered by the scale will depend upon the nature of the matter itself, the stage to which the proceedings have progressed, the particular demands of the client, and the course of the proceedings generally. An assessment of the reasonableness of the number of hours claimed can be made against that background, and what is revealed from an inspection of the client's file. That assessment is not enhanced by having, in effect, a print out of every single individual item of work carried out on the client's behalf.
Conclusion
It follows that, in our view, the practitioner did not fail to comply with the requirements of s 231(3) when he provided the 6 September account to JRC. Similarly, in providing the 29 October 2008 account to the Committee, he did not fail to provide an account showing detailed items as required by s 231, although in any event he was justified in his stance to the Committee that, having provided the client with the 6 September account, he had no further obligation to provide an itemised account.
It was open for JS, on the advice of her new solicitors, to serve on Chapmans a request to have the bill of costs taxed. Had the taxing officer considered more detail was required, he or she could have ordered the practitioner to provide that additional detail. That would have been the appropriate course to have been taken rather than the course embarked upon by the Committee of itself demanding further itemisation.
Even if a taxing officer might have required additional itemisation, we do not consider that the attitude adopted by the practitioner could be said to amount to unsatisfactory professional conduct. It was very clear throughout the correspondence, and to the Tribunal during the hearing, that the practitioner formed a considered view as to the extent of his obligation under the Act. He did not simply ignore the request of his former client through her new solicitors, or of the Committee, but simply expressed his view as to the legal position. At the very least, that was a view which was reasonably open to him, and remedies were available to the client under the LP Act through the taxation process, if, on advice, she disagreed. In our view, the practitioner was entitled to take the position which he did.
It is regrettable that some of the practitioner's communications were written in unfortunate, and sometimes offensive, terms. Communications of that nature are almost certain to inflame rather than persuade and are both undesirable and inappropriate. Mr Gandini would be well advised to avoid communications of that tone in future. The tone of the communications does not, however, undermine the substance of Mr Gandini's responses.
It follows that the allegation of unsatisfactory professional conduct is not made out, and the applications should be dismissed.
Order
1.The application is dismissed.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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