Smirnios v Byrne (No 2) - [2009] VSC 86

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 3535 of 2006

PETER SMIRNIOS	Plaintiff
v
STEPHEN PETER BYRNE	Defendant

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 13 December 2007, and 12 June 2008
DATE OF JUDGMENT:	17 March 2009
CASE MAY BE CITED AS:	Smirnios v Byrne (No. 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 86

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Appeal from order of Taxing Master reducing the bill as taxed by 30 per cent – Appeal under s 3.4.47 of the Legal Profession Act 2004 (Vic) – Hearing de novo – Finding of breach of s 3.4.15(2) of the Legal Profession Act 2004 (Vic) – Disclosure obligations – Disclosure where client does not speak English – Seriousness of non‑compliance – Stay of proceedings under s 4.3.2 of the Legal Profession Act 2004 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K. Knights	Wisewoulds Lawyers
For the Defendant	Mr R. Berglund QC	Stephen Peter Byrne

HIS HONOUR:

On 12 December 2007, I published a judgment in this matter on the question of whether leave to appeal from the order of the Taxing Master reducing the bill as taxed by 30 per cent was required. I concluded that leave to appeal was not required under the Supreme Court (General Civil Procedure) Rules 2005, and adjourned the further hearing of the Amended Notice of Appeal dated 7 May 2007 to a date to be fixed. That hearing was to proceed as a hearing de novo.

On 12 June 2008, the matter again came before me for directions. I ordered that submissions on behalf of the plaintiff and defendant be filed with the Court, in order that I might proceed to determine the matter on the papers. The plaintiff’s submissions were filed on 2 July 2008, the defendant’s submissions in response were filed on 8 August 2008, and the plaintiff’s submissions in reply were filed on 26 August 2008.

Background to the Appeal

The defendant, Stephen Byrne, is a barrister and solicitor of the Supreme Court of Victoria who carries on practice as a sole practitioner in Melbourne. In early April 2006, Mr Byrne commenced to act for the plaintiff, Peter Smirnios, in Supreme Court proceedings. On 17 November 2006, the plaintiff filed a Summons for Taxation of Costs under Division 7 of Part 3.4 of the Legal Profession Act 2004 (Vic) (“the Act”), seeking review of a bill of costs. The taxation was set down for 24 April 2007 before the Taxing Master.

The bill as drawn was for $6,387.20. The Taxing Master taxed and reduced the bill by the sum of $1,296.00. Items 13, 14, 15, 17 and 22 were taxed off, and items 3, 20 and 28 were reduced. The Taxing Master also concluded that a further reduction of 30 per cent in the bill was warranted, and his Honour did so, acting pursuant to s 3.4.44(2)(b) and/or (k) of the Act. In making the order the Master ruled that a breach…

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: [2009] VSC 86
Decision Date: 17 March 2009

CaseChat Overview and Summary

The appeal arose from an order of the Taxing Master, who reduced the legal costs bill as taxed by 30 per cent. The appellant, Smirnios, sought an appeal against the decision under section 3.4.47 of the Legal Profession Act 2004 (Vic). The respondent, Byrne, defended the Taxing Master's decision. The matter was heard de novo, with the court making its own findings of fact and law.

The primary legal issue before the court was whether the Taxing Master correctly reduced the taxed bill by 30 per cent. The appellant argued that the reduction was excessive and that the Taxing Master had erred in finding a breach of section 3.4.15(2) of the Legal Profession Act 2004 (Vic), which pertains to disclosure obligations. The respondent contended that the reduction was justified due to the appellant's failure to properly disclose documents to the client, particularly when the client did not speak English. The court had to determine the seriousness of the non-compliance and whether a stay of proceedings under section 4.3.2 of the Legal Profession Act 2004 (Vic) was appropriate.

The court found that the Taxing Master was correct in reducing the taxed bill by 30 per cent. The appellant had failed to properly disclose documents to the client, which was a serious breach of the disclosure obligations. The court emphasised the importance of disclosure, particularly in cases where the client does not speak English. The appellant's failure to ensure that the client understood the disclosed documents constituted a significant breach of the Legal Profession Act 2004 (Vic). Consequently, the court upheld the Taxing Master's decision to reduce the taxed bill by 30 per cent. The court did not find it necessary to stay the proceedings under section 4.3.2 of the Legal Profession Act 2004 (Vic).

The final orders of the court were that the appeal was dismissed, and the order of the Taxing Master reducing the taxed bill by 30 per cent was upheld. The appellant was required to pay the respondent's costs of the appeal.

Orders