Ji v. Firth t/as Firths the Compensation Lawyers [2013] NSWSC 186

Supreme Court of NSW|2013-03-05|Before: Campbell J

Judgment 1The plaintiff is a former client of the defendant's legal practice. The legal practice acted for the client on a claim for statutory benefits and work injury damages under the Workers Compensation Act 1987 (NSW) ("the 1987 Act"). The legal practice was the fourth firm to represent the client in relation to the claim. 2The proceedings in this Court related to a dispute between the client and the legal practice about the costs the legal practice was entitled to charge the client for bringing his work injury damages claim to a successful conclusion. The current proceedings were "settled" by entry of a consent judgment in favour of the client for $14,000.00. The parties are now arguing about who should pay the costs of the proceedings. How the "settlement" came about is said to be relevant to the exercise of the discretion relating to costs. 3The following facts are undisputed: (a)The client retained the legal practice on 16th June 2010; (b)An application to resolve a dispute about the client's lump sum entitlements was filed in the Workers Compensation Commission on 5th October 2010; (c)The legal practice represented the client at an arbitration on 10th February 2011 and on that day an "in principle" agreement was reached between the client and his employer for the settlement of both the statutory lump sum claim, and the claim for work injury damages; (d)On the same day, after the arbitration, the legal practice and the client entered into a lump sum conditional fee agreement for work done in relation to the work injury damages claim; (e)Final settlement of the claim for statutory lump sum compensation was reached on 16th February 2011; (f)Final settlement in relation to the claim for work injury damages was reached on 15th March 2011, I infer for the sum agreed "in principle" back on 11th February; (g)On 17th March 2011, the client executed a deed releasing the employer from its liability for work injury damages as a means of recording, and giving legal effect to, the settlement previously reached. 4The legal practice provided the client with a memorandum of fees on 3rd August 2011 in the sum of $33,450 which incorporated the figure mentioned in the lump sum costs agreement, and other charges including counsel's fees and disbursements. I interpolate that the memorandum of fees was obviously rendered on a solicitor and client basis as the legal practice avers in its defence that the client was given credit for the sum of $18,515.18 recovered by way of party and party costs. The purported solicitor and client margin was therefore $14,934.82. 5A legal practitioner acting for a client in relation to a claim for work injury damages is not entitled to charge on a solicitor, or practitioner, and client basis unless clause 103 Workers Compensation Regulation 2010 ("the Regulation") has been complied with. This provision permits the parties to contract-out of the regulated maximum costs scheme fixed by the 1987 Act and the Regulation if the conditions it stipulates are complied with. For present purposes, the critical requirement is found in Clause 103 which requires a legal practice which intends to charge on a practitioner and client basis, "before entering into a costs agreement", to advise the client in a separate document "that, even if costs are awarded in favour of the [client], [the client] will be liable to pay such amount of the costs provided for" in a costs agreement made under the Legal Profession Act 2004 ("the 2004 Act") "as exceeds the amount that would be payable under the 1998 Act" absent a costs agreement. In summary, a separate prior written notice of an intention to charge on a practitioner and client basis, and a compliant costs agreement in that regard under the 2004 Act, are both required. 6The reference to the 1998 Act is a reference to the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Part 8 of Chapter 7 of the 1998 Act deals with legal costs in respect of matters arising under the Workers Compensation Legislation. Section 334 provides: This Part, and the regulations under this Part, prevail to the extent of any inconsistency between them and the Legal Profession Act 2004 or the regulations under that Act. Section 337 confers a regulation making power on the Governor (see s.248), inter alia, with respect to "fixing maximum costs for legal services" in any work injury damages matter. Clause 102 of the Regulation provides that the maximum costs for legal services provided in relation to a claim for work injury damages are the costs set out in Schedule 7 to the Regulation "except as otherwise provided by this Part". Section 346 is the central provision and is in the following terms: (1) This section applies to costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages. (2) The regulations may make provision for or with respect to the awarding of costs to which this section applies. The regulations may provide for the awarding of costs on a party and party basis, on a practitioner and client basis, or on any other basis. (3) A party is not entitled to an award of costs to which this section applies, and a court may not award such costs, except as prescribed by the regulations under this Act or by the rules of the court concerned. (4) In the event of any inconsistency between the provisions of the regulations under this section and rules of court, the provisions of the regulations prevail to the extent of the inconsistency. 7As can be seen the entitlements of clients and legal practices in respect of costs in work injury damages matters are closely regulated. Without seeking to be precise, a consideration of Schedule 7 and its tables shows that the scheme of maximum costs adopts an event costing approach with rates calculated as a percentage of the amount recovered. 8From this short analysis of the regulated costs scheme, it is apparent that the question critical to the legal practice's entitlement to charge on a practitioner and client basis is whether it had satisfied the conditions stipulated by clause 103 of the Regulation. Moreover, if it had not, it needed to be borne in mind that Clause 102 of the Regulation stipulated that the costs set out in Schedule 7 were the maximum costs payable. Entitlement to those maximum costs did not only depend upon agreement with the employer's representatives, but also upon the consideration of the question of what costs were "fair and reasonable" for the work done: ss. 346 and 365 of the 2004 Act; Clause 126 of the Regulation. 9These legal considerations relating to costs in work injury damages cases are the context in which the controversy between the parties resolved in the consent judgment arose. They also provide context to the resolution of the outstanding costs question.

The pleadings 10On the basis of my analysis so far, the critical and threshold question was whether there had been compliance with Regulation 103. In a surprisingly elaborate Statement of Claim, which excluding formal parts, extended over fourteen pages, the plaintiff sought sixteen separate remedies including nine declarations of right; an order setting aside the costs agreement; equitable compensation; damages for breach of contract; a "refund"; restitution; and an order for repayment of the gross sum received, interest and indemnity costs. Multifarious causes of action were relied upon, including breach of contract; unconscionable contract under the Fair Trading Act 1987; statutory relief under Contracts Review Act 1980; breach of an implied term of the contract; misleading and deceptive conduct; breach of fiduciary duty; the tort of deceit; and an entitlement to aggravated and exemplary damages. What I have identified as the central issue was dealt with from [31] - [39] covering part of three pages. 11The legal practice's defence, omitting formal parts, extended over fifteen pages. To some extent its length was generated by the plaintiff's, in my view, unnecessarily prolix pleading. Whilst certain admissions were made in respect of matters of primary fact, the general "feel" of those matters was one of confession and avoidance. Every basis of relief was contested and in respect of the central issue, it was positively averred that Regulation 103 was complied with; notice was given in a separate document dated 10th February 2011; and that the conditional costs agreement complied with the 2004 Act. Any liability to the client, including a liability to repay the practitioner and client margin, was denied.

The submissions of the parties 12The plaintiff was represented by Mr. Nath, solicitor. Mr. Nath is an employee of Diamond Conway, who took carriage of the matter from Tony Barakat. The current legal practice was not responsible for the prolix Statement of Claim. The new solicitors brought the matter to finality, save as to costs, with commendable promptitude. 13Mr. Nath's submissions were elegant in their simplicity. He relied upon r42.1 Uniform Civil Procedure Rules 2005 (the Rules). Mr Nath submitted that his client had obtained judgment in his favour in the sum of $14,000 and the general rule that costs follow the event should apply. 14Mr. Goodridge of counsel appeared on behalf of the legal practice. He sought his client's costs on an indemnity basis, if not for the whole proceedings, then, in the alternative, costs on the ordinary basis up to 7th July 2012 and on an indemnity basis thereafter. He handed up written submissions setting out nine bases for this claim, four of which were based on a series of Calderbank offers and offers of compromise, four of which were aspects of "delinquency" as it might be put, on the part of the client, and one invoked r42.34 of the Rules. 15In reply, Mr. Nath joined issue with those grounds asserting delinquency, pointed to claims for relief which he argued were only available in this Court, and to the extent to which it might be necessary for the client to demonstrate that it was reasonable to either reject them, or allow the offers to lapse, relied upon his client's temporary, but significant absence in his homeland of China as justifying an inability to promptly respond to offers made. He strongly disputed the argument that there was a case for the client to pay the costs of the legal practice, let alone on an indemnity basis. The refusal of an adjournment 16I should point out that when the matter was called on for hearing before me, the client, who was not present in Court, through his legal representative applied for an adjournment to supplement the affidavit evidence that had been served on his behalf. The legal practice opposed any such adjournment, but maintained it's position that it was entitled to cross-examine the client in relation to his affidavit evidence that he was absent in China for a necessary purpose and was reasonably uncontactable because of the remoteness of his home location. Given the small amount involved in the judgment and the substantial costs that each party had obviously incurred in relation to the proceedings, as well as the costs dispute itself, I refused the application for an adjournment. I considered that no satisfactory explanation was proffered for the client's non-attendance at Court. Had he been here he might have given supplementary evidence if an interpreter had been arranged. Moreover, having regard to the efficiency provisions of ss.56 to 60 of the Civil Procedure Act 2005, I did not consider that the overriding purpose would be best served by allowing an adjournment to the legal practice for the mere purpose of cross-examining the client. In my judgment the costs of allowing the matter to adjourn would be disproportionate to the importance and complexity of the subject matter in dispute: s.60 CPA.

Consideration 17As I have stated, by its defence, the legal practice positively averred that a separate document complying with the notice requirement of Clause 103 of the Regulation was served on the client on 10th February 2011. That document is not disclosed in evidence before me, nor was its creation referred to in the itemised bill served in response the client's request on 1st August 2012. In fairness, the costs agreement, which the client accepts was entered into on 10th February 2011, is not referred to in the itemised bill. It may be that the notice referred to has not been introduced into evidence because, for the purpose of this costs argument, the legal practice conceded that the costs agreement is void by dint of ss.323 and 327 of the 2004 Act. Presumably, implicit in this concession is a concession that paragraph (b) of subclause 103(1) of the Regulation was not satisfied, and accordingly there is no entitlement to charge practitioner and client costs in respect of the claim for work injury damages, regardless of notice. 18The concession then is of great significance in the resolution of the costs question. As a matter of law, the legal practice had no entitlement to charge costs on a practitioner and client basis, yet it did so. The practice only had an entitlement to "fair and reasonable" costs on a party and party basis calculated in accordance with Schedule 7 to the Regulation. However one considers the matter, therefore, the client had an indefeasible right to restitution of the margin of practitioner and client costs over party and party costs, together with interest. That amount was not necessarily, or accurately, calculated simply by deducting the amount the employer's solicitors agreed to pay as party and party costs from the gross amount charged. Although that factor was relevant, it did not necessarily follow that the amount the employer conceded was the amount that was fair and reasonable to charge on that basis in the circumstances of this case when one considers: no instructions to commence a claim for work injury damages were received by the legal practice until 10th February 2011; no file was opened until 11th February 2011 (see itemised bill); and the claim was finalised when the Deed of Release was executed on 17th March 2011, or perhaps when it was delivered the following day. 19Additionally, one must infer mainly administrative work was done recovering settlement monies and costs, concluding on 17th August 2011. When one considers the claims for charges for work done from the commencement of 10th February 2011 to a completion on 17th August 2011, one sees that the legal practice claimed for about 20 hours work. Not all of this work can be purely attributed to the work injury damages claim as it includes work done for the statutory benefits claim. If one adds to this, by reference to the itemised bill, initial work undertaken in the period immediately following the receipt of instructions, there is another nine hours claimed between 26th May 2010 and 29th May 2010, part of which may relate to the work injury damages claim. It seems that the total items claimed which may relate in whole or in part to the work injury damages claim does not exceed 29 hours, not all of which was performed by professional staff. 20A considerable difficulty with the "itemised bill" is that it continues to charge on a lump sum basis in accordance with the void conditional costs agreement of 10th February 2011. It seems to me that the only proper basis, in the circumstances of this case, on which the legal practice could comply with its obligation to provide an itemised bill was to revert to a "fair and reasonable" basis by reference to Schedule 7. As I have already pointed out, Schedule 7 more or less provides for costs on an event costing basis at a percentage of the amount recovered. The itemised bill purports to charge a lump sum, but justified on a time costing basis. It's not easy to derive an hourly rate from the tables to Schedule 7, but to the extent to which it is possible, an hourly rate of $200 suggests itself (See Table "A" Stage 1 and Other Work Injury Costs Table, Item 3). I acknowledge the artificiality of attempting to convert the Schedule 7 rates to a time costing basis. This artificiality renders the exercise of little weight. But it is not entirely irrelevant to reflect that 29 hours of professional work at $200 per hour translates into a fee of $5,800. As I have already said, the main thrust of Schedule 7, however, is to provide the major part of remuneration at 2% of the amount of the settlement or award of damages. The events, which trigger an entitlement to a specified costs item, are structured to promote early settlement before the commencement of any court proceedings. 21But the only point of this exercise is to demonstrate that at the time the legal practice made it's Calderbank offers or offers of compromise, there was a real question about the amount which was fair and reasonable in respect of party and party costs. However that might be, it is very clear given the concession made in the Calderbank offer of 29th June 2012 for the purpose of this costs application, that the client had, as I have said, an indefeasible right to reimbursement over and above the amount of any costs properly calculated pursuant to schedule 7, which were very unlikely to exceed the amount agreed between the legal practice and the employers solicitors. 22Accordingly, none of the settlement offers truly represented a compromise from the point of view of the legal practice; rather, each proceeded in the expectation that the client ought to compromise - if I may put it this way - his vested right to restitution. In these circumstances, I do not think it was open to the legal practice to attempt to obtain the tactical advantage it sought in relation to costs of the proceedings by the making of offers. Rather, there should have been a frank acknowledgment in the pleadings of the client's entitlement to restitution of the practitioner and client margin on the costs charged by the legal practice together with the tender of the amount due, bearing in mind what I have said about the amount of what I would regard as the plaintiff's minimum entitlement. 23In respect of liquidated claims, the defence of tender before action is still available under the modern rules: r 14.25; see also r 20.34. But the one thing that the Statement of Claim did not advance was a liquidated claim, whether by way of money had and received or otherwise. This would not have stopped the legal practice actually admitting the client's entitlement. As I hope I have already made clear, in essence this was a simple dispute about a small amount of money and the plaintiff's claim was brought forth in an overly elaborate and prolix manner. In truth it sought to make a mountain out of a molehill. And one is driven to the conclusion that the pleader (not the present legal representatives) sought to derive some tactical advantage out of attempting to justify, by means of extravagant claims, the commencement of the proceedings in this Court. 24Having raised these concerns and voiced my criticisms, it should be pointed out that the Statement of Claim was filed on 25th June 2012 and by 29th June, in a Calderbank letter, the legal practice offered to refund the difference between the costs charged and the costs recovered together with interest and costs. As I have said, this was not truly a compromise, but rather an expression of what, on one view, was the legal practice's minimum legal obligation. This being so, I find it surprising that the legal practice sought to derive a tactical advantage in regard to it. It seems to me to have been reasonable for the client's lawyers to demand the provision of an itemised bill, this was the client's statutory right. This was not provided until 1st August 2012, and when it was provided, it was provided, as I have tried to explain, on an artificial and erroneous basis. The error must have been known to the legal practice given the concession made on 29th June 2012. In the meantime, the client's then lawyer asserted greater entitlements than that offered, having regard especially to the reliance upon the tort of deceit. And on 6th July the legal practice served a purported offer of compromise under r20.26 in the same amount offered on 29th June 2012. 25In any event, the client's then lawyer was unable to obtain instructions because the client had returned to China, temporarily, on 25th June 2012 (the day the Statement of Claim was filed), to assist his wife in her application to obtain a visa to permit her to join him in Australia. In his affidavit sworn on 22nd February 2013, the client said that his solicitor was unable to contact him until "about September 2012". He provided an authority to settle dated 20 September 2012 whilst he was still in China. He does not disclose, asserting legal professional privilege, whether his instructions to his then lawyer were for the lawyer to attempt to revive the offers which the legal practice maintained had expired and was unwilling to reopen: See letter dated 6th September 2012, Annexure "N" to affidavit of Andrew McQuilkin sworn 22nd January 2013. However, from Annexure "O" to Mr. McQuilkin's affidavit, I would infer that the plaintiff instructed his lawyers to accept the offer of compromise, because on 25th September 2012, the lawyer wrote to the legal practice stating: My client has instructed me to accept your offer of compromise served under cover of your letter dated 6th July 2012, if you are minded to re-instate it. On the same day, the legal practice wrote to the client's solicitor expressing the view that "our offer of compromise has expired and therefore under the rules it is spent". It maintained the view, which I do not accept, that the client could not possibly obtain a better result in the proceedings, and asserted that the end result would be the recovery by the legal practice of it's costs on an indemnity basis. The legal practice then made a lesser offer inclusive of costs and extending to matter no. 2012/00198379 instituted by summons seeking an order under s.728(1)(a) of the 2004 Act that the legal practice provide "a bill of costs". The summons was filed on the same day as the instant proceedings. That letter constitutes the "sixth basis" on which the legal practice seeks indemnity costs. 26On the 26th of September, the client filed his own offer of compromise in terms identical to the legal practice's earlier offer of the 6th of July 2012. On 12th October 2012, the legal practice responded by writing to the client's then lawyers rejecting the offer of compromise and offering a lesser sum still inclusive of costs in settlement of both proceedings. 27On 22nd October 2012, the then lawyer wrote to the legal practice advising that the file had passed to the current solicitors, who on 20th November 2012 served an offer of compromise in the sum of $14,000, which the legal practice accepted with alacrity by letter dated 23rd November 2012, but on the basis that the question of costs of the proceedings be separately determined. The client was clearly prepared to accept that resolution as judgment was entered in his favour on that basis.

Decision 28Dealing with the plaintiff's application first, the general rule in r42.1 is, in express terms, subject, inter alia, to r 42.34. The amount of the judgment is considerably less than the $500,000 referred to in that rule. Rule 42.34(2) provides that in such a case: An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted. 29Mr. Nath attempted to displace the ordinary rule implicit in sub-rule 42.34(2) by arguing that the commencement and continuation of the proceedings in the Supreme Court was warranted by reason of the nature of the relief sought. He argued that the District Court did not have jurisdiction to grant all of the relief sought, a proposition that may be questionable having regard to the provisions of ss.134, 134B, 135 and 137 District Court Act 1973. He said I would be satisfied that the commencement and continuation of the proceedings in the Supreme Court was warranted. 30This claim involved no more than the recovery of a modest amount of legal fees overcharged by a legal practitioner, doubtless, according to the legal practice anyway, inadvertently. If stripped of the unnecessary claims for equitable relief, and the reliance upon breach of fiduciary duty, which added nothing to their legal efficacy, or efficiency, the proceedings could have been brought in the Local Court of NSW: ss.29-33 Local Court Act 2007 (NSW). As I have said a common money count may have sufficed, subject to the consideration of whether the provision of a bill itemised on a proper basis was necessary to accurately calculate the final amount due. For these reasons, I am not persuaded that the ordinary rule established by r 42.34 has been displaced. Indeed, to accede to the plaintiff's application for costs would entirely defeat the purpose of the rule. 31I do not propose to deal in detail with each of the nine bases the legal practice advanced as entitling it to costs including indemnity costs. I am not satisfied that the Calderbank offer contained in the letter of 29th June 2012, nor the offer of compromise under r20.26 of 6th July 2012, contained any true offer of compromise. Rather, given the concessions made for the purpose of the offer, the outcome proffered by the legal practice was the best result it could hope to obtain for the reasons I have already expressed. Moreover, I am of the view that in all the circumstances, the request by the client's then lawyers on 2nd July 2012 for the provision of an itemised bill to enable the offer to be given consideration is a relevant consideration both to the purported Calderbank offer and the offer of compromise. Having regard to the nature of the dispute, to say nothing of the statutory obligations of the legal practice, that was a reasonable request. 32The request was not complied with until 1st August 2006, and then the itemised bill was provided in a form which had no validity whatsoever given: (a)that it purported to assess costs on a solicitor and client basis when the legal practice had no right to claim costs on that basis; (b)it assessed the costs in accordance with the void lump sum conditional agreement; and (c)purported to particularise the claim on a time-costing basis when Schedule 7 prescribed a different basis. 33I reject the legal practice's reliance upon r 42.15A, which applies when "the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer". The defendant did not obtain any order or judgment on the claim, regardless of its favourability. It was the plaintiff who obtained judgment on the claim and accordingly the rule according to its express terms does not apply. 34But nor does r 42.15 apply in my opinion. That rule applies where the defendant makes an offer which is not accepted by the plaintiff, "and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer". Had I decided that the offer of 6 July 2012 was an offer of compromise under the Rules, I would still have been of the view that r 42.15 was inapplicable. In my judgment, the expression "obtains an order or judgment on the claim" refers to a decision made by the court after a contest: compare with the reasoning in Newcrest Mining Ltd v. Thornton [2012] HCA 60; and Nau v. Kemp & Associates Pty Ltd (2010) 77 NSWLR 687. By parity of reasoning with those cases, which concern the interpretation of the apportionment legislation, the natural meaning of the phrase "obtains an order or judgment" is the pronouncement of a relevant order or judgment in favour of a party following judicial determination of a contest, rather than by consent. 35That this is so is confirmed by the terms of r 42.13A. Where, as here, an offer of compromise is made by the client as plaintiff (see Annexure "T" and "U" to the affidavit of Mr. McQuilkin), which is accepted by the defendant, the prima facie rule is that the plaintiff is entitled to costs in respect of the claim assessed on the ordinary basis up to the time when the offer was made (r 42.13A(2)), unless, inter alia, the Court otherwise orders. There is no default provision for indemnity costs. This points clearly to the conclusion that rr 42.14, 42.15 and 42.15A are intended to operate after the judicial resolution of a contest. 36Had I been satisfied that the offer of 6th July 2012 was an offer of compromise under the rules I would have held that the client's absence in China was not a reason to deny the legal practice indemnity costs to which it may have been prima facie entitled. A party initiating litigation has an obligation, as I see it, to keep in contact with his or her legal representatives lest developments requiring instructions go unheeded. In this age of the ubiquitous availability of instantaneous communications to say my mailing address is in a remote part of China where delivery can be unreliable (in fact he seems to have been in Beijing) is unlikely to wash. 37In my opinion, the offers of 20th August 2012, 26th September 2012 and 12th October 2012 do not engage any special discretion as to costs. The last of these offers is in an amount less than the judgment entered. The others seek a resolution of both sets of proceedings, including imposing an obligation on the client to give up his important statutory right to have an itemised bill prepared and served on a proper basis. The suggestion that the client discontinue both sets of proceedings and undertake a cost assessment process has a hollow ring in circumstances where the legal practice has not provided an itemised bill relevant to the work done, let alone a bill in assessable form. 38The legal practice's letter of 5th December 2012 including the suggestion that there should be no order as to costs is not one of the nine bases of the legal practice's claim and I put it to one side. 39The second, third, seventh and eighth bases do not, in my opinion, amount to delinquency of a kind which would justify ordering the successful party in the litigation to pay the costs of the unsuccessful party. 40To the extent to which the eighth basis argues that r42.13A "does not displace the defendant's entitlement under UCPR 42.15A in respect of the costs order dated 6th July 2012" (emphasis added), I disagree for the reasons already expressed. 41The failure of the legal practice to invoke any established exception to the general rule under r 42.1, and of the client to displace r 42.34, leads me to make the following order: (1)Each party is to bear his own costs of the proceedings and of the application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2013

Workers Compensation Regulation 2010(NSW)

Legal Profession Act 2004(NSW)

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