First Applicant v Respondent

2 The applicants ('the Friggers') are experienced litigators and they have very high expectations of the services to be provided to them by any law practice they instruct. They have also acted as self-represented litigants, as was the case in the two Federal Court proceedings the subject of the instructions given to the respondent. On 18 January 2016 they approached the respondent law firm for advice, to redraft a statement of claim and for representation in two Federal Court proceedings they had commenced against various defendants. The proceedings concerned allegations of fraud and insolvency issues arising from several long-running Supreme Court of Western Australia proceedings.[1] Later that day the first applicant ('Mrs Frigger') forwarded, by email,[2] two documents:

(a) the Originating Process in proceeding WAD674/2015 which seeks orders staying the insolvent liquidation of Computer Accounting & Tax Pty Ltd or in the alternative terminating the liquidation; and

(b) the amended statement of claim in proceeding WAD607/2015 which seeks orders against a number of respondents to set aside nine earlier judgements in various Western Australian State Courts on the basis that the judgements were obtained by fraud. In addition, orders are sought for payment or repayment of costs previously paid and for damages for loss of reputation and losses incurred as a result of the State Court proceedings. This statement of claim is a long document comprising 34 pages and makes numerous allegations of fact.

I think the statement of claim will give you a good understanding of the matter which, although complicated, does not comprise a lot of evidence.

4 On 13 January 2016, in proceeding WAD 607/2015, the applicants had applied to amend the Statement of Claim. As a consequence of the orders made they sought legal representation from the respondent to redraft the pleading. The defendants in the Federal Court proceedings stated that they would apply (or possibly apply) for summary dismissal and/or for orders for security for costs. The need to amend the pleading was urgent as Justice Barker had ordered that any application to amend was to be filed on or before 25 January 2016 and to file the amended statement of claim[3]. The matter was to return to Justice Barker on 5 April 2016.[4] In essence, the Friggers were required to file and serve a further amended Statement of Claim seeking to 'amend the fraud allegations to contraventions of the Corporations Act'.[5]

5 Following receipt of this email and several further telephone discussions the respondent prepared and forwarded, on 21 January 2016,[6] a costs agreement and costs disclosure pursuant to Divisions 3 & 4 of the Legal Profession Uniform Law (Vic) 2014 ('the Act') for signing and return if the respondent was to act in the matters. Mr and Mrs Frigger returned a signed acknowledgement of retainer terms later that day.[7] The acknowledgement states that the Friggers have both 'read and understood the Disclosure Statement ... and the Agreement'.

6 The retainer only lasted a short period of time from 18 January 2016 to 22 February 2016 before it was terminated by the Friggers. During the retainer the respondents gave the applicants two invoices:

(a) an invoice dated 12 February 2016 for the period 18 January 2016 to 29 January 2016 in the sum of $9,548.00 for professional fees, expenses and GST. This invoice was paid in full from the sum of $30,000 received from the applicants and deposited in the respondent's trust account;

(b) an invoice dated 1 March 2016 for the period 1 February 2016 to 22 February 2016 in the sum of $26,501.85.00, including professional fees and GST in the total of $14,106.61 and expenses including GST of $12,395.24. The expenses were $3,768.40 for document production and the fees of Mr Anthony Rodbard-Bean of Counsel of $8,250.00 including GST. This invoice was partly paid from the balance of monies held in the respondent's trust account. A sum of $6,050.15 remains owing.

7 The parties have been at odds as to the payment of the outstanding balance since that time. On 24 February 2016 the applicants commenced proceedings in the Magistrates Court of Western Australia seeking orders for repayment of the whole of the deposited monies.[8] This proceeding was stayed on 14 October 2016.[9] The applicants appealed the stay order to the District Court on 4 November 2016[10] and the appeal was dismissed on 26 May 2017.[11] On 2 November 2016 the respondent commenced a proceeding in the Magistrates Court in Victoria seeking payment of unpaid amount of $6,050.15.[12] Judgment was entered in default of defence, however, on the Friggers' application, the judgement was set aside on the basis that the originating proceeding had not been properly served or not served at all.

8 On 23 June 2017, the applicants filed the Summons for Taxation pursuant to section 198(1)(a) of the Act seeking review of the invoiced legal costs. As the invoices had been given to the Friggers more than 12 month prior to the issue of the Summons for Taxation, leave to proceed was required. Justice J Forrest granted leave to proceed out of time on 18 September 2017.

9 After His Honour's order was made it was necessary to conduct several mentions to ensure that all necessary supporting material was filed before a hearing could be conducted.[13] Section 199(2) requires the Costs Court in conducting an assessment of legal costs to determine:

(a) whether or not a valid costs agreement exists; and

(b) determine whether the legal costs are fair and reasonable, and to the extent that they are not fair and reasonable, to determine the amount of costs (if any) that are to be payable.

10 The applicants' Notice of Objections included a general objection that the costs agreement was void pursuant to section 178(1)(a) of the Act due to alleged failures to make the costs disclosures required by sections 174 (1), (3) and 175 of the Act. It also included specific objections to each line item in the bills of costs. The specific objections state that:

In the above circumstances, the costs agreement is void pursuant to s 178(1) (a) and the bills of costs are to be assessed pursuant to the 2016 PRO-Final.[14]

11 In the course of the mentions Mrs Frigger was warned that a possible outcome of her application that the costs agreement was void was that the costs payable could be assessed on the Federal Court scale of costs, if that scale was determined as being a 'fair and reasonable' basis of charge. If this was the case, any redrawn bill of costs could have been for a greater sum than the total of the bills currently scheduled for review. The costs agreement allowed an hourly rate of charge for Mr Graham[15] of $528.00 (inclusive of GST) or $450.00 per hour (excluding GST) based on 5 and 10 minute time units. The Act, unlike the Legal Profession Act 2004, does not provide an alternative basis of charge if the costs agreement is found to be void. Instead section 172 states that:

172 Legal costs must be fair and reasonable

(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are -

(a) proportionately and reasonably incurred; and

(b) proportionate and reasonable in amount

(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect -

(a) the level of skill, experience, specialisation and seniority of the lawyers concerned; and

(b) the level of complexity, novelty or difficulty of the issues involved, and the extent to which the matter involved a matter of public interest; and

(c) the labour and responsibility involved; and

(d) the circumstances in acting on the matter, including (for example) any or all of the following -

(i) the urgency of the matter;

(ii) the time spent on the matter;

(iii) the time when business was transacted in the matter;

(iv) the place where business was transacted in the matter;

(v) the number and importance of any documents involved; and

(e) the quality of the work done; and

(f) the retainer and the instructions (express or implied) given in the matter.

(3) In considering whether legal costs are fair and reasonable, regard must also be had to whether the legal costs conform to any applicable requirements of this Part, the Uniform Rules and any fixed costs legislative provisions.

(4) A costs agreement is prima facie evidence that legal costs disclosed in the agreement are fair and reasonable if -

(a) the provisions of Division 3 relating to costs disclosure have been complied with; and

(b) the costs agreement does not contravene, and was not entered into in contravention of, any provision of Division 4.

12 As the retainer was to conduct two Federal Court proceedings, prima facie, the Federal Court scale of costs would seem to be a fair and reasonable basis of charge if the costs agreement was void. That scale allowed for attendances to be charged at hourly rates of up to $580.00 per hour based on 6 minute units plus GST.[16] Therefore, the applicants risked findings that could disadvantage them considerably. Despite warnings of this risk the applicants chose to continue with their objections.

1. Pursuant to s 178(1) Legal Profession Uniform Law, the costs agreement between the parties is void.
2. The respondent failed in its disclosure obligations under s 174 and 175 of the Act

14 The following documents have been filed in the proceeding:

(a) Affidavit of Angela Frigger sworn 19 June 2017;

(b) Affidavit of Angela Frigger sworn 31 August 2017;

(c) Affidavit of James Graham sworn 7 September 2017;

(d) Affidavit of Angela Frigger sworn 10 March 2018;

(e) Respondent's proposal for preliminary questions for determination filed on 20 March 2018;

(f) Affidavit of James Graham sworn 29 March 2018;

(g) Applicant's submissions as to admissibility of affidavit of James Graham sworn 29 March 2018;

(h) Respondent's Outline of Submissions filed 10 April 2018; and

(i) Applicants' response to these submissions handed up on 12 April 2018.

15 In addition, both Mrs Frigger and Mr Graham were cross-examined on 12 April 2018 in relation to their evidence contained in their affidavits.

1. The respondent failed to give separate cost disclosure for WAD674/2015 and did little or no work for that matter. This fact is confirmed in the email from counsel Mr W Zappia and invoice from Mr Rodbard-Bean. This is also reflected in Mr Rodbard-Bean's Disclosure Statement dated 12 February 2016 "Nature of Work" page 2.

(1) Main disclosure requirement

A law practice -

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client -

together with the information referred to in subsection (2).

18 The costs disclosure includes the hourly rates for staff of the respondent and that charges will be made in units of 5 or 10 minutes. In addition an estimate of total costs was given. These costs disclosures are required by section 174(1) (a). The estimate of total costs for the scope of work outlined at paragraph 15 above was for $462,000.00 excluding GST. This sum was broken down into the respondent's costs of $250,000, disbursements of $20,000 and counsel's fees of $150,000. The bills being reviewed are considerably less than the total costs disclosed and as there does not appear to have been any significant change to the previous disclosures an updated costs disclosure was not required at the time the bills were given.

19 The applicants submitted that as the respondent had provided a single costs estimate for both proceedings there was a breach of their disclosure obligations in relation to proceeding No WAD764/2015. The applicants submitted that no work was undertaken or required in relation to proceeding No WAD764/2015 during the retainer. However, the affidavits and evidence disclose that the respondent prepared draft Notices of Address for service and letters to the defendants' solicitors that were forwarded to the applicants for approval.

The General Objection based on section 174 (3) states:

4. The respondent's Disclosure Statement:

"1. The services" stipulates that scope of the matter is "advice and representation in relation to the conduct of the Federal Court proceedings WAD674/2015 and WAD607/2015 ("the Two Proceedings"), up to any single consolidated trial of up to one week's duration. Carrying out the work referred to above represents the proposed course of conduct of this matter. Our estimate is based on viewing the current orders and Statement of Claim only and will vary if additional time is required for a trial, if more than one trial is required, and if additional claims are incorporated in the above two proceedings"

("the Disclosure Statement").

5. The applicant's instructions in the two matters extended to:

(a) Amending the originating application and statement of claim in WAD607/2015 to change the cause of action to contraventions of Part 5.3A Corporations Act and relief under s 1324 the Act, and representing the applicants in the proceeding. The statement of claim provided to the respondent pleaded all relevant facts. However, fraud was pleaded as the cause of action, rather than contraventions of the Corporations Act.

(b) Scope of work in the second proceeding was representation in WAD674/2015, being an application to stay or terminate the liquidation of Computer Accounting & Tax Pty Ltd, of which the applicants are shareholders and directors. The originating process and supporting affidavit had already been prepared, filed and served.

1. The applicants understood and gave consent to the course of action as outlined in the Disclosure Statement and pursuant to the oral and written instructions of the applicant.
2. The applicants provided the respondent with documents that had already been filed in the proceeding, and copy of two relevant judgments which contained findings of fact that the contraventions had occurred.
3. The above reflected the course of action for the conduct of the matter and proposed costs ("the Agreed Course of Action and Conduct").
4. The applicants did not give consent to a different course of action, and did not understand that a different course of action was necessary.
5. During the period from 18 January 2016 until 1 February 2016, some of the respondent's work complied with the Agreed Course of Action and Conduct, which is reflected in the bill of costs. Other work charged was unnecessary and contrary to the Agreed Course of Action and Conduct.
6. After 1 February 2016, the respondent's employee, James Graham, undertook a different course of action and billed the applicants for that different course of action without the understanding, knowledge or consent of the applicants.
7. On 4 February 2016, Mr Graham failed to provide a brief to counsel Wayne Zappia that reflected the Agreed Course of Action and Conduct. Mr Graham failed to inform Mr Zappia that the Statement of Claim needed to be amended to plead a cause of action - relying on the same facts already pleaded - pursuant to contraventions of Part 5.3A Corporations Act and relief pursuant to s 1324 Corporations Act. Mr Graham's failure is reflected in Mr Zappia's assessment that the claims are not included in Federal Court jurisdiction.
8. In Mr Graham's brief to counsel Mr Rodbard-Bean dated 5 February 2016, Mr Graham included:

(a) 69 judgments that had no bearing on the Agreed Course of Action and Conduct;

(b) A Chronology that largely had no bearing on the Two Proceedings and contained numerous errors of fact and law;

(c) Had Mr Graham requested a chronology for the Two Proceedings, the applicants already had such a document;

(d) During the period from 8 February 2016 until 17 February 2016 Mr Graham commenced a campaign of investigating the applicants past litigation and prepared "Frigger Judgment Table" containing a list of 69 judgments and analysis that contained either the applicants' names or their company, Computer Accounting & Tax Pty Ltd, 99% of which were irrelevant to the Two Proceedings;

(e) Mr Graham briefed Mr Rodbard-Bean to read the judgments contained in the Frigger Judgment Table, which work by counsel was also not included in the Agreed Course of Action and Conduct.

1. The applicants did not become aware of the course of action and conduct of Mr Graham until Mr Graham demanded an additional $70,000 from the applicants on 9 February 2016, and informed the applicants that $30,000 already paid on trust had been used up, without a single document, advice or appearance being provided to the applicants.
2. In the above circumstances, the respondent failed to satisfy itself that the applicants had understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs, contrary to s 174(3) of the Act.

20 The allegation relating to Section 174(3) is the nub of the dispute. Mrs Frigger submitted that the applicants did not instruct Mr Graham:

(a) to investigate the 69 Judgements involving the applicants listed in Austlii;

(b) or to prepare working notes of this work;

(c) or to brief Counsel with these working notes.

The law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.[17]

22 The costs disclosure states the scope of work as:

Scope of the matter:

Advice and representation in relation to the conduct of the Federal Court proceedings WAD764/2015 and WAD607/2015 up to any single consolidated trial of up to one week's duration.

Carrying out the work referred to above represents the proposed course of conduct of this matter.

Our estimate is based on viewing the current orders and Statement of Claim only and will vary if additional time is required for a trial, if more than one trial is required, and if additional claims are incorporated in the above two proceedings.

23 The applicants submitted that the respondent undertook work outside 'the proposed course of action' and that the only work that they were instructed to undertake was to amend the statement of claim as directed by Mrs Frigger. The work undertaken which was outside 'the proposed course of action' was the investigation of the prior judgements involving the Friggers, prepare the solicitors' working notes and investigate whether the facts alleged in the Statement of Claim were justified on the basis of these judgements. Mrs Frigger submitted that the solicitors should have relied on the material given by her in her email correspondence and not should not have sought to obtain information outside this material.

24 The applicants submit that they did not approve the work undertaken on their behalf, as detailed in paragraph 20. It was further submitted that the respondent did not have authority to take steps independently and outside the applicants' understanding of the 'scope of works' including the reading of decisions of the Western Australian courts concerning the applicants. The applicants submitted that they gave specific instructions that the only documents that the solicitors should consider were the documents briefed to them and that the solicitors were not at liberty to read any other documents filed in the Federal Court proceedings. However, Mrs Frigger conceded that other than the two judgements that she forwarded to the respondent there were at least two other pertinent judgments that she did not include in the documents she provided and that the respondent had found and read.

25 In my view the submission is nonsense. The solicitors were retained due to their expertise in similar matters. A lawyer has a duty to exercise professional skills and judgement in acting for their client.[18] They were instructed to act in the matters and required to enter appearances in each matter with the Court, advise the defendants' solicitors of their instructions to act and to act in a reasonable manner to ensure that any amended pleading included all the relevant facts and law.[19] Although the Friggers are very experienced litigants they are not legally qualified and the need to amend the pleadings to plead a cause of action - relying on the same facts already pleaded - pursuant to contraventions of Part 5.3A Corporations Act and relief pursuant to s 1324 Corporations Act[20] does not limit the respondent to have regard to only the documents briefed to them due to their obligations to the Court. Had the respondent failed to take reasonable steps to understand the complicated pleading and that the factual allegations made were relevant to the cause of action to be pleaded they could have been subject to allegations of negligence. During the course of the cross-examination it was clear that the solicitors had read documents on the Federal Court files that had not been given to them as well as several (but not all) decisions of the Western Australian Courts. The respondent was at all times required to exercise its independent judgment of whether or not the intended amendments were valid and able to sustain the cause of action to be pleaded.[21]

26 In Gianarelli v Wraith[22] Mason CJ stated that:

Rather it is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice.

27 In O'Neill v Hayley (No. 1)[23] Judge Harman stated that:

It is that very duty, the role of Counsel and legal practitioners generally to be responsible for the conduct of litigation, (perhaps less so in this millennium or wrested from their control by active case management), that is upheld in this case. It is all too often the case that legal practitioners shirk or perhaps are unaware of their responsibilities to the Court in ensuring that Applications that are filed seek relief that is within the Court's jurisdiction and capable of being ordered, has a basis in fact which would arguably support its ultimate award, and to conduct cases in an efficient fashion, minimising the use of resources, especially those of the Court. In this case those duties have been observed, including, as regards this issue being raised, once the difficulty has become apparent, with due diligence.

28 Section 174(3) does not impose a disclosure obligation on the law practice. Rather the section requires the respondent to be satisfied that the client understood proposed course of action for the conduct of the matter and the proposed costs. On signing and returning the acceptance of the costs agreement it was reasonable for the respondent to be so satisfied. Indeed the Notice of Objections states that:

1. The applicants understood and gave consent to the course of action as outlined in the Disclosure Statement and pursuant to the oral and written instructions of the applicant.

1. The respondent provided a brief to Mr Rodbard-Bean on 5 February 2017, which brief was contrary to the Agreed Course of Action and Conduct.
2. In the respondent's section 2 of the Disclosure Statement "Our estimated total legal costs", the respondent stated "please note that we will provide you with a more accurate estimate of counsel costs when known".
3. The respondent did not provide disclosure regarding Mr Rodbard-Bean and Mr RodbardBean had already commenced complying with Mr Graham's brief, which was contrary to the agreed course of action and conduct. The respondent accepted and paid Mr Rodbard-Bean costs from 8 to 12 February 2017 without the knowledge or consent of the applicants.
4. Mr Rodbard-Bean's estimated costs were approximately 5 times Mr Zappia's estimate. It is submitted the reason for this substantial anomaly resulted from the respondent's failures in paragraph 13 above. Had the applicants been informed of Mr RodbardBean's estimated costs, they would not have agreed to his retention. Once the applicants were informed of Mr Rodbard-Bean's estimate, they refused to retain him.
5. Further, Mr Rodbard-Bean issued an invoice for $8,250 on 12 February 2017 prior to giving cost disclosure on 15 February 2016, which invoice the respondent has included in its bill to the applicants.
6. In the above circumstances, the respondent failed to disclose the second law practice information as required under s 175(1) of the Act.
7. In the above circumstances, the costs agreement is void pursuant to s 178(1)(a) and the bills of costs are to be assessed pursuant to the 2016 PRO -Final.

30 The breach of section 175(1) alleged is that the respondent failed to disclose to the applicants details specified by section 174(1) in relation to the retainer of barristers, particularly Mr Rodbard-Bean. Section 175(2) provides that although the barristers are not required to give disclosure to the clients they are required to give the disclosure to the instructing law practice so that the instructing law practice can give updated disclosure to the clients.

31 Both Mr Zappia and Mr Rodbard-Bean were requested to provide and did provide costs estimates and Costs Agreements. The parties' evidence is that on 4 February 2016 at 2.22 pm, on instructions from Mrs Frigger, the respondent forwarded to Mr Zappia of counsel in Perth a brief and memorandum.[24] The email forwarding the documents to Mr Zappia requested:

Could you please consider the memo and provide an estimate of the Amended Statement of Claim and Amended Originating process in the next week so we may confirm Angela and Hartmunt's approval and ensure we have funds in trust for your fees.

32 The memoranda requests a fee estimate and states:

Could you please peruse the Chronology and provide us with your estimate of costs for drawing, alternatively settling, the necessary attachments to the Statement of Claim and Originating Application in the proceedings, so we may give our mutual clients a fee estimate for work conducted by you on this matter.

33 However, at 6.32pm that day Mrs Frigger emailed the respondent stating that she did not want to brief Mr Zappia as he does not have sufficient experience as a barrister and charges too much.[25] Mr Zappia replied at 11.25pm that night that: Given the complexity of the legal and factual issues and the materials you have sent through, my estimate for reading in and getting up to speed on the multiple earlier proceedings which form the basis of the current proceedings, as well as settling the statement of claim and originating process is $12.000 plus GST. After this email was forwarded to Mrs Frigger the next day at 11.19am she wrote: I do not wish to retain Mr Zappia. After I spoke to you yesterday, I reviewed my notes in relation to him, and realised that he was extremely rude to me when he declined to represent me. Furthermore, it would seem he specialises in family law. He has already made a serious error in saying the court does not have jurisdiction in its original jurisdiction, whereas John Vaughan senior counsel, has already said the claim is a civil claim under the Corporations Act 2001. The applicants then gave instructions to seek alternative counsel from the Victorian Bar.

34 Mr Zappia was never retained due to the intervention of Mrs Frigger stating that she did not wish to retain him so there can never have been a breach of section 174(1) or section 175(1) in respect of his retainer.

35 Later on 5 February 2016 Mrs Frigger participated in a telephone call with Mr Rodbard-Bean and Mr Graham and on receipt of her instructions a brief was delivered to Mr Rodbard-Bean. Mrs Frigger was included in the emails to Mr Rodbard-Bean delivering the same brief that had been sent to Mr Zappia.[26] Thereafter from 8 February 2016 to 12 February 2016 Mr Rodbard-Bean undertook work on the brief totalling $7,500 plus GST charged at his hourly rate.

36 On 12 February 2016, at 11.05am, Mr Rodbard-Bean emailed his costs disclosure and costs agreement to Mr Graham. This email was forwarded to Mr and Mrs Frigger at 11.30am. Mrs Frigger responded at 11.48am stating that I also do not accept the quote from Rodbard-Bean. Have you spoken to Wayne Zappia? I would like to reconsider his quote as it may be more convenient to have someone in Perth.

37 Shortly after this Mrs Frigger contacted Mr Bornstein of Counsel seeking to engage him to act in the matter. Although Mr Bornstein gave her details of his hourly rate he declined to accept a brief other than through the solicitors. This never occurred as the respondent's retainer was terminated.

38 The applicants were given the statutory disclosures required by section 174(1). The applicants' submission that there has not been any costs disclosure or estimate given in relation to proceeding No. WAD 674/2015 is not made out as the disclosure given was for both proceedings and this disclosure was accepted by the Friggers. The Friggers each signed and returned the costs agreement acknowledging that they have read and understood the agreement and costs disclosures. In the light of their obvious sophistication and experience as litigators this acknowledgement should be accepted at face value.

39 The agreement and disclosures represent the solicitor's best attempt to make costs disclosures at a time when they had only the briefest instructions and little insight into the two proceedings and the work required to be undertaken. Legal Profession Uniform General Rules 2015 - Reg 72a provides that if there has been any non-compliance with disclosure obligations the application of section 178 may be avoided.

(1) This rule applies where a law practice has contravened the disclosure obligations of Part 4.3 of the Uniform Law in relation to a particular matter.

(2) Section 178 (1) and (2) of the Uniform Law do not apply in relation to the law practice (so far as they would otherwise apply to the matter concerned) in circumstances where the relevant authority, a costs assessor, a court or a tribunal is satisfied that:

(a) the law practice took reasonable steps to comply with the disclosure obligations of Part 4.3 of the Uniform Law before becoming aware of the contravention, and

(b) the law practice, no later than 14 days after the date on which it became aware of the contravention, rectified the contravention, as far as practicable, by providing the client with the necessary information required to be disclosed under Division 3 of Part 4.3 of the Uniform Law (including, where relevant, an estimate or revised estimate of the costs), and

(c) the contravention was not substantial and it would not be reasonable to expect that the client would have made a different decision in any relevant respect.

(3) Subrule (2) (b) applies even though the information or estimate is not provided at the times required by the disclosure obligations of Part 4.3 of the Uniform Law.

40 In the circumstances where a solicitor was in receipt of limited, urgent and changing instructions to brief Counsel, the respondent did provide the disclosures required by section 174(1). Mrs Frigger's first email states that the matter is complicated, but that the Statement of Claim included all required facts.[27] The solicitor was under an obligation to both the Court and client to investigate the correctness of the factual allegations contained in the Statement of Claim by referring to earlier decisions.

41 Each of the counsel approached by Mr Graham gave him a costs agreement and costs disclosure. Mrs Frigger changed her mind and decided not to brief Mr Zappia. However, she was aware of his rates of charge and estimate given as her email of 12 February 2016 states that it was less than the estimates and rates of Mr Rodbard-Bean. There cannot be a failure to disclose found in relation to Mr Zappia's costs disclosure as he was never briefed.

42 With Mr Rodbard-Bean's costs disclosure, Mrs Frigger spoke to him on or about 5 February 2016 in a three way conversation that included Mr Graham. At that time she was informed of his hourly and daily rates. She was aware that Mr Rodbard-Bean would be given the same documents that were given to Mr Zappia. The brief was emailed to her and on its receipt she responded with comments and further instructions on 12 February 2016.

43 On the basis of this analysis of the evidence and argument made I dismissed the preliminary objections. The costs agreement is not void as there has not been a failure to disclose as required by section 174 (1) or section 175(1). Section 174(3) does not require disclosure and cannot result in the costs agreement being void even if a finding was made that the solicitor was not satisfied that the client understood the course of action proposed. Section 178(1)(a) states that the costs agreement is void if it contravenes the disclosure obligations in part 4.3 of the Act. No finding has been made that there was such a contravention.

44 At the conclusion of the ruling the respondent sought an order that its costs of the preliminary questions be paid forthwith by the applicants. The applicants failed in relation to the general objection as the costs agreement is not void by virtue of section 178(1)(a) of the Act. In addition as the applicants were apprised of the possible implications of proceeding with the general objections on 24 January 2018 and 23 March 2018 it was reasonable to order that the applicants pay the costs of the respondent forthwith.

45 Following delivery of the reasons on 13 April 2018 the review of the bills proceeded on the basis of the costs agreement and the Notice of Objection in relation to the individual items in the bills. The sum allowed was $28,886.75. An amount of $30,000 had been paid, therefore it was appropriate to order a refund of $1,113.25.

46 Mrs Frigger sought repayment of a total of $2,024.10 for travel costs thrown away as a result of orders made on 24 January 2018 to adjourn the hearing listed for 30 January 2018. That hearing was adjourned, on the respondent's application, and orders were made for the parties to file and serve affidavits, notices of intention to cross-examine and outlines of submissions relating to the General Objection. The applicants had booked airfares and accommodation for the 30 January 2018 hearing that were not refundable. Therefore orders were made that the respondents pay these lost expenses.

47 Mrs Frigger has sought interest on the monies to be refunded. The parties were given leave to file and serve brief written submissions on this application. The applicants' submission relied on section 58 of the Supreme Court Act 1986. Section 58 of the Supreme Court Act 1986 provides as follows:

Interest to be allowed when debts or sums certain recovered

58(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.

(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.

48 Associate Justice Wood in the decision of Weingart v Leanne Cain & Associates (No 2)[28] decided that the Costs Court does not have power to award interest on a refund of paid costs on an review of legal costs pursuant to the Legal Profession Act 2004 ('LPA'). Section 195 of the Act is in similar terms, although not the same terms as the LPA, and the same reasoning must apply here. I therefore decline to make an order for interest to be paid on the sum to be refunded.

49 The orders made on 13 April 2018 and in relation to the application for interest were as follows:

1. The applicants pay the respondent's costs of the preliminary hearing including the mentions on 24 January 2018, 23 March 2018 and 28 March 2018, the hearing on 12 April 2018 and so much of today as includes the preliminary questions, those costs are to include affidavits prepared and submissions in respect of the preliminary hearing.

2. The costs are payable forthwith.

3. The respondent pay the applicants the sum of $3,137.35.

[1] Paragraph 7 of affidavit of James Lewis Graham sworn 7 September 2017.

[2] Exhibit JLG - 5 to the affidavit of James Lewis Graham sworn 7 September 2017.

[3] Order of Justice Barker made 13 January 2016 in proceeding No. WAD607/2015.

[4] Affidavit of Angela Frigger sworn 31 August 2017 at Exhibit AF-5.

[5] Transcript 12 April 2018 page 65 lines 24-25.

[6] Exhibit JLG-1 to the affidavit of James Lewis Graham sworn 7 September 2017.

[7] Paragraph 6 (a) and Exhibit JLG-2 to the affidavit of James Lewis Graham sworn 7 September 2017.

[8] Affidavit of James Lewis Graham sworn 7 September 2017 at paragraph 25.

[9] Affidavit of James Lewis Graham sworn 7 September 2017 at paragraph 27.

[10] Affidavit of James Lewis Graham sworn 7 September 2017 at paragraph 28.

[11] Affidavit of James Lewis Graham sworn 7 September 2017 at paragraph 35.

[12] Affidavit of James Lewis Graham sworn 7 September 2017 at paragraph 29.

[13] A callover was conducted on 24 October 2017 and mentions were heard 24 January 2018, 23 March 2018 and 28 March 2018. Each of these was conduct by telephone conference calls to assist the Applicants as they are based in Perth.

[14] Paragraph 22 of the Notice of Objection dated 24 November 2017.

[15] The solicitor who mainly undertook the work.

[16] The scale provides for charges for drawing and engrossing documents, perusals and correspondence among other charges on a basis other than time.

[17] The highlighted words are added by me

[18] Exhibit JLG-4 affidavit of James Lewis Graham sworn on 7 September 2017.

[19] The applicants and their lawyers are under an obligation to the Court to facilitate the Overarching Purpose of the civil practice and procedure of the Federal Court. The parties and their lawyers are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose and, in particular, in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter. (Central Practice Note: National Court Framework and Case Management (CPN-1)).

[20] Applicant's Notice of Objections dated 24 November 2017 at paragraph 5.

[21] Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773.

[22] (1988) 165 CLR 543.

[23] [2015] FCCA 2197.

[24] Affidavit of Angela Frigger sworn 10 March 2018 exhibit AF-1.

[25] Affidavit of James Graham sworn on 29 March 2018, exhibit JLG-2.

[26] Affidavit of James Graham sworn on 29 March 2018, exhibit "JLG-5 and 6.

[27] Exhibit JLG-4 affidavit of James Lewis Graham sworn on 7 September 2017.

[28] [2018] VSC 245 (18 May 2018).