Robert John Smith v Lewis Blyth & Hooper - [2015] HCASL 173

ROBERT JOHN SMITH
v
LEWIS BLYTH & HOOPER
[2015] HCASL 173
P17/2015

The applicant entered into three costs agreements with the respondent, a firm of legal practitioners, in relation to the provision of legal services. The applicant invoked the jurisdiction of the Supreme Court of Western Australia under s 222 of the (now repealed) Legal Practice Act 2003 (WA) ("the Act") to review a costs agreement and, if, in the opinion of the court, it is unreasonable, to reduce the amount payable or cancel the costs agreement.
On 14 November 2013, the Supreme Court (Jenkins J) held that two of the costs agreements were unreasonable and ordered that they be cancelled. The respondent appealed against those orders.
On 13 March 2015, the Court of Appeal of the Supreme Court of Western Australia (Buss, Newnes and Murphy JJA) dismissed the appeal in respect of one costs agreement and allowed the appeal in respect of the other. As to the latter, the Court of Appeal held that the primary judge erred in her application of s 222(2) of the Act by finding that the costs agreement was unreasonable solely on the basis that a costs estimate had not been provided to the applicant before the agreement had been executed. Considering all the circumstances as a whole, the Court of Appeal held that the costs agreement was not unreasonable.
The applicant seeks special leave to appeal to this Court. He requires an extension of time to do so. No question of law or principle is raised. There is no reason to doubt the correctness of the Court of Appeal’s conclusion that the primary judge erred in her approach, nor has it been shown that the Court of Appeal’s re-exercise of the discretion under s 222 of the Act, no longer in force, was affected by error. Special leave should be refused. There is therefore no utility in granting the applicant an extension of time.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
15 October 2015 P.A. Keane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 173
Decision Date

CaseChat Overview and Summary

The applicant in this case, Robert John Smith, brought an action against Lewis Blyth & Hooper, a firm of legal practitioners, regarding three costs agreements pertaining to legal services rendered. Smith sought a review of these agreements under section 222 of the repealed Legal Practice Act 2003 (WA), aiming to determine if any were unreasonable and, if so, to reduce or cancel them. The Supreme Court of Western Australia, presided over by Jenkins J, initially found that two of the agreements were unreasonable and ordered their cancellation. Lewis Blyth & Hooper appealed this decision, leading to a review by the Court of Appeal of the Supreme Court of Western Australia.

The Court of Appeal assessed the appeal and determined that the primary judge had erred in her application of section 222(2) of the Act. Specifically, the Court of Appeal found that the cancellation of one costs agreement was incorrect because it was based solely on the absence of a costs estimate provided to Smith before the agreement was executed. The Court of Appeal held that the costs agreement was not unreasonable when considering all circumstances. The Court dismissed the appeal in respect of one agreement and allowed it concerning the other.

The reasoning of the Court of Appeal was grounded in the need to consider all circumstances when determining the reasonableness of a costs agreement, rather than focusing narrowly on a single factor such as the absence of a costs estimate. The Court of Appeal's decision was based on a re-exercise of the discretion under section 222 of the Act, which is no longer in force, but the conclusion reached was deemed correct. The applicant sought special leave to appeal to the High Court, requiring an extension of time, but this was denied as no new legal principles were raised, and the Court of Appeal’s conclusion was deemed correct. The application for special leave was dismissed with costs.

Orders