Re Watling Roche, Lawyers' Bill of Costs
[1998] QSC 221
•16 October 1998
IN THE SUPREME COURT
OF QUEENSLAND No. 6211 of 1998
Brisbane
[Re Watling Roche, Lawyers’ Bill of Costs]
IN THE MATTER OF THE LEGAL PRACTITIONERS ACT 1995
-and-
IN THE MATTER OF A BILL OF COSTS OF WATLING ROCHE, LAWYERS OF 320 GEORGE STREET, BRISBANE, IN THE STATE OF QUEENSLAND, FOR PROFESSIONAL SERVICES RENDERED AND COSTS INCURRED ON THE INSTRUCTIONS OF KARELE COUTTS (AS NEXT FRIEND TO DANI MARY-ANNE COUTTS) AND DANI MARY-ANNE COUTTS OF 54 BARBARA STREET, MANLEY WEST, IN THE STATE OF QUEENSLAND, IN RELATION TO HER PERSONAL INJURIES CLAIM
CATCHWORDS: COSTS - retainer agreement between firm of solicitors and client - bill of costs delivered to client subsequent to amendment of Legal Practitioners Act 1995 by Civil Justice Reform Act 1997 - inherent jurisdiction of the court to order taxation - whether refusal of taxing officer to tax bill by reason of lack of jurisdiction justified - power of court to set aside retainer agreement.
Acts Interpretation Act 1954 (Qld)
Civil Justice Reform Act 1997
Legal Practitioners Act 1995
Queensland Law Society Act 1952
Solicitors:Quinn & Scattini for the applicant
Watling Roche for the respondent
Hearing Date: 8 October 1998
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 16 October 1998
By her notice of motion the applicant seeks a declaration that an agreement made on 26 November, 1996 between her and her former solicitors, Messrs Watling Roche (“the respondent”), is not fair or reasonable. As well, she seeks an order that the agreement be set aside. Alternatively, she seeks an order reviewing the decision of the taxing officer made on 28 August, 1998, by which he refused to tax a bill of costs dated 30 June, 1998 delivered by the respondent.
The applicant was injured when she was a child. Her mother retained the respondent to commence an action in the District Court to recover damages in respect of her daughter’s injuries. Upon the applicant attaining her majority she entered into a retainer agreement with the respondent. This is the agreement which the applicant wishes to have set aside. Her case on this point is that she was barely eighteen when she made the agreement and she was denied the advice of her mother who was asked to remain away when the negotiations leading to the agreement were conducted. She alleges further that she was denied the opportunity of obtaining independent legal advice about the wisdom of making the agreement.
By the terms of the agreement the respondent is entitled to charge for its professional services at rates very substantially higher than those fixed by the District Court scale.
The applicant has changed solicitors but the respondent refuses to pass the applicant’s file to her new solicitors until its costs are paid. It rendered bills aggregating $50,607.20. The bills had been compiled in accordance with the retainer agreement. After complaint from the applicant’s present solicitors the respondent submitted an amended bill for $31,294.95. The respondent compiled this bill not in accordance with the agreement but purportedly by reference to the relevant District Court scale of fees.
The applicant maintains that the amended bill is still too high and that, despite the respondent’s asserted rejection of the retainer agreement as the basis for the compilation of the bill, some items on the amended bill have been fixed by reference to the agreement. Her present solicitors have calculated that if the bill were taxed and items allowed only in conformity with the scale the bill would be reduced by about $10,000.00.
The applicant attempted to have the respondent’s amended bill taxed but was unsuccessful. Though dated 30 June, 1998 it was delivered on or about 3 July, 1998. The taxing officer, Mr Houghton, thought he had no jurisdiction to tax the bill by reason of the enactment on 1 July, 1998 of section 27 of the Civil Justice Reform Act 1998 which repealed part 2 of the Legal Practitioners Act 1995.
In her application to the taxing officer that he review his decision that he had no power to tax the bill, the applicant argued that the Legal Practitioners Act continued in force after 1 July, 1998 and that the provisions in relation to the taxation of solicitors’ bills had not been replaced by the provisions as to the assessment of those bills found in the amendments to the Queensland Law Society Act 1952 inserted by the Civil Justice Reform Act.
No other basis for the taxation was advanced. The taxing officer, in his careful answer to the applicant’s objection to his refusal, noted:
“The applicant has, pursuant to the provisions of the Legal Practitioners Act 1995, sought the taxation of the respondents costs.”
In my view, Mr Houghton was right in his opinion and for the reasons he gave. Part 2 of the Legal Practitioners Act contained the provisions on which the applicant relied for her entitlement to send her solicitors’ bill for taxation. Those statutory provisions were repealed on and from 1 July, 1998. The applicant’s argument to the contrary is misconceived. She erroneously assumes that because some parts of the Legal Practitioners Act remained unaffected by the enactment of the Civil Justice Reform Act then the whole of the Legal Practitioners Act remained in force. This is clearly wrong. The provisions of part 2 of the Legal Practitioners Act upon which the applicant bases her entitlement to taxation ceased to exist on 1 July, 1998. Unless that entitlement accrued prior to 1 July, 1998, and by reason of the Acts Interpretation Act 1954 (Qld), survived the repeal of part 2, the applicant has no right to seek a taxation.
Section 20(2) of the Acts Interpretation Act provides:
“The repeal ... of an Act does not -
...
(b)affect ... anything ... begun under the Act; or
(c)affect a right ... acquired, accrued ... under the Act; or
...
(e)affect [a] ... remedy in relation to a right ... mentioned in paragraph (c) ...”.
I agree with the taxing officer that until the bill of costs was delivered to the applicant she had no right to have it taxed. That right depends upon the delivery of a bill to a person “chargeable” with payment of the bill. Part 2 of the Legal Practitioners Act had been repealed before the bill was delivered. The applicant thus, prior to the repeal, had no right to have the bill taxed which is saved by section 20 of the Acts Interpretation Act.
The applicant did not argue that, apart from the provisions of part 2 of the Legal Practitioners Act, the court had any power to order a taxation of costs. She did not submit that the court had an inherent jurisdiction to control solicitors’ charges which in the present case might support her application. There is no doubt that the Supreme Court has had an inherent power which Dixon J in Woolf v. Snipe (1933) 48 CLR 677 at 678 - 9 described as “the general jurisdiction of the Court” which was “founded upon the relation to the Court of attorneys and solicitors considered as its officers”. The jurisdiction “enables (the court) to regulate the charges made for work done by attorneys and solicitors of the Court ... and to prevent exorbitant demands”. The jurisdiction was exercised both by the Court of Chancery and the Courts of law. The inherent jurisdiction co-existed with the statutory jurisdiction conferred by provisions such as those found until lately in the Legal Practitioners Act. See In re Johnson and Weatherall [1888] 37 Ch D 433 at 442 - 3; on appeal Storer & Co v. Johnson and Weatherall [1890] 15 AC 203 at 206.
Inherent jurisdiction may, of course, be modified or abrogated by Act of parliament. But it must appear clearly from the words of an Act that it has that effect. Whether the Civil Justice Reform Act should be construed as diminishing that inherent jurisdiction is a question which was not argued and on which I express no opinion.
The circumstances in which the court would exercise its inherent power and the nature of that power are not now easy to ascertain. The first reference given by Dixon J is to Beames, Doctrine of the Courts of Equity with respect to Costs (1840), pp 168 and following. Particular instances in which the jurisdiction was exercised are collected in Daniell’s Chancery Practice, 5th edition, volume 2, pp 1713 - 1715. It appears from this discussion that, as one would expect, the court exercised the discretion depending upon the circumstances of each case. The order made against a solicitor whose misconduct or neglect had occasioned his client expense varied to suit the justice of the particular case. Taxation was not invariably ordered. Sometimes an enquiry into the propriety of particular items in a bill was directed.
The respondent has undertaken to have its bills assessed pursuant to the procedures for controlling excessive charging created by the Civil Justice Reform Act. I deal later with this aspect. That undertaking would seem to me a cogent reason for not exercising the inherent or general jurisdiction of the court, were it available.
I mention this point only lest it be thought by its omission that I accept that general jurisdiction no longer exists.
The application that the court set aside the retainer agreement of 26 November, 1996 was based upon section 29 of the Legal Practitioners Act, which empowered the court to order that the agreement “be given up to be cancelled” if it were thought by the court not to be fair and reasonable. Section 29 is found in part 4 of the Legal Practitioners Act, the whole of which was repealed by section 27 and schedule 2 of the Civil Justice Reform Act.
Section 56 of the Queensland Law Society Act as amended by the Civil Justice Reform Act provides that an agreement made under the Legal Practitioners Act and in force immediately before 1 July, 1998 is deemed to be a client agreement required by section 48 of the (amended) Queensland Law Society Act. The retainer agreement is therefore deemed to be a client agreement and is subject to the amended provisions of parts 4A and 4B of the (amended) Queensland Law Society Act. They do not seem to contain any section equivalent in effect to section 29 of the Legal Practitioners Act. Instead, the scheme of these parts seems to be that client agreements, which are made mandatory by section 48, may be challenged upon any grounds upon which contracts may be impugned, or a client may seek to have a bill of costs delivered to him (or her, or it) assessed in the manner provided for. Upon application for such an assessment the client loses any other right to challenge the efficacy of the client agreement.
It seems to me therefore that the applicant is not entitled to the relief which she seeks.
In any event, she loses nothing because, in the course of hearing the application, the respondent indicated plainly that it abandoned any rights it might have had under the retainer agreement to fix the quantum of its bill. Indeed the respondent had made its position clear by letter of 6 October, 1998 to the applicant’s solicitors. It wrote:
“In our letter to you dated 30 June, 1998 we delivered a Bill of Costs in taxable form which was clearly stated to have been prepared pursuant to the District Court Scale ...
In our letter ... dated 21 September, 1998 we confirmed that the delivered Bill of Costs, which we sought to rely on was prepared in accordance with the District Court Scale, not in accordance with the costs provisions of our retainer agreement with your client.”
It is conceded that the bill of costs in fact contains items calculated by reference to the agreement and not the scale but this is admitted by the respondent to be an error which it expects to be corrected on an assessment of the costs pursuant to the provisions recently inserted into the Queensland Law Society Act by the Civil Justice Reform Act. Mr Van de Leur, who appeared for the respondent, undertook to the court that upon any assessment of the respondent’s bill of costs the District Court scale would be the only reference point. He expressly undertook not to rely in any respect upon the retainer agreement to justify any aspect of the quantum of the bill.
In these circumstances it seems to me that the applicant is adequately protected. There can be no prospect that any assessment of the respondent’s bill will be affected by the terms of the retainer agreement.
I therefore dismiss the notice of motion.
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