Tomasevic v Nowicki Carbone - [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

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’).

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

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.

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.

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.

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…

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.

Continue reading Tomasevic v Nowicki Carbone

Details

AGLC: Tomasevic v Nowicki Carbone [2015] VSC 302
Case: [2015] VSC 302
Decision Date: 25 June 2015

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