Rodwell v Julia Barber and Co (Legal) Pty Ltd

[2010] WASC 337

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RODWELL -v- JULIA BARBER & CO (LEGAL) PTY LTD [2010] WASC 337

CORAM:   MASTER SANDERSON

HEARD:   4 NOVEMBER 2010

DELIVERED          :   24 NOVEMBER 2010

FILE NO/S:   LPA 8 of 2009

BETWEEN:   ALAN STANLEY RODWELL

First Appellant

JAN ALETHEA ROBERTSON
Second Appellant

AND

JULIA BARBER & CO (LEGAL) PTY LTD
Respondent

Catchwords:

Costs - Appeal from decision of registrar to refuse to refer costs agreement to judge - Turns on own facts

Legislation:

Legal Practice Act2003 (WA) 2003, s 222, s 235(2)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant              :     No appearance

Second Appellant          :     In person

Respondent:     No appearance

Solicitors:

First Appellant              :     No appearance

Second Appellant          :     In person

Respondent:     No appearance

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

Nil

1. MASTER SANDERSON:  This is an appeal from a decision of Registrar S Boyle.  The facts can be briefly stated.  The respondent was, for a period of time, the solicitor for the appellants.  The parties entered into what is titled a Solicitor/Client Costs Agreement'.  That agreement was entered into on 19 February 2009.  For reasons which are not presently relevant, the appellants were dissatisfied with the services provided by the respondent.  They asked the respondent to provide an itemised bill of costs and to submit that bill for taxation.  That was done.

2. The matter first came on before the learned registrar on 8 June 2009. The appellants submitted the costs agreement was unreasonable and the registrar should, therefore, refer the matter to a judge pursuant to s 235(2) of the Legal Practice Act2003 (WA) 2003. Were the registrar to take that step, then a judge would review the costs agreement under s 222. The learned registrar expressed the view that she could not see any grounds for suggesting the costs agreement was unreasonable. She adjourned the taxation and invited the appellants to take out an originating summons to have the costs agreement set aside. The appellants did not take that step. Rather, the matter came on for taxation again on 13 August 2010. The appellants renewed their submission that the costs agreement ought be referred to a judge. The learned registrar pointed out that s 235(2) is permissive. The registrar 'may' refer the costs agreement to a judge. She is not required to do so at the request of a party. The learned registrar took the view in this case that there was nothing in the costs agreement which would justify such a course. It is against the refusal of the registrar to refer the matter to a judge the appellants appeal.

3. In my view, the learned registrar was clearly correct in her conclusion.  The costs agreement in its terms is unexceptional.  The hourly rate specified in the costs agreement was within the determination limits.  There is nothing in the evidence which suggests there is any circumstance which would justify setting the agreement aside.  The registrar correctly exercised her discretion.  Insofar as it falls to me on this appeal to exercise the same discretion, I would reach the same conclusion.

4. Much of the evidence led by the appellants is directed at establishing the respondent either did not perform the work for which it has purported to charge, or it acted negligently.  Whatever may be the merits or otherwise of that claim, it is not relevant to a determination of whether or not the agreement itself is reasonable.  The questions are entirely distinct and separate. 

5. During the course of the hearing before the learned registrar, the registrar was at pains to point out the process of taxation would involve assessing whether the work charged for had been done, whether the charges rendered were justified and whether the bill was reasonable in the circumstances.  This would seem to achieve the second appellant's aims.  In the end, it is doubtful whether setting aside the costs agreement would assist the appellant's at all. 

6. In summary, then, I am satisfied that the learned registrar reached the correct conclusion.  Moreover, it is precisely the same conclusion I would have come to.  I would dismiss the appeal.  As the respondent did not appear at the hearing of the appeal, it is unnecessary for me to make any costs order.