Benton v CMC Lawyers Pty Ltd

Issues

1. The hearing before me traversed many discrete issues. However, the real issues for determination are relatively circumscribed. There are two fundamental questions, as follows.
2. First, on all of the evidence placed before me, whether I should exercise my discretion to make an order under s 728(1) of the Act? I understood it to be accepted that that is a broad discretion, to be informed by the interests of justice, very much dependent on the facts of the case, and of course to be exercised judicially and not capriciously or wantonly.
3. Secondly, whether it is just and fair, having regard to the delay and the reasons for delay in bringing an application for costs assessment, to order that the legal costs of the respondent be subject to cost assessment pursuant to s 350(5) of the Act, despite the undoubtedly significant passage of time since the rendering of the lump sum bill of costs? Again, I understood this evaluative judgment to require reflection on the specific circumstances, and on various countervailing considerations.
4. Although those questions are conceptually separate, the evidential grounds upon which I was asked to make the orders by the applicant were intertwined, with the result that I shall not discuss my reasoning about each order separately.

Submissions for CMC resisting relief

1. In summarising the respondent's submissions, my focus will be on those oral submissions made at the conclusion of the hearing, and the further written submissions permitted to be filed after that, due to a helpful refinement of the issues that had occurred by that stage.
2. In written submissions for CMC, attention was drawn to the applicant's lack of recollection of many details relating to her engagement with CMC. However, it was said, it was undisputed that the applicant knew of the legal costs that had accumulated, and was informed of her right to have them assessed on at least four separate occasions over the course of the litigation.
3. Furthermore, she had full knowledge of these facts in the years after she was rendered with the final tax invoice, and before the summons was eventually filed.
4. The applicant's delay in requesting an itemised bill and seeking to challenge the respondent's costs was criticised, and said to be unexplained. Not only was there a delay in seeking legal advice, but furthermore, there was a delay in filing the summons, it was said, once she was legally represented.
5. With reference to the discretion in s 350(5) of the Act, reliance was placed on presumptive prejudice (see Golden Destiny Investments Pty Ltd v McCrohon Bergseng Partners t/as MBP Legal [2016] NSWSC 1639 ("Golden Destiny")) and actual prejudice. Six circumstances raised in the evidence for CMC were particularly relied upon: 1. The retirement and resignation that has occurred of many of those who worked on the applicant's matter; 2. Mr Quinlivan's loss of all of his documents relating to the applicant's matter; 3. An updated costs agreement assertedly signed by the applicant on 24 November 2018 [scil. 2016] has been lost; 4. CMC no longer holds the file of the applicant; 5. Some time entries are missing from the time report regarding work undertaken able to be generated by CMC; and 6. There must surely be a loss of memory on the part of those who worked on the applicant's matter between six and eight years ago, with the result that it would be unfair to permit a costs assessment.
6. Counsel for the respondent focused his oral submissions on the delay that is central to the question in s 350(5) of the Act. That delay impacts on both the discretion of the Court in ordering an itemised bill of costs pursuant to s 728(1), and also the prejudice arising from an order under s 350(5). The delay is not merely the two years beyond the time limitation in s 350(4), but in fact all of the time which had passed since the rendering of the lump sum bill, well over four years ago.
7. As for the in-house counsel arrangement between CMC and Mr Quinlivan, it was made clear that he was, in fact, an employee of the law practice. But it was also said that the flexibility of employment contracts in the practice of the law nowadays meant that how that arrangement was structured was a matter for the respondent and himself, and is by no means unusual. It was highlighted that the arrangement worked well for everyone: it was cost effective to have an in-house advocate, and he was evidently well regarded by clients, including indeed the applicant, on the evidence.
8. It was further said that there was nothing particularly unusual about the possibility of a degree of overlap between preparation undertaken by Mr Quinlivan, and that of counsel who ultimately appeared on the hearing. It was said that duplication of work is a common occurrence in a busy practice, whether that of solicitor or counsel. The point was also made that the work of an advocate is by no means limited to appearances in court only, with the result that office or preparatory work undertaken by Mr Quinlivan in his role was not to be thought of as exceptionable.
9. The asserted process of costs disclosure, pursuant to Pt 3.2, Div 3 of the LPA, to the applicant at different times during her matter was detailed: in a nutshell, the submission was that she had been kept adequately informed; that the statutory obligation of ongoing disclosure was fulfilled; and that it must be understood that any process of disclosure of predicted legal costs is, by its nature, contingent and prospective.
10. Further, counsel drew attention to the fact that it had been CMC and Mr Quinlivan who had made the referral of the applicant to Brydens. The question was posed: why would they have done that if there had been anything concerning about the solicitor client relationship between the applicant and CMC?
11. In written submissions that I permitted to be filed after the hearing, due to the exigencies of the oral presentation, counsel for CMC highlighted two matters of which the applicant must persuade me. Those were said to be: "a. Despite her knowledge of her right to have CMC's costs assessed within 12 months and her failure to take action to so do, she should have the leave of the Court to have CMC's costs assessed. b. CMC should be ordered to provide an itemised bill, despite her failure to request an itemised bill sooner than 6 April 2021 when the bill was provided on 11 April 2018."
12. The written submissions for CMC also contended that there is a large range of factors that the Court must consider when assessing whether to exercise the discretion to make the orders sought.
13. The two primary (and mandatory) considerations in s 350(5) of the Act relied upon were the period of delay and the reasons for the delay, with counsel emphasising that it was indisputable that the period of delay to be accounted for by the applicant is in the order of two years.
14. Attention was drawn to evidence given by the applicant in cross-examination to the effect that she had not sought an itemised bill of costs at an earlier point in time because she did not think there was an issue with costs, in turn because she was happy with the services she had received from CMC, and because she had confidently assumed that the respondent was interacting appropriately with her. The documentary and oral evidence was reviewed to make good that proposition. And it was said that her recent seeming change of mind cannot justify the orders sought.
15. The entirety of the delay between 2014 and 2022 was emphasised, as was the inevitable actual prejudice that would accrue to CMC if it were called upon to produce an itemised bill with regard to all of the legal services that it had provided many years ago.
16. Detailed submissions were placed before me resisting the submission of the applicant that CMC had failed to abide by its cost disclosure obligations (see ss 309, 311 and 316 of the LPA). In brief, the respondent relied upon the costs disclosure of 11 August 2014 at the initial client conference; the Settlement Authority of 24 November 2016 before the mediation; the additional disclosure of Mr Quinlivan's fees of 17 July 2017; the lost updated costs disclosure; the Settlement Authority regarding the Court of Appeal settlement of 15 February 2018; and the final tax invoice of 11 April 2018, to demonstrate that the applicant had indeed been properly informed throughout her matter of the increasing costs.
17. In response to the assertion for the applicant that there must have been significant duplication in work as a result of the role played by Mr Quinlivan, the respondent acknowledged (on the basis of Mr Quinlivan's evidence) that there may have been some. It was said, however, that an itemised bill of costs would not shed light on that phenomenon, since one would expect that the memorandum of fees of all counsel who appeared in the District Court hearing would have been rendered in lump sum form, thereby forestalling close analysis or comparison.
18. The respondent submitted that the request to backdate a document made by a former barrister and solicitor then employed by it, to his client, was nothing more than a distraction. In any event, as a matter of practicality, Mr Quinlivan had been working continuously on the applicant's matter, a proposition to which she agreed in evidence.
19. Counsel for the respondent also submitted this Court should draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 against the applicant, in light of the fact that her first solicitor with carriage of the matter at Brydens did not provide an affidavit. Relatedly, the delay between April 2020 and November 2020 (when another solicitor took over its carriage) was said to be unexplained.
20. It was submitted that, quite apart from the various documents explaining the rights of the applicant to dispute the costs of CMC, a clear oral explanation of those rights was also provided by Mr Quinlivan on 15 February 2018. And yet, she had not raised any such dispute for many years; quite the contrary.
21. Finally, counsel for CMC raised a discrete point of statutory interpretation regarding the interrelationship between ss 332A and 350 of the LPA. In a nutshell, it was as follows.
22. The respondent argued that the words "who is entitled to apply for an assessment of the legal costs to which the bill relates" in s 332A(1) of the Act have work to do. It was contended that a client's entitlement under this section is informed by s 350(4), the subsection that sets a time limit on having costs assessed, subject to extension by this Court. As such, the entitlement in s 332A was said to be available only within the twelve months after a lump sum bill was rendered, as this is when a client is entitled to apply for a costs assessment. This construction was said to be supported by reasons of public policy, in that Parliament surely intended to prevent clients from "coming out of the woodwork" perhaps many years or even decades after the conclusion of legal proceedings to request itemised bills.
23. In that way the respondent argued for a contrary determination to that reached by Garling J in Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087 at [130], and Schmidt J in Le v Brydens Lawyers Pty Ltd [2017] NSWSC 180; namely, that the true interpretation of the statute did not impose a limitation period on the making of a request for an itemised bill pursuant to s 332A of the Act.

Determination

1. I am comfortably satisfied that both of the orders sought should be made. I say that for the following reasons, based largely on the submissions for the applicant, in no particular order of importance. The majority of them are based upon being troubled about aspects of the matter.
2. First, the relationship between solicitor and client is not merely a contractual one. The former owes a fiduciary duty to the latter. My analysis is undertaken mindful of that significant context.
3. Second, this Court has an important and time-honoured role in supervising the conduct of solicitors and barristers, and ensuring that they fulfil their privileged and respected roles in the public interest.
4. Third, there was expert evidence placed before me from a solicitor with significant experience in this area of practice that the fees charged were "believed to be excessive" (Hearing Transcript page 84, line 9; subsequently HT 84.09).
5. Fourth, admittedly approaching the matter as a judicial officer whose background and expertise is not focused particularly on costs disputes or personal injury claims, my own impression is that the costs are very substantial. And quite apart from the raw amount of over $470,000, it is to be recalled that the total sum paid by HHT to the applicant was $1,100,000, a ratio of the former to the latter of almost 43%.
6. Fifth, the disjunction between the initial estimated total cost of $95,000, and the ultimate total cost of $470,000 is noteworthy indeed.
7. Sixth, the unsigned and undated document upon which the respondent sought to rely against the applicant must be put to one side as having negligible probative value. Of similar probative value is the assertion that a signed document, again adverse to the applicant, does indeed exist, but that it has simply been mislaid.
8. Seventh, whilst I accept that the bifurcation between solicitor and barrister in New South Wales has reduced, and is reducing, markedly, the structure whereby Mr Quinlivan rendered a separate memorandum of fees to CMC, whilst in fact employed by it, must be assessed as unorthodox. And his role as an "in-house barrister" who was charging for advocacy services, when in the event he did not and could not appear in the District Court, inevitably gives rise to a concern about the opacity of any duplication of functions. And that concerning potential for overlap applies not only between his work and other solicitors within CMC, but also between his work and the work done in any event by counsel who ultimately appeared on the hearing.
9. Eighth, a request of any person to any other person that they backdate any document is troubling. A request made by a solicitor and former barrister to their client to that effect is very troubling. And such a request made in circumstances where the backdating at the least has the potential to be financially disadvantageous to the client is very troubling indeed (as to which, see the evidence of Mr Quinlivan at HT 137.15 ff). I respectfully reject the submission that what occurred here is a distraction; on the contrary, it plays an important role in my concerns about the matter.
10. Ninth, the document prepared by CMC and suggestive on its face that "$Nil" of the advocacy services costs of Mr Quinlivan would be able to be recovered from HHT is also troubling. Mr Quinlivan could not provide any explanation of it (see HT 135.14 ff). As for the explanation on oath of Mr Moran, principal of CMC (see HT 118.06 ff), that perhaps one could read it whereby in fact the separation of sums in the rows in the first column in truth is not to be maintained in the second column, and some of the amounts sought to be recoverable from HHT could include a sum referable to the advocacy costs of Mr Quinlivan, I found it to be, with respect, intrinsically internally inconsistent and contrary to the plain meaning of the document. That is also troubling.
11. Tenth, the applicant is not a sophisticated client, both as defined in ss 302(1) and 312 of the Act, and also in a general sense (of course I do not say that pejoratively). The latter was amply established by her answers on oath, and her demeanour when providing them. It was natural for her to have been delighted to receive a significant sum of money when the appeal proceedings settled, years after she having been injured. I also accept that she trusted CMC in general and Mr Quinlivan in particular. The significant delay in the matter is thoroughly understandable in those circumstances. I do not hold it against the applicant. Nor can it be said, on the chronology that I have set out above, that Brydens has been in any way tardy: once they became concerned about the costs of CMC, they moved promptly.
12. Eleventh, I accept that there will be both presumptive and actual prejudice to CMC in being called upon to provide an itemised bill several years after the matter concluded, and many years after the first date upon which the applicant consulted the respondent: see Golden Destiny.
13. Even so, as the documentary and oral evidence before me shows, CMC still has available to it the file; the computer program, whereby its time charging was generated in the relevant years; and many of the persons who were involved in the provision of legal services, not least Mr Quinlivan. Inconvenience or difficulty occasioned to CMC in providing an itemised bill, whilst I accept they exist, are of little countervailing weight in all of the troubling circumstances of this matter, both individually and cumulatively.
14. Twelfth, the submission founded upon the principle in Jones and Dunkel is, in my respectful opinion, of little weight. The applicant has amply shown that Brydens moved promptly; even if Brydens had failed to do so, that would be no reason to lay the blame for any such hypothetical delay at her feet by refusing to make either of the orders sought.
15. Thirteenth, the submission for CMC that I should take a novel approach to the interaction between ss 332A and 350 of the LPA was, with respect, a bold one, considering the repeated examples of the contrary approach in judgments of this Court at first instance, to which I have referred above.
16. But in any event, whether there is indeed an implicit time limit to be read into s 332A of the LPA becomes a completely ancillary issue, once one is satisfied (as I am here) that my temporally unfettered discretion should be exercised pursuant to s 728(1)(a), in combination with a soundly based extension by way of s 350(5) of the default time limit in s 350(4) of the LPA. In light of that, the question need not be pursued further by me.
17. In short, exercising judicially the discretion reposed in me by s 728 of the LPA, and as an exercise in evaluating where the interests of justice lie, balancing up all of the competing factors, I am amply satisfied that that order should be made.
18. In similar vein and for the same reasons, I am well satisfied that this is a case in which it is just and fair for an application for a costs assessment to be made twelve months after the rendering of the bill of costs by CMC.

Costs of the application?

1. The question of costs of the application itself was not addressed at the hearing. However, it is indisputable that the applicant achieved success on this summons. For that reason, my initial thought for the benefit of the parties is that she should have her costs of the proceedings on the ordinary basis.
2. If that position is accepted by the parties, I shall make such an order in Chambers, once provided with written notifications of that acceptance. If it is not accepted, brief written submissions about the question of costs will be invited by my Associate in accordance with a tight timetable that she will notify to both legal teams as necessary. For the time being, costs are reserved.

Orders

1. I make the following orders: 1. Order under s 728 of the Legal Profession Act 2004, that the defendant provide to the plaintiff an itemised bill of costs in respect of the legal costs the subject of the invoice issued on 11 April 2018, including in respect of the services rendered by Mr Quinlivan within 28 days of the date of this order. 2. Declare that it is just and fair for an application for assessment to be dealt with after the 12-month period permitted under s 350(5) of the Legal Profession Act 2004. 3. Costs are reserved. ------------------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2022