Piper Alderman v Smoel

[2017] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0076

PIPER ALDERMAN	Applicant
v
KERRYN LINDA SMOEL AND SUSAN CAROLYN WOOSTER (IN THEIR CAPACITY AS THE TRUSTEES OF THE MORRIS FAMILY SUPERANNUATION FUND)	Respondents

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JUDGES:	BEACH and FERGUSON JJA and CAMERON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2017
DATE OF JUDGMENT:	9 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 42
JUDGMENT APPEALED FROM:	[2016] VSC 237 (McMillan J)

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LEGAL PROFESSION – Costs – Tax invoices – Whether invoices itemised bills – Invoices included attendance schedules with varying descriptions of work performed –  Focus of legislative definition of ‘itemised bill’ under Legal Profession Act 2004 was on amenability to review by Costs Court - To be capable of review by Costs Court bill must specify in sufficient detail work done and amounts charged – Whether bill has sufficient detail to be assessed on case by case basis and in context – Invoices and attachments included sufficient information to satisfy requirements for itemised bills – Legal Profession Act 2004 Div 7 Pt 3.4.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr P Collinson QC with Mr M Bearman	Piper Alderman
For the respondents	Mr P Lovell	Castra Legal Costing Pty Ltd

BEACH JA

FERGUSON JA
CAMERON AJA:

Introduction

1. The applicant, Piper Alderman, delivered 23 tax invoices to its clients (the trustees from time to time of the Morris Family Superannuation Fund).  The invoices were delivered before the appointment of the current trustees, Kerryn Linda Smoel and Susan Carolyn Wooster.  Ms Smoel and Ms Wooster (in their capacity as the Trustees of the Superannuation Fund) (‘the New Trustees’) are the respondents to the present application for leave to appeal.  The  New Trustees filed a summons for taxation seeking review of the costs claimed by Piper Alderman.  As almost all of the invoices have been paid, if any amount is taxed off the bills, Piper Alderman will be required to repay that amount to the New Trustees.  Consequently, as a defensive measure, Piper Alderman would like to be in a position to revise the invoices it delivered so that they would include amounts that had not previously been charged for work done by it.  It should be stressed that Piper Alderman does not seek payment of any additional amount.  It simply wants to ensure that it has a buffer so that if an amount is taxed off, it will be counterbalanced by one of the additional charges it might have made but did not. 

1. So it is that Piper Alderman claims that the bills were ‘lump sum bills’ under the Legal Profession Act 2004 (‘the LPA’).[1]  If they are, Piper Alderman would not be bound by the amount that it charged in the tax invoices.  On the other hand, if they were ‘itemised bills’ under the LPA, Piper Alderman would be bound by the amount and matters stated in the invoices. It would not be able to create any buffer.  Consequently, the current issue before this Court is whether the tax invoices are ‘itemised bills’ or whether they are ‘lump sum bills.’

   [1]The LPA has now been replaced by the Legal Profession Uniform Law (Victoria).  Nevertheless, the LPA continues to apply to the dispute in this proceeding.

1. The tax invoices were computer generated from Piper Alderman’s accounting software. Attached to the vast majority of the invoices were attendance schedules which contained multiple entries.  Each entry listed the date, name of the fee earner, their position (for example, partner), the time (expressed in fractions of an hour), the hourly charge out rate, the value (calculated by a multiplication of the charge out rate and the time) and a note of the task performed (with varying levels of description).   

1. The judge held that the invoices were itemised bills with the consequence that Piper Alderman is bound by the amount charged.  Piper Alderman seeks leave to appeal.

1. For the reasons which follow, we would grant leave to appeal but would dismiss the appeal.

Legislative framework

1. The LPA regulated the billing of legal costs and provided for the review of bills by the Costs Court.[2]  A bill could be either a lump sum bill or an itemised bill.[3]  A ‘lump sum bill’ was defined as ‘a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.’[4]  An ‘itemised bill’ was defined to mean ‘a bill that specifies in detail how the legal costs are made up in a way that would allow them to be reviewed under Division 7.’[5]

   [2]LPA pt 3.4 divs 6 and 7.

   [3]LPA s 3.4.34(1).

   [4]LPA s 3.4.2.

   [5]Ibid.

1. A person who was entitled to seek review of a bill could request an itemised bill if only a lump sum bill had been rendered.[6]   The law practice was required to comply with the request within a specified timeframe[7] and could not charge for its preparation.[8]

   [6]LPA s 3.4.36(1).  The request had to be made within a specified time after the lump sum bill was given.

   [7]LPA s 3.4.36(2).

   [8]LPA s 3.4.36(5).

1. Even where costs have been paid, the LPA provided for review by the Costs Court (subject to the applicant having standing and the review being sought within a specified time).[9]  As mentioned, if the law practice had given a lump sum bill before the costs review, on a costs review it was ‘not bound by the amount and matters stated in the lump sum bill.’[10]

   [9]LPA s 3.4.38.

   [10]LPA s 3.4.43(2).

The tax invoices

1. The tax invoices delivered by Piper Alderman each have a cover page which sets out a summary of the amount charged.  This is an example:

To our professional charges pursuant to our letter of engagement dated 16 February 2012

Our fees	$7,125.00
Disbursements	$8.05
Plus GST	$713.31	$7,846.36
$7,846.36
Total GST content of this Bill is $713.31

1. Beneath this section of the invoice appears some further wording, including the following statement:

We reserve our rights to serve on you a detailed bill in the event of non payment and if the detailed bill is for a greater amount than this bill you are liable for the greater amount.

1. Most of the invoices have an attachment with further information by way of multiple entries.  The level of detail varies.  This is an example:

Example 1[11]

[11]This example is representative of invoices 3, 4, 5, 8, 10, 11, and 13-19 in the Schedule of Invoices attached to the Summons for Taxation of Costs dated 10 April 2014.

Date	Fee Earner	Position	Time	Rate	Value	Particulars
24/04/2012	[partner]	Partner	1.0	500	500.00	Calls to Middletons regarding the orders. Considering email from Middletons, letter to [named person]
27/04/2012	[associate]	Associate	0.1	380	38.00	Email from [named person]
30/04/20012	[partner]	Partner	3.0	500	1500.00	Preparing discovery
10/05/2012	[partner]	Partner	0.2	575	116.00	[named partner]

1. At the end of these attachments there are totals for the time and value columns.  In most of the invoices, the total in the value column in the attachment is approximately double the amount charged in the summary cover page.  It seems that Piper Alderman had recorded time under the one file number for the work that it did for two different corporate clients each involved in a separate proceeding.  When it came time to render an account, approximately 50 percent was included in an invoice to one client for the work done in respect of the proceeding involving that client with the balance being included in a separate invoice to the other client for the work performed in relation to the second proceeding.

1. A second example of the type of entries in an attachment to three of the invoices is this:

Example 2[12]

[12]This is an example of invoices 1, 2, 6 and 12 in the Schedule of Invoices attached to the Summons for Taxation of Costs dated 10 April 2014.

Date	Fee Earner	Time	Particulars
13/01/2012	[XX]	0.5	Telephone attendance [named person]
13/01/2012	[YY]	0.5	Telephone [named person]

1. The four invoices with this type of attachment were for the amounts of $2,034.45, $4,600.04, $1,509.20 and $280.80.  On the oral hearing, Senior Counsel for Piper Alderman did not focus on these invoices.  Nevertheless, as is apparent, these attachments do not have columns for the fee earner’s hourly rate, the value for each individual entry nor the total cost of the fees charged (although that amount is contained in the summary page on the front of the invoice).  

1. Some of the invoices only charged for disbursements either on their own or in conjunction with amounts claimed as ‘Payments paid or payable on your behalf’ (for example, counsel’s fees).  These invoices did not charge for any work performed by the solicitors.  Again, in some instances, the amount included in the front page summary was approximately 50 per cent of the amount in the attachment. An example of the types of entries made in the attachments to these invoices is this:

Example 3[13]

[13]This is an example of invoices 7, 9 and 20-23 in the Schedule of Invoices attached to the Summons for Taxation of Costs dated 10 April 2014.

ASIC Search fees (GST free)	$73.85
GST on disbursements	$0.00	$73.85
Payments paid or payable on your behalf
VENDOR: Victoria Transcript Services Pty Ltd; Invoice 80922: DATE: 16/04/2013 – Transcript fees – 10/04/13	$232.96
VENDOR: Michael Green Pty Ltd: Invoice: 494667: DATE: 22/04/2013 Counsel fees – [barrister]	$1080.00

How did the invoices come for review?

1. To understand the current dispute, it is helpful to understand its genesis.  Piper Alderman acted for the former trustees of the Morris Family Superannuation Fund in a proceeding brought against it by Ms Smoel and Ms Wooster.  The proceedings concerned the effectiveness of binding death benefit nominations in favour of Ms Smoel and Ms Wooster.  Ms Smoel and Ms Wooster succeeded in that proceeding and were awarded costs.[14]  The judge also found that the former trustees were not entitled to indemnity from the Superannuation Fund for their costs of defending the proceeding.  The judge delivered her reasons on 1 November 2013.

   [14]Wooster v Morris [2013] VSC 594.

1. On 14 November 2013, Ms Smoel and Ms Wooster became the new trustees, replacing the former trustees.

1. As noted above, on 10 April 2014, the New Trustees issued a summons for taxation seeking a review of the costs claimed in the 23 tax invoices.  They total $346,128.60.  As mentioned at the outset, most of this amount has been paid.  The consequence is that any amount that is taxed off will have to be repaid by Piper Alderman.

1. An initial issue was whether the New Trustees had standing to seek review of the costs.  The judge resolved that question in favour of the New Trustees.[15]  Piper Alderman has not challenged her Honour’s findings in regard to standing.  Rather, as discussed above, the challenge concerns whether the invoices are ‘lump sum bills’ or ‘itemised bills.’

The judge’s reasons[16]

[15]Smoel & Wooster v Piper Alderman [2015] VSC 256.

[16]Smoel & Wooster v Piper Alderman (No 2) [2016] VSC 237 (‘Reasons’).

1. The judge set out the relevant statutory definitions of ‘lump sum bill’ and ‘itemised bill’ and noted that apart from these definitions, the LPA does not expressly specify the content of an itemised bill.[17]  The judge looked to r 63.42 of the Supreme Court (Civil Procedure) Rules 2015 (‘the Rules’) to ascertain the content for a bill of costs for taxation.  That rule in part provides as follows:

   [17]Ibid [9]–[10].

(1)In a bill of costs for taxation under this Order charges and disbursements shall be set out in separate columns, and the amounts in each column shall be totalled at the foot of each page and the total carried forward to the top of the next page.

(2) The bill shall contain—

(a) items numbered in chronological order describing briefly the work done by the solicitor for the party entitled to costs, and stating beside each item the amount claimed for the work and the amount of any disbursement made;

(b)at the conclusion of the chronological description of the work done, a description, having regard to the matters referred to in Rule 63.48, of work done justifying an allowance under Appendix A of the amount claimed beside that item;

(c)disclosure of the actual hourly rates charged to the party....

(4)Where work for which costs are claimed was done by a clerk of the solicitor and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk shall be stated in the bill.[18]

[18]By virtue of r 63.63(b), r 63.42 relevantly applies to the taxation of costs where costs have been paid and the taxation is sought by a person who is not the client.

1. The judge observed that failure to comply with r 63.42 was an irregularity rather than a nullity.[19]  The judge also noted the role that expedition, lack of formality and technicality play when the Costs Court comes to exercise its jurisdiction.[20]   She stated that the overarching obligations to minimise delay and to ensure costs are reasonable and proportionate[21] also supported the avoidance of unnecessary technicality and expense if justice between the parties can be maintained.[22]

   [19]Reasons [11].

   [20]Ibid. See Supreme Court Act 1986 s 17D(3) which provides:

   The Costs Court must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Rules and the proper consideration of the matters before the Court permit.

   [21]Civil Procedure Act 2010 ss 24, 25.

   [22]Reasons [11].

1. The judge noted that to be capable of review, a bill had to specify in sufficient detail the work done and the amounts charged for each service so that the recipient of the bill is in a position to make up his or her mind or obtain advice as to whether what has been charged is reasonable.[23]  The judge referred to the need for a lump sum bill to describe the legal services provided, if only in general terms.[24]

   [23]Ibid [12].

   [24]Ibid.

1. The judge next considered the application of these principles to the facts before her.  The judge stated that the details of the hourly rate in two of the invoices (Example 2 above) could be gained from the costs agreement entered into between Piper Alderman and its client.[25]

   [25]Ibid [16].

1. In relation to the other invoices, the judge stated that in the normal course of a costs review, recourse could be had to the files of Piper Alderman if an objection was taken to an item.[26]  The judge reasoned:

Although the descriptions in the attendance schedules are brief, they do more than just describe the legal services with a total amount specified for the professional fees. A lump sum bill would not ordinarily specify this amount of detail.[27]

[26]Ibid [18].

[27]Ibid.

1. The judge noted that the entries in the attachments to the invoices could easily be numbered by hand; sub-totals could be added; disbursements could be taxed by reference to invoices sent by suppliers.[28]  The judge held that the invoices were itemised bills within the meaning of the LPA and stated:

the particulars of the charges in the tax invoices and attendance schedules are sufficient to enable the applicants to obtain advice and make an informed decision on the nature of and the reasonableness of the charges and whether or not to exercise their rights to seek a review of the costs reasonably free from the risks of having to bear the costs of the taxation.[29]

[28]Ibid [20].

[29]Ibid [21].

1. The judge concluded that Piper Alderman’s tax invoices with the attached schedules were to be reviewed by the Costs Court on the basis of the fees charged in them.[30]

   [30]Ibid [27].

Grounds of Appeal

1. Piper Alderman has three proposed grounds of appeal which are:

1.The judge misdirected herself as to the meaning of the term ‘itemised bill’ in s 3.4.2 of the LPA by:

(a)conflating that meaning with the procedural requirements for an itemised bill under r. 63.42 of the Supreme Court (General Civil Procedure Rules) 2005;

(e)by construing bills providing more information than would ordinarily be provided by a lump sum bill to be an itemised bill.[31]

2.The judge erred in finding that the attendance schedules specified in detail how the legal costs in the invoices were made up in a way that would allow them to be reviewed under Division 7 of the LPA. The schedules did not identify why time was expended on a specific attendance, or the specific identity of any documents considered during that time so that the schedules did not inform clients whether to accept the risk of costs against them by a costs review.

3.The judge should have found that each of the tax invoices with the attached attendance schedules was a ‘lump sum bill’ within the meaning of that term provided for by s 3.4.2 as ‘a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.’

[31]On the hearing of the application for leave, Piper Alderman abandoned proposed grounds 1(b)-(d).  Those proposed grounds read:

The judge misdirected herself as to the meaning of the term ‘itemised bill’ in s 3.4.2 of the LPA by:

(b)having regard to a statutory consequence under s 3.4.43(2) of LPA of the invoices not being itemised bills but lump sum bills; viz. that the applicant would not in a subsequent costs review be bound by the bills and might claim a greater sum;

(c)having regard to the quantum and proportionality of applicant’s costs under s 24 of the Civil Procedure Act 2010; and

(d)requiring the applicant to have specified in the invoices that they ‘were not itemised bills for the purposes of the [LPA]’.

1. The judge has made no orders consequent on delivering her reasons. Nor has there been a judgment. No point was taken by the New Trustees in this regard. There being no order or judgment from which to bring an appeal, Piper Alderman seeks a declaration that its 23 tax invoices were lump sum bills within the meaning of s 3.4.2 of the LPA. It accepts that if it is unsuccessful, this Court should make a declaration that the 23 tax invoices are itemised bills. The New Trustees agreed that the application for leave should proceed on this basis.

Were the tax invoices ‘itemised bills’ under the LPA?

1. In its written case, Piper Alderman submits that the judge conflated the meaning of ‘itemised bill’ with the procedural requirements for an itemised bill under r 63.42 of the Rules. It contended that the procedural requirements are not relevant when construing the definition in s 3.4.2 of the LPA. Somewhat in tension with those submissions, at the hearing of the application for leave, Senior Counsel for Piper Alderman contended that the invoices did not contain the detail prescribed by the Rules and this was another reason why they were not ‘itemised bills.’ Moreover, there is nothing in the legislation or the Rules that suggests that a taxation or review of costs will or must be conducted on the basis that the law practice’s file will be in court and available to the parties. Indeed, Piper Alderman observes that nothing in Div 7 refers to the necessary requirements for a bill to be the subject of a costs review.

1. Piper Alderman contends that the judge reasoned erroneously that because the invoices did more than describe ‘the legal services to which it relates’ (which is the minimum required to satisfy the requirements for a lump sum bill), this meant that they were itemised bills.  Piper Alderman maintains that additional information does not transform a lump sum bill into an itemised bill.  Rather, to be the latter, the bill must specify in detail how the legal costs are made up in a way that would allow them to be reviewed under Div 7.   So, Piper Alderman says, if the judge’s approach were correct, it would encourage lawyers to provide less information in their bills instead of more, which would be contrary to the consumer protection objects of the LPA. 

1. Piper Alderman submits that earlier authorities must be approached with caution.  Essentially, those authorities stand for the proposition that a client should be in a position to know whether to challenge the costs charged through a taxation. Piper Alderman contends that under the LPA the task was one of interpretation of the definition of itemised bill; that is, did the bill specify in detail how the legal costs are made up in a way that would allow them to be reviewed under Div 7? 

1. So, Piper Alderman submits, the authorities do not assist in identifying the distinction between the general description of legal services required for a lump sum bill, and the detailed information required for an itemised bill.  It contends that the observation of Young J in Bartex Fabrics Pty Ltd v Phillips Fox[32] is apt:

[a] schedule which shows that a solicitor spent one hour forty minutes perusing some pieces of paper without identifying the pieces of paper or indicating why she should stare at them for so long, tells the client absolutely nothing.[33]

[32] [1994] 13 ACSR 667.

[33]Ibid 668.

1. Piper Alderman maintains that the purpose of an itemised bill is to ensure that adequate information is given to enable a client to understand why each item was charged, not merely that an item was charged.  That those matters might be worked out by reference to the solicitors’ files on a costs review does not, so Piper Alderman says, fulfil that purpose, as a client will not be in possession of the law practices’ files (or all of them) until the costs review.  It observes that the point it makes is well illustrated in the present case; the New Trustees were not its clients in the underlying proceedings to which the invoices related; it is improbable that they would have any knowledge of the instructions given to Piper Alderman by its former clients in response to which the legal services were provided.

1. Against the background of those submissions, Piper Alderman maintains that the tax invoices lacked the necessary detail to constitute itemised bills.  It predominantly points to four matters.  First, it says that some of the entries lack detail.  It gave as an example the last entry in the table in Example 1 above.  Piper Alderman accepts that if only one entry in an otherwise itemised bill lacked the necessary detail, that would not mean that the bill lost its characterisation as an itemised bill.  But here it says that the lack of detail is not nearly so isolated.  Second, the narration of the work does not state to which of the two proceedings it relates.  So it contends, the recipient of the invoice cannot tell to which of the two proceedings the work related. Third, the figures in the value column do not represent the amount charged for that item, given that the total of the value column is approximately double the amount that was charged in the summary page.  Last, the statement of ‘value’ is not a statement of the ‘amount charged.’  In this regard, Piper Alderman relied on the requirements in r 63.42 in relation to ‘charges’.

1. In addition, as a matter of construction of the invoices, Piper Alderman says that the Court should have regard to the statement included on the summary page of the invoices which is set out at [10] above.  It says that the statement is clearly intended to refer to the effect of s 3.4.43(2) of the LPA.  It maintains that whether the bill is itemised must be assessed at the time the bill is delivered to the client.

1. The question here is whether Piper Alderman is bound by the tax invoices it has rendered.  To recap, s 3.4.43(2) of the LPA provided:

If, before giving an itemised bill the law practice had previously given a lump sum bill, on a costs review the law practice is not bound by the amount and matters stated in the lump sum bill.

with ‘itemised bill’ defined in s 3.4.2 of the LPA to mean ‘a bill that specifies in detail how the legal costs are made up in a way that would allow them to be reviewed under Division 7’ and ‘lump sum bill’ defined to mean ‘a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.’

1. The text of s 3.4.43(2) and the definition of ‘itemised bill’ direct attention to the ability to use a bill for the purposes of a costs review.  True it is that some of the authorities which focus on the need for sufficient detail in a bill to enable the recipient to make a decision as to the reasonableness of the charges, whether to have the bill taxed and to take advice in that regard may therefore, at first blush, seem to miss the mark for the purposes of the LPA definitions.[34]  Moreover, some of those authorities speak in these terms when they are dealing with lump sum, rather than detailed or itemised bills for taxation.[35]  However, little turns on this as a bill must at least satisfy that test if the bill is in a form that may be reviewed under Div 7.  Given the statutory language in the LPA, it is perhaps better to express as an overarching requirement for an itemised bill that it include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court.  To give that more content however, it is necessary to look to the context and purpose of the provisions.

   [34]For example, Stevens v Keogh (Unreported McDonald J 3 December 196); Ralph Hume Garry v Gwillim (2003) 1 WLR 510, 522; Bartex Fabrics Pty Ltd v Phillips Fox (1994) 13 ACSR 667, 678; Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228, 234; Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5.

   [35]For example, Stevens v Keogh (Unreported McDonald J 3 December 1996).

1. First, there is a contrast between the definitions of ‘lump sum bill’ and ‘itemised bill.’  Something less is required for the former, but there must still be a description of the legal services with the total costs to be specified.  Here, the judge was correct to consider the definition of ‘lump sum bill’ for that provides some of the context for the definition of ‘itemised bill’ and s 3.4.43(2).  There will be escalating degrees of information that may be provided for a lump sum bill.  The fact that a bill contains more than the minimum amount of information necessary to satisfy the requirement of a lump sum bill does not mean that it automatically becomes an itemised bill.  But the judge did not jump to that erroneous conclusion.  Rather, she simply noted that the invoices provided more information than would ordinarily be specified in a lump sum bill.  There is no error in that.  

1. Turning then to s 3.4.43 of the LPA. That section is headed ‘Procedure on review.’ It sits within Div 7 – ‘Costs review by Costs Court.’ To find out about the Costs Court, one must go to the Supreme Court Act. As the judge observed,[36] under s 17D(3) and (4), the Costs Court regulates its own procedure and must exercise its jurisdiction with as little formality and technicality and as much expedition as the Supreme Court Act, the Rules and the proper consideration of the matters before the Costs Court permit.  These are matters that give the setting in which one looks to whether a bill would be amenable to review under Div 7 of the LPA.  A no-nonsense and practical approach to whether the bill specifies sufficient detail about how the costs are made up is endorsed.  So, when looking at the bill in question, the reader should not approach the task as if it was one of construction of a statute or a formal written agreement between parties.

   [36]Reasons [11].

1. The procedure in the Costs Court is also relevant because this helps to inform whether the bill is of a type that could be reviewed by it.  The Rules apply to the Costs Court.  The judge correctly took into account the requirements in r 63.42[37] of the Rules and that a failure to comply with that rule is an irregularity rather than a nullity.[38]  Another aspect of the procedure in the Costs Court is relevant.  True it is that neither the LPA nor the Rules require the law practice to have its file in Court.  However, that is common practice.  In any event, if the file were not available, it would be open to the other party to require its production. 

   [37]Which applies to the current matter by virtue of r 63.63(1)(b).

   [38]The Rules r 2.01.

1. In addition, whether the bill has sufficient detail to enable it to be reviewed cannot be assessed in a vacuum.  The knowledge of the recipient about the context in which the charges were made is relevant.  One would expect the recipient to have some knowledge (at least at a high level) of the work that was required.  So, for example, in a litigious matter, one would expect the bill recipient to know (in addition to other things) that discovery was a task that had to be performed; the names of the partners, associates and lawyers working on the matter; and the name of the law practice acting for the opponent.  In this case, the New Trustees would be expected to know about the underlying proceeding for which Piper Alderman provided legal services to the former trustees and they would also be expected to have sufficient information about the legal work that was required.  Although they may not have detailed information about all of the instructions that were given to Piper Alderman (for example, verbal instructions that were not recorded in writing), as New Trustees, it would be expected that they would have a sufficient amount of information gained from written correspondence to the Superannuation Fund to proceed with the review. 

1. Part 3.4 of the LPA (which included ss 3.4.2 and 3.4.43) was headed ‘Costs Disclosure and Review.’ The purposes of the Part included providing a mechanism for the review of legal costs. Again, attention is directed to the procedure for review. Satisfying that purpose takes one back again to the Costs Court and how it operates.

1. Bearing all of this in mind, the specific matters that Piper Alderman raised do not lead to the conclusion that the judge’s finding that the tax invoices are itemised bills was wrong.  We will deal with each of them in turn.

1. First, dealing with the criticism that the invoices lack the necessary detail to satisfy the requirement of an itemised bill, it is worth observing that as a whole the attachments to the invoices contain considerable detail.  Occasionally there are entries that might have been expanded.  The example to which Piper Alderman points is apt in this regard.  To recap, it reads:

Date	Fee Earner	Position	Time	Rate	Value	Particulars
10/05/2012	[partner]	Partner	0.2	575	116.00	[named partner]

1. That entry is less than illuminating as to what work was done.  But entries of this nature are rare in Piper Alderman’s invoices.  They are insufficient in number to have the effect of converting the invoices from itemised bills to something less than that.  It may be accepted that there would come a stage where, if a bill had multiple entries of this type, the result would be that it did not constitute an itemised bill.  How many deficient entries would suffice before this would be the effect is not something to be determined in the present case.

1. Second, there is no mention as to which of the two proceedings the work narrated in the invoices relates.  Taking into account that the New Trustees are not strangers to the litigation (and were in fact the defendants in the proceeding) this does not seem to me to be an obstacle to characterisation of the invoices as itemised bills.   In those circumstances, there is nothing to prevent the review from occurring.  What happens to items (if any) that have been included which only relate to the other proceeding is a matter for the review.  In all likelihood, the reason why any such items have been included and whether such items can be maintained on review will involve consideration of the agreement and any understanding between the former trustees and Piper Alderman (about which this Court has no information).  But these are not matters which affect whether the invoices are in a form with sufficient detail to permit their review.

1. Third, it is clear from the invoices that approximately half of the total amount specified in the value column at the end each attachment has been charged in the summary page.  Consequently, the reader of the invoice may reasonably conclude that only half of the value of each item has been charged.  It is then a simple task to work out the amount charged for each entry by a simple division.  If, on a review, it turns out that there was some other arrangement between Piper Alderman and the former trustees, then that can be dealt with on the review.  Again though, this issue does not lead to the conclusion that the invoices do not have sufficient detail to allow them to be reviewed. 

1. Piper Alderman does not draw attention to the four invoices that do not contain any information about the position of the person, their rate and the value of the item of work performed (Example 2 above).  These amount of these invoices is a small part of the total that was charged by Piper Alderman.  There are a limited number of entries in each invoice.  As the judge observed,[39] the details of the hourly rate of the respective fee earners can be easily ascertained from the costs agreement. 

   [39]Reasons [16].

1. Again, Piper Alderman did not draw attention to the disbursement only accounts (Example 3).  The information in them is sufficient for an itemised bill in this case.  They either provide a narration which discloses sufficient to tell what the charge is for (for example, ‘ASIC Search fees) or they refer to the invoices from the third party supplier (for example, Victoria Transcript Services Pty Ltd or a barrister’s clerk).

1. Fourth, the fact that the column in most of the attachments is headed ‘value’ rather than ‘charge’ is of no moment.  At least in the context of an invoice for legal costs, the terms are interchangeable.

1. Finally, we accept that the statement on the summary page of the invoices was intended to refer to s 3.4.43(2) of the LPA. This appears to be a standard form document.  It may or may not suggest that Piper Alderman thought that each bill was not an itemised bill.  In any event, against that is the fact that the New Trustees were sufficiently satisfied with the information in the invoices to issue a proceeding for review of them.  However, neither of these things takes the matter very far when looking to see if the invoices are itemised bills.  For the inquiry remains whether the invoices have sufficient detail for the purposes of review.  The short answer is that in the circumstances of this case they do.

1. In passing, we would observe that when the Costs Court conducts the review, it will examine the individual entries on the itemised bills.  The Costs Court may, if it so requires, have regard to any underlying documentation (for example, attendance notes) produced from Piper Alderman’s file to support the various individual entries.  As such, there is no reason to consider that any injustice will be done to either party if a review proceeds on the basis of the invoices in their current form.

1. Finally, nothing that we have said should be taken as suggesting that a bill in the form delivered by Piper Alderman would always constitute an itemised bill.  Whether sufficient detail has been provided must be assessed on a case by case basis, dependent upon its own circumstances and bearing in mind that the Costs Court is empowered to act expeditiously and with as little formality and technicality as permitted.

Conclusion

1. We would grant leave to appeal on the basis that the proposed appeal had a real (not fanciful) prospect of success.  We would dismiss the appeal and would make a declaration to the following effect:

Piper Alderman’s 23 tax invoices with attached attendance schedules which are the subject of the Summons for Taxation of Costs dated 10 April 2014 are itemised bills with the meaning of that term in s 3.4.2 of the Legal Profession Act 2004.