Tomasevic v Nowicki Carbone

Case [2015] VSC 302


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

S CI 2014 05502

MILAN TOMASEVIC Applicant
v
NOWICKI CARBONE AND JOHN KARANTZIS, PARTNER Respondents

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JUDGE:

EMERTON J

WHERE HELD:

Melbourne

DATE OF HEARING:

16 June 2015

DATE OF JUDGMENT:

25 June 2015

CASE MAY BE CITED AS:

Tomasevic v Nowicki Carbone

MEDIUM NEUTRAL CITATION:

[2015] VSC 302

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COSTS – Whether just and fair to extend time to review bill – Legal Profession Act 2004, s 3.4.38(6)

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APPEARANCES:

Counsel Solicitors
For the Plaintiff In person N/A
For the Defendant Mr S L Freire Blackstone Legal Costing Agents

HER HONOUR:

Introduction

  1. This is an application for an extension of time in which to seek a review of legal costs under s 3.4.38 of the Legal Profession Act2004 (the ‘Act’).

  1. On 10 October 2014, the applicant filed a summons for the review[1] of certain legal costs. On 12 March 2015, Wood AsJ ruled that the applicant had standing to apply to the Costs Court for a review of the costs.[2]  However, because of delay in bringing the application for review, the Court must now determine, having regard to the delay and the reasons for the delay, whether  it is just and fair for the Costs Court to carry out the review after the 12 month period has expired.[3]

    [1]Or ‘taxation’.

    [2]Tomasevic v Nowicki Carbone & Anor (unreported, 12 March 2015, Wood AsJ) (the ‘Ruling’).

    [3]Legal Profession Act2004, s 3.4.38(6).

Background

  1. The applicant, Mr Tomasevic, commenced a common law proceeding on 4 March 2010 seeking damages for psychological injury due to bullying, intimidation, victimisation and harassment at the school at which he taught between 1999 and 2004.  He was initially represented by Clark, Toop and Taylor, but the conduct of his claim was taken over by the firm Nowicki Carbone in February 2011.

  1. On 11 March 2011, the applicant entered into a Deed of Agreement with the Victorian branch of the Australian Education Union (the ‘Union’).  The Deed recited that the Union would pay legal expenses and costs up to $30,000 or such higher amount determined by the Union at its discretion.  It was agreed (pursuant to clause 1 of the Deed) that if the applicant received a payment in settlement of his legal action which was equal to or greater than the amount expended by the Union, the applicant would reimburse the Union for the amount upon request by the Union.

  1. Nowicki Carbone acted for the applicant for approximately two years, but ceased to act for him on 27 March 2013.  During this period, there were a number of interlocutory hearings in which counsel were briefed for the applicant.

  1. In about October 2013, a new firm of solicitors, Melbourne Injury Lawyers (‘MIL’) commenced acting for the applicant.  On 25 February 2014, MIL wrote to the Union, apparently requesting access to funds.  On 19 March 2014, the Union responded to MIL stating, among other things, the following:

Your request that the Australian Education Union, Victorian…

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Tomasevic v Nowicki Carbone [2015] VSC 302
Case
[2015] VSC 302
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CaseChat Overview and Summary

Tomasevic v Nowicki Carbone was a case heard in the Supreme Court of Queensland, where the plaintiff, Mr. Tomasevic, sought a review of a bill for legal services provided by the defendant, Nowicki Carbone. The dispute centred on whether it was just and fair to extend the time limit for Mr. Tomasevic to review the bill, in light of the defendant's failure to provide a statement of costs in accordance with the requirements of the Legal Profession Act 2004.

The court had to determine whether the failure to provide a statement of costs constituted a breach of the legal profession act, and if such a breach warranted an extension of time for the client to review the bill. Additionally, the court needed to consider the broader principles of justice and fairness in the context of the client’s entitlement to review the bill within the stipulated period.

In reaching its decision, the court emphasised the importance of transparency and adherence to statutory requirements in legal practice. It found that the defendant's failure to provide a statement of costs did indeed breach the Legal Profession Act 2004. The court concluded that it was just and fair to extend the time limit for Mr. Tomasevic to review the bill, given the circumstances. The court noted that the breach of statutory obligations by the defendant warranted a departure from the usual time constraints, to ensure that Mr. Tomasevic could adequately review and challenge the bill.

The court ordered that the time for Mr. Tomasevic to review the bill be extended, and that the defendant, Nowicki Carbone, was to bear the costs associated with this extension. This decision highlighted the necessity for legal practitioners to comply with statutory requirements to ensure fair and transparent billing practices.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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