Campbell v James Fuggle Rummery Solicitors & Barristers

CATCHWORDS : PROCEDURE - COSTS - APPLICATION for extension of time for assessment of costs - Prescribed limitation period - No discretionary power under Legal Profession Act 1987

Legal profession Act 1987 LEGISLATION CITED : Legal Profession Act 2004 Legal Profession Regulation 2002

CASES CITED : The Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383 Radenkovic v Vaughan [2010] NSWSC 36

PARTIES : Ian David Campbell (Plaintiff) James Fuggle Rummery Solicitors and Barristers (Defendant)

SOLICITORS : I D Campbell (Plaintiff in person) J Fuggle (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST

2009/298055 IAN DAVID CAMPBELL v JAMES FUGGLE RUMMERY SOLICITORS and BARRISTERS

JUDGMENT (Extension of time to seek an assessment of costs) 1 HER HONOUR: By summons filed 6 August 2009 the plaintiff seeks an order for "an extension of time for an out of time application for costs assessment" on the grounds that there is a dispute of the actual costs in the billing and errors made in the working out of the billing. 2 The plaintiff is Ian David Campbell ("the plaintiff"). The defendant is James Fuggle Rummery Solicitors and Barristers ("Mr Fuggle"). The plaintiff relied on his affidavit dated 2 July 2009. Mr Fuggle relied on his affidavit of James Robert Fuggle dated 30 October 2009. Background 3 On 4 December 2002, the plaintiff instructed Mr Fuggle to act for him in District Court proceedings. Mr Fuggle briefed Mr Kinsella of Counsel in the matter. On 18 November 2003, Mr Kinsella forwarded to Mr Fuggle a conditional fee agreement. On 2 September 2004, Mr Fuggle forwarded to the plaintiff a costs agreement. On 1 September 2005, Mr Fuggle forwarded to the plaintiff a letter confirming his instructions which annexed an interim tax invoice. 4 The trial was heard by his Honour Judge Black on 18, 19, 20, 21, 28 and 29 April 2005. Judgment was handed down on 29 July 2009 and costs arguments were heard on 30 September 2005. 5 During September 2005 and through to the early months of 2006, Mr Fuggle deposed that he negotiated with the Crown Solicitors and Mr Kinsella with regard to costs and in the end Mr Campbell received 88 percent of his solicitor/client costs from the Crown Solicitors. 6 It is common ground that an itemised bill of costs was forwarded to Mr Campbell on 28 September 2007. The 12-month period to file the application for assessment expired on 28 September 2008. The summons was filed on 6 August 2009, nearly 11 months out of time.

Explanation for delay 7 After receiving the bill of costs on about 28 September 2007, the plaintiff says that he spent the next six months writing to the Office of the Legal Service Commissioner. On 17 April 2008, Mr Campbell's complaint was dismissed on the basis that their office did not have jurisdiction and that he should apply for a costs assessment. The plaintiff says that he has had to get help from friends and professionals and that this has caused further delays as he had to find spare money to proceed. However, as early as 24 October 2007 Mr Campbell concluded his letter to his former solicitors with, "If I have not received a reply to my letter within 14 days I will apply to have the costs assessed." It is my view that as at 24 October 2007 Mr Campbell knew that he could apply to have the solicitor's costs assessed but chose not to do so. 8 In oral submissions, the plaintiff drew the court's attention to the fact sheet sent to him by the Office of the Legal Services Commissioner entitled "Fact Sheet 9 Costs Disputes" under the heading "Cost Assessment" which reads: "The client should apply for the costs assessment within 12 months of receiving the bill. However an assessor must deal with an application made out of time unless they consider that unfair prejudice to the law practice will result." 9 Fact Sheet 9 was issued in October 2005 and refers to the Legal Profession Act 2004. 10 The plaintiff submitted that the court should grant leave for the costs assessment application so that this dispute can be finally, and fairly be assessed and resolved. He says that he has health issues and apologises for taking up the courts valuable time or any delays caused by him.

The law 11 Although the bills were given after the commencement of the Legal Profession Act 2004 ("the 2004 Act"), Mr Campbell's entitlement to assessment was governed by the Legal Profession Act 1987 ("the 1987 Act"), since he first instructed Mr Fuggle before 1 October 2005, the day on which the 2004 Act commenced. The transitional provisions in respect of the 2004 Act provide in Schedule 9, Part 2,, at clause 18(1): "Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before that day." 12 The limitation period of 12 months after the bill was given is prescribed in respect of both the 1987 Act and the 2004 Act: see Regulation 52 of the Legal Profession Regulation 2002 in respect of the 1987 Act and s 350(4) of the 2004 Act. 13 The 2004 Act, however, confers a discretionary power on this Court to allow an application for assessment to be dealt with after the 12-month period: s 350(5) 14 Regulation 52 provides: "52 Limitation period for applications by clients for cost assessment where bill paid or part paid

For the purposes of section 199(2) of the Act, the prescribed period for making an application for an assessment of a bill of costs is:

(a) except as provided by paragraph (b), the period of 12 months after the bill was given to the client, or

(b) if a Council or the Commissioner applies for an assessment of costs for the purpose of investigating a complaint as referred to in section 153 (1) of the Act, the period of 12 months after the complaint was made." 15 In s 199 of the 1987 Act there is no such power conferred in respect to extending time for the making of an application for assessment of a bill of costs.

16 Section 199 of the 1987 Act provided: "199 Applications by clients for assessment of costs in bills (1) A client who is given a bill of costs may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs. (2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid. If the costs have been wholly or partly paid, the application is to be made within the period prescribed by the regulations for the purposes of this subsection. (3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the barrister or solicitor is taken to be the bill of costs. (4) In this section, client includes any person who is a party to a costs agreement relating to legal services for which the bill of costs is given, other than the barrister or solicitor who gave the bill or who provided the services." 17 In the absence of an express statutory power, this Court does not have the power to extend the time within which an application can be made under s 199 of the 1987 Act: see The Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383 and Radenkovic v Vaughan [2010] NSWSC 36. The application has to be dismissed. The summons filed 6 August 2009 is dismissed.

18 Costs are discretionary. Mr Campbell submitted that he should not have to pay the costs as Mr Fuggle stated in his letter dated 26 February 2008, "We do not intend to spend anymore time of the matter." That comment came after numerous attempts by Mr Fuggle to address Mr Campbell's concerns. Mr Campbell was aggrieved because 100 percent of his costs were not paid by the Crown. He did not want to be out of pocket for any sum of money. 19 Mr Campbell asked, "why have the Crown not paid my costs in full? I should be receiving another $11,000". Mr Fuggle replied, "the awarding of costs does not mean that you will receive 100% reimbursement, it is like medicare you will only receive a portion". Mr Fuggle went on to explain, "The success fee provided for in the costs agreement is not something which the Crown is liable to pay and they have paid more than they in fact would legally be expected to. So in that circumstance you have done better than you would otherwise normally have expected to do so." 20 In my view the usual costs rule should apply. Costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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