Lin v WJ Legal (Aust) Pty Ltd
[2023] VSC 52
•13 February 2023 (delivered ex tempore, revised 15 February 2023)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
COST COURT LIST
S ECI 2022 02516
| SHIH HSIEN LIN | Applicant |
| v | |
| WJ LEGAL (AUST) PTY LTD (ACN 631 623 311) | Respondent |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2023 |
DATE OF JUDGMENT: | 13 February 2023 (delivered ex tempore, revised 15 February 2023) |
CASE MAY BE CITED AS: | Lin v WJ Legal (Aust) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 52 |
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COSTS – Whether just and fair for application for assessment of bill to be dealt with after 12-month period – Legal Profession Uniform Law (Vic) s 198(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pym of Counsel | |
| For the Respondent | Mr G Josephides |
HIS HONOUR:
Judicial Registrar Conidi referred to Practice Court the question of whether it is just and fair for the applicant, Shih Hsein Lin, to have leave to proceed with the review/assessment of costs outside the 12-month period pursuant to s 198(4) of the Legal Profession Uniform Law (Vic) (LPUL).
Section 198 permits a client who has paid or is liable to pay legal costs to a law practice to apply for an assessment of the whole or any part of those costs. That application must be made within 12 months after―
(a) the bill was given to, or the request for payment was made to, the client; or
(b) the legal costs were paid if neither a bill nor a request was made.
Section 198(4) permits a designated tribunal to deal with an application that is out of time if, on application of the costs assessor or the client or third party payer who made the application for assessment, the tribunal 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.
The designated tribunal is a Judge of this court and the applicant’s entitlement to an assessment out of time was referred to this court by Conidi JR. It is, in substance, an application by the client.
Mr Lin relied on his affidavits affirmed 30 June 2022 and 23 December 2022 and submissions dated 18 October 2022. The respondent, WJ Legal (Aust) Pty Ltd, relied on the affidavits of George Josephides sworn 24 August 2022 and 10 February 2023, and submissions dated 2 August 2022 and 4 November 2022. In addition, I have received oral submissions from each of the parties.
In May 2019, Mr Lin engaged WJ Legal to provide legal advice and to act in a ‘watching brief’ capacity for him and his companies in proceeding S CI 2018 02053. At the time the affidavit was made, that proceeding was still ongoing. However it has now concluded with orders made by McMillan J on 2 February 2023.
Mr Lin executed the contract for engagement of Mr Josephides of WJ Legal in a ‘watching brief’ capacity on 31 May 2019, with rates agreed at $550 per hour, with an initial deposit of $25,000 into the firm’s trust account. The engagement describes a scope of services that is far broader than the description ‘watching brief’.
On 17 June 2019, Mr Lin received a lump sum invoice for $23,925, which had already been billed and deducted from the initial trust deposit. This invoice covered the respondent’s services from 28 May to 14 June 2019. On 18 June 2019, Mr Lin requested a review and re-issuance of the invoice. An itemised bill was requested by email on 27 June 2019, 2 August 2019 and 7 August 2019. While still within time, Mr Lin filed a complaint with the Legal Services Board (LSB) on 14 August 2019 because Mr Josephides continued to refuse to provide an itemised invoice. He asserted that Mr Josephides ignored multiple requests for an itemised invoice from the LSB.
Mr Josephides stated that Mr Lin’s affidavit fails to account for many meetings and considerable correspondence throughout the June period in question and referred to an itemised bill sent to Mr Lin on 24 May 2022, in conjunction with the original bill of costs dated 17 June 2019, detailing a volume of work undertaken. It is not necessary for me to enquire into the substance of the taxation of the bill, Mr Josephides disputes the contentions advanced by Mr Lin that he is not entitled to the fees that he has charged or that his charges are otherwise not justified.
Before Conidi JR the issue was, for the purposes of s 198(3) of LPUL: has Mr Lin made his application for an assessment of costs within 12 months after the bill was given to him? His summons was filed on 30 June 2022. He received the original bill on 17 June 2019 and an itemised bill on 24 May 2022. Conidi JR ruled that time began to run when the original bill was given to Mr Lin and that the summons for taxation was out of time. Hence this referral.
The issue for this court is whether it is just and fair for the application for assessment to be dealt with after the 12-month period, having regard to the delay and the reasons for it.
The 12-month period expired in 16 June 2020, meaning Mr Lin is out of time by 2 years and 2 weeks.
Mr Lin stated that the delay in commencing the assessment in the Costs Court, followed on attempts at mediation by the LSB in the period of March to July 2021, which attempts did not result in a date for mediation being set. Mr Lin contended that Mr Josephides was not available on his suggested dates and in response proffered dates when he knew Mr Lin would be occupied with the ‘ongoing proceeding’ (S CI 2018 02053) and the requirements to attend to his participation in that case. The attempts to arrange a mediation between the parties appear to have been abandoned by the LSB on 26 July 2022. On 23 July 2021, Mr Lin was served with material in the ongoing proceeding which was to be heard on 27 August 2021. It was re-fixed for 17 February 2022. In December 2021, Mr Lin sought to extend the date of his referral letter to the LSB.
In summary, Mr Lin contended that the delay was caused by―
(a) The busy period occasioned by the end of Victoria’s lockdown, which also coincided with the long Christmas and New Year holiday period. This made it extremely difficult to book an appointment for legal aid or to obtain an appointment for legal advice.
(b) The many things that McMillan J ordered him to comply with before 14 February 2022, which were all tasks with which he was unfamiliar, as a self-represented litigant, such as preparation and arrangement of witness statements.
(c) As a self-represented litigant, Mr Lin’s understanding of the obligations in relation to taxation of costs was limited.
Mr Josephides contended in his submissions during the hearing that Mr Lin had been clearly informed of his rights by the LSB. That said, there is no evidence before me that clearly establishes that Mr Lin had, no matter what explanation he may have received from others and bearing in mind the language barriers, a full understanding of what was required of him in order to effectively challenge the bill of costs. Indeed, Mr Lin submitted that it was not really until 9 June 2022 that he was clearly aware of his rights and proceeded to exercise them promptly thereafter. He believed that the correct process was to engage with the LSB, rather than proceed with a taxation before the Costs Court.
The circumstances that have been outlined, in my view, are sufficient to provide an explanation for the delay. That said, I do not regard this as a particularly good explanation. Nevertheless, there are reasons for the delay and I can accept, for the purposes of s 198(4) of LPUL, that the delay has been explained.
I am unable to resolve the more specific contest about what advice Mr Lin received and what his knowledge was as a result of receiving advice, because there is no evidence before me in relation to those matters to enable me to make a proper assessment. Those matters are probably better known to the parties than they are to me. It may be that looking carefully at those matters the explanation is weak. However, because I am not in a position now to make such an assessment, I am satisfied, in terms of the legislative requirement, that an explanation has been provided to the court for the delay.
The question then remains whether, in the context of that explanation, it is just and fair for the application for assessment to proceed.
Mr Josephides submitted that he has billed in accordance with proper processes, work that he has performed and that he is entitled to the fees that he has charged in accordance with his engagement. He added that it is an inconvenience for him to have to go back at this point in time and respond to this further contest of his entitlement.
That said, he does not offer up any circumstance that demonstrates that there is any relevant substantive prejudice. The fact that he must face a belated contest of his entitlement to fees before the Cost Court, which contest he maintained is misplaced, is not relevant prejudice. There are no consequences of the delay, which would be relevant prejudice, such as loss of a key witness, loss of key documents or other circumstances.
Mr Lin submitted it is just and fair to extend the time limit because―
(a) He is an unrepresented litigant with some, but not complete, knowledge of English which has been a constraint in enforcing his rights.
(b) He has not yet had the ability to take the unsigned itemised bill to the Costs Court for assessment.
(c) The efforts of the LSB to arrange a mediation have been unsuccessful and so the parties have never had a real opportunity to debate the bill.
(d) Mr Lin suggests that aspects of Mr Josephides’ invoices are false and that he is seeking to gain personal financial advantage. While there is little in the affidavit material that puts any flesh on the bones of that allegation, that is not something I need to deal with on this application. If Mr Lin wants to make allegations of that kind before the Costs Court, it will be necessary for him to prove them at the appropriate time.
(e) Mr Lin says there are clear errors in the bill and contradictions between the unsigned itemised bill and the lump-sum bill. Again, that is a matter for determination in the assessment.
Section 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’.[1]
[1]Del Monaco v Velos & Velos Lawyers [2022] VSC 160, [4], following Rohowskyj v S Tomyn & Co [2015] VSC 511, [3]-[5] as it applied to the Legal Profession Act 2004 s 3.4.38(6).
Other 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.[2] 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.
[2]Rohowskyj, [5] (n 1), citing Tomasevic v Nowicki Carbone [2015] VSC 302.
The onus is on Mr Lin to persuade the court that it is just and fair for the application for assessment to be made out of time.[3]
[3]Del Monaco, [4] (n 1).
Ultimately, the question requires the exercise of a broad discretion to ensure that the interests of justice are properly administered.
In my view, having regard to all of the considerations to which I have referred, I am satisfied that it would be just and fair to extend the time for Mr Lin to seek a review or assessment of these costs.
Accordingly, I will order that the time for the application to be made is extended and that the assessment of the costs is referred back to the Costs Court.
Mr Lin seeks an order that Mr Josephides pay the costs of this application. Mr Josephides contended that Mr Lin should bear the costs. Having considered the submissions advanced by the parties and in the exercise of the broad and untrammelled discretion that I have in relation to costs under s 24 of the Supreme Court Act 1986 (Vic), I will order that on this application there be no order as to costs.
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