Huber v Williams Love and Nicol Lawyers Pty Ltd [2026] ACTSC 78

Case Title: Huber v Williams Love and Nicol Lawyers Pty Ltd Citation: [2026] ACTSC 78 Hearing Date: 1 September 2025 Decision Date: 27 March 2026 Before: Muller AJ Decision: (1) The application to set aside the first and second agreements pursuant to s 288 of the Legal Profession Act 2006 (ACT) is refused. (2) The application to declare the agreements void for unfair contract terms or on the basis of unconscionability is refused. (3) The plaintiff has leave pursuant to s 294A of the Legal Profession Act 2006 (ACT) to apply for an assessment of part of her legal costs as follows: (a) Invoice B34094 dated 11 December 2018. (b) Invoice B61759 dated 11 January 2024. (c) Invoice B63143 dated 29 April 2024. Catchwords: CIVIL LAW - PRACTICE AND PROCEDURE – Costs Agreement – whether costs agreements with solicitors not fair or reasonable – suspension of a limitation period due to disability – no unfair contract terms – no unconscionable conduct – application dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2 ss 20, 21, 22, 23, 25, 236, 237 Court Procedures Rules 2006 (ACT), rr 1201, 1203, Pt 2.12, Sch 4 Evidence Act 2011 (ACT), ss 52, 69, 76 and 79 Legal Profession Act 2006 (ACT), ss 269, 272, 276, 288, 294A, 296, 300A, Div 3.2.3 Limitation Act 1969 (NSW), s 52 Limitation Act 1985 (ACT), ss 11, 30, 36 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 48 Cases Cited: Binetter v Binetter [2022] NSWCA 169; 409 ALR 1 Brown v Haureliuk [2011] ACTSC 9; 5 ACTLR 195 Connollys Lawyers Pty Limited v Davis [2013] QCA 231 Friend v Comcare [2021] FCA 837; 308 IR 445 Harold v Smith (1860) 157 ER 1229 Kotulski v Attard [1981] 1 NSWLR 115 New South Wales v Harlum [2007] NSWCA 120 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; 130 FCR 569 Parties: Marie-Luise Huber (Plaintiff) Williams Love and Nicol Lawyers Pty Ltd, as trustee for the WLBT Unit Trust, trading as BAL Lawyers (Defendant) Representation: Counsel Self-represented (Plaintiff) C McFadyen (Defendant) Solicitors Self-represented (Plaintiff) Legal Cost Consultants (Defendant) File Number: SC 60 of 2025 MULLER AJ:

1. Ms Huber engaged Bradley Allen Love (Bradley Allen) as her lawyers in relation to two employment disputes with her former employer, IP Australia. Arising from these engagements are two costs agreements which I shall refer to as the first agreement and the second agreement.

2. By her amended originating application, Ms Huber seeks 24 separate orders. In essence, she asks this Court to: (a) Set aside both costs agreements as being “not fair or reasonable” under s 288(1) of the Legal Profession Act 2006 (ACT) and for failing to comply in a material way with applicable disclosure requirements under s 300A of that Act. (b) Declare the agreements void for including unfair contract terms pursuant to s 23(1) of sch 2 of the Competition and Consumer Act 2010 (Cth) (the ACL). (c) Declare the agreements as “unconscionable” pursuant to ss 20-22 of sch 2 of the ACL. (d) Make an order deciding the fair and reasonable legal costs pursuant to ss 288(6)- (8) of the Legal Profession Act. (e) Find a breach of fiduciary duty, although no separate remedy is sought for the breach. (f) Or in the alternative: (i) Direct the defendant to file an application for costs assessment pursuant to s 296 of the Legal Profession Act. (ii) Grant leave to Ms Huber to file an application for costs assessment pursuant to s 294A of the Legal Profession Act. (iii) Apply pecuniary penalties to the defendant in respect of overcharging for legal services. (iv) Refer the matter to ACAT for further orders.

3. Bradley Allen says Ms Huber is not entitled to the relief she seeks. In relation to the first agreement, it says her application is statute barred. In relation to the second agreement, it says the agreement was validly formed and complies with the provisions of the Legal Profession Act. It also points to Ms Huber’s expressed satisfaction with the legal services provided. The costs agreements

4. The first agreement is concerned with legal services Bradley Allen provided to Ms Huber in a disciplinary investigation into Ms Huber’s conduct instituted by IP Australia.

5. On 11 December 2017, Ms Huber received an email from IP Australia notifying of an investigation into her allegedly breaching the Australian Public Service’s Code of Conduct (the Disciplinary Allegation). That afternoon, Ms Huber emailed Bradley Allen asking whether they assisted in such matters and the expected fee. After some correspondence, Ms Huber entered into the first agreement with Bradley Allen dated 10 January 2018. In December 2018, IP Australia withdrew the Disciplinary Allegation.

6. In the course of the matter, Ms Huber raised two complaints about charges she believed were inappropriate or excessive. The first complaint was made on 25 June 2018 and resulted in an amended invoice being sent to her on 28 June 2018. The second complaint was raised on 22 January 2019 and related to certain line items charged. On 13 March 2019, Bradley Allen rejected the complaint and Ms Huber then paid the invoiced amount.

7. The second agreement is concerned with legal services Bradely Allen provided to Ms Huber in a disability discrimination claim against IP Australia (the Disability Complaint).

8. The second agreement is dated 7 July 2020. The scope of the work required of Bradley Allen under the second agreement was to investigate the nature of possible discrimination claims against IP Australia. Subsequently, Ms Huber instructed Bradley Allen to lodge a disability discrimination complaint against IP Australia in the Australian Human Rights Commission. A negotiated resolution of the Disability Complaint was achieved in September 2023. The terms of the final settlement deed included IP Australia paying to Ms Huber $560,000, with $85,000 of that sum attributed to payment of her legal costs for the Disciplinary Allegation and the Disability Complaint.

9. On 11 January 2024 and 29 April 2024, Bradley Allen sent invoices to Ms Huber amounting to $7,221.50 in relation to the Disability Complaint (the Outstanding Amount). She refused to pay those invoices because of her concerns regarding the nature of the costs. There is a sequence of correspondence between the parties dealing with her concerns. Other than the Outstanding Amount, Ms Huber paid Bradley Allen $83,270.31 for her legal costs in both matters.

10. On 28 June 2024, Bradley Allen filed an application in the ACT Civil and Administrative Review Tribunal claiming the Outstanding Amount. The Tribunal stayed the application on 15 November 2024 to allow Ms Huber to make an application for a costs assessment in this Court. Those proceedings were further stayed on 3 March 2025 until the conclusion of these proceedings.

11. On 8 July 2024, Ms Huber complained to the ACT Law Society regarding the costs charged to her by Bradley Allen. The ACT Law Society dismissed her complaint.

Legislative provisions

12. Section 288(3) of the Legal Profession Act sets out a non-exhaustive list of criteria for assessing whether or not a costs agreement is fair or reasonable: 288 Setting aside costs agreements or provisions of costs agreements … (3) In deciding whether or not a costs agreement is fair or reasonable, the Supreme Court may have regard to any or all of the following matters: (a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the practice; (b) whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates; (c) whether the law practice failed to make any of the disclosures required under division 3.2.3 (Costs disclosure); (d) the circumstances and conduct of the parties before and when the agreement was made; (e) the circumstances and conduct of the parties in the matter after the agreement was made; (f) whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement; (g) whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement; (h) any other relevant matter.

13. Sections 20-21 of the ACL deals with “unconscionable conduct”: 20 Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time. Note: A pecuniary penalty may be imposed for a contravention of this subsection. (2) This section does not apply to conduct that is prohibited by section 21. 21 Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services from a person; engage in conduct that is, in all the circumstances, unconscionable. …

14. Section 23 of the ACL sets out when a contract is void: 23 Unfair terms of consumer contracts and small business contracts (1) A term of a consumer contract or small business contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract. … Evidence relied upon by the parties

15. Ms Huber reads four affidavits affirmed by her on 3 April 2025, 26 August 2025 and two affirmed on 6 October 2025. In the first of her affidavits, she sets out a chronology of her interactions with Bradley Allen. Relevantly, she observes in relation to the first retainer at [13]: I was satisfied with the working relationship that developed between Ms Richardson and me. I found her to be professional, diligent, efficient and scrupulous with time management. As such, I believed her charging to be fair.

16. Ms Huber also relies upon her email to Bradley Allen on 4 January 2018 which included the following request: Could Gabrielle provide me with an estimate of charges/costs for her and/or Ms Richardson to respond to the allegations on my behalf, through to completion of the process?

17. She accepts that in the course of the Disciplinary Allegation, she made two complaints to Bradley Allen regarding invoices for legal fees. In relation to the first agreement, she notes that she was provided with an initial cost estimate of $572, and the total fees charged for handling the Disciplinary Allegation were approximately $19,000. Similarly, in relation to the Disability Complaint, the initial fee estimate was between $5,000 and $6,000 and the total fees charged for the matter were approximately $37,000.

18. A large portion of Ms Huber’s first affidavit is directed towards her dissatisfaction with the quality of the legal services provided in each of the matters. A review of the chronology of events suggests the dissatisfaction comprised periodic complaints about the quantification of charges for legal services. That was until the Disability Complaint reached the stage where an in-principle settlement was agreed and consideration was being given to the terms of the settlement. At that point in time, an issue emerged regarding the possible recovery of compensation payments made by Comcare from any damages recovered by Ms Huber in the Disability Complaint proceedings. Bradley Allen’s failure to advise Ms Huber concerning s 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the impact of the decision in Friend v Comcare [2021] FCA 837; 308 IR 445, then under appeal to the Full Court of the Federal Court, appears to have been the main catalyst for Ms Huber’s dissatisfaction with the legal services received.

19. Another point of significant contention for Ms Huber concerns the asserted failure of Bradley Allen to follow her express instructions regarding negotiation of the payment date for the settlement monies. Ms Huber says she expressly requested for settlement proceeds to be paid in the following financial year as a means of minimising her tax liability. Notwithstanding her instructions, Bradley Allen failed to negotiate a payment term to that effect.

20. In her second affidavit, Ms Huber attests to the financial impact of the failure to negotiate deferral of payment of the settlement monies. She asserts the net financial outcome for her was approximately $11,600 less favourable as a result.

21. Ms Huber’s third and fourth affidavits are primarily concerned with her medical condition. She relies on a large number of medical opinions from treating specialists and medico-legal experts to demonstrate she was at all material times a person under a disability by virtue of her psychological state. The issue is raised by Ms Huber in response to Bradley Allen’s argument that her application to set aside the first agreement is statute barred. Ms Huber seeks to establish, as a consequence of her psychological state, she was a person under a disability within the meaning of the Limitation Act 1985 (ACT), suspending the running of the limitation period.

22. The medical evidence relied upon by Ms Huber indicates: (a) She was initially diagnosed with bipolar affective disorder type II (bipolar disorder) in early 1999 by her psychiatrist Dr Mark Cabouret. (b) Dr Cabouret has continued to treat her up until the present time. There have been periods of fairly intensive treatment with that doctor with appointment frequency up to twice weekly. (c) The diagnosis of bipolar disorder has been confirmed by a number of other psychiatrists over the ensuing years. (d) In July 2015, Ms Huber lodged a workers compensation claim with Comcare and Dr Cabouret provided a report in support of her claim. He assessed her as having a capacity to engage in employment with appropriate support. Ms Huber’s Comcare claim was accepted. (e) Ms Huber was first assessed by the psychiatrist, Dr Erin Redmond, in April 2017. She reported that Ms Huber’s condition had been “very stable for years on a combination of medication and regular psychiatric input from Dr Cabouret”. Dr Redmond diagnosed an anxiety disorder related to Ms Huber’s workplace issues. She recommended return to work in alternative duties and noted treatment with Dr Cabouret was continuing on a once to twice weekly basis as required. Ms Huber continued as a patient of Dr Redmond on a regular basis, with appointments at least every four to eight weeks, from April 2017 until the doctor's recent retirement. (f) Following the lodgement of her compensation claim, Ms Huber was able to return to work in August 2019 on a restricted duties and reduced hours basis. She experienced further difficulties in the COVID lockdown when IP Australia required her to continue to attend the workplace, and in May 2021, she was certified unfit for work by Dr Redmond. (g) In the context of a Comcare review of her compensation claim in late 2021, Dr Cabouret was requested to provide a further opinion addressing specific questions, which he did in a report dated 7 December 2021. The doctor noted a marked deterioration in Ms Huber’s condition since December 2017 such that she warranted a new diagnosis of “Other Specified Trauma and Stressor-Related Disorder”. The doctor also noted significant changes to her medical and pharmaceutical regimen over the period. He assessed Ms Huber as unfit to return to work, and noted she was receiving ongoing intensive supportive psychotherapy and she would remain on her current regimen of psychotropic medication. (h) Ms Huber was assessed by Dr Lyn-May Lim, psychiatrist, at the request of Comcare, and her report is dated 18 January 2022. Dr Lim diagnosed an adjustment disorder with mixed anxiety and depressed mood, which commenced around December 2017. She considered this to be a more accurate description of Ms Huber’s condition than aggravation of her pre-existing bipolar disorder. Dr Lim gave Ms Huber a poor prognosis given the chronicity of symptoms, and lack of improvement in spite of sustained treatment with both psychotropic medication and psychotherapy. She assessed Ms Huber as having no present work capacity and noted she was seeing her psychiatrist fortnightly and her psychologist weekly. (i) Dr Redmond provided a further report dated 9 March 2022. She said Ms Huber is likely to remain unfit for work indefinitely and the relationship with her former employer, IP Australia, was beyond repair. She described Ms Huber's mental state as “fragile”. Dr Redmond reported again on 27 July 2023. She said, “It is my view that Ms Huber will not make any form of recovery from her psychiatric illness until the matters with her employer have been resolved. Given that these matters have dragged on for so long, it is highly unlikely she will ever make a full recovery. The longer someone remains stressed and unwell, the less likely they are to fully recover. Without psychotherapy and supportive interventions, Ms Huber presents a risk of suicide”. Ms Huber was then seeing the doctor on a monthly basis. (j) In a report to IP Australia dated 19 August 2023, directed to the issue of Ms Huber’s permanent incapacity for work, Dr Cabouret described Ms Huber as having become “acopic in all departments of her life”, and having suffered profound impacts in a number of areas, including her cognitive functioning. Dr Cabouret described Ms Huber's emotional and behavioural reactions as maladaptive. (k) The most recent assessment of Ms Huber’s psychological state is in a report from Dr Redmond to Comcare, dated 27 August 2025. She described Ms Huber as having “absolutely no capacity to return to any form of occupational functioning”. She noted no significant improvement in her psychological state following resolution of the workers compensation matter at the start of 2024.

23. In her fourth affidavit, Ms Huber also identifies a number of examples of what she describes as inaccurate record keeping by Bradley Allen in relation to legal costs charged to her and payments made by her.

24. As to legal costs, Ms Huber asserts that the total fees invoiced by Bradley Allen in respect of the Disciplinary Allegation and the Disability Complaint amount to $90,991.81. The total amount paid by her to date is $83,270.31. The difference in the sum of $7,721.50 is essentially comprised in Bradley Allen’s final two (disputed) invoices, being the invoices dated 11 January 2024 and 29 April 2024.

25. Bradley Allen relies upon a single affidavit of Rebecca Richardson affirmed on 8 August 2025. Ms Richardson was for an extended period the solicitor with day-to-day conduct of Ms Huber’s legal matters. For the purpose of having work performed by solicitors at an appropriate hourly rate, much of Ms Huber's work was delegated to Ms Richardson. The initial work task she received from Ms Huber concerned the composition of a letter to IP Australia regarding her return to work. It was in respect of that task an initial costs assessment was provided Ms Huber, together with the costs agreement, which is the first agreement. Thereafter, Ms Huber sought small pieces of work from time to time. Those pieces of work were not contemplated in the original cost estimate including, by way of example, advice regarding workers compensation entitlements and advice about defamation. She refers to an email communication to Ms Huber on 15 January 2018 in which Ms Richardson advised, “It is difficult to provide a lot of small costs updates for each email and phone call”. Thereafter, an arrangement was put in place whereby Ms Huber would periodically place funds in trust to cover for ad hoc work performed from time to time. She was issued with regular invoices in respect of this work.

26. Ms Richardson attests to sending Ms Huber a cost estimate for commencing a disability discrimination claim on 29 March 2019. The estimate was $5,000-$6,000 plus GST and it was expressed in terms where the work to be performed was limited to consideration of whether a discrimination or general protections claim is more advantageous and drafting the relevant originating process. Ms Huber subsequently determined to have another law firm draft her disability complaint claim, but she continued to seek legal advice and assistance from Bradley Allen for various tasks.

27. Ms Richardson refers to Ms Huber’s familiarity with Bradley Allen’s billing processes and her ability to query a bill. She records a number of instances where Ms Huber did in fact query a bill. Ms Richardson only provided a cost estimate to Ms Huber for work to be performed where there was a significant legal work contemplated. For example, in response to a request from Ms Huber for Bradley Allen to represent her in a roundtable meeting with IP Australia, a cost estimate was provided by email on 24 February 2022 in the sum of $4,000 plus expenses.

28. At the time of the mediation on 15 September 2023, which led to an in-principle settlement of the matter, Ms Huber’s legal fees to date were estimated in the sum of at least $80,000. In the course of the negotiations on the day, IP Australia was only prepared to reimburse Ms Huber $75,000. The ultimate reimbursement of legal fees in the sum of $85,000 was a consequence of further negotiation by Ms Huber with IP Australia. Ms Richardson says that in total, Ms Huber was billed $21,890.76 pursuant to the first agreement and $36,744.40 pursuant to the second agreement with the sum of $7,221.50 remaining outstanding in respect of the second agreement.

Ms Huber’s submissions

29. Ms Huber relies on s 288(3)(c) of the Legal Profession Act as the primary basis to set aside both of the costs agreements. She submits Bradley Allen failed to comply in a material respect with the disclosure regime set out in the Legal Profession Act: (a) In breach of s 269(1)(d), they failed to disclose an estimate, or range of estimates, of the total legal costs of the matters. Ms Huber submits she made several explicit, written requests for an estimate of the total legal costs she may expect up until the conclusion of a matter. By way of example, she cites her request on 4 January 2018 by email to Bradley Allen for an estimate of the total costs in relation to the Disability Complaint and not receiving from them an estimate or range of estimates. (b) In breach of 276(1), Bradley Allen did not tell her of any substantial changes to anything included in the disclosures contained in the costs agreements. (c) No disclosure was made as required by s 272(2) when the total costs charged in each matter exceeded $1,500.

30. Ms Huber also relies on s 288(3)(b). Although the Law Society dismissed her complaint, she says this Court should exercise its discretion to make a finding of unsatisfactory professional conduct or professional misconduct in relation to five of Bradley Allen’s lawyers involved in her matters.

31. Ms Huber submits that under s 288(3)(h), her state of health when she approached the firm initially is relevant, noting that she was very unwell at the time. Bradley Allen presented the first agreement, which was a 12-page document, at a time when she was under acute stress and distress. She was not in the state of a mind to consider scouring through that agreement to work out if it was reasonable or not.

32. More generally, Ms Huber says the costs agreements are not fair or reasonable because: (a) The rates at item C1 of the schedule grossly exceed the rates set down in the scale of costs (presumably a reference to the scale in the Court Procedures Rules 2006 (ACT)). (b) Charging in six-minute units allows a practitioner to overstate the actual time spent on a matter and thereby overcharge. (c) Item 3 of the Terms allows Bradley Allen to nominate the firm lawyer in its sole discretion without seeking or obtaining a client’s approval and where the charges vary greatly among a firm’s individual members. (d) Item 7.2 of the Terms allows Bradley Allen to increase its hourly rates from 1 July without prior notice to the client. (e) Each of the costs agreements is a 12-page document and presented at a time of significant stress where prompt return was urged. (f) The cover email and letter indicated work could not commence or continue until the agreement was signed and returned. (g) The costs agreements were presented as a “fait accompli” without any discussion that it was an offer and its terms could be negotiated.

33. Ms Huber’s submissions in respect of the ACL largely traverse the same ground but she additionally submits certain terms are “an unfair term” within the examples listed by s 25 of the ACL, namely: (a) The firm’s choice as to use of particular lawyers. (b) The power to increase hourly rates. (c) The power to unilaterally terminate the agreement where the firm perceives a loss of confidence. (d) The terms dealing with acceptance of the efficacy and reasonableness of the agreement by conduct.

34. Ms Huber relies on events as contained in her affidavits for the conduct she submits is unconscionable. Beginning on 13 December 2023, the lawyer with conduct of her matter, Ms Richardson, terminated the retainer. That termination acutely unsettled Ms Huber because of the critical stage the negotiations had come to around the terms of a settlement. After further correspondence and a meeting on 21 December 2023, Ms Huber felt she had no choice but to accept the amendments to the settlement deed proposed by Ms Richardson, despite her instructions, in order to continue being represented.

35. As for the claim of a breach of fiduciary duty, Ms Huber repeats the events she relies on in her affidavits for the unconscionable conduct claim. She also points to other occasions in which lawyers working on her matter acted contrary to her instructions.

36. Finally, Ms Huber submits that her inclusion of the figure of $85,000 for legal fees in the deed settling the Disability Claim is because Bradley Allen failed to provide an estimate of total legal costs when prompted.

Bradley Allen’s submissions

37. Bradley Allen addresses the two costs agreements separately. They submit Ms Huber’s application to set aside the first agreement is barred by s 11 of the Limitation Act. Section 11 provides: 11 General (1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims. (2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.

38. Accordingly, Ms Huber’s right to set aside the agreement arose when she became party to the agreement on 10 January 2018 and expired six years later on 9 January 2024.

39. Ms Huber’s right to apply for a costs assessment expired on 27 May 2021 pursuant to s 294A(5)(a) of the Legal Profession Act. Bradley Allen concedes the Court still has power to allow an assessment once the 12-month period concludes. They rely upon Ms Huber’s failure to seek an assessment at an earlier period of time as demonstrating the lack of utility in the case.

40. Bradley Allen points to the prejudice it will suffer if an assessment is permitted long after the time when the costs were first incurred. Furthermore, the solicitors engaged by Ms Huber are no longer working in the practice.

41. For the second agreement, Bradley Allen submits it is fair and reasonable when regard is had to s 288(3) of the Legal Profession Act in that: (a) The agreement is expressed in clear plain English. (b) Item D of the agreement states the agreement is an offer to enter into a costs agreement. (c) The costs agreement was negotiated by Ms Huber noting she included an additional term regarding contact with the other party to her matter. (d) It is common for a law practice to nominate a lawyer with relevant expertise who the practice considers best placed to advise a client on their particular legal issue.

42. Additionally, Bradley Allen highlights the ACT Law Society’s dismissal of Ms Huber’s complaint concerning their provision of legal services.

43. As to the hourly rates contained in the second agreement, their relativity to the scale of costs is irrelevant. There is no barrier to the setting of rates in excess of the rates in sch 4 of the Court Procedures Rules. Bradley Allen says it complied with Ms Huber’s request for the majority of work on her matter to be completed by someone at an associate-level. The use of six-minute time unit increments is a reasonable and common method of calculating and charging costs in the Territory and in all other Australian jurisdictions.

44. As for the alleged disclosure breaches they say, in essence, Ms Huber sought advice on an ad hoc basis that was outside the scope of the retainer. When initially retained in May 2020, Ms Richardson gave an estimate of $6,000-$8,000 in an email to Ms Huber on 29 May 2020 to review the matter and attend the mediation. When those instructions changed to investigating her various claims against IP Australia, the second agreement was provided. From there, Bradley Allen says it was not reasonably practicable to provide an updated estimate for each subsequent ad hoc request.

45. Bradley Allen also raises the indemnity principle on the basis that Ms Huber has received a reimbursement from IP Australia for all of her legal fees incurred to date. On 20 September 2023, she gave instructions her total legal costs were $75,000, which included costs incurred with another legal practice. However, she then spent the following seven months exploring further possibilities for the construction of the settlement amount. Ms Huber negotiated with IP Australia a figure of $85,000 for legal fees, a figure she provided and included herself in the final settlement deed. Any reduction in the allowance for Ms Huber’s legal fees would see her obligated to return those funds to IP Australia (a proposition that was accepted by Ms Huber in oral submissions).

46. In response to the unfair contractual terms claim, Bradley Allen says the claim is not particularised. However: (a) The firm’s scale of costs exceeding the Court’s scale of costs is not unusual, nor is it unfair, particularly where Ms Huber has not provided evidence that the rates were disproportionate. (b) If charging in six-minute intervals is an unfair contract term, the entire legal profession would be in contravention of the ACL. (c) In relation to item 3, it is common practice that certain practitioner expertise is required and utilising lawyers within the Employment and Workplace Relations team is to Ms Huber’s benefit. (d) In relation to item 7.2, there is no offensive element in allowing the firm to adjust their rates each financial year. It is a common condition and Ms Huber does not complain specifically about the firm increasing its rates in an unfair way. (e) In relation to item 14.2(d), the clause does not attempt to unilaterally determine when a contract is breached. (f) In relation to items 16(a) and (b), through item 3(a) in each of the agreements, the terms of the costs agreement could be negotiated. It would be speculative to now consider whether other terms could have been negotiated.

47. In response to the unconscionable conduct claim, Bradley Allen submits, at its highest, the issue is Ms Huber’s grievance that Ms Richardson sought to cease acting for her at a critical juncture in the settlement process. Bradley Allen admits to contemplating ceasing to act for Ms Huber because of concern about the instructions she was giving. However, they continued to act, and the deed which was signed in April 2024 included Ms Huber recovering all of her legal costs. In those circumstances, there is difficulty in seeing what the unconscionable conduct would be.

Further submissions following the hearing

48. During the oral hearing on 1 September 2025, I granted leave for Ms Huber to file further written submissions and medical material, in response to the limitation issue, within seven days. On 26 September 2025, the Chief Justice granted Ms Huber leave to file an amended originating application and extended time to file her medical material and further written submissions to 3 October 2025. On 7 October 2025, Ms Huber emailed my chambers, seeking an extension for compliance with those orders until 8 October 2025 due to illness. On 8 October 2025, she sent the medical material, further written submissions and the amended originating application, relying upon a medical certificate to explain her delay.

49. In her further material filed, Ms Huber relies upon ss 30 and 36 of the Limitation Act as bases to extend the limitation period otherwise applying to her application to set aside the first agreement pursuant to s 11 of that Act. Section 30 provides: 30 Disability (1) Subject to subsections (2) and (3) and subject to section 32, if— (a) a person has a cause of action; and (b) the limitation period fixed by this Act for the cause of action has begun to run; and (c) the person is under a disability; then— (d) the running of the limitation period is suspended for the duration of the disability; and (e) if the cause of action is a cause of action to which section 15 or 19 applies and, apart from this paragraph, the limitation period would end before the lapse of 2 years after— (i) the date when he or she last (before the end of the limitation period) ceases to be under a disability; or (ii) the date of his or her death; (whichever is the earlier)—the limitation period is extended so as to end 2 years after the earlier of those dates; and (f) in any other case, if, apart from this paragraph, the limitation period would end before the lapse of 3 years after— (i) the date when he or she last (before the end of the limitation period) ceases to be under a disability; or (ii) the date of his or her death; (whichever date is the earlier)—the limitation period is extended so as to end 3 years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not he or she is under the same or another disability at any time during the limitation period. (3) This section does not apply to— (a) a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture unless the person having the cause of action is an aggrieved party; or (b) a cause of action to which section 30B (Special provision in relation to children—claims relating to health services) applies.

50. A person “under a disability” is defined in the dictionary to the Limitation Act as: under a disability—a person is under a disability— (a) while the person is under 18 years old; or (b) while the person is, for a continuous period of 28 days or longer, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in relation to the limitation period for which the question of disability arises because of— (i) intellectual retardation or disability, mental illness or disorder, brain damage, senility or physical disability; or (ii) war or warlike operations; or (iii) circumstances arising out of war or warlike operations.

51. Section 36 empowers the court to extend the period of limitation where it is just and reasonable to do so but only in the context of an action that includes a claim for damages in relation to personal injuries.

52. In relation to s 30, Ms Huber submits that her disability, Trauma- and Stressor-related Disorder, is one which falls within the meaning of s 30(1)(c). She relies upon the affidavits and exhibits summarised above and a certificate from her treating psychiatrist, Dr Redmond, dated 2 October 2025: Ms Huber has been under my care since 2017. She remained chronically unwell since that time with a depressive illness that was significantly exacerbated by multiple stressors around legal matters. I can confirm that Ms Huber was at this time suffering from a disability, and unable to work. She was for a continuous period of 28 days or longer, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in relation to the limitation for which the question of disability arises because of – A mental illness or disorder, being the depressive disorder. (Emphasis in original.)

53. Ms Huber submits that her underlying claim also includes a claim for damages as Bradley Allen’s response to her raising of charging concerns was defensive, antagonistic and ultimately litigious. That conduct exacerbated her disability, such that she has a personal injury within the meaning of s 36(1) of the Limitation Act.

54. In response to Bradley Allen’s prejudice claim, Ms Huber she says the submission is specious and has no basis.

55. Ms Huber also denies seeking to profit from reimbursement of legal costs.

56. Bradley Allen submits that as Ms Huber did not comply with the Court’s orders, the further submissions and evidence should not be considered. Nonetheless, if I do consider that material, Ms Huber’s reliance on the medical evidence does not comply with rr 1201 and 1203 in the Court Procedures Rules and is, in any event, insufficient to satisfy s 30 of the Limitation Act. They submit the affidavit is inadmissible under ss 76 and 79 of the Evidence Act 2011 (ACT) as a lay opinion. Further, in respect of the certificate from Dr Redmond, there is no available affidavit from the relevant practitioner, and no opportunity for cross-examination. The reasons for the doctor’s conclusion are not otherwise stated.

57. Leaving aside the alleged procedural defects, Bradley Allen submits Dr Redmond’s certificate does not go to whether s 30 is satisfied. The other reports exhibited to the affidavits also fail to engage with those requirements.

Should the medical evidence be admitted?

58. Other than in the case of the recent certificate prepared by Dr Redmond, the evidence relied upon by Ms Huber was not brought into existence for the purpose of these proceedings. The doctors that provided reports are not expert witnesses for the proceedings as that term is defined in pt 2.12 of the Court Procedures Rules in the sense that they were not engaged to provide reports for use as evidence in these proceedings. The material is otherwise admissible as a business record pursuant to s 69 of the Evidence Act. A representation in the form of an opinion as to the existence of a fact has been held to fall within the scope of “personal knowledge of the asserted fact”: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; 130 FCR 569 at [18] (Hely J).

59. In broad terms, and with the exception of the recent certificate of Dr Redmond, the purpose for which each of the documents came into existence was for the diagnosis of Ms Huber’s mental health condition, the assessment of her capacity for work and of her need for medical treatment and, in some instances, the likely cause of her mental health condition. The circumstances in which each of those reports was brought into existence thus create some limitations on their relevance and efficacy in addressing whether Ms Huber is properly regarded as a person under a disability within the meaning of s 30 of the Limitation Act. Having said that, they do provide some insight into whether, during the relevant period, Ms Huber was under a disability by virtue of her mental health issues that rendered her either incapable of or substantially impeded in the management of her affairs as they may have related to pursuing this cause of action.

60. I consider it appropriate in all the circumstances, and with particular regard to Ms Huber’s ongoing mental health issues, to give her leave to rely upon the additional material and submissions, notwithstanding the modest delay in its filing. I accept in admitting the evidence in this way, Bradley Allen is not afforded an opportunity to cross-examine the medical experts who have provided the opinions relied upon Ms Huber. In usual circumstances, it would not be expected that each of the treating doctors whose records are relied upon for these purposes would necessarily present for cross-examination before regard could be had to the opinions they expressed. It is only in respect of the most recent certificate of Dr Redmond, which on its face purports to address directly the question of capacity for the purposes of s 30, there may have been some basis for seeking to hear oral evidence from the doctor. However, for the reasons that follow, there is no prejudice to Bradley Allen in admitting the evidence without more.

The first agreement and the limitation issue

61. The first agreement was entered into on 10 January 2018. The general limitation period applying to a cause of action accruing to Ms Huber arises under s 11 of the Limitation Act and allows for a period of six years from the date of first accrual within which to bring the action. Insofar as Ms Huber seeks to set aside the first agreement, the relevant limitation period therefore expired on 10 January 2024 and the originating application was not filed until 28 February 2025.

62. The circumstances in which the running of a period of limitation may be suspended are set out in pt 3 of the Limitation Act. Ms Huber seeks to rely upon both ss 30 and 36. Section 36 applies exclusively to actions for damages that are or include damages in relation to personal injury. Ms Huber’s originating application fails to particularise any claim for personal injury. Notwithstanding her submissions to the contrary, there is no evidence before me that would bring Ms Huber’s action within the scope of s 36, and I am therefore not satisfied it has any application to an assessment of the statutory bar in this case.

63. For the purposes of s 30, the relevant period under consideration is the period from January 2018 until February 2025. There is little doubt that for the entirety of that period Ms Huber was suffering from a mental illness in the form of bipolar disorder and, for at least some of the time, a separately diagnosed adjustment disorder or stressor-related disorder. The question is whether for a period of 28 days or longer, she was “incapable of, or substantially impeded in, the management of [her] affairs in relation to the cause of action”, as a consequence of that mental illness. In Kotulski v Attard [1981] 1 NSWLR 115 at 118, Slattery J observed: I am of [the] opinion that it is a relevant matter.... to have regard to how a reasonable person without any impairment would conduct [themselves] in the management of [their] affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.

64. Ms Huber makes clear that Bradley Allen was aware of her mental health condition. At the time of receipt of each of the costs agreements she considers she was, as a consequence of that condition, impeded in her capacity to absorb all of the detailed terms of the costs agreements. However, Ms Huber does not otherwise enunciate how she says the existence of her mental health condition impeded her capacity to manage her affairs as they related to the action that she now brings against Bradley Allen. I am left to address the issue in the more general sense in which it is dealt with in the medical material.

65. The New South Wales (NSW) Court of Appeal considered the comparable provision contained in s 52 of the Limitation Act 1969 (NSW) in New South Wales v Harlum [2007] NSWCA 120. Mr Harlum was arrested on a charge of murder and several drug offences in July 1991 and remained in custody until November 1992, when he was acquitted of all charges by a jury. In January 2002, he commenced proceedings against the State of NSW for false arrest, false imprisonment and malicious prosecution. The only issue before the trial judge and on appeal was whether the relevant limitation period had in fact expired prior to the commencement of proceedings. Mr Harlum relied upon the NSW equivalent to s 30 to argue that the running of the limitation period was suspended by reason of his being a person under a disability due to mental impairment. The majority of the Court (Beazley and Tobias JJA) was satisfied that the provision had the effect of suspending the running of the limitation period in that case. There was before the Court direct evidence from a number of psychiatrists who were asked to make an assessment of whether Mr Harlum was substantially impeded in the management of his affairs in relation to the cause of action, as a consequence of his mental illness. The majority, preferring the evidence of Dr Westmore, supported by Dr Gertler, accepted that he was. In dissent, Basten JA accepted the proposition that the plaintiff was a person suffering a mental impairment and also that his capacity to manage his affairs was substantially impeded in the relevant period. However, his Honour rejected the proposition that the cause of that impediment was the plaintiff’s mental illness.

66. In upholding the decision of the trial judge and dismissing the appeal, Beazley JA observed that the absence of disability at one or other times during the relevant limitation period was not determinative of the question. Evidence in express terms of being substantially impeded in commencing the action was not required. Her Honour rejected the State’s attempt to reduce the test to satisfaction of a template to the effect that: (a) The plaintiff appreciated that something had occurred that might give rise to a claim. (b) Could make a decision to instruct their lawyer. (c) Could recite the facts or point to where the facts could be ascertained. (d) Could understand advice and provide instructions. (e) Could see an expert doctor to provide evidence.

67. The State contended that if each of these questions was answered positively there was no substantial impediment of the kind required by the provision. Her Honour said at [93]: In my opinion, the State's serialisation of questions provides a false simplicity to the determination of the question of whether the person is “substantially impeded in the management of his or her affairs in relation to the cause of action” within the meaning of s 11(3)(b) and omits the fundamental aspect of being able to “reason normally” about the various aspects that are involved in bringing a claim.

68. The decision in Harlum was followed in this Court by Master Harper in Brown v Haureliuk [2011] ACTSC 9; 5 ACTLR 195. His Honour expressed the view at [39] that disability relevant to suspension of a limitation period was not limited to a legal disability of the kind requiring the appointment of a litigation guardian.

69. The equivalent section in NSW was considered again more recently by the Court of Appeal in Binetter v Binetter [2022] NSWCA 169; 409 ALR 1. Justice Basten at [10]-[12] (White JA agreeing at [1], Mitchelmore JA agreeing at [2]) confirmed the three elements required to demonstrate that a person was materially under a disability as: (a) The existence of a disease or impairment of the person's physical or mental condition. (b) The operation of that condition for a continuous period of at least 28 days so as to render the person incapable, or substantially impaired, in the management of their affairs. (c) Demonstration that the incapacity or substantial impediment related to the management of the person's affairs in relation to the cause of action.

70. His Honour went on to emphasise at [14]-[21] that what is required is a focus on an assessment of capacity or impediment as it relates to the decision to commence proceedings rather than the conduct of the proceedings as a whole. Justice Basten observed at [14]: Importantly, the focus is not on running proceedings from beginning to end, but on their commencement. That is not to say that the nature of the proceedings should be artificially confined by identifying the decision as being to commence or not. On the other hand, the reasoning of Campbell JA reflects a purposive approach to construing the provision, which was not challenged.

71. In this case, I am satisfied that Ms Huber was at all relevant times suffering from an impairment of her mental condition and that impairment operated for a continuous period of at least 28 days, during which time it substantially impaired the management of her affairs. In particular, the evidence demonstrates extended periods of incapacity for work, periodic difficulties with cognition, ongoing regular reliance on medication and clinical therapeutic support. In August 2023, Dr Cabouret, a treating practitioner with regular access to Ms Huber, described her as not coping in all departments of her life.

72. However, at least until the date of execution of the settlement deed on 28 March 2024, Ms Huber was continuing to engage with her lawyers, providing instructions about the conduct of her litigation, attending to legal drafting tasks to minimise her legal fees, engaging in direct negotiation with IP Australia about the precise terms of the settlement deed, seeking out and obtaining independent financial advice about the structuring of the deed so as to best accommodate her tax position, and otherwise actively engaging with all of the steps required of her in the furtherance of the legal process that had been commenced on her instructions. Her demonstration of capacity in the completion of those tasks is inconsistent with a conclusion that she was substantially impeded in the management of her affairs as they related to the cause of action. Rather, her conduct is indicative of a forensic decision on her part not to pursue such an action in respect of the first agreement until a later time. I am therefore not satisfied in this case that s 30 operates so as to suspend the running of the limitation period. As a consequence, insofar as Ms Huber’s claim seeks to set aside the first agreement as being not fair or reasonable within the meaning of s 288 of the Legal Profession Act, the claim is statute barred.

73. In relation to the ACL claim as it applies to the first agreement, the relevant limitation period is also six years under ss 236 and 237 of the ACL as it applies to the unconscionability claim, and s 11 of the Limitation Act as it applies to the unfair contracts claim. As there is no power in the ACL to extend the period of limitation, the unconscionability claim is statute barred. The unfair contracts claim is also statute barred for the reasons set out above. Should the second agreement be set aside?

74. At the core of Ms Huber’s complaint about the second agreement is the failure of Bradley Allen to make an adequate disclosure of its costs, consistent with its obligations under div 3.2.3 of the Legal Profession Act. In particular, Ms Huber says the firm: (a) Failed to provide an adequate estimate of their costs or a range of estimates: s 269(1)(d). (b) Failed to disclose substantial changes to matters included in the costs agreement: s 276. (c) Made no disclosure when the total costs charged exceeded $1,500: s 272(1)(a).

75. In relation to the first complaint, an estimate of $6,000–$8,000 was provided and the costs substantially exceeded that sum. However, the estimate was provided in circumstances where the scope of the work initially requested was much more limited than the ultimate scope of the work ultimately required of the firm under the second agreement. Ms Richardson attests to the relevant circumstances at [29] of her affidavit. The agreement also expressly provided, at item 7.2 of the Disclosures section, for the limitations of the estimating task given the variability of the work that may be required of the firm in the course of a matter. The cost agreement makes clear that the estimate is not given as a quotation and the costs “could be considerably, indeed vastly, in excess of the cost estimate given by the firm to the client parties, whether in this document or otherwise”. I accept, given the evolution of the work required of them, it was not reasonably practicable for the firm to provide an estimate of the total legal costs in the matter at or before the time the agreement was first entered into. I accept also there are a number of examples of estimates being provided by Bradley Allen to Ms Huber subsequently for specific pieces of work she requested.

76. As to the second complaint, it is a matter of some importance that the billing practice of Bradley Allen, consistent with the terms of the costs agreement, was to invoice Ms Huber on a regular basis. As a consequence of that billing practice, Ms Huber was given a clear and regular indication of the status of the costs incurred in the matter and, in turn, a clear indication of when the initial cost estimate was exceeded. It was also the practice of the firm, where more substantial pieces of additional work were requested, to provide an estimate in respect of those pieces of work. On at least one occasion, having received the estimate, Ms Huber went elsewhere for her legal services.

77. The third complaint has no application to the second agreement as the initial cost estimate was in excess of $1,500 such that an estimate was required at the commencement.

78. In support of her contention that the disclosure issues warrant the setting aside of the costs agreement, Ms Huber relies upon the decision of the Queensland Court of Appeal in Connollys Lawyers Pty Limited v Davis [2013] QCA 231. That decision deals with a similar factual scenario where a complaint was made about the adequacy of an initial costs disclosure that proved to be a significant underestimate of total fees ultimately incurred. On the face of the decision, those proceedings were different to the present matter in that the scope of the work required of the law firm was more clearly defined at the commencement of the matter. On appeal, the question for the Court was whether there was a real issue requiring resolution at trial as to whether the law firm had failed to comply with its obligations of costs disclosure, in circumstances where the initial estimate was significantly less than the total amount billed and there was regular invoicing following the provision of an initial estimate. The Court of Appeal was required to do no more than determine whether there was a real issue arising on the face of the material before it, and the Court answered that question positively. The decision is of limited assistance as it left open, rather than determined, matters similar to those open for determination in these proceedings.

79. The authorities relied upon by Bradley Allen are primarily directed to the indemnity question. That is the proposition that costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party (see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 and Harold v Smith (1860) 157 ER 1229). Bradley Allen argues Ms Huber was fully indemnified by IP Australia for the costs she has paid to date based on the terms of the settlement deed, and as a consequence, there is no proper basis on which to set aside the costs agreement. In answer to the indemnity principle, Ms Huber says if there is a reduction in the costs ultimately awarded to the firm as a consequence of these proceedings, it is her intention that any excess sum be repaid to her IP Australia.

80. In essence, Bradley Allen contends that it provided ongoing disclosure to Ms Huber in relation to her actual costs, and periodic estimates in respect of substantive pieces of additional work requested Ms Huber. It defends the adequacy of its initial estimate in relation to the work that became the subject of the second agreement on the basis of the limited scope of the retainer initially proposed.

81. I am not satisfied that this is an appropriate matter in which to set aside the second agreement as one that is not fair or reasonable. The estimate initially provided reasonably reflected the scope of work initially requested Ms Huber. In a matter such as this, the obligation upon a law firm cannot reasonably extend to providing an updated estimate of the total likely fees in the matter each time a minor new piece of work is requested and performed. The firm acted reasonably in limiting updated estimates to those relating to specific substantive pieces of work requested by Ms Huber in excess of the initial retainer. They also provided regular updates to her in the form of invoicing that must have demonstrated to her, on a periodic basis, the level of costs she was incurring. No doubt that is why she regularly reminded the firm of her sensitivity to the issue of costs and took steps, such as the performance of a significant proportion of the work herself, to limit the increase in her costs. The agreement itself was clear about the hourly rates that were applied and about the limitations on the estimating of costs given the uncertainties of litigation.

82. The other matters identified by Ms Huber in terms of the inconsistency of hourly rates with the scale of costs under the Court Procedures Rules, and the capacity of Bradley Allen to select the individual solicitors performing various aspects of the work, do not lead me to a conclusion that the agreement itself was unfair or unreasonable such that it should be set aside.

The ACL claim

83. Given the statutory bar, the ACL claim is limited to the second agreement. In a similar vein, Ms Huber has failed to establish the agreement comprised unfair contract terms or was entered into in circumstances where Bradley Allen engaged in unconscionable conduct. In her written and oral submissions, Ms Huber provided no particularisation of the ACL claim and she provided no authority in support of the proposition she was advancing.

84. There is nothing on the face of the material demonstrating a breach of the obligations imposed upon the law firm pursuant to ss 20, 21 and 23 of the ACL. Notwithstanding her mental health issues, I do not accept that Ms Huber was unable to understand the terms of the costs agreement. It is a matter of significance that she was at the relevant time working as a patent attorney engaged in the analysis of at times complex documentation, and displaying a capacity for high level analysis consistent with an ability to understand the costs agreements she signed.

85. There is no evidence of any undue influence or pressure placed upon her in respect of the lawyer’s retainer. Whilst there was an exchange concerning potential termination of the retainer that was initiated by Bradley Allen, it arose in circumstances where Ms Huber had first expressed significant dissatisfaction with the advice provided by the firm in relation to one aspect of the work. Namely, the prospect of recovery of compensation payments from any settlement sum. It was not unreasonable, in the context of the complaints initiated by Ms Huber, for the firm to raise with her the prospect of the retainer ending, notwithstanding that the issue emerged at a relevantly significant time relative to finalisation of the terms of the deed. It is noteworthy that from the time the issue of termination of the retainer was raised, a further period of over three months elapsed before the settlement deed was finalised.

86. There is no suggestion the terms of the costs agreement were inconsistent with those commonly entered into for the provision of such services in the legal industry. Ms Huber was well aware of her capacity to approach other law firms for the provision of the legal services she required from Bradley Allen. Indeed, the evidence demonstrates that in at least one instance, having received a quote for a piece of work from Bradley Allen, Ms Huber elected to use the services of another law firm to complete that piece of work. Ms Huber has failed to establish that the second agreement was entered into in circumstances where the firm engaged in unconscionable conduct within the meaning of s 21 of the ACL. Nor am I satisfied that the terms of the contract were unfair within the meaning of ss 23 and 24 of the ACL. The terms of the second agreement were entirely transparent, expressed in reasonably plain language, legible and readily available to Ms Huber. She has failed to establish any proper basis to support her application for the second agreement to be declared void.

Should Ms Huber otherwise be granted leave to file an application for a costs assessment?

87. Section 294A of the Legal Profession Act relevantly provides: 294A Application by client or third party payer for costs assessment (1) A client may apply to the Supreme Court for an assessment of all or any part of legal costs. …. (3) An application for a costs assessment may be made even if the legal costs have been completely or partly paid. … (5) An application by a client or third party payer for a costs assessment under this section must be made not later than 12 months after— (a) the day the bill was given or the request for payment was made to the client or third party payer; or (b) the day the costs were paid if neither a bill was given nor a request was made. (6) However, an application that is made out of time may be dealt with if the Supreme Court, on its own initiative or on application by the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period. (7) Subsection (6) does not apply to an application by— (a) a sophisticated client; or …

88. In accordance with s 294A(5), an application by a client for an assessment of all or any part of their legal costs must be made not later than 12 months after the day the bill was given or the day that costs were paid if a bill was not received. Ms Huber’s originating application seeking, amongst other things, an order pursuant to s 294A was lodged on 28 February 2025. The last two invoices issued by Bradley Allen were dated 11 January 2024 and 29 April 2024, respectively. Only the last of those was issued within 12 months of the date of filing of the originating application. Pursuant to s 294A(6), the court may allow an application for an assessment of costs outside of the 12-month period where, after having regard to the delay and the reasons for it, it determines that it is just and fair for the application to be dealt with.

89. Sub-section (6) does not apply to an application by a sophisticated client. A sophisticated client is defined in s 261. That definition encompasses persons in respect of whom there is an exception to the requirement for disclosure of costs under section 269. One of the exceptions to disclosure in s 272(1)(c) is a client who is an “Australian legal practitioner”. Although it is apparent from the material before me that Ms Huber was at all material times working as a patent attorney, the evidence does not enable me to determine whether, at the time the relevant disclosures were required, she was a person meeting the definition of an Australian legal practitioner. That is, a person who held a practising certificate. As the issue of her status as a legal practitioner was not raised before me, I have proceeded on the basis that Ms Huber did not meet the definition of a sophisticated client at the relevant time.

90. In view of the time restriction in s 294A, Ms Huber seeks an order permitting an assessment of costs application to be made outside of the 12-month period otherwise applying. Bradley Allen concedes that in relation to the last of the invoices, it was in time at the date of the filing of the application. It raises no opposition to a costs assessment proceeding in respect of that invoice. The prior bill was issued approximately 13 months before the date of filing of the originating application. I am satisfied in all the circumstances that it is appropriate to permit Ms Huber to make application for an assessment of that bill.

91. The residual question is whether Ms Huber should be entitled to an assessment of the costs generated pursuant to the first and second agreements prior to that time. As a consequence of my refusal of her application to set aside the agreements, and with reference to s 300A of the Legal Profession Act, any assessment of disputed costs will be made by reference to the provisions of the costs agreement. In relation to the first and second agreements, Ms Huber raises one instance where she contends she was charged twice for the same body of work. I consider it appropriate to allow an assessment of costs to proceed in respect of that invoice. I am otherwise not satisfied that Ms Huber has demonstrated that it is just and fair for the earlier costs to be assessed.

Orders

92. I make the following orders: (1) The application to set aside the first and second agreements pursuant to s 288 of the Legal Profession Act 2006 (ACT) is refused. (2) The application to declare the agreements void for unfair contract terms or on the basis of unconscionability is refused. (3) The plaintiff has leave pursuant to s 294A of the Legal Profession Act 2006 (ACT) to apply for an assessment of part of her legal costs as follows: (a) Invoice B34094 dated 11 December 2018. (b) Invoice B61759 dated 11 January 2024. (c) Invoice B63143 dated 29 April 2024.

93. I will hear the parties as to the costs of the application.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: