Osborne v Jafer Lawyers

[2004] VSC 309

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 3508 of 2004

CLINTON JAMES OSBORNE	Plaintiff
v
JAFER LAWYERS	Respondent

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JUDGE:	HABERSBERGER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 AUGUST 2004
DATE OF JUDGMENT:	10 AUGUST 2004
CASE MAY BE CITED AS:	OSBORNE v JAFER LAWYERS
MEDIUM NEUTRAL CITATION:	[2004] VSC 309

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Practice and Procedure – Costs – Application for assessment of costs made more than 12 months after the bill of costs was sent to the plaintiff – No special circumstances – Master dismissed application – Appeal from master dismissed – Section 116(3)(b) of the Legal Practice Act 1996.

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APPEARANCES:	Counsel	Solicitors
Mr C.J. Osborne in person
For the Respondent	Mr D.R. Cafari	Jafer Lawyers

HIS HONOUR:

1. This is an appeal from a decision of Master Cain made on 29 June 2004 dismissing Mr Osborne's summons for taxation of costs. 

1. The summons for taxation of costs was issued on 16 February 2004 and sought an assessment of the costs said to have been claimed by the respondent, Jafer Lawyers, against the plaintiff, Mr Clinton Osborne, "in accordance with a bill of costs dated or served on or about 16 February 2004."  However, it would appear from subsequent material that the bill of costs being referred to was a bill dated 28 May 2001 for work performed by the respondent in respect of an application for a setting aside of judgment and re-hearing of a matter in the County Court, where a company, All Type Drum Company Pty Ltd ("All Type"), had sued Mr Osborne.  Jafer Lawyers were acting for a short time as the solicitors for Mr Osborne in that proceeding.  It would appear from the material that at or about the same time Jafer Lawyers also acted for Mr Osborne on a bail application, and presumably there was a bill of costs prepared and served in respect of that work. 

1. It seems to me that the only bill of costs that could be referred to in the summons issued by Mr Osborne is the bill in respect of the County Court proceeding.  Indeed, this did not seem to be disputed by Mr Osborne.  There is affidavit evidence before me from Mr Jafer that that bill was sent to Mr Osborne on 28 May 2001 at 92 Numurkah Road, Shepparton.  This step followed, apparently, from a request from Mr Osborne following the sending of a lump sum bill to him care of the Loddon Prison in March 2001.  A further copy of the bill was apparently sent to Mr Osborne in February 2004 following his letter dated 9 February 2004 requesting the same.

1. The situation is, therefore, that because more than 12 months have elapsed since the County Court bill was given to Mr Osborne the Court must not order that the bill be assessed or taxed unless there are "special circumstances" (see s.116(3)(b) of the Legal Practice Act 1996).

1. The matters urged by Mr Osborne as to why the court should embark on a taxation in the circumstances I have outlined appear to be, first, that there is a complaint that Mr Jafer has acted in circumstances which can be adequately summarised as saying that he had a conflict of interest.  Mr Jafer has put in affidavit material denying that he had any such conflict, but in any event it seems to me that, if Mr Osborne has a legitimate complaint about Mr Jafer acting in those circumstances, it is a matter that should be taken up with the regulatory body governing the conduct of solicitors.  It is not, as far as I can ascertain, a complaint about particular items in the itemised bill.

1. The second complaint is that moneys paid by Mr Osborne to Mr Jafer were used not for the County Court proceeding but for the bail application, and there is a complaint that excessive costs were incurred in the bail application.

1. The bill of costs was for some $3,040.20.  The amount paid and applied was said to be $2,032.50, leaving an amount due of $1,007.70.  That amount has not been pursued by Mr Jafer or by Jafer Lawyers, and it therefore seems to me that in those circumstances, again, if there is a complaint that money was improperly applied to one matter rather than another, it is not a question of the court taxing the costs but again a matter of a complaint about conduct of solicitor, which in the first instance should be taken up with the appropriate regulatory body.  All that Mr Osborne has said with respect to the bill is that he had to telephone Mr Jafer several times to get him to do matters, which is a very vague and generalised complaint. 

1. The other relevant matter that I should mention in deciding whether or not special circumstances exist is that all of this activity seems to have arisen from the fact that towards the end of 2003 there was a successful outcome for Mr Osborne in the County Court proceeding and the matter was dismissed with an order for costs in his favour against All Type.

1. There were then numerous solicitors who had to be contacted in order for Mr Osborne's current solicitors to be able to prepare a bill for demand to be made on All Type to pay Mr Osborne's costs of that proceeding.  It appears that there were seven solicitors, including Jafer Lawyers, that were involved in the County Court action before Mr Osborne's current lawyers were involved. 

1. At first I was concerned that the Master's order in this matter would prevent Mr Osborne being able to successfully recover the costs that he has incurred in that County Court proceeding, but, as Mr Cafari of counsel, who appeared for the respondent, pointed out to me, as far as recovering costs against All Type is concerned, all Mr Osborne has to do, or his solicitors have to do, is to obtain bills from the various solicitors who have previously acted, consolidate those into the one bill and present it to All Type for payment.  If there is then any dispute by All Type about the quantum, that is a matter that can be taxed at the behest of All Type.  Failing that, All Type will have to pay the costs to Mr Osborne and, failing payment, he can seek to execute on the judgment for costs.

1. In all the circumstances, it appears to me that there are no special circumstances and the appeal will be dismissed with costs.

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