Bosco & Anor v Solomon Brothers [2006] WASC 307

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Conlan v Registrar of Titles [2001] WASC 201; (2001) 24 WAR 299

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Dobree v Hoffman (1996) 18 WAR 36

Enterprise Rent­A­Car Co v Shapiro, Cohen, Andrews, Finlayson (1988) 157 DLR (4th) 322

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Giannarelli v Wraith (No 2) [1991] HCA 2; (1991) 171 CLR 592

Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47

Henderson Corporation Pty Ltd v Hewitt [2005] WASC 165

In the Marriage of O'Toole (1991) 105 FLR 339

In the Marriage of Tormsen (1993) 18 Fam LR 232

Itek Graphix Pty Ltd v Elliot [2002] NSWCA 104; (2002) 54 NSWLR 207

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449

Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120

Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267

Ord River Land Corporation Pty Ltd v Adams & Ors CIV 1543 of 2000

Project Planning and Management (WA) Pty Ltd v Kinrade Australia Pty Ltd [2003] WASC 25

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328

R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988

Ratnam v Cumarasamy [1965] 1 WLR 8

Re Ladner Downs and Crowley (1987) 41 DLR (4th) 403

Retail Equity Pty Ltd v Murie and Edward, unreported; SCt of WA; Library No 940163; 31 March 1994

Sandgate Corporation Pty Ltd & Ors v Ionnou Nominees Pty Ltd & Ors CIV 1010 of 2000

Sargood Brothers v Commonwealth [1910] HCA 45; (1910) 11 CLR 258

Selosse v Whitten, unreported; SCt of NSW (Graham AJ); 26 August 1997

SM Enterprises (Vic) Pty Ltd v Henderson's Industries Pty Ltd [2005] FCA 301

Strudwick v Baker Johnson (1996) 130 FLR 113

Waverley Municipal Council v Cheowiry [2003] NSWCA 12

Webb v Malcolm J Bateman & Co, unreported; SCt of WA; Library No 6305; 27 May 1986

1 MASTER SANDERSON: This is an appeal from a decision of Registrar Johnston. It involves taxation of costs. The parties charged are those parties who have paid the costs. Solomon Brothers are the practitioner. By application of the parties charged dated 4 May 2006, they sought an extension of time within which to request an itemised bill in taxable form. After hearing the application, Registrar Johnston extended the time until 19 July 2006. It is against that decision that the practitioner appeals. They would have the application dismissed. They seek costs.

2 The parties charged brought the application for an enlargement of time for taxing a bill pursuant to s 232(3) of the Legal Practice Act 2003 (WA) ("the Act"). They also sought an order that the practitioner submit a bill of costs for taxation. This process was initiated by a letter from the parties charged's solicitors, Zilkens & Co, to the Principal Registrar dated 3 May 2006. The parties charged rely on s 228(2)(a)(iii) as giving them standing to apply for such taxation. The practitioner has never acted on behalf of the parties charged. They acted on behalf of Ashbil Holdings Pty Ltd ("Ashbil") and Wolart Nominees Pty Ltd ("Wolart"). At all material times, the parties charged have been represented by Zilkens & Co.

3 The appeal from Registrar Johnston's decision is by way of a hearing de novo. Thus, the application is heard afresh and the decision is given on the evidence presented at the hearing of the appeal. I am required to bring a fresh mind to the application whether or not there were errors at first instance.

4 In this case, the parties charged actually reimbursed Ashbil and Wolart for the amount of costs those two corporations incurred. The parties charged were under a legal obligation to make such reimbursement. The right to itemisation and taxation does not alter the fact that there is, and can only be, one bill of costs and one retainer. There is no separate retainer between the practitioner and the parties charged. That means two things. First, any itemisation and taxation is subject to client privilege as between the practitioner and their client as distinct from the practitioner and the parties charged. Second, any time limits under the Act run from the date of demand for reimbursement. Neither of these two points was put in issue by the parties charged.

5 Demand for reimbursement by Ashbil and Wolart of their legal fees was made to the parties charged as to $41,278.53 on 27 May 2005 and $12,444.93 on 1 February 2006. The request for taxation was made on 3 May 2006. This was some 10 months after the first demand for reimbursement and over 60 days after the second demand for reimbursement. The parties charged were provided with itemised time printouts in respect of the first demand for reimbursement on 8 August 2005 and the second demand for reimbursement on 9 February 2006.

6 The practitioner was entitled to charge Ashbil and Wolart on a monthly basis and largely did so. The doctrine of "entire contract" does not apply. The entitlement to periodic billing represents what is, in effect, an ouster of the entire contract by means of the retainer itself. The reimbursement was due as and when Ashbil and Wolart paid their accounts to the practitioner and demanded such reimbursement. That is the basis upon which I have calculated the delay on the part of the parties charged in making the request for taxation.

7 It is clear that when an extension of time is sought, the onus is on the party charged to convince the Court that an extension ought be granted: see Hay v Butler & Crooks (a firm) (1991) 7 WAR 333 per Owen J at 339. It was the practitioner's position that the parties charged had to provide "cogent reasons" for the extension of time to be granted. I am not sure that accurately reflects the exercise to be undertaken when an extension of time is sought.

8 What the Act provides is a discretion. Of course, that discretion must be exercised judicially with the interests of justice firmly in mind. And, as with the exercise of any discretion, it involves weighing up a range of factors, some factors being common to all cases and some being particular to individual cases. But there is no warrant for setting the bar higher when the matter at issue is an extension of time to tax a solicitor's bill than would be the case in other situations where a discretion is to be exercised. It is a balancing exercise where the interests of justice are paramount.

9 So far as the parties charged are concerned, their position was simple. The legislature has provided persons in their position with the opportunity to have legal costs which they have paid considered by a taxing officer. They want to avail themselves of that right. They made payment of these charges pursuant to their obligations in contract. They had no opportunity to supervise and control the solicitors and they therefore had no way of knowing whether the charges that they have paid are reasonable and proper. While accepting that there has been a delay in requesting taxation, they say that the practitioner will not suffer any prejudice as a consequence of time being extended, particularly as it is not a matter of the practitioner waiting until taxation is complete for payment of their fees. They say in all the circumstances the interests of justice favour them being provided with an extension of time to exercise their statutory rights.

10 On behalf of the practitioner a number of points are made. First, there is the question of delay. The practitioner says that it is both lengthy and serious. They say that it is completely unexplained. They would go further and say that there must be some material before the Court on which the discretion can be exercised. In the absence of such material, there is a failure to satisfy a threshold requirement and the application should fail.

11 Counsel for the parties charged admitted during his submissions, as he was bound to do, that there was no explanation at all from the parties charged as to the delay. But he submitted that was not necessarily fatal to the application. He submitted that it was one factor to be weighed in the balance, along with all other considerations.

12 I accept that submission. I am not satisfied that given the discretion afforded by the section, a failure to explain delay is in and of itself fatal to an application. It is one feature which must be weighed in the balance. Here, the failure to explain the delay is a factor in favour of the practitioner. It suggests the extension ought not be granted. But it is no more than one factor to be put into the mix.

13 Counsel for the practitioner also pointed to the fact that there had been, at all material times, solicitors acting for the parties charged. That being so, it was submitted that the time limit ought be strictly enforced. Reference was made to the decision of the Full Court of the Family Court of Australia in Giampiccolo & Anor v Valenti (1983) FLC 91-344 and Harrison v Hocking [2000] WASC 188. I am not sure, as was suggested by counsel for the practitioner, that Hasluck J in Harrison v Hocking specifically approved of what was said in Giampiccolo. First, while his Honour was reviewing the authorities relating to the enlargement of time, he was doing so having already decided the issue. While his Honour's judgment is a useful reference to all of the cases, it seems to me rather more a summary of the different approaches taken in various cases, rather than an exercise to draw out a statement of principle. Second, his Honour points out that in Giampiccolo, the Full Court concluded that regulations as to time limits ought be strictly enforced, but he did not comment one way or the other whether he accepted that reasoning.

14 Giampiccolo itself needs to be treated with some caution. In their judgment, the Court says that "in the circumstances of this particular case" the regulation should be strictly enforced. Most of the judgment is taken up with a recitation of the facts. The only case quoted in the judgment, a single Judge decision in Re Maher v Messrs Stedman, Cameron, Meares and Hall (1980) FLC 90-889, is not a case which lays down any firm principle.

15 In my view, the fact that a party charged is represented by an independent solicitor is a factor to be taken into account in determining whether an extension ought be granted. Once again, this is a factor which favours the practitioner. The parties charged did have the advantage of independent advice and the solicitors giving that advice have to be presumed to know the law. There is no reason why they could not have advised their clients of the right to have these bills taxed and the time limits for doing so. There is no evidence at all as to what advice was given, and when.

16 The practitioner also complained that they would be prejudiced if the extension was granted. In making this submission, emphasis was placed on the fact that there existed legal professional privilege as between Ashbil, Wolart and the practitioner. That privilege is not abrogated because the legislation allows a party charged who is not the practitioner's client to seek taxation of costs. In my view, it would take clear wording in the statute to destroy the privilege. So the provision of the itemised account and any taxation must be undertaken against the background of privilege. Affidavit material filed on behalf of the practitioner made it plain that neither Ashbil nor Wolart were likely to waive their privilege.

17 On that basis, the practitioner submitted that if the extension of time was granted, the practitioner would face the very onerous task of isolating all privileged material and preparing an itemised account and conducting a taxation which does not reveal any privileged matter. The practitioner would be prejudiced by being placed in the position of having to justify the cost claim from the parties charged as a reimbursement on taxation without being able to refer to privileged materials. It was said that this prejudice was a factor against granting the extension.

18 In answer, counsel for the parties charged pointed out that in any situation where the party charged is not the practitioner's client, difficulties occasioned by privilege will arise. It was submitted that the legislature must have taken these difficulties into account when determining that a party charged could have a bill of costs taxed. In my view, that submission is clearly correct.

19 There is no doubt that a practitioner who is required to provide an itemised bill and have that bill taxed when the party charged is not his client, does face certain problems. If those problems are to be faced, then it is in the interests of the practitioner that they should be faced sooner rather than later. I would accept that in a very minor sense, the fact of a non-client party charged complying with the time limits is more important than a client party charged. While this favours the practitioner, it is only a minor point.

20 Finally, on behalf of the practitioner, it was submitted that the parties charged could have no real complaint about the bills. Reference was made to the fact that the bills were paid without prior complaint. Counsel then spent some time attempting to show that the bills were in fact reasonable. While it may be relevant to show that the bills are not on their face outrageous, it is not, in my opinion, appropriate on an application for an extension of time to give detailed consideration to the bills themselves. In Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, the High Court cautioned against dealing with the merits of an appeal on an application to extend time. The same principle applies here. There is, in my view, little utility in actually undertaking a quasi taxation of costs when the application itself is for an extension of time to undertake that taxation.

21 On behalf of the parties charged, great emphasis was placed on two matters. First, what was said to be the interests of justice. Counsel for the parties charged pointed out that the Act gave persons who were charged by solicitors the right to have those charges reviewed. Although time limits were in place, it was the right of review which was important. Counsel submitted the Court should be slow to take any step which effectively denied a party charged his or her rights under the statute.

22 Second, it was said that there was no prejudice to the practitioner. I have dealt with this aspect of the matter, at least from the practitioner's point of view, above. But counsel placed great emphasis on the point. He emphasised that there was no question of files or records being lost or destroyed and there was nothing to suggest that the practitioner was in any worse position now to provide an itemised account than he would have been had the request been made on time.

23 I have weighed all these matters in the balance. In the end, I am not satisfied that the extension of time ought be granted. The two main reasons why I have reached that conclusion are first, there is no explanation for the delay on the part of the parties charged and second, they were at all times advised by independent solicitors. When those two factors are put together and remembering that any time limit must be regarded as substantive, it seems to me leave ought be refused. I have weighed in the balance the lack of prejudice to the practitioner and the interests of justice in having the statutory right found in the Act in favour of the parties charged exercised. But taking these two matters into account and weighing them in the balance, I am not satisfied the extension ought be granted.

24 I would therefore allow the appeal and dismiss the application. The practitioner made extensive submissions as to costs to which the parties charged have not had a chance to respond. I will hear the parties charged further before making final orders.

CITATION : BOSCO & ANOR -v- SOLOMON BROTHERS [2006] WASC 307 (S)

MATTER : Section 229 of the Legal Practice Act 2003

Costs - Whether practitioner acting in person on appeal from Registrar entitled to costs - Turns on own facts

Legal Practice Act 2003 (WA), s 229, s 235, s 238, s 239, s 242

1 MASTER SANDERSON: On 21 December 2006, I handed down reasons for allowing an appeal from a decision of a Registrar and refusing the parties charged an extension of time to request an itemised bill of costs for taxation: Bosco v Solomon Brothers [2006] WASC 307. There remains outstanding the question of the costs of that application.

2 The parties charged contend that there is no power under s 239 of the Legal Practice Act 2003 (WA) to award costs in a case such as this. It is to be remembered that this was an appeal from a decision of a Registrar which allowed an enlargement of time.

3 Section 239 of the Legal Practice Act is in the following terms:

"The costs of and incidental to the taxation of a bill of costs are in the discretion of the taxing officer."

4 That section is found in Div 3 of Pt 13 of the Legal Practice Act. The division is concerned with "taxation and recovery of costs". Various provisions outline the effect of costs agreements (s 235), the time and place of taxation (s 238) and various other mechanical matters. Section 229 gives to a taxing officer the power to enlarge the time prescribed for the taking of any steps. That, of course, includes the power to enlarge the time for a party charged to request an itemised bill of costs. There is nothing in that division which deals with what happens when the discretion of a Registrar is exercised and a party wants to appeal that decision. Section 242 of the Legal Practice Act allows for a review of the taxation. But that is a different thing. Here there was no taxation and it was the Registrar's exercise of discretion with which the practitioner took issue.

5 That being so, I am not satisfied that an appeal from the exercise of the Registrar's discretion can be described as a matter "incidental" to a taxation. The counter argument of course is that the party charged, being out of time, requires an extension of time so that there can be a taxation. Hence, it can be said that the decision to extend time is "incidental". It is a question of degree. On balance, I am not satisfied here that an appeal from a discretionary decision of a Registrar could or should be seen as incidental to a taxation.

6 If that be so, the question is whether the party charged can claim its costs as part of a contentious business determination.

7 Here the practitioner runs up against the decision of the Full Court in Dobree v Hoffman (1996) 18 WAR 36. In my view, there is no doubt as to the effect of that decision. Where a practitioner acts on his own behalf, he is not entitled to costs. That is the ratio of the case. Here it was the practitioner who appeared on the appeal and I can see no basis upon which it is open to award costs in their favour.

8 Accordingly, the order in this case should be that there be no order for costs.