Rodwell v Julia Barber and Co (Legal) Pty Ltd
[2011] WASCA 204
•3 OCTOBER 2011
RODWELL -v- JULIA BARBER & CO (LEGAL) PTY LTD [2011] WASCA 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 204 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:131/2010 | 7 SEPTEMBER 2011 | |
| Coram: | NEWNES JA MURPHY JA HALL J | 3/10/11 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALAN STANLEY RODWELL JAN ALETHEA ROBERTSON JULIA BARBER & CO (LEGAL) PTY LTD |
Catchwords: | Costs Application to taxing officer to refer costs agreement for review Section 222 of Legal Practice Act 2003 (WA) Taxing officer refused to refer costs agreement under s 235(2) Appeal to master dismissed No substantial injustice if master's decision not set aside |
Legislation: | Legal Practice Act 2003 (WA), s 222, s 235(2) |
Case References: | Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 Rodwell v Julia Barber & Co (Legal) Pty Ltd [2010] WASC 337 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RODWELL -v- JULIA BARBER & CO (LEGAL) PTY LTD [2011] WASCA 204 CORAM : NEWNES JA
- MURPHY JA
HALL J
- First Appellant
JAN ALETHEA ROBERTSON
Second Appellant
AND
JULIA BARBER & CO (LEGAL) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : RODWELL -v- JULIA BARBER & CO (LEGAL) PTY LTD [2010] WASC 337
File No : LPA 8 of 2009
(Page 2)
Catchwords:
Costs - Application to taxing officer to refer costs agreement for review - Section 222 of Legal Practice Act 2003 (WA) - Taxing officer refused to refer costs agreement under s 235(2) - Appeal to master dismissed - No substantial injustice if master's decision not set aside
Legislation:
Legal Practice Act 2003 (WA), s 222, s 235(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent : No appearance
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Rodwell v Julia Barber & Co (Legal) Pty Ltd [2010] WASC 337
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
(Page 3)
1 JUDGMENT OF THE COURT: This appeal arises out of a dispute between the appellants and their former solicitor, the respondent, over costs. The appellants wish to have the costs agreement they made with the respondent reviewed by a judge under s 222 of the Legal Practice Act 2003 (WA) (the Act) before the costs are taxed pursuant to s 237 of the Act. Registrar S Boyle refused to accede to a request by the appellants that she refer the costs agreement to a judge pursuant to s 235(2) of the Act. An appeal by the appellants against the registrar's refusal was dismissed by Master Sanderson: Rodwell v Julia Barber & Co (Legal) Pty Ltd [2010] WASC 337. The appellants, who are self-represented, now appeal against the master's decision.
2 The respondent is not taking any part in the appeal.
Background
3 The material facts are not in issue. The respondent is an incorporated legal practice, pursuant to pt 6 of the Act. The respondent was, for a time, engaged by the appellants to act as their solicitor. The purpose of the respondent's retainer is nowhere stated but on the hearing of the appeal we were informed by the appellants that the respondent was retained to act for them in an appeal to the District Court.
4 In connection with the retainer, the appellants entered into a costs agreement, dated 19 February 2009, with the respondent. A 'Costs Disclosure Statement', pursuant to the Professional Conduct Rules, was also executed by the appellants.
5 The costs agreement provided (relevantly) that the respondent would generally use certain specified hourly rates to determine the charges for its work, but that the respondent's charges may vary according to the type of work and the experience of the lawyers involved. The costs agreement further provided that the respondent's charges may be adjusted to account for the skill, care, responsibility or urgency of the matter or for unwarranted time spent on the matter, and that the specified hourly rates may be reviewed by the respondent. The hourly charges stated in the costs agreement were within the limits of the relevant costs determination, made under the Act.
6 In addition, it was a term of the costs agreement that:
[The appellants] agree that [the respondent] will charge for all services in units of 6 minutes, whatever time is actually spent in supplying the service. If, for example, a telephone call takes 8 minutes it will be charged at the next highest unit of 6 minutes - that is, 12 minutes.
(Page 4)
7 The costs disclosure statement contained (relevantly) the following provision:
Basis of calculating any fees
Fees are charged as follows for actual time spent:
[the same hourly rates as in the costs agreement were then set out]
8 The appellants subsequently became dissatisfied with the respondent's services and disputed the fees that were charged by the respondent. The appellants terminated the respondent's retainer on 23 March 2009.
9 On 29 March 2009, the appellants wrote to the respondent requesting that the costs agreement be referred to the court for review under s 222 of the Act. It is evident that the appellants' aim was to have the costs agreement cancelled. The appellants also asked the respondent to lodge its bill of costs with the taxing officer of the Supreme Court for taxation, pursuant to s 237(1) of the Act, in case the costs agreement was not cancelled.
10 We digress to mention that s 222 of the Act is in the following terms:
(1) A costs agreement may be reviewed by the Supreme Court upon application by summons or on a reference under section 235(2).
(2) If, in the opinion of the Supreme Court, the costs agreement is unreasonable -
(a) the Supreme Court may reduce the amount payable or cancel the costs agreement; and
(b) the costs may be taxed in the ordinary way.
(3) The Supreme Court may make such order as to the costs of and relating to the review, and the proceedings on the review, as the Court thinks fit.
11 Section 235 provides:
(1) When taxing an itemised bill of costs a taxing officer must give effect to any costs agreement made as to the costs specified in the bill.
(2) A taxing officer, at the request of the party charged with a bill of costs, may refer any costs agreement made as to the costs specified in the bill to the Supreme Court for review of the agreement under section 222.
(Page 5)
12 Under s 228(1), 'taxing officer' means a taxing officer of the Supreme Court. Section 155(2) of the Supreme Court Act 1935 (WA) provides that the registrars are the taxing officers of the Supreme Court.
13 On 3 April 2009, the appellants wrote to the 'taxing officer' noting that they had requested the respondent to lodge the costs agreement for review and to lodge a bill of costs for taxation in case the costs agreement was not cancelled. In the letter, the appellants made a request of the taxing officer for the costs agreement to be reviewed under s 222. The appellants contended there were four grounds which warranted the cancellation of the costs agreement:
1. the respondent, by its principal, Ms Barber, had failed to go on the record in the proceedings for which the respondent had been retained despite having twice been requested to do so and on each occasion having agreed to do so;
2. the costs agreement failed to disclose the manner in which the respondent would charge for time spent on the matter;
3. the costs agreement permitted charges to be made at different rates at the discretion of the respondent and trust funds to be drawn at any time; and
4. the interest rate stated in the costs agreement to be chargeable on overdue accounts was different to the rate stated on accounts subsequently rendered by the respondent, in that the rate stated on the accounts was lower.
14 The letter contained detailed argument, supplemented by a number of annexures, in support of those allegations.
15 On 8 April 2009, the respondent filed its bill of costs for taxation pursuant to s 237 of the Act.
16 On 5 June 2009, the appellants filed an outline of submissions setting out the grounds upon which they contended that the costs agreement should be cancelled. Those grounds were substantially the same as the grounds set out in their letter of 3 April 2009.
17 On 8 June 2009, a teleconference took place involving Registrar S Boyle, the appellants and the respondent. (A teleconference facility was used because the appellants are resident in Broome.) The appellants requested the registrar to refer the costs agreement to a judge for review
(Page 6)
- pursuant to s 235(2) of the Act, on the basis that the costs agreement was unreasonable. The registrar declined to do so, saying that she could see no grounds upon which it might be found that the costs agreement was unreasonable. The registrar pointed out that if the appellants nevertheless wished to have the costs agreement reviewed they could proceed by originating summons under s 222 of the Act. The registrar adjourned the matter to allow the appellants time to take that step.
18 As it turned out, the appellants took no further action and ultimately the matter was relisted for 13 August 2010. On that occasion the appellants repeated their request that the costs agreement be referred to a judge under s 235(2) of the Act. The registrar again declined to do so. She reiterated that in her view there was nothing in the costs agreement which would warrant such a referral. The appellants maintained that they wished to have the costs agreement reviewed and the registrar adjourned the matter for 12 weeks to enable the appellants to apply to a judge by originating summons under s 222.
19 The appellants did not take that course. Instead, on 18 August 2010, they filed a notice of appeal against the refusal of the registrar to refer the costs agreement under s 235(2).
20 Pursuant to O 60A r 4 of the Rules of the Supreme Court 1971 (WA), an appeal against a decision of a registrar is to a master. Although nowhere is the issue expressly referred to, it appears that the appeal proceeded on the basis that the provisions of O 60A r 4(6)(c), which exclude an appeal from a registrar 'when acting as a taxing officer', do not apply to a decision under s 235(2) of the Act: see Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 [14]. In view of the conclusion we have reached on the appeal, we do not think it is necessary to consider that issue.
21 Suffice it to say that, on 24 November 2010, the master dismissed the appeal.
The decision of the master
22 The master considered that the registrar had correctly found there was nothing which suggested any ground upon which the costs agreement might be set aside. He described the terms of the costs agreement as 'unexceptional' [3] and noted that the hourly rates in the agreement were within the limits of the applicable costs determination.
(Page 7)
23 The master also noted that much of the appellants' evidence was directed to establishing that the respondent was negligent or did not perform the services for which the appellants were charged. He observed that this was irrelevant to a determination of whether or not the costs agreement itself was reasonable.
24 The master found that as no basis had been shown upon which the costs agreement might be set aside by a judge under s 222, the registrar had not erred in refusing to refer it.
25 As the respondent did not appear on the appeal, the master made no order as to costs.
Grounds of appeal
26 Although the ground of appeal is not framed in this way in the appellants' case, in substance the appellants contend that the master should have held that the taxing officer erred in finding that there were no grounds upon which the costs agreement might be set aside if referred to a judge for review pursuant to s 222 and that accordingly the taxing officer was in error in exercising her discretion under s 235(2) of the Act to refuse to refer it.
Disposition of the appeal
27 The appeal is against an interlocutory decision and thus leave is required pursuant to s 60(1)(f) of the Supreme Court Act.
28 The principles which apply to an appeal against an interlocutory decision are well-settled. Generally the appellant must show that the original decision was wrong, or at least attended by sufficient doubt to warrant the grant of leave, and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not, however, inviolable and leave may be granted whenever the interests of justice require it: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 [56] - [57]; Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 [14].
29 The appellants submitted that the master should have found that the registrar erred in concluding there was nothing which would justify the referral of the costs agreement for review under s 222 of the Act. There were, it was submitted, a number of grounds upon which it might be found that the costs agreement was unreasonable. They can be sufficiently stated as follows:
(Page 8)
- 1. despite agreeing to do so, the respondent, by Ms Barber, did not go on the record for the appellants in the appeal to the District Court;
2. the costs agreement permitted the respondent unilaterally to vary its hourly rates from those stipulated;
3. there was a discrepancy between the costs agreement, which provided that the respondent would charge for time in six minute units even if the particular work took less than six minutes or a multiple of six minutes, and the costs disclosure statement which stated that the respondent would charge for time actually spent on work (we have earlier set out the relevant provisions of each document);
4. the respondent's charges were excessive because the respondent did not charge for the time actually taken to carry out certain work but broke that work down into separate items and charged a minimum of six minutes time for each item;
5. neither the costs agreement nor the disclosure statement clearly set out the limits of the relevant costs determination and the benefit of engaging a solicitor subject to those limits; and
6. the appellants derived no benefit from the respondent's services.
30 In our view, it is unnecessary to consider whether the master erred in reaching the view he did. That is because we do not consider that substantial injustice would be caused if the decision of the master was not reversed. If the appellants wish to have the costs agreement reviewed, they are not dependent upon a referral by a taxing officer under s 235(2) of the Act. As the appellants are aware - and as they have been aware since (at the latest) the teleconference of 8 June 2009 - they may themselves apply pursuant to s 222.
31 When that was raised on the appeal, the appellants were unable to point to any prejudice they would suffer if left to that remedy, beyond the time that has elapsed since the registrar's refusal to refer the costs agreement. We do not regard that delay as constituting relevant prejudice, particularly in circumstances where, on two separate occasions, the registrar pointed out that the appellants could make their own application and they chose not to take that course.
(Page 9)
32 In the circumstances of this case, we do not think anything is to be gained by going on to deal with the substantive merits of the appeal. The matters raised by the appellants can properly be left for consideration on the review of the costs agreement which the appellants have said, quite emphatically, that they intend to pursue. Indeed, as emerged in the course of the appellants' oral submissions, they brought this appeal because they were under the misapprehension that this court would then review the costs agreement under s 222. That, however, is not the function of this court and it has no power to undertake such a review. If this appeal were successful, the only consequence would be that the registrar would be required to exercise the discretion under s 235(2) afresh, assuming the discretion had been enlivened.
33 In the latter connection, having regard to the context of s 235(2) there may be a question as to whether the registrar can (as the appellants have sought) refer the costs agreement for review before the commencement of a taxation of the costs or only once a taxation has been embarked upon. However, that point was not raised on the appeal and it is unnecessary to consider it.
34 If the appellants wish to have the costs agreement reviewed, the simplest, and in the circumstances the most appropriate, course is for the appellants to make an application under s 222. We would add, however, that given the modest amount of costs in issue, the appellants ought to give careful consideration to whether any potential benefit they might gain on a subsequent taxation would justify the time and expense involved in pursuing such an application.
Conclusion
35 We would refuse leave to appeal and dismiss the appeal.
36 As the respondent took no part in the appeal, no question arises as to the costs of the appeal.
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