TAN and MAXIMILLIAN PTY LTD t/as BAILIWICK LEGAL
[2025] WASAT 116
•21 OCTOBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION UNIFORM LAW (WA)
CITATION: TAN and MAXIMILLIAN PTY LTD t/as BAILIWICK LEGAL [2025] WASAT 116
MEMBER: PRESIDENT GLANCY
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 21 OCTOBER 2025
FILE NO/S: VR 29 of 2025
BETWEEN: YENNY TAN
Applicant
AND
MAXIMILLIAN PTY LTD t/as BAILIWICK LEGAL
Respondent
Catchwords:
Costs - Application for an extension of time to apply for assessment of bill of costs - Whether just and fair to extend time - Where applicant is self-represented - Turns on own facts
Legislation:
Bush Fires Act 1954 (WA)
Legal Profession Act 2008 (WA) (repealed), Pt 10 Div 7, Pt 10 Div 8, s 295, s 295(2), s 295(6), s 295(7)
Legal Profession Uniform Law (WA), s 198, s 198(3), s 198(4)
Legal Profession Uniform Law Application Act 2022 (WA), s 6(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr P Brunner |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Bailiwick Legal |
Case(s) referred to in decision(s):
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Kaya and WA Summit Lawyers [2025] WASAT 22
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Brunner is a legal practitioner. Through his incorporated legal practice, of which he is the sole director, he provided legal services to Ms Tan in mid - late 2023. Ms Tan was not happy with the service provided and was not happy with the bill which she received for those services.
Ms Tan wishes to have her bill of costs dated 9 May 2023 assessed. She did not seek to do so within the time period provided in s 198(3) of the Legal Profession Uniform Law (WA) (Uniform Law). Ms Tan seeks an order from the Tribunal granting leave to have her bill of costs assessed in the Supreme Court, which the Tribunal may grant pursuant to s 198(4) of the Uniform Law.
In the materials filed in support of her application, Ms Tan makes numerous allegations about the conduct of Mr Brunner, or his firm, which she says amount to breaches of various ethical obligations. This is not the place for those matters to be considered. Indeed, it appears from the materials filed in this application that Ms Tan reported her concerns to the Legal Practice Board and, according to the material before me, ultimately determined that she did not wish to pursue a complaint against the practitioner or the firm.
Outcome
For the reasons that follow I have determined that it is appropriate to:
1.allow the amendment of the named respondent from Philip Brunner to Maximillian Pty Ltd t/as Bailiwick Legal; and
2.allow Ms Tan to have her bill of costs dated 9 May 2023 (Invoice 003618) assessed in the Supreme Court.
Procedure/Determination on the documents
On 20 May 2025 I held a directions hearing in order to programme Ms Tan's application to resolution.
On 20 May 2025 I made orders that:
a.by 3 June 2025 the applicant was to file and give to the respondent any evidence and written submissions on which she intended to rely;
b.by 24 June 2025, the respondent was to file and give to the applicant any evidence on affidavit and any written submissions on which it intended to rely;
c.by 1 July 2025 the applicant lodge with the Tribunal and give to the respondent any materials, including submissions in reply; and
d.subject to further order of the Tribunal, the matter would be determined on the basis of the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
I have determined this application on the documents pursuant to s 60(2) of the SAT Act.
The documents to which I have had regard in determining Ms Tan's application are:
1.Application dated 3 April 2025;
2.Affidavit of Yenny Tan dated 4 April 2025;
3.Supplementary affidavit of Yenny Tan dated 3 June 2025;
4.Applicant's written submissions dated 4 June 2025;
5.Applicant's written submissions in reply dated 2 July 2025;
6.Affidavit of Philip George Brunner sworn 24 June 2025; and
7.Respondent's written submissions dated 24 June 2025.
Amendment of the respondent's name
In her application Ms Tan named Mr Brunner as the respondent. She now applies to amend the name of the respondent to Maximillian Pty Ltd t/as Bailiwick Legal.
Mr Brunner asserted that he has never been engaged by the applicant to provide legal services and has never provided legal services to the applicant in his personal capacity.[1] He says that the application to amend the name of the respondent from Philip Brunner to the name of the incorporated legal practice of which he is the sole director, Maximillian Pty Ltd t/as Bailiwick Legal, ought to be dismissed because:[2]
1.Ms Tan intended to commence the action against him in his personal capacity;
2.Ms Tan had never been misled as to the entity which had provided her with legal services;
3.Ms Tan has not led any evidence that she notified Maximillian Pty Ltd t/as Bailiwick Legal of the request to have it made the respondent to the proceedings; and
4.The Tribunal's power to exercise the discretion to amend the name of a party, if a power exists (which he does not concede) is to be exercised only as suggested by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231.
[1] Affidavit of Philip George Brunner sworn 24 June 2025, para 5.
[2] Respondent's Submissions dated 24 June 2025, pages 5 - 7, paras 21 - 33.
In my view, it would have been obvious to Mr Brunner, from the application dated 3 April 2025, that Ms Tan wished to have the bill of costs dated 9 May 2023 assessed in the Supreme Court. It is not reasonable to say, as he does, that the amendment should not be permitted because the applicant has not given notice to the legal practice of her request to have it named as the respondent. Mr Brunner is the Managing Director of the practice. Contrary to the respondent's submission, no procedural fairness is denied to the legal practice by the proposed amendment. Mr Brunner had notice of the directions hearing of 20 May 2025 and the proposed amendment of the name of the respondent has not prevented Mr Brunner from having an opportunity to resist Ms Tan's application for an order permitting her to proceed to have her bill of costs assessed in the Supreme Court. Indeed Mr Brunner had an opportunity to, and did, file submissions in opposition to both the application to amend and the substantive application.
Further, and in any event, the Tribunal is not a court and, pursuant to s 9 of the SAT Act, is not bound by legal technicalities and must determine matters fairly and according to the substantial merits of the case. In the circumstances of this case, preventing the Tribunal from considering the merits of Ms Tan's substantive application would be solely based on a technicality.
In those circumstances, even if I do not accept Ms Tan's explanation for naming Mr Brunner as the respondent - being confusion generated by the firm's documents - about which I do not need to come to a conclusion, I will allow the proposed amendment in order to allow the merits of the application to be determined.
At the directions hearing on 20 May 2025, I asked Mr Brunner to identify the proper name of his firm so that I could make an order permitting the amendment of the respondent's name. In my view this should have been a simple matter given that Mr Brunner knew the name of the incorporated legal practice and knew what Ms Tan was seeking to achieve by her application. In my view, he ought to have assisted his former client and the Tribunal by simply advising of the firm's name and agreeing to an amendment. Instead, Mr Brunner refused to inform me, despite repeated requests, of the correct name of the firm so that the respondent could be properly named because, he said, he had no instructions from the firm to provide its name to the Tribunal. In subsequent written submissions, he took issue with the amendment for the reasons I have set out above. I have found Mr Brunner's approach unhelpful and unnecessary, particularly given that he is the director of the firm, was aware of Ms Tan's intentions and was to be given the opportunity to provide submissions and evidence in opposition to the substantive application, and because the firm's correct name was in fact on the bottom of correspondence received by Ms Tan which was filed in this proceeding.
In the circumstances, it is appropriate to permit the amendment to be made so that the merits of Ms Tan's application can be considered.
I turn then to deal with the substantive application for leave to proceed to have the bill of costs dated 9 May 2023 assessed in the Supreme Court.
Legal principles
Section 198 of the Uniform Law, which applies in WA as a consequence of s 6(2) of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act), deals with applications for costs assessments. That section provides as follows:
198Applications for costs assessment
(1)Applications for an assessment of the whole or any part of legal costs payable to a law practice may be made by any of the following—
(a)a client who has paid or is liable to pay them to the law practice;
(b)a third party payer who has paid or is liable to pay them to the law practice or the client;
(c)the law practice;
(d)another law practice, where the other law practice retained the law practice to act on behalf of a client and the law practice has given the other law practice a bill for doing so.
(2)An application under this section is to be made in accordance with applicable jurisdictional legislation.
(3)An application under this section must be made within 12 months after—
(a)the bill was given to, or the request for payment was made to, the client, third party payer or other law practice; or
(b)the legal costs were paid if neither a bill nor a request was made.
(4)However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period.
(5)Subsection (4) does not apply to an application made out of time by a third party payer who is not a commercial or government client but who would be a commercial or government client if the third party payer were a client of the law practice concerned.
(6)If the third party payer is a non-associated third party payer, the law practice concerned must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.
(7)If an application for a costs assessment is made in accordance with this Division—
(a)the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application; and
(b)the law practice must not commence any proceedings to recover the legal costs until the costs assessment has been completed.
(8)A costs assessor is to cause a copy of an application for a costs assessment to be given to any law practice or client concerned or any other person whom the costs assessor thinks it appropriate to notify.
(9)A person who is notified by the costs assessor under subsection (8)—
(a)is entitled to participate in the costs assessment process; and
(b)is taken to be a party to the assessment; and
(c)if the costs assessor so determines, is bound by the assessment.
(10)If there is a non-associated third party payer for a client of a law practice, then, despite any other provision of this Division, the assessment of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice.
Under the Uniform Law, the State Administrative Tribunal is the designated tribunal for the purposes of s 198(4). Before the Uniform Law came into operation in Western Australia, assessment of bills of costs were provided for under Part 10 of Division 8 of the Legal Profession Act 2008 (WA) (LP Act). Applications for assessment of bills of costs by a client were provided for in s 295 of that Act. Section 295(2) permitted a client to apply to a taxing officer for an assessment of the whole or a part of a bill for legal costs. Section 295(6) provided that an application for assessment had to be made within 12 months after the bill was given in accordance with Division 7, or the request for payment was made to the client, or of the costs being paid if neither a bill was given nor a request for payment made and s 295(7) permitted applications to be made out of time (other than for a sophisticated client) if the Supreme Court determined, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12 month period.[3]
[3] There is no apparent policy reason for the conferral on the Tribunal in s 198(4) of the discretion to allow or refuse to allow applications for assessments of costs, which are undertaken by the Supreme Court, to be determined by the Tribunal. As I stated in Kaya and WA Summit Lawyers [2025] WASAT 22 (Kaya and WA Summit Lawyers), while a matter of policy, it is my view that Parliament should consider amending the Uniform Law to nominate the Supreme Court as the relevant tribunal for the purpose of the exercise of the discretion to allow costs assessments to proceed out of time to restore the position to that which existed before the National Law came into operation.
Section 295(7) of the LP Act provided that an application to assess costs out of time could be dealt with by a taxing officer if the Supreme Court determined, after having regard to the delay and the reasons for delay, that it was just and fair for the costs to be assessed.
Accordingly, while the Tribunal now determines whether an application for assessment of a bill of costs can be dealt with by the Supreme Court, the test which is applied in the Tribunal is the same as that which was applied by the Supreme Court in determining such applications under the LP Act.
The onus is on the applicant to persuade the Tribunal that it is just and fair for the application for assessment to be made out of time.
In Kaya and WA Summit Lawyers,[4] I identified the Supreme Court decisions which provided guidance on how the Tribunal's discretion is to be exercised. Those cases identified the purpose of the provision and the factors to which regard is to be had when exercising it. The statutory purpose of the equivalent provision in the LP Act was said to be 'to provide machinery to protect a client against excessive charges by a practitioner, to ensure clients can be satisfied that bills of costs are not excessive and to impose time limits to prevent clients from unfairly taking advantage of the provisions to delay the obligation to pay proper costs and to avoid frivolous objections'.[5]
[4] Kaya and WA Summit Lawyers, [17] - [24].
[5] Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112, [101] (Monopak).
In that case I found, as I do here, that the principles and considerations identified in the Supreme Court cases are apposite to determination by the Tribunal of whether to grant leave under the Uniform Law.
Thus, while the discretion is unfettered, particular regard must be had to both the length of the delay and the reasons for the delay. Additionally, consideration will be given to:
a.whether there is evidence suggesting the bill might be excessive;
b.whether the refusal to enlarge time might result in an injustice;
c.the nature and prejudice to the practitioner from any extension of time; and
d.the practitioner's reasons for opposing the enlargement. It is of importance that, as an officer of the court, he be seen to be acting honestly, ethically and with proper motives and that he is not acting merely to prevent taxation of the bill taking place.[6]
[6] Monopak [101].
When deciding whether to exercise the discretion it will generally be the case that more latitude is given to a client who is not a 'sophisticated client'.
Ultimately, the question requires the exercise of a broad discretion to ensure that the interests of justice are properly administered.
Facts
In this case I am satisfied on the balance of probabilities of the following matters and make the findings of fact set out at [28] to [34] from the materials before me.
Mr Brunner is a director of Maximillian Pty Ltd which trades as Bailiwick Legal.
In April 2023, Ms Tan engaged what she regarded to be the services of Mr Brunner to finalise oral submissions for a Fair Work case in which she was then involved.[7]
[7] Affidavit of Yenny Tan dated 4 April 2025, para 5.
The bill of costs which she seeks to have taxed was issued on 9 May 2023 for the sum of $16,084.20.
The time between the issue of the bill of costs and the commencement of this proceeding was just short of 2 years.
Payment of that sum was taken from trust funds which Ms Tan had paid into Bailiwick Legal's trust account.
Ms Tan made a complaint to the Legal Practice Board about the bill of costs and Mr Brunner's conduct.
By November 2023 Ms Tan had been advised by the Legal Practice Board that:
a.because the matter had not been able to be resolved through mediation she could apply to the Supreme Court for a costs assessment; and
b.she could revisit her complaint about Mr Brunner's conduct within a three year period as provided for under the Application Act.[8]
[8] Affidavit of Yenny Tan dated 4 April 2025, para 8 and page 28.
Ms Tan says that in late 2023 and early 2024 she was engaged in other legal proceedings which ultimately necessitated her appealing a conviction to the Supreme Court in 2025.
She also says that she was confused about her entitlement to have the bill of costs assessed because she thought, from the Legal Practice Board's reference to the complaint being able to be brought within three years, that she had three years to apply for the assessment of the bill of costs.[9]
[9] Affidavit of Yenny Tan dated 4 April 2025, paras 9 and 10.
On 1 November 2023 Ms Tan sent an email to an officer of the Legal Practice Board saying:[10]
Dear [redacted]
I refer to our telephone conversation last Thursday and I advise that I wish to withdraw my complaint against Mr Brunner/Bailiwick Legal, for now. I will proceed with the filing of an application for costs assessment in the Supreme Court.
Kind regards
Yenny Tan
[10] Affidavit of Yenny Tan dated 4 April 2025, page 29.
An email of 6 November 2023 from the Legal Practice Board to Ms Tan stated:[11]
Thank you for your response on 1 November 2023, and as I have mentioned during our telephone conversation on 24 October 2023, you may revisit this complaint at a later date noting the 3 year limit on the Board investigating a lawyer's conduct, you will be required to provided detailed information to support the allegations made against Mr Brunner.
Under the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law), I require confirmation whether you agree in closing the complaint for now, on the basis of an informal resolution. A yes or no response would suffice. Much appreciated.
Kind regards
[redacted] Resolution Officer
[11] Affidavit of Yenny Tan dated 4 April 2025, page 28.
Ms Tan says that this confusion and her involvement in other legal proceedings at the time explains and justifies her delay.
Ms Tan says that Mr Brunner's breaches of his fiduciary duties and the substandard service she received justify the extension of time she seeks. She says that the issues have caused her significant financial and professional detriment and that the delay in pursuing a costs assessment has been exacerbated by the lack of adequate disclosure and transparency on Mr Brunner's part.
Ms Tan says that she has been unemployed since May 2022 and has had to rely on savings to cover her living expenses. She also says that in July 2022, she was diagnosed as having Bell's Palsy which prolonged her Fair Work legal proceeding and that she suffered as a result of 'unlawful enforcement of fines by the Fines Enforcement Registry and Sherriff's office'. She says that the physical and emotional toll on her affected her ability to initiate a costs assessment within the statutory timeframe.[12]
[12] Supplementary Affidavit of Yenny Tan dated 3 June 2025, paras 4.5 - 4.10.
Ms Tan also says that towards the end of 2022 she was also contending with three infringement notices which she received under the Bush Fires Act 1954 (WA).
It was approximately 11 months after the one-year period provided for in the Uniform Law that Ms Tan brought her application to the Tribunal. It was also more than a year after Ms Tan informed the Legal Practice Board that she would proceed with filing an application for the assessment of costs in the Supreme Court.
While I accept that Ms Tan was engaged in multiple legal matters after the bill of costs was issued, I do not accept that that alone provides an adequate explanation for the delay of approximately 17 months from 1 November 2023, the time she told the Legal Practice Board that she would proceed with an application to have the bill of costs assessed, and the filing of the application on 3 April 2025. It would not have been a difficult or time-consuming matter to bring such an application, particularly for Ms Tan who, although a litigant in person, clearly by then had some experience as a litigant in various courts.
Ms Tan says, though, that her financial hardship and her illness, combined with the focus on the other legal matters in which she was then involved, contributed to the delay.
Ms Tan did not expressly claim in her affidavit that financial hardship prevented her from filing within time an application to have her bill of costs taxed. However, the fact that she refers to financial hardship suggests that it contributed to the delay. I do not consider the claimed financial hardship provides a strong justification for the grant of leave. Although Ms Tan refers to being unemployed, she also stated that she was able to provide for her needs by redrawing from her mortgage and therefore had access to some funds. Further, Ms Tan did not say that she had applied for and had been refused fee relief and that she was therefore financially unable to bring her application.
Ms Tan also says that the inconsistent use of ABNs and business identifiers in the firm's documents should be taken into account in resolving her application because it has potential implications for legal responsibility, trust accounting and client transparency. In my view, confusion arising from the inability to identify the proper name in which to bring the application in the Tribunal was relevant only to the issue of whether the name of the respondent should be amended, because it has not been said that it caused Ms Tan to be unable to bring the application to have her costs taxed at all. She could have, within time, commenced the application naming Mr Brunner as the respondent as she did in April 2025. Further, Ms Tan did not say that these inconsistencies contributed to delay in commencing the application.
While I do not accept that financial hardship provides a reasonable basis for the delay, I do accept that illness and the fact that she was dealing with numerous other legal matters as a litigant-in-person to be reasonable explanations for the delay.
Mr Brunner did not claim that, or provide any evidence of prejudice that he or the legal practice would suffer if the assessment of the bill of costs were to proceed out of time. From that, I am satisfied and find that there is no greater prejudice to the respondent if the bill of costs is assessed than a lack of finality or certainty as to its affairs which is always the case where a bill of costs is to be assessed out of time.
The bill, for two days' work involving finalisation of what were intended to be oral closing submissions for use in Ms Tan's Fair Work proceedings, was for an amount of $16,084.20.[13] While I have no doubt that the need to provide closing submissions for a matter in respect of which the legal practice had not previously been involved would have required considerable work and, in my preliminary view, and without determining the issue, $16,084.20 seems on its face to be a very large sum.
[13] Affidavit of Yenny Tan dated 4 April 2025, page 280.
Conclusion
Given that I apprehend that the relevant bill of costs may have been excessive, and that there is no real prejudice to the respondent in proceeding to have it assessed, even though I am not persuaded that the reason for the delay is particularly strong, I am nevertheless satisfied on balance, given that the practitioner's firm has been on notice since the bill was issued that Ms Tan was of the view that it was not justified and had been seeking to dispute it, that it is just and fair to extend the time within which Ms Tan can seek an assessment of the costs claimed in invoice 003618 dated 9 May 2023 in the Supreme Court.
Orders
I make the following orders:
1.The name of the respondent is amended from Philip Brunner to Maximillian Pty Ltd t/as Bailiwick Legal; and
2.Pursuant to s 198(4) of the Legal Profession Uniform Law (WA) the application for an assessment of costs in relation to invoice 003618 dated 9 May 2023 is granted, notwithstanding it was made out of time.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
HJ
Associate to the Hon Justice Glancy
21 OCTOBER 2025
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