Thomson v Middletons Moore & Bevins

[2000] VSC 444

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 3525 of 2000

PETER THOMSON	Plaintiff
v.
MIDDLETONS MOORE AND BEVINS	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 OCTOBER 2000
DATE OF JUDGMENT:	2 NOVEMBER 2000
CASE MAY BE CITED AS:	THOMSON v. MIDDLETONS MOORE AND BEVINS
MEDIUM NEUTRAL CITATION:	[2000] VSC 444

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CATCHWORDS: Assessment of legal costs – Order sought more than 12 months after payment of final bill – Legal Practice Act 1996, ss.109 and 116.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. D. Dealehr	Rigby Cook
For the Defendant	Mr. M. Wise	Middletons Moore & Bevins

HIS HONOUR:

1. This is an appeal from the order of Master Wheeler made on 22 September 2000 whereby the Master dismissed the plaintiff's summons for an order that the legal costs which have been paid by the plaintiff to the defendant be assessed by the Taxing Master in accordance with the provisions of s.116 of the Legal Practice Act 1996 and ordered that the plaintiff pay the defendant's costs of the summons.

1. The sub-sections of s.116 relevant for present purposes are s.ss.(1), (3)(b) and (5) which read:

"116.    Court may order assessment of costs

(1)The Supreme Court, on the application of a person referred to in section 115(1) or the legal practitioner or firm, may order –

(a)that the bill of costs be assessed by the Taxing Master;

(b)that the legal practitioner or firm not commence or continue any proceedings to recover the legal costs the subject of the bill until the assessment is completed;

(c)unless the applicant was the person to whom the bill was given, that the legal practitioner or firm give a copy of the bill to the applicant on payment of the costs of the copy.

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(3)Except in special circumstances, the Court must not order that a bill of costs be assessed if the application under sub-section (1) was made –

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(b)more than 12 months after the bill was given or payment was demanded (as the case may be) by the legal practitioner or firm.

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(5)If a bill of costs (other than an interim bill) has been paid, the Court may order the assessment of the bill only in special circumstances and in any event no later than 12 months after the payment."

1. The defendant acted as the plaintiff's solicitors between about 27 June 1996 and 4 June 1999.

1. During that period the defendant sent a number of bills of costs to the plaintiff which were paid by the plaintiff.

1. The table below sets out the particulars of the bills and the dates on which they were paid.

Bill Date	No.	Bill Value	Date Paid
31 October 1996	56362	$1,991.00	31 October 1996
11 December 1996	57894	$1,440.00	15 April 1997
21 February 1997	62806	$3,296.50	15 April 1997
29 May 1997	68477	$1,620.50	29 July 1997
15 October 1997	73815	$12,870.23	04 March 1998
02 December 1997	75740	$305.00	30 January 1998
04 February 1998	77933	$7.20	04 February 1998
23 February 1998	78595	$1,942.80	25 June 1998
16 March 1998	79436	$5,170.00	25 June 1998
27 March 1998	79987	$5,898.66	09 November 1998
15 May 1998	81760	$6,293.00	18 March 1999
22 June 1998	83215	$2,162.00	11 May 1999
20 August 1998	85064	$1,421.00	11 May 1999
22 September 1998	86119	$2,015.00	11 May 1999
26 November 1998	88591	$338.00	26 November 1998
12 April 1999	92954	$973.20	13 May 1999
28 May 1999	94833	$5,643.44	23 June 1999
08 June 1999	95218	$10,691.00	28 June 1999

1. It was not disputed by the defendant that the bill of costs dated 28 May 1999 was sent to the plaintiff under cover of a letter of 4 June 1999.

1. It was also not disputed by the defendant that all bills of costs other than the last bill dated 8 June 1999 were interim bills.

1. I propose to deal first with the last bill dated 8 June 1999 which was paid on 28 June 1999 and which was a final bill.

1. In my opinion the plaintiff is no longer entitled to have the costs referrable to that bill assessed. To make an order that they now be assessed would be to make an order more than 12 months after they have been paid and would be directly contrary to the provisions of s.116(5).

1. It was argued by counsel for the plaintiff that the power given to the Court by s.s.(5) is discretionary and that despite the fact that more than 12 months has elapsed since the bill in question was paid, nevertheless I have a discretion to make the order sought concerning it.

1. Whilst clearly s.s.(5) gives the Court a discretion as to whether the Court will order an assessment within a period of 12 months after the bill has been paid it specifically prescribes that the Court shall not make such an order later than 12 months after the payment.

1. In my opinion once the 12 month period has expired the Court no longer has a discretion in the matter.

1. The provision in the Act relating to interim bills is s.109 which reads:

"109.    Interim bills

(1)A legal practitioner or firm may give a person an interim bill of costs covering part only of the legal services the practitioner or firm was retained to provide.

(2)       An interim bill may be assessed under Division 5.

(3)An interim bill may be assessed under Division 5 as part of the assessment of the final bill, whether or not the interim bill has previously been assessed or paid."

1. Section 116 is in Division 5.

1. If my opinion concerning the effect of s.116(5) is correct then clearly the interim bills cannot be assessed as part of the assessment of the final bill because, of course, the Court has no power to order an assessment of the final bill.

1. In my opinion the Master made no error in the matter.

1. I order that the appeal be dismissed with costs to be taxed including reserved costs and paid by the plaintiff.

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