McDonald Pynt Lawyers v Hakuna MATATA Corporation Pty Ltd
[2013] WASC 223
•6 JUNE 2013
McDONALD PYNT LAWYERS -v- HAKUNA MATATA CORPORATION PTY LTD [2013] WASC 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 223 | |
| Case No: | LPA:27/2011 | 16 MAY 2013 | |
| Coram: | MASTER SANDERSON | 6/06/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | McDONALD PYNT LAWYERS HAKUNA MATATA CORPORATION PTY LTD |
Catchwords: | Costs Appeal from decision of Registrar as to interim/final bill |
Legislation: | Nil |
Case References: | Challen v Golder Associates Pty Ltd [2012] QCA 307 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant/Solicitor
AND
HAKUNA MATATA CORPORATION PTY LTD
Respondent/Client
Catchwords:
Costs - Appeal from decision of Registrar as to interim/final bill
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant/Solicitor : Ms M L Coulson & Mr D J Garnsworthy
Respondent/Client : Mr B W Ashdown
Solicitors:
Appellant/Solicitor : Coulson Legal
Respondent/Client : Stewart Forbes
Case(s) referred to in judgment(s):
Challen v Golder Associates Pty Ltd [2012] QCA 307
1 MASTER SANDERSON: This is an appeal from a decision of Registrar Dixon. The orders in question were made by the learned registrar on 19 March 2013. They are as follows:
1. The bills rendered by McDonald Pynt from 31 January 2010 to 31 January 2011 be assessed.
2. The parties file and serve any further affidavit material and submissions by 9 April 2013.
3. The matter be adjourned to 16 April 2013 at 2.15 pm.
4. McDonald Pynt pay the client's costs of the application for a costs assessment on a party and party basis in any event including reserved costs but excluding costs associated with Orders 2 and 3 hereof and the costs agreement issue.
5. The costs of the mediation conference held on 16 March 2012 be in the cause of the costs assessment.
2 The learned registrar provided reasons for his decision. While these were provided to the parties, there is no publicly available copy of the reasons. I have annexed a copy of the registrar's reasons to this decision. The decision sets out the issues between the parties, in particular the important question raised with respect to interim bills. It is appropriate to read the registrar's decision before continuing with these reasons.
3 In my view, the registrar dealt with the issues before him in a full and complete fashion and he reached the right conclusion. I could not improve upon either what the registrar said, or how he said it, and so although this should be considered as a hearing de novo, I would adopt in their entirety the reasons of the registrar.
4 There is one matter which requires attention. Between the making of submissions to the registrar and his handing down the decision, the Queensland Court of Appeal dealt with an application for leave to appeal from the District Court in the matter of Challen v Golder Associates Pty Ltd [2012] QCA 307. The Court of Appeal effectively endorsed the approach taken by the learned District Court judge. During the course of his reasons, Mullins J, with whom Margaret McMurdo P and Fraser JA agreed, examined the authorities referred to in the original decision and in the decision of Registrar Dixon. Mullins J did have a slightly different view of what constitutes a final bill. He said:
The conclusion of the primary judge that the final bill is merely the last in time rather than the ultimate bill would have the unsatisfactory consequence that over the course of the retainer the delivery of another bill would give rise to a new right of assessment of an interim bill under s 333(2). Although there is no definition in the LPA of 'final bill,' the expression is used in contrast to 'interim bill' which is effectively defined in s 333(1) as a bill for part of the legal services that the law practice was retained to provide. That suggests that the final bill must be the last bill for the legal services that the law practice was retained to provide. Whether a bill is a final bill may not be apparent at the time that it is issued by the solicitor. By way of an example, a bill may be issued in anticipation that further work will be undertaken under the retainer, but that expectation is overtaken by the termination of the retainer immediately after the issue of the bill and before any further work is undertaken, resulting in the bill being the final bill.
The appellant now seeks to characterise each of the bills he rendered as a final bill, on the basis that it applied to a finite period of time in respect of which he was entitled to charge under the costs agreement for the legal services undertaken during the period to which the bill applied. The appellant relies on the terms of the costs agreement to characterise each of the bills as a final bill which was the approach in BC Transit. For the purpose of the application of the LPA, however, it is relevant what the LPA designates as the final bill. As the term 'interim bill' is defined in s 333(1) as 'covering part only of the legal services the law practice was retained to provide,' the term 'final bill' must be the last bill rendered by the law practice for the legal services the law practice was retained to provide. The terms 'interim' and 'final' are used in s 333 of the LPA to describe the bills in relation to the legal services the subject of the retainer, rather than the costs rendered by the law practice. The relevance of the costs agreement in determining what is the final bill is that it specifies the extent of the retainer.
This conclusion on the meaning of 'final bill' differs from the primary judge’s conclusion in [33] of the reasons that 'final' means the last in time. It does not mean that the primary judge was wrong, however, in concluding that the bills of 9 December 2010 were the final bills [44] - [46].
5 None of that makes any difference to the ultimate result. The decision of Registrar Dixon conforms with the decision of the Queensland Court of Appeal in Challen even if the reasoning might be slightly different.
6 Counsel for the appellant in this case urged I not follow Challen despite the fact it is a decision of an intermediate court of appeal. There are two answers to that decision. First, it seems to me that the decision is clearly correct. It has about it a compelling logic and for that reason it should be followed. Second, it is a decision dealing with a section of the Queensland legislation which is identical to the legislation in Western Australia. In my view, there would need to be very good reasons before I could depart from that decision. I accept, strictly speaking, I am not bound by the decision. Furthermore, we are not here dealing with a statute which operates in the same way in each State - in contrast, say to a decision which deals with the Corporations Act 2001 (Cth). But the fact remains the section the Queensland Court of Appeal was dealing with is identical to the Western Australian section. It is important practitioners be able to rely on decisions of intermediate appellate courts throughout the Commonwealth in interpreting like provisions. So, even were I in doubt as to whether Challen was correctly decided, I would follow it. But I am satisfied it is correct and should be followed.
7 The appeal will be dismissed. The appellant ought pay the respondent's costs of the appeal. I will hear the parties as to the precise form of orders. The timetable proposed in the registrar's order will now need to be amended.
Annexure: