HIS HONOUR: By her summons filed on 29 November 2016, Miroslavka Lukic seeks the following relief:
1. An order pursuant to s 728(1)(a) of the Legal Profession Act 2004 that the defendant provide to the plaintiff a bill of costs in itemised form of costs and disbursements in respect of the legal services provided by the defendant to the plaintiff in connection with the plaintiff's claim for work injury damages.
2. An order that the defendant produce to the plaintiff's legal representative the plaintiff's file relating to the conduct of the plaintiff's work injury damages claim, including the mediation and settlement of the matter.
3. An order that the defendant pay the plaintiff's costs of and incidental to this summons on an indemnity basis.
For the reasons that follow, I consider that I am not presently able to determine whether or not Ms Lukic is entitled to the relief that she seeks.
[2]
Background
Ms Lukic originally retained Ms de Luca-Leonard as her solicitor in workers compensation proceedings in May 2010. Ms Lukic sought to recover compensation from her employer St George Private Hospital following continuous bullying in the workplace. Ms Lukic subsequently also retained Ms de Luca-Leonard in about March 2011 for the purpose of instituting a work injury damages claim. That followed a medical assessment that diagnosed Ms Lukic as suffering from a chronic major depressive disorder with an assessed whole person impairment of 60 percent.
Ms Lukic signed a costs agreement with Ms de Luca-Leonard on 14 March 2011.
On 2 April 2014, Ms Lukic settled her work injury damages claim, at mediation at the Workers Compensation Commission, for $300,000 inclusive of costs and disbursements but clear of workers compensation payments. Ms Lukic executed a deed of release on the same day giving effect to the settlement.
Some few weeks later, on 22 April 2014, Ms Lukic received a letter from Ms de Luca-Leonard with a tax invoice for costs and disbursements in the amount of $74,000 inclusive of GST. She was not provided with an itemised bill of costs. Ms Lukic says that she was advised by Ms de Luca-Leonard that if she wanted an itemised bill the costs would be $105,000 whereas if she accepted the lump sum bill she would receive a discount. In the events that occurred, Ms Lukic decided to accept the lump sum bill.
On 12 August 2014, Ms Lukic was involved in a motor vehicle accident and was injured. She instructed Johnson Vaughan Solicitors to assist her with her compulsory third party damages claim. She later changed solicitors on 13 May 2015 and instructed LHD Lawyers to take over that claim. On 5 September 2015, Ms Lukic changed solicitors again, this time engaging Wilson Fox Lawyers, her present solicitors. In the course of examining documents provided to him by Ms Lukic, Mr Hernandez, her present solicitor, advised Ms Lukic that he believed that the costs originally charged by Ms de Luca-Leonard in acting for her on the work injury damages claim were excessive. Ms Lukic was advised that it may have been possible to make a claim against Ms de Luca-Leonard for overcharging, although since over 12 months had passed since the tax invoice was issued, she could not be given any guarantee.
Ms Lukic, in effect, instructed Mr Hernandez to proceed with this line of inquiry in pursuit of the recovery of any amounts that may have been owed to her by Ms de Luca-Leonard and to commence legal proceedings if necessary. On 23 June 2016, Ms Lukic was advised by Mr Hernandez that all reasonable attempts had been made to obtain her complete file from Ms de Luca-Leonard concerning the work injury damages proceedings, and also an itemised bill of costs. Those attempts were unsuccessful and these proceedings then followed.
Before that occurred, a relatively large amount of correspondence passed between Ms de Luca-Leonard and those representing Ms Lukic. It is instructive to refer to some of it.
Mr Hernandez wrote to Ms de Luca-Leonard in terms suggesting that, for a matter that settled at mediation, the costs charged by her were excessive. He foreshadowed the commencement of legal proceedings. By her letter dated 1 April 2016, Ms de Luca-Leonard replied relevantly as follows:
"I have your letter of 31 March 2016. In light of it I have briefed counsel who assures me he will have a reply for you on the matters you raise by Tuesday morning of next week.
Given this development I would ask that you take no further action beyond waiting upon my correspondence to you…"
Somewhat more quickly than anticipated, Ms de Luca-Leonard wrote again to Mr Hernandez, this time on 4 April 2016, in the following relevant terms:
"I again acknowledge receipt of your lengthy letter of 31 March 2016 which I have referred to Counsel, Mr DKL Raphael. Mr Raphael was a solicitor at Parramatta for more than 30 years and has substantial experience in this area. He agrees with you that, subject to my following comments about a lump sum account, it is much more likely than not that I would be ordered to provide a detailed bill in assessable form. I am presently discussing this matter with both him and with an appropriate costs expert regarding preparation of the bill in question.
It is apposite that I put you on notice that I have never received from your client a request for an itemised account. Indeed a review by me of my file discloses your client's agreement to a lump sum account…"
Ms de Luca-Leonard wrote again on 5 April 2016 in these terms:
"I have your letter of 4 April 2016, in reply to mine of the same date. If you are saying that your letter of 29 February 2016 constitutes a request for an itemised bill, please let me know. If not, please give me a copy of any request for an itemised bill your client says has been made of me in this matter.
I am surprised to read you press for an itemised bill by 7 April 2016 in circumstances where as you know, I do not believe I have ever received a request for an itemised bill. I do not believe a costs expert or me [sic] could complete such a task within the next two days. However, I do believe that an itemised bill could be available to you within 35 days from now. Please confirm that this is satisfactory in the circumstances.
Your client will no doubt be aware that although the costs of the itemisation will not be claimed, the discount abates in the event of an itemisation, as this was agreed by your client and me. I am seeking your undertaking that your client can meet this agreement before the itemisation proceeds."
Mr Hernandez indicated by his letter dated 5 April 2016 that it would be satisfactory if an itemised bill were received by 26 April 2016.
On 4 May 2016, Ms de Luca-Leonard wrote to Mr Hernandez as follows:
"I refer to this matter generally. I apologise for the delay in replying, beyond the date you requested, of 26 April 2016. The files have been retrieved from archives and are voluminous. An itemised bill is expected to involve considerable time, and cost, as the instructions for the negligence case go back from June 2014 to January 2011.
A copy of the cost agreement is attached. Respectfully, may I say that I believe that the Workers Compensation Regulations to which you refer have no work to do, in this case.
Please let me know if your client wishes to proceed with the itemisation. In that case, the undertaking from you is again requested."
Mr Hernandez wrote to Ms de Luca-Leonard on 27 May 2016 in the following terms:
"We refer to the above matter and our multiple requests for an itemised bill and complete file, specifically as requested in our correspondence to you dated 27 February 2016.
It is now 4 weeks since itemised bill and complete file was to be provided to us. We are yet to receive the requested documents.
You have requested on multiple occasions for our client to provide an undertaking that she will be liable to pay the difference between the lump sum bill and itemised bill once prepared.
In reply to these requests, we wish to inform you that no such undertaking will be provided and it is our view that you have no grounds to claim the difference between the lump sum bill and itemised bill."
Ms de Luca-Leonard replied in relevant terms on 2 June 2016:
"1. After so long a time, it is not usually appropriate that I be called upon to itemise a bill of costs in the circumstances in which this matter was conducted on behalf of your clients, especially when she elected to accept a lump sum bill of costs.
2. Thus, there was agreement that an agreed lump sum be provided. If what you are saying is that your client will be seeking to set aside the costs agreement made with her then please say so. As I understand matters from my counsel, you have retained counsel of considerable ability and substantial experience in this area of law. Indeed, I believe I have chosen likewise.
3. It may be in the best interest of avoiding prolixity and what might fairly be called 'cat and mouse' games were those prospective counsel to confer and endeavour to clarify all relevant points.
4. …"
Mr Hernandez wrote to Ms de Luca-Leonard on 5 June 2016. The letter referred to a number of other topics, but for present purposes included the following:
"Considering a work injury damages claim could not possibly have been commenced until the earliest possible date of 8 August 2013, it is our view that your costs agreement would not commence operation until this time.
You have made it quite clear in your letter dated 4 May 2016 that your itemised bill will go back to January 2011. We are yet to receive it with the complete file.
Please be advised that it has now been over 3 months since we first requested an itemised bill and complete file. It now seems to us that you are deliberately delaying and possibly refusing to provide us with the itemised bill and complete file.
Your actions have now forced us to look into commencing court proceedings. Should this occur, we will also be seeking indemnity costs."
The correspondence thereafter is not germane to the current dispute.
[3]
Discussion
Ms Lukic relies upon s 728 of the Legal Profession Act 2004. That Act was repealed and replaced by the Legal Profession Uniform Law (NSW). Neither counsel referred to this Act in the course of the proceedings before me.
Schedule 4 to the Legal Profession Uniform Law (NSW) contains the following relevant clauses:
"2 General savings and transitional provision
(1) Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 of Victoria as applying under section 7(1) of this Law.
(2) If anything of a kind required or permitted to be done under a provision of this Law as applied in this jurisdiction was done under a corresponding provision of the old legislation and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if -
(a) this Law as applied in this jurisdiction had been in force when it was done; and
(b) it had been done under this Law as applied in this jurisdiction.
(3) If subclause (2) applies in relation to the execution, lodgement, issue or publication of a written instrument, any reference in the instrument to a provision of the old legislation is, for the purposes of that subclause, to be read as a reference to the corresponding provision of this Law as applied in this jurisdiction.
(4) Without limiting subclauses (2) and (3), if a provision of the old legislation that corresponds to a provision of this Law as applied in this jurisdiction would, but for its repeal by the Legal Profession Uniform Law Act of this jurisdiction, have applied in relation to anything done or being done or in existence before the commencement day, the provision of this Law applies in relation to that thing, and so applies with any necessary adaptations.
(5) If a provision of the old legislation continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision -
(a) any other provisions of the old legislation necessary to give effect to that continued provision;
(b) any regulation made under the old legislation for the purposes of that continued provision.
(6) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject matter otherwise indicates or requires, and has effect subject to the local regulations.
3 References to old legislation
A reference to the old legislation in any Act (other than the Legal Profession Uniform Law Act of this jurisdiction or this Law as applied in this jurisdiction) or in any subordinate instrument, agreement, deed or other document is to be construed as a reference to this Law, so far as the reference relates to any period on or after the commencement day and is not inconsistent with the subject matter.
4 Time limits
(1) If the time for doing any act was fixed by or under the old legislation, that time continues to apply on and after the commencement day in relation to any act that was required or permitted to be done, and could have been done, before that day and, unless the contrary intention appears, nothing in this Law has the effect of extending or abridging the time for doing that act.
(2) The time for doing an act to which subclause (1) applies may be extended or abridged on or after the commencement day in accordance with any provision made by or under the old legislation as in force immediately before that day as if that provision had not been repealed, but subject to anything in this Schedule requiring a reference in that provision to be construed in a particular way.
5 Savings and transitional rules and regulations
(1) The Uniform Rules may contain provisions of a savings and transitional nature consequent on the repeal of the old legislation.
(2) The local regulations may contain provisions of a savings and transitional nature consequent on the repeal of the old legislation.
(3) The provisions referred to in subclause (2) prevail over the provisions referred to in subclause (1) to the extent of any inconsistency.
(4) Any such provision may, if the Uniform Rules or the local regulations (as the case may require) so provide, take effect from the commencement day or a later day.
(5) To the extent to which any such provision takes effect from a day that is earlier than the date of its gazettal or publication, the provision does not operate so as -
(a) to affect, in a manner prejudicial to any person (other than this jurisdiction or an authority of this jurisdiction), the rights of that person existing before the date of its gazettal or publication; or
(b) to impose liabilities on any person (other than this jurisdiction or an authority of this jurisdiction) in respect of anything done or omitted to be done before the date of its gazettal or publication.
...
Division 3 Client information
18 Client information and legal costs
(1) Subject to subclause (2) -
(a) Part 4.3 of this Law applies to a matter if the client first instructs the law practice on or after the commencement day; and
(b) the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day."
Section 728 of the Legal Profession Act 2004 now finds expression in s 427 of the Legal Profession Uniform Law (NSW) in relevantly identical terms as follows:
"472 Supreme Court may order delivery up of documents etc.
(1) On the application of a client of a law practice, the Supreme Court may order the law practice-
(a) to give to the client a bill of costs in respect of any legal services provided by the law practice; and
(b) to give to the client, on any conditions that the Supreme Court may determine, any of the client's documents that are held by the law practice in relation to those services.
(2) Subsection (1) does not affect the provisions of Division 7 of Part 4.3 with respect to the assessment of costs…"
In a similar way, s 332A of the Legal Profession Act has been repealed. It was in the following form:
"332A Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
(2) The law practice must comply with the request within 21 days after the date on which the request is made.
(3) If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay.
(4) Subject to subsection (5), a law practice must not commence legal proceedings to recover legal costs from a person who has been given a lump sum bill until at least 30 days after the date on which the person is given the bill.
(5) If the person makes a request for an itemised bill in accordance with this section, the law practice must not commence legal proceedings to recover the legal costs from the person until at least 30 days after complying with the request.
(6) A law practice is not entitled to charge a person for the preparation of an itemised bill requested under this section.
(7) Section 332 (2), (5) and (6) apply to the giving of an itemised bill under this section."
Section 332A has been effectively replaced by s 187 in the Legal Profession Uniform Law (NSW). The two sections are not identical. Section 187 is as follows:
"187 Request for itemised bills
(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
(2) A request for an itemised bill must be made within 30 days after the date on which the legal costs become payable.
(3) The law practice must comply with the request within 21 days after the date on which the request is made in accordance with subsection (2).
(4) If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay."
It can be seen that s 187(2) of the Legal Profession Uniform Law (NSW) had no equivalent in the Legal Profession Act 2004. Moreover, s 332A (6) finds no direct equivalent in s 187. However, s 191 of the Legal Profession Uniform Law (NSW) is in these terms:
"191 Charging for bills prohibited
A law practice must not make a charge for preparing or giving a bill, and any charge made for that purpose is not recoverable by the law practice."
An examination of these provisions makes it clear that many of the issues that appear to have occupied Ms de Luca-Leonard's attention in her correspondence with Mr Hernandez were completely beside the point. For example, it is not permissible to charge for the preparation of an itemised bill, even though Ms de Luca-Leonard appeared on one view to be asserting that she was entitled to be paid for providing one. Secondly, the suggestion that Ms Lukic might have been dissatisfied with the fees she was charged is not of any particular relevance or significance if she is otherwise entitled to an itemised bill. Thirdly, and to a similar effect, the fact that Ms Lukic may have been contemplating proceedings against Ms de Luca-Leonard in negligence for compromising her claim for what Ms Lukic contends was an undervalue is beside the point. Fourthly, there is no present suggestion that Ms Lukic proposes either to seek to set aside the costs agreement with Ms de Luca-Leonard in general or the lump sum costs agreement in particular. To that extent, Ms de Luca-Leonard's concern about whether or not Ms Lukic will agree to pay the difference if the costs payable in accordance with the itemised bill are more than the lump sum is also beside the point.
However, what seems to have been overlooked by both parties is the possible effect of s 187(2) of the Legal Profession Uniform Law (NSW). Unless I have misunderstood the factual background, Ms Lukic never requested an itemised bill within 30 days after the date on which the legal costs became payable.
Mr Stitt of counsel who appeared for Ms Lukic made specific written submissions in writing concerning s 332A of the Legal Profession Act 2004. In that respect he said this:
"Further, the authorities make it plain that no time limit has been imposed on this section and indeed that s 728 of the LPA grants a discretion to the Court when considering the application of s 332A but that no limitation would apply (see Dale v Firth [2012] NSWSC 401 per McCallum J; Yang v Stephen Paul Firth [2013] NSWSC 676 per Hall J at [96]-[98]; Mackowiak v Hagipantelis [2015] NSWSC 1087 at [130]; Le v Brydens Lawyers Pty Ltd [2017] NSWSC 180 per Schmidt J at [35ff]) There can be no question that the plaintiff is entitled to make such an application at this time."
None of these cases dealt with circumstances that attracted the operation of the Legal Profession Uniform Law (NSW). It seems to me that, contrary to Mr Stitt's submission, there may very well be a significant question, by reason of s 187(2) of the Legal Profession Uniform Law (NSW), about whether or not Ms Lukic was or is now entitled to make her application for an itemised bill "at this time". I consider that some attention should be directed to whether there is any scope for contending that that subsection does not apply in the circumstances of this case.
The answer to that question will depend upon whether the Legal Profession Uniform Law (NSW) governs the present dispute having regard to the savings and other provisions in Schedule 4 of that Act. I put aside the question, which for obvious reasons has not yet been addressed or considered in argument, of whether there is any power to extend the time for making any such application out of time, and what, if any, factors in the present case might inform such a decision if the Legal Profession Uniform Law (NSW) applies to the present dispute.
Obviously different considerations will operate upon the resolution of this case, depending upon whether s 332A of the Legal Profession Act or s 187(2) of the Legal Profession Uniform Law (NSW) applies. In the circumstances I consider that the parties should be invited to make further submissions about the operation and effect, if any, of the Legal Profession Uniform Law (NSW) in general and s 187(2) in particular, upon Ms Lukic's application for an itemised bill. A date that is suitable to them and to the Court should be arranged as soon as possible in consultation with my Associate.
[4]
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Decision last updated: 17 April 2018