Resource Mining Corporation Ltd v Lawton Gillon Barristers & Solicitors

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RESOURCE MINING CORPORATION LTD -v- LAWTON GILLON BARRISTERS & SOLICITORS [2008] WASC 4

CORAM: ACTING MASTER CHAPMAN

HEARD: 19 DECEMBER 2007

DELIVERED : 17 JANUARY 2008

FILE NO/S: LPA 28 of 2007

BETWEEN: RESOURCE MINING CORPORATION LTD (ACN 008 045 083)
Plaintiff (Client)
AND
LAWTON GILLON BARRISTERS & SOLICITORS
Defendant (Solicitor)

Catchwords:

Practice and procedure - Appeal from an application by a client for an extension of time to require a bill containing detailed items - Principles to be applied on an application for an extension - Service of the bill upon the party charged

Legislation:

Legal Practice Act 2003 (WA), s 229, s 230, s 231, s 232
Interpretation Act 1984 (WA), s 75, s 76

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Plaintiff (Client) : Ms C H Meighan
Defendant (Solicitor) : Mr S V Forbes

Solicitors:

Plaintiff (Client) : Talbot Olivier
Defendant (Solicitor) : Stewart Forbes

Case(s) referred to in judgment(s):

Nil

ACTING MASTER CHAPMAN: This is an appeal under O 60A r 4(1) of the Rules of the Supreme Court 1971 (WA) against the order of an acting registrar dismissing an application by the client under s 229 of the Legal Practice Act 2003 (WA) (the Act) for the extension of time within which to require the solicitor to serve a bill containing detailed items.

The grounds of appeal

The grounds of appeal are contained in the notice of appeal and read:
The Appellant appeals the decision on the grounds that:
1.The learned Acting Registrar erred in fact and/or law in finding that:
a.The Respondent did not receive the Appellant's invoice dated 30 November 2006 prior to 13 March 2007;
b.The Respondent's letter dated 19 March 2007 constituted a valid request for itemisation;
c.As a consequence of (a) and (b) above there was no need for the respondent to make application for an extension of time;
d.The Appellant's failure to regard the Respondent's letter dated 19 March 2007 as being a valid request for an itemised account was the cause of the application and the appropriate order in relation to costs was that there be no order as to costs;
2.The learned Acting Registrar failed to:
a.take into evidence the evidence of the Appellant that the address to which the invoice in question had been addressed had been used previously;
b.take into account the Appellant's letter dated 24 November 2006 enclosed not only the Appellant's account but also a copy of court orders and a settlement deed and the Respondent has not denied receipt of those other documents;
c.address the inherent plausibility of the Respondent's claim that it does not possess sufficient information in order to make an informed decision as to whether or not to require itemisation of the invoice in the light of the substantial evidence provided by the Appellant of the involvement of the officers of the Respondent.

The relevant statutory provisions

It is necessary, first, to turn to s 230 of the Act which provides:
230.Bill of costs to be served before suit
(1)A legal practitioner must not sue for the recovery of any services, fee, charges or disbursements until a bill for the services, fee, charges or disbursements has been served upon the party charged.
(2)The bill may be -
(a)a bill containing detailed items; or
(b)a bill for a lump sum.
If any bill has been served in this matter it was a lump sum bill. Where a lump sum bill has been served, the party charged may in accordance with s 231(3) of the Act, within 30 days from service, require a bill containing detailed items. The relevant provision reads:
At any time within 30 days from the service of the bill for a lump sum the party charged may require the legal practitioner to serve upon the party charged, in lieu of the lump sum bill, a bill containing detailed items.
Should the party charged fail to make the request within the 30‑day period the person may seek an enlargement of time pursuant to s 229 of the Act which reads:
A taxing officer may -
(a)enlarge the time prescribed for the taking of any step in this Division;
(b)give direction for substituted service of any notice or document required to be served.
In order for the learned registrar to exercise the discretion provided by s 229, he was required to determine when the lump sum bill had been served. That was required for at least two purposes: (1) to enliven his powers under s 229; (2) to determine the length of any delay in bringing the application. As to the first point, it follows that there would be no power to enlarge the time provided by s 231(3) of the Act if the bill had not been served as the time prescribed had not yet commenced to run. Further, one could not determine the time prescribed had expired until the time had commenced to run by virtue of this service.
The words 'served' contained in s 230(1) and 'service' contained in s 231(3) are not defined in the Act. However, I consider s 76 of the Interpretation Act 1984 (WA) is relevant. That section reads as follows:
Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served -
(a)by delivering the document to him personally; or
(b)by post in accordance with section 75(1); or
(c)by leaving it for him at his usual or last known place of abode, or if he is a principal of a business, at his usual or last known place of business; or
(d)in the case of a corporation or of an association of persons (whether incorporated or not), by delivering or leaving the document or posting it as a letter, addressed in each case to the corporation or association, at its principal place of business or principal office in the State.

Objections to affidavits

Counsel for the solicitor contended that pars 7 and 8 of the affidavit of Julie Leeanne Hill sworn on 14 December 2007 and pars 7, 8 and 23(c) of her affidavit sworn on 28 August 2007 should be struck out on the basis that they obtain hearsay evidence. In each case the respective pars 7 and 8 relate to conversations Ms Hill had with Mr Neville John Bassett. In my view, Ms Hill can give evidence that those conversations took place and the substance of the conversations. She can depose to what Mr Bassett said, but that does not go to the truth of his statements. In this case, Mr Bassett has also deposed to the conversations in question. I therefore would not uphold those objections.
I consider the objection in relation to par 23(c) is valid as the source of Ms Hill's knowledge is not clear.

The service of the bill

As the client is a corporation, service could be effected by s 76(d) of the Interpretation Act, which included posting it as a letter addressed to the client at its principal place of business or principal office in the state. As postage is a method of service open, s 75(1) of the Interpretation Act would apply. That section provides that unless the contrary is proved, service would have been effected at a time when the letter would have been delivered in the ordinary course of post.
It is common cause that the solicitor represented the client from 2003 until November 2006 on this matter and only rendered one bill, being invoice number 20616 dated 30 November 2006. The invoice is exhibit NJB‑2 to the affidavit of Mr Bassett sworn 31 August 2007. It was addressed to Resource Mining Corporation Ltd, C/- Mr Neville Bassett, Westar Capital, 190 St Georges Terrace, Perth WA 600.
At par 44 of the affidavit of Mr Ian Ross Gillon sworn on 24 September 2007 he deposes as follows:
I annex as Attachment 'IRG33' a copy of my letter dated 24 November 2006 to the plaintiff which enclosed the defendant's account. A copy of the sealed copy of the court orders together with a fully executed stamped part of the deed of settlement was also enclosed with this letter. This letter has not been returned to my office by the Post Office as being undelivered.
The letter referred to was not addressed to the client, but rather to Mr Neville Bassett C/- Westar Capital Limited, 190 St Georges Terrace, Perth WA 600. I presume the account referred to was in fact invoice number 20616 and that it was posted to the address as shown on the letter. The evidence is not clear on this matter. If that be the case the invoice was neither posted to the client at its principal place of business or principal office in the state. That being the case the time of service provided in s 75(1) of the Interpretation Act would not apply.
That may not be an end to the matter. If the solicitor was able to establish that the client received the invoice and the date upon which it was received that may be sufficient. The client seeks to persuade the court by way of inference that the invoice was received. For example, in his affidavit, Mr Gillon at pars 42 ‑ 43 refers to attachments IRG 31 and 32 and deposes to the fact that the deed under cover of letter dated 12 October 2006 was sent to Mr Neville Bassett, C/- Westar Capital Limited, 190 St Georges Terrace, Perth WA 600 and that it was received. In par 44 he deposes the letter dated 24 November 2006 together with the account and other documents attached was similarly addressed. There is no direct evidence that the letter of 24 November 2006 was posted and, if so, when it was posted. An inference could be drawn from par 44 of the affidavit of Mr Gillon referred to above that the letter was posted as he deposed to the fact it was not returned to his office by the Post Office as being undelivered. That is hardly sufficient in the circumstances.
Further, at par 3 of the affidavit of Mr Gillon sworn on 18 December 2007 he deposes as follows:
I state that soon after 24 November 2006 a representative of the respondent/plaintiff, Resource Mining Corporation Limited, attended at the offices of Lawton Gillon and collected the documents referred to in the fourth paragraph of my letter to Mr Bassett dated 24 November 2006 (Annexure 'JLH‑1' to the affidavit of Ms Hill sworn 14 December 2007).
As to this Mr Gillon does not depose to the source of his knowledge nor that any telephone call was received to arrange a suitable time as is requested in the fourth paragraph of the letter of 24 November 2006. On the evidence before me, I am not prepared to draw the conclusions that the solicitor would seek.
At par 7 of the affidavit of Mr Bassett sworn on 31 August 2007 he deposes as follows:
I have informed the current company secretary of RMC, Julie Leeanne Hill (Hill), that the original of the Invoice was sent to me at the Westar Address and not to RMC's head office (and registered office) of care of 702‑704 Murray Street, West Perth. I have further informed Hill that due to the fact that a floor level was not included in the Westar Address, the Invoice was not received by me.
Without more I do not consider that Mr Bassett can state why the invoice was not received by him. Counsel for the solicitor submitted that in fact Mr Bassett does not depose specifically that the invoice was not received by him but rather that this is what he told Ms Hill. Whilst it is somewhat surprising that Mr Bassett did not make a positive statement in this regard, taking the evidence as a whole I am satisfied that the invoice was not actually received by the client until 13 March 2007.
Having reviewed all the evidence before me, I do not accept that the learned registrar was in error in finding that the invoice dated 30 November 2006 was not received by the client around that time. Indeed, on the evidence before me, I have reached the same conclusion.
At par 3 of the written submissions of the solicitor, the following is submitted:
The commencement of the application by the respondent constituted an election, alternatively, an admission by the respondent that an enlargement of time was required. It was therefore not open to the Acting Registrar to dismiss the application on the basis that no enlargement of time was required. (emphasis in original)
At pars 9 ‑ 10 of the statement in support of application for enlargement of time which was attached to the letter of Ms Hill dated 25 June 2007, the following reasons are stated:
9.By facsimile transmission of 25 May 2007, Hill requested Gillon to submit the Invoice for taxing by an officer of the Supreme Court of Western Australia for review of the amount of costs charged to RMC.
10.By facsimile transmission of 29 May 2007, Gillon wrote to Hill informing her that the facsimile sent by Bassett to LG on 26 April 2007 was not a request for an itemisation of the Invoice as it was out of time and therefore RMC was not entitled to seek a taxation of the Invoice.
From these paragraphs it is, in my view, clear that the client sought an extension of time because the solicitor in its facsimile dated 29 May 2007 referred to below being annexure JLH‑9 to the affidavit of Ms Hill sworn 28 August 2007 stated the facsimile transmission from the client dated 26 April 2007 was not a request for an itemisation of the account as it was well out of time.
In the circumstances, I do not consider the letter could be said to be an election or an admission that an enlargement of time was required.

Request for itemisation

Having received a copy of the invoice on 13 March 2007 being NJB‑3 to the affidavit of Mr Bassett sworn 31 August 2007, the client by letter of 19 March 2007 requested the solicitor to 'provide a breakdown of the professional services rendered of $76,450.00'. Of that letter, Mr Bassett at par 10 of his affidavit deposes as follows:
By letter of 19 March 2007 (less than a week after receipt of the Invoice by me), I requested that LG provide a 'breakdown' of the Invoice (Second Letter). Although I am aware generally of the right of a client to have an account taxed, I had not previously made a request for an itemised account. I had expected that LG would treat the Second Letter as a request for an itemised account to be provided.
It is apparent that the wording used in the request does not use the specific words used in s 231(3) of the Act. Counsel for the solicitor emphasised the distinction in the words used, the implication being that the Act has not been complied with. This issue was not specifically raised in the facsimile transmission of the solicitor to Ms Hill of 29 May 2007 being annexure JLH‑9 of the affidavit of Ms Hill sworn on 28 August 2007, the relevant paragraphs being as follows:
Our original invoice in the sum of $85,349.25 was forwarded to Resource Mining Corporation Limited in November 2006. Within 30 days of receipt of the invoice you had the opportunity of requesting an itemised account.
You did not request an itemised account. Had you requested an itemised account you would then have been entitled to seek a taxation of the account.
The facsimile transmission from your office dated 26 April 2007 was not a request for an itemisation of the account as it was well out of time. As a gesture of goodwill, we did provide to you further information notwithstanding that we were not required to do so, however the information provided was not an itemisation of the account.
You are not entitled to now seek a taxation of our account dated 30 November 2006.
Whilst the specific words of the Act have not been used, I accept on the evidence before me that the intent of the request was to obtain an itemised account and the letter of 19 March 2007 should be treated as such.

Costs

In general, costs would usually follow the event. As the learned registrar dismissed the client's application, if the general rule were to be followed, the solicitor would obtain a costs order. That was not the case. The learned registrar in fact ordered that there be no order as to costs.
This case is not the norm. This was not a case where the learned registrar dismissed the application because it had no merit. Rather, it was a case in which he correctly concluded leave was unnecessary.
It is apparent from par 10 of the statement in support of application for enlargement of time referred to above that at least part of the reason for bringing the application was the fact that the solicitor took the view that the request of 26 April 2007 was out of time. That being the case, the learned registrar formed the view that 'the defendant was to a reasonable degree responsible for this application being made'. He concluded in those circumstances there should be no order as to costs. In the circumstances, I consider that costs order to be appropriate. Accordingly, I would dismiss the appeal.

[2008] WASC 4

17 January 2008