(iii) Invoice number 232265 relating to work performed in the month of December 2008.
7 From the chronology presented by counsel it is noted that these invoices were provided to the plaintiff on 13 November 2008, 5 December 2008 and 15 January 2009 respectively. Hence it is common ground that the invoices delivered on 13 November 2008 and 5 December 2008 should have prompted an application for assessment by the plaintiff before her application on 14 December 2009. That application was out of time by a month in relation to the earliest of the three invoices identified above, and the plaintiff was out of time by nine days in relation to the second of the invoices identified above.
8 The issue in these circumstances is whether "it is just and fair" for the application presented to be dealt with so far as the two earlier invoices are concerned "having regard to the delay and the reasons for the delay".
9 Mr O'Sullivan on the plaintiff's behalf submitted the issue should be determined in the plaintiff's favour. The delay was slight and was excusable having regard to the plaintiff's circumstances. On the other hand Mr Boyce submitted that no good reasons have been advanced for the delay and that the application was advanced on a basis that was misconceived because the plaintiff grounded her objection to the two earlier invoices on a misconception about the stage to which the items costed were related. Mr Boyce further drew attention to the fact that s 350 was amended as from 1 July 2007. The effect of the amendment was to extend what had been a 60 day period for making the application to the 12 month period for which provision is now made. In consequence, Mr Boyce submitted the Court in having regard to this significant increase should be slow to grant an extension in any event.
10 I have reflected on the competing submissions which I have shortly summarised.
11 The plaintiff entered into a costs agreement with the defendant in June 2008. As to the asserted misconception about the items challenged, Schedule 1 to that agreement (annexure A, to the affidavit of the plaintiff affirmed 14 may 2010) identified 3 stages of the professional services then contemplated, and provided a range of estimates for each stage. Mr Boyce submitted that in challenging the first two invoices the plaintiff was in error in attributing items in those invoices to stage 2 work. It seems to me that whether the items which the plaintiff seeks to challenge in the application lodged are properly allowable is a matter appropriately to be determined by the costs assessor.
12 The items challenged are valued by the defendant at $15,315.75, according to the plaintiff's calculations. I am not certain how that figure is arrived at but it is clear on any view of the matter that there is a challenge in respect of the two earlier bills which if completely successful would reduce any amount properly recoverable by way of costs by an amount close to $11,000. The most recent of the three invoices in respect of which the application has been brought in time presents a claim for $4,969.05 so that altogether the plaintiff's challenge if completely successful would reduce her indebtedness by an amount in excess of $15,000.
13 Prior to the amendments introduced to the Legal Profession Act by Act Number 116 of 2006, s 350(4) required that an application for a costs assessment must be made within 60 days after the bill was given or request for payment was made or after the costs were paid in full (whichever occurred first). Section 350(5) provided: