MAMMOTH INVESTMENTS PTY LTD -v- DONALDSON [2022] WASCA 144 (4 November 2022)

ACCOUNT WITH GRANT DONALDSON

Mammoth - Rural Bank

I enclose my tax invoice in respect of the above matter being:

For the period from 5 September 2019 to 31 October $149,380.00

Being my professional fee of $126,000.00 plus GST and Mr Sippe's fee of $9,800.00 plus GST.

Being in respect of:

• Advice on expert report - 2 days (September)
• Getting up - day (1 October)
• Getting up - 2 hours (2 October)
• Getting up - day (10 October)
• Getting up and conference - 2 hours (14 October)
• Getting up - day (17 October)
• Getting up and conference - 4 hours (18 October)
• Getting up - day (21 October)
• Getting up - day (22 October)
• Getting up - 6 hours (23 October)
• Getting up and attending court - day (24 October)
• Getting up - day (29 October)
• Getting up - day (30 October)
• Getting up - day (31 October)

This is a total of 11 days and 16 further hours.

In addition, I have paid the account of Mr Sippe, whose work was indispensable to the preparation of the pleadings. I attach a copy of his account. I have included this as a disbursement in my account.

Thank you for your instructions in this matter.

Regards

Grant Donaldson

1. The invoice was covered by a tax invoice in the following terms:

Hotchkin Hanly

First Floor, BGC Centre

28 The Esplanade

PERTH WA 6000

Attention: Michael Mistilas

Interest is payable on these legal costs if the costs are unpaid 30 days or more after this bill is given to you. I will not charge interest until I have provided written notice to your firm stating that interest will be charged if the bill is not paid. If I provide such notice interest is payable from the 30 days after the date of this bill until payment; at the rate prescribed from time to time for the purposes of s 273(4) of the Legal Profession Act 2008 (WA).

With Compliments

Grant Donaldson

1. Together, the four invoices totalled just over $800,000.
2. By originating summons filed on 14 August 2020, the appellants sought orders that included the following:
   1. Pursuant to section 16 of the Supreme Court Act 1935 (WA), and further and alternatively, the inherent jurisdiction of the Supreme Court, or otherwise, within 21 days of the date of this order the defendant must provide to the plaintiffs itemised bills for the following invoices issued by the defendant to Hotchkin Hanly:

1.1. invoice number 1797 dated 4 September 2019;

1.2. invoice number 1804 dated 31 October 2019;

1.3. invoice number 1807 dated 2 December 2019; and

1.4. invoice number 1811 dated 22 December 2019,

in the manner and form they are required to be provided, in response to a request made for them, pursuant to section 292 of the Legal Profession Act 2008 (WA) (Act), including so that they specify in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8 of the Act.

1. On 2 June 2021, the master found that the appellants did not have standing to bring the application and determined to dismiss it, having determined that s 292 of the LPA gave the appellants no right to apply for itemised bills for the invoices. The gravamen of the reasoning of the master was:[1]

The scheme of the LPA reserves to the solicitors engaging a barrister the right to seek an assessment of the barrister's costs. It may be that the solicitors would take that step at the behest of the client. But the legislation does not, by its terms, provide to the client a means of directly challenging the barrister's costs.

1. The master further held that, while it was not necessary to decide, the bills produced by the barrister were in any event sufficient to meet the requirements of itemised bills. Had the appellants had the right under s 292 to make the request, he would not have ordered the provision of any further itemised bill.[2]
2. The appellants challenge both conclusions on this appeal. Ground 1 challenges the conclusion in [10] and ground 2 challenges the conclusion in [11] above.

Did the LPA permit the appellants to apply to a taxing officer for an assessment of the whole or any part of the respondent barrister's bill for legal costs? (Ground 1) Statutory construction: legal principles

1. The first issue, which was referred to at the hearing of the appeal as a question of standing, but which is properly seen as a question of the existence of a statutory right, raises a pure question of statutory construction. That begins with a consideration of the text while at the same time regard is had to its context and purpose.[3] In Project Blue Sky Inc v Australian Broadcasting Authority,[4] the High Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. (footnotes omitted)

The question of construction and the competing constructions

1. The order sought by the appellants invoked s 292 of the LPA. Section 292 came within pt 10 of the LPA, entitled 'Costs disclosure and assessment'.
2. Part 10 commenced with s 251, which set out the purposes of the part:

(a) to provide for law practices to make disclosures to clients regarding legal costs;

(b) to regulate the making of costs agreements in respect of legal services, including conditional costs agreements;

(c) to regulate the billing of costs for legal services;

(d) to provide a mechanism for the assessment of legal costs and the setting aside of certain costs agreements.

1. Section 3 of the LPA defined 'legal costs' to mean 'amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest'.
2. Section 292, pursuant to which the appellants sought the itemised bills, was in div 7 of pt 10, headed 'Billing'. Section 292(1) provided:

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.

1. The question of construction raised on the appeal is directed to whether the appellants are a 'person who is entitled to apply for an assessment of legal costs to which the bill relates' as contemplated by s 292. Sections 295 to 297 identify the persons who are entitled to apply for an assessment of legal costs. Four classes of such persons are identified, namely 'clients' and third party payers (s 295), law practices which retain other law practices to act on behalf of a client (s 296), and the law practice giving the bill (s 297).
2. Whether the appellants are so entitled in the present case is governed by s 295, which appeared in div 8 of pt 10, headed 'Costs Assessment'. Section 295 provided, in part:

...

(2) A client may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs.

(3) A third party payer may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs payable by the third party payer.

(4) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.

(5) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment.

(6) An application by a client or third party payer under this section must be made within 12 months after ‑

(a) the bill was given in accordance with Division 7 or the request for payment was made to the client or third party payer; or

(b) the costs were paid if neither a bill was given nor a request was made.

(7) However, an application that is made out of time, otherwise than by ‑

(a) a sophisticated client; or

(b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,

may be dealt with by the taxing officer if the Supreme Court, on application by the taxing officer or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12 month period.

(8) If the third party payer is a non‑associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.

1. Section 294 defined 'client' for the purposes of div 8 of pt 10 to mean 'a person to whom or for whom legal services are or have been provided'.
2. Whether the appellants were entitled to request itemised bills of costs directly from the respondent therefore depended on whether the appellants were relevantly a 'client' as defined in s 294, such that it was entitled under s 295(2) to apply to a taxing officer for an assessment of the whole or any part of the barrister's bill for legal costs.
3. As identified above, the costs agreement between the respondent and Hotchkin Hanly was entered into expressly pursuant to s 282(1)(c) of the LPA. Section 282(1) provided:
   1. Making costs agreements

(1) A costs agreement may be made ‑

(a) between a client and a law practice retained by the client; or

(b) between a client and a law practice retained on behalf of the client by another law practice; or

(c) between a law practice and another law practice that retained that law practice on behalf of a client; or

(d) between a law practice and an associated third party payer.

1. It was significant to the respondent's argument that the costs agreement was not entered into pursuant to s 282(1)(b), that is, between the appellants and the respondent. The respondent observed, and it was uncontroversial, that s 282(1)(b) contemplated costs agreements between a 'lay' client and a barrister who had been retained by a solicitor to act on behalf of that lay client. Section 282(1)(c), by contrast, contemplated what might be described as the more traditional arrangement, whereby a solicitor retains a barrister on behalf of a lay client, and the costs agreement is made between the barrister and the solicitor.
2. Put briefly, and developed below, the respondent's argument focused on a range of contextual indicators in the LPA that in his submission indicated that the relevant rights under s 292 and s 295 inhered in a lay client as against a barrister only where the client was party to a costs agreement under s 282(1)(b). Where the agreement was under s 282(1)(c), the 'client' for the purposes of these rights was the solicitor, not the lay client.
3. The appellants' argument commenced with the text, focusing on the words in the definition of 'client' in s 294, 'to whom or for whom legal services are or have been provided'. They contend that those words - in particular the 'for whom ...' limb of the definition - are apt to encompass and do encompass the lay client when a solicitor retains a barrister to act on the lay client's behalf. They submitted that a construction that excluded the lay client from the reach of s 295(2), even where the costs agreement was under s 282(1)(c), gave the words 'for whom' no work to do.
4. By contrast, the respondent contended that this wording should be considered through the prism of the costs agreement. On the respondent's construction, where the costs agreement is between the barrister and the lay client pursuant to s 282(1)(b), then the lay client is a person 'for whom' legal services are provided, even though the barrister has been retained by another law practice on behalf of the client. However, when the agreement is made between the barrister and the law practice instructing them, as in the present case, the only client is the instructing law practice.

Immediate difficulties with the respondent's construction

1. It can be said immediately that to locate the difference in the definition of client between the words 'to whom' and 'for whom' by reference to whether the costs agreement was between the barrister and the lay client pursuant to s 282(1)(b), or the barrister and the instructing law practice pursuant to s 282(1)(c), is problematic, for the following reasons.
2. As the appellants submitted, there is nothing in the definition of 'client' that ties the words 'to whom' and 'for whom' to a particular type of costs agreement. Where there is a costs agreement in place, the agreement will regulate one aspect of the relationship between the parties to that agreement. The legal relationships between a barrister, a solicitor and a lay client are not, however, confined to any such agreement. Whatever its statutory character, the formal relationship between lay client and barrister is, in the ordinary course, characterised by the lay client providing instructions to the (solicitor) law practice, and the solicitor instructing the barrister. The ultimate beneficiary of the work done by the barrister remains the lay client. The barrister owes a tortious duty of care to the lay client notwithstanding that formal structure,[5] as well as fiduciary duties.
3. Further, and importantly, the relationship between the barrister and the lay client, characterised by those duties and by the ultimate benefit to the lay client of the legal work done by the barrister, exists whether or not there is a costs agreement. Lawyers may be retained without any costs agreement being entered. The present case provides an example: the first invoice the respondent issued covered a period in which work was done before any costs agreement was entered into.
4. Consequently, there is no justification for rendering the dichotomy in s 282(1)(b) and s 282(1)(c) the hinge on which the meaning of the defined term 'client', when inserted into s 295, depends.

Key considerations favouring the appellants' construction

1. In our view, the following three considerations, individually and together, strongly favour the appellants' construction over the construction advanced by the respondent and adopted by the master.
2. First, the natural and ordinary meaning of s 295(2), with the definition of 'client' in s 294 inserted, is to confer a right to apply for an assessment of legal costs on the lay client in a traditional tripartite situation. Specifically, as the respondent accepted (appeal ts 49), if the words of the definition in s 294 are given their ordinary meaning, the lay client in a traditional tripartite situation, including in a case within s 282(1)(c), is a person for whom legal services are provided. While, of course, the legal meaning to be attributed to a text may differ from its grammatical meaning, some reason must be found, in the text, context or purpose, to justify departing from the natural and ordinary meaning of the legislative text.[6]
3. Secondly, in our view the respondent's construction gives no work to the 'person for whom' limb of the definition.
4. In construing the definition of 'client' (when inserted in s 295), regard must be had to both limbs of the definition. The disjunctive 'or' in the definition indicates that the 'for whom' limb of the definition is intended to be words of expansion, giving the definition a broader reach than is encompassed under the first limb. Consequently, attention must be given to the ambit of the first limb - a person to whom legal services are or have been provided - in ascertaining the scope of the second limb.
5. The 'person to whom' limb applied when there were two parties to the retainer: one who requests legal services and the other - necessarily a legal practice - who agrees to provide the legal services. In that scenario, the legal practice provides services to the other party.
6. The respondent submits that the 'person for whom' limb of the definition of 'client' does the work of capturing a situation within s 282(1)(b) where a solicitor enters a costs agreement with a barrister on behalf of the client, such that the costs agreement is made between the lay client and the barrister. We do not accept this submission. In our view, where there is a direct contractual relationship between the lay client and the barrister, the barrister's services are provided to the client within the meaning of the definition in s 294 (when inserted into s 295 or, for that matter, any other provision in div 8 of pt 10). That would be so, in our opinion, regardless of whether specific work is done by the barrister at the request of the solicitor and the product of that work is provided to the solicitor. As already noted, the 'services to a person' limb applies to a two party situation. The concept of providing services to a person is concerned with the person who engaged the service provider to provide those services. Contrary to the respondent's submissions (appeal ts 52 - 53), it is not concerned with which person or persons communicates with the service provider, nor with which person is sent the work product of those services.
7. It follows from this conclusion that the respondent's construction gives the 'person for whom' limb of the definition no work to do. That in itself counts strongly against the respondent's construction.[7] Given what we have said in [34] to [36], the evident purpose of the 'person for whom' limb is to cater for and apply to t[8]e tripartite situation.8
8. Thirdly, considerations of coherence in the meaning and scope of the word 'client' in other provisions of pt 10 of the LPA firmly favour the appellants' construction. As the respondent accepts, the word 'client' encompasses the lay client through the 'person for whom' limb of the definition of client when it is inserted in many other provisions of pt 10 of the LPA. We will give three examples.
9. The first example is in div 3 of pt 10, which is concerned with costs disclosure.
10. Section 260 and s 261 set out the obligations of disclosure of costs to clients (s 260) and obligations of disclosure if another law practice was to be retained (s 261).
11. The matters required to be disclosed by a law practice to a client under s 260 in the ordinary course included the basis on which legal costs will be calculated (s 260(1)(a)), an estimate of total costs if reasonably practicable (s 260(1)(c)) and details of any intervals at which the client will be billed (s 260(1)(d)).
12. Section 261 provided the disclosure obligations of a law practice retained by another law practice or retained by another law practice on behalf of a client. Section 261(1) provided that if the first law practice intends to retain a second law practice on behalf of a client, the first law practice must disclose certain matters in relation to the second law practice to the client.[9] Section 261(2) provided that the second law practice 'is not required to make disclosure to the client', but is required to disclose to the first law practice the information necessary to allow the first law practice to comply with s 262(1).
13. Section 263(2)(c)(i) provided that disclosure of the matters in s 260 is not required if the 'client' is a law practice or Australian legal practitioner.
14. Section 267 provided that a law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made as soon as is reasonably practicable after a law practice becomes aware of that change.
15. Section 268 provided for the consequences of non-disclosure. Section 268(5) provided:

(5) If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to a client solely because the retained practice failed to disclose the relevant information as required by section 261(2), then subsections (1) to (4) -

(a) do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non-disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and

(b) do apply to the legal costs owing to the retained law practice.

1. Throughout div 3 of pt 10, it is plain that a reference to a 'client' is a reference to the lay client. It has been so held by a judge of the General Division of this court.[10]
2. Next, the same is true of s 282(1) itself, which is the provision on which the respondent's construction is founded. It is plain beyond dispute - and, again, the respondent did not suggest otherwise (appeal ts 62) - that in each of pars (a), (b) and (c) of s 282(1), the word 'client' refers to and encompasses the lay client in a classic tripartite situation.
3. Finally, and most importantly, the same is also true of s 296(1). This is telling, because s 296(1) is, like s 295, contained in div 8 of pt 10. Thus, the definition of 'client' in s 294, which unlike the generally applicable definition in s 3 is exhaustive rather than inclusive, applies to that term when used in s 295 and when used in s 296. Ultimately, the respondent accepted that his construction of s 295 involves attributing a different meaning to the term 'client' in s 295 and s 296, notwithstanding that the definition in s 294 applies to both provisions (appeal ts 79).
4. Of course, in some cases, a word or phrase may be construed as having a different meaning in different provisions of an Act, or even within the same provision. However, there must be a positive reason, to be found in the text, context or object of the provision or the Act as a whole, for doing so.[11] That is all the more so where, as here, the same definition is to be inserted into s 295 and s 296, for the provisions to be then construed.[12]
5. In summary, while none of these factors is decisive, individually each counts firmly in favour of the appellants' construction in preference to the respondent's. Having regard to the combined force of all of them, the respondent must point to weighty considerations to justify attributing a meaning to s 294 (when inserted in s 295) that (i) departs from the natural and ordinary meaning of the statutory language, (ii) gives no work to the 'person for whom' limb of the provision and (iii) differs from the construction given to the same or materially same definition in other provisions of the LPA.
6. For the reasons that follow, the respondent has fallen well short of meeting that hurdle.
7. Before turning to explain why that is so, a further difficulty with the respondent's construction should be noted.
8. Prima facie at least, the respondent's construction renders s 296 superfluous. As the respondent ultimately accepted, his construction means that in all conventional tripartite situations where an agreement is entered into under s 282(1)(c), the solicitor is the 'client' for the purpose of s 295 (appeal ts 70). That being so, s 295 confers on the solicitor the right to apply for an assessment. If that is so, there is no apparent need for s 296.
9. The respondent sought to overcome this difficulty by his contention that, in all cases to which it applies, the specific provision in s 296 excludes the provision in s 295. For the reasons explained below, we do not accept that contention. For present purposes, it should be noted that, while the respondent framed his contention as to the exclusivity of s 296 as an alternative to his construction of s 295, on a proper analysis the former is an integral element of the respondent's construction of s 295, not an alternative.

Why the matters on which the respondent relies do not sustain his construction

1. As already noted the respondent accepted that the ordinary meaning of the words 'for whom' in the definition of 'client' could extend to a lay client where a barrister, instructed by a solicitor, provided legal services. Asked to identify the textual foothold for his construction, the respondent said no single matter could be identified (appeal ts 48). However, he identified several contextual elements of the LPA that, he submitted, demonstrated a legislative scheme that 'preserved' what might be called this traditional tripartite relationship. The effect of this preservation was, in his submission, that in the event of a costs agreement under s 282(1)(c), only the instructing law practice met the definition of 'client' for the purposes of the Part.
2. The conceptual starting point for this argument was that traditional tripartite relationship. The respondent submitted that there was every reason for the statutory provisions to be construed having regard to the contractual relationship between barrister and solicitor. The solicitor was required to review the barrister's bills before sending them on as a disbursement to the solicitor's own bills. In that situation, the obligation to pay the barrister's bills lay with the solicitor.
3. Turning to the broader statutory context, the respondent first identified s 282(5) as a contextual indicator that the term 'client' was confined by reference to the relevant party to the costs agreement (appeal ts 54). Section 282(5) provided that '[e]xcept as provided in section 309, a costs agreement cannot provide that the legal costs to which it relates are not subject to costs assessment under Division 8'.
4. Section 309 then provided that '[a] sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Division.'
5. A sophisticated client was, by operation of s 252 and s 263(2)(c), defined to include a law practice.
6. The effect of the respondent's submission, as we understood it, was that in the case of a s 282(1)(c) costs agreement between solicitor and barrister, as a sophisticated client the solicitor was entitled to contract out of its entitlement to a costs assessment as against the barrister. However, if the meaning of 'client' extended to the lay client in the case of such an agreement, that would have the effect of preventing this statutory facility, which would be a 'strange result' (appeal ts 54). Rather, the barrister's bill should only ever be seen as a disbursement on the solicitor's bill to the lay client; the lay client remained entitled to have the barrister's bill taxed as a disbursement.
7. The difficulty with this argument is its premise that, in a conventional tripartite situation, the solicitor is a 'sophisticated client' within the meaning of the LPA. In advancing this argument, the respondent assumes, but does not seek to establish, this premise. In order to be a 'sophisticated client', the person must be a 'client' - see s 252. This will be so of a solicitor in a conventional tripartite situation if and only if the respondent's construction is adopted. Thus, the respondent's argument on these provisions assumes the adoption of his construction. Further, the asserted preventing of the statutory facility is said to arise if the lay client is the 'client'. But if the lay client is the 'client', the premise of the respondent's argument is falsified because the solicitor is not the client and so not a sophisticated client.
8. For these reasons, the respondent's sophisticated client argument does not assist him.
9. The respondent next identified s 283 as providing contextual support for his construction of the term 'client'. Section 283 concerned conditional costs agreements, being agreements providing that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate. The respondent pointed here to s 283(3):

(3) A conditional costs agreement ‑

(a) must set out the circumstances that constitute the successful outcome of the matter to which it relates; and

(b) may provide for disbursements to be paid irrespective of the outcome of the matter; and

(c) must be ‑

(i) in writing; and

(ii) in clear plain language; and

(iii) signed by the client;

(d) must contain a statement that the client has been informed of the client's right to seek independent legal advice before entering into the agreement; and

(e) must contain a cooling‑off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement.

1. The respondent submitted in this regard that it would be an 'odd situation' if 'client' meant the lay client where the costs agreement was under s 282(1)(c) (appeal ts 60). The effect would be that s 283(3) required the agreement to be signed by that client when they were not a party to that agreement.
2. This submission fails to take account of s 283(4):

(4) Subsection (3)(c)(iii), (d) and (e) does not apply to ‑

(a) a conditional costs agreement made under section 282(1)(c); or

(b) a conditional costs agreement made with a sophisticated client.

1. Section 283(4) expressly excluded the requirement that the 'client' must sign the agreement where the conditional costs agreement is made under s 282(1)(c). Such an agreement being between two law practices, the reason for this is clear enough. While this exclusion does not establish positively that the term 'client' necessarily extends to the lay client in the case of a s 282(1)(c) agreement, the imputed oddity identified by the respondent on that reading does not arise. Thus, s 283(3) provides no support for the respondent's construction.
2. The respondent then turned to the contextual impact of s 288. This provided, in part:
   1. Setting aside costs agreements

client means a person to whom or for whom legal services are or have been provided.

(2) On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.

(3) In determining whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court can have regard, 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 law 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 has failed to make any of the disclosures required under Division 3;

(d) the circumstances and the conduct of the parties before and when the agreement was made;

(e) the circumstances and the conduct of the parties in the matters 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.

1. The respondent referred to the history of provisions such as s 288 as detailed in Stevenson v Zafra,[13] as demonstrating that while other types of agreements do exist, the historical concern of s 288 and like provisions has been costs agreements between lay client and solicitor. That much may be accepted. He further submitted that given this history and ordinary field of application, it was difficult to contemplate s 288 being applicable to an agreement under s 282(1)(c), such that a lay client could apply to set aside such a costs agreement between the solicitor and barrister (appeal ts 61). A reading that accommodated such a facility to the lay client in that case would constitute a 'seismic shift' (appeal ts 64).
2. The respondent also submitted that several of the sub-paragraphs to s 288(3) did not lend themselves to such a reading. For example, s 288(3)(a) could not apply as the lay client would not have entered into the agreement under s 282(1)(c).
3. Section 288(3) indicates that Parliament contemplated the ordinary application of s 288 to be between a solicitor and lay client. In any event, s 288 really just presents another manifestation of the dispute of principle over the interpretation of s 295 and, hence, s 292. It does not present a persuasive reason why, for example, a lay client would not be able to apply to set aside a s 282(1)(c) costs agreement between that client's solicitor and barrister, as unusual a prospect as that might be. The client will be ultimately responsible for those fees on account of their own costs agreement with the solicitor. The matters listed in s 288(3) can as easily be viewed as relevant considerations where applicable. Section 288 does not appear to provide contextual assistance one way or the other.
4. Next, the respondent turned to s 295 itself. He undertook the exercise of inserting the relevant definitions into s 295(2), such that the subsection could be taken to read:

A [person to whom or for whom legal services are or have been provided][14] may apply to a taxing officer for an assessment of the whole or any part of a bill for [amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest]. [15]

1. Reading the section in this extended form highlighted, in the respondent's submission, that the focus on the entitlement to apply for an assessment relates to that for which the person is liable to pay. Textually, the point is neat. However, it does not accommodate the inevitable prospect that in the case of a s 282(1)(c) agreement, the lay client will or may become liable to pay those amounts that are then passed on to it as disbursements in the solicitor's bill of costs. Rather, the submission urged a construction that the law practice to which the liability is owed must be the law practice issuing the account.
2. Subject to one matter, this useful interrogation of the definitions in context ultimately presented the issue of construction in its clearest form. However, it did not advance a reason for preferring the respondent's construction.
3. This framing of the issue drew attention to the distinction drawn in s 295(1) between a 'client' and a 'third party payer'. As identified above, in addition to the client's right to apply for an assessment under s 295(2), s 295(3) provides that a third party payer may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs payable by the third party payer.
4. Section 253 addressed the concept of third party payer:

(1) For the purposes of this Part ‑

(a) a person is a third party payer, in relation to a client of a law practice, if the person is not the client and ‑

(i) is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or

(ii) being under that obligation, has already paid all or a part of those legal costs;

(b) a third party payer is an associated third party payer if the legal obligation referred to in paragraph (a) is owed to the law practice, whether or not it is also owed to the client or another person; and

(c) a third party payer is a non‑associated third party payer if the legal obligation referred to in paragraph (a) is owed to the client or another person but not to the law practice.

(2) The legal obligation referred to in subsection (1) can arise by or under contract or legislation or otherwise.

(3) A law practice that retains another law practice on behalf of a client is not on that account a third party payer in relation to that client.

76 The respondent's written submissions disavowed the proposition that in the case of a s 282(1)(c) agreement, a lay client would be a third party payer, capable of applying for an assessment under s 295(3). However, in oral submissions, the respondent accepted that the effect of his proposed construction was that in the classic tripartite relationship of client, solicitor and barrister, where there was a s 282(1)(c) agreement between the solicitor and barrister, the lay client would assume the role of non-associated third party payer in respect of the barrister's legal costs (appeal ts 72). Section 295(8) would then apply:

(8) If the third party payer is a non‑associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.

77 By taking the solicitor to be the client in this situation, the ultimate effect of the respondent's construction would be that the liability of the lay client (as 'non-associated third party payer') to the solicitor (as 'client' of the barrister) may be affected by the resulting costs assessment, but that the liability of the solicitor to the barrister would not. This was because of s 295(10)(d), which stated that 'despite any other provision of this Division, the assessment of the costs payable by the non‑associated third party payer does not affect the amount of legal costs payable by the client to the law practice'.

1. That is, the barrister would not be bound by any such costs assessment. This, in the submission of the respondent, was consistent with the position that the lay client had no right qua client of the barrister but did nonetheless have rights. That lay client had, by reason of its status as 'non-associated third party payer', all the rights attendant on its costs agreement with the solicitor. Moreover, they were able to tax the barrister's costs, but not so as to bind the barrister: the solicitor remained liable to pay the barrister's costs.
2. Such a construction would have remarkable consequences for the coherence and application of the definitions in the LPA. The respondent's argument always required a degree of flexibility in the meaning of the statutory language: his construction, for example, would necessarily require that the defined term 'client' would mean the lay client in some circumstances (e.g. where there is a s 282(1)(c) agreement) but in other circumstances the defined term would encompass the solicitor only. Treating the lay client as a 'third party payer', however (as the respondent's construction does), goes a step further and pushes the flexibility of the statutory language to breaking point. It would require an outcome, in a circumstance evidently contemplated by the legislature as commonplace, whereby the statutory definitions would operate in a manner that is far removed from any ordinary connotation of either the concept of 'client' or the concept of a 'third party'. As a matter of ordinary language, for example, a lay client could hardly be thought to be a 'third party' in their own case.
3. While such an approach is possible in the abstract, the respondent does not offer any reason for choosing that construction over the ordinary meaning of the words. That is to say, the respondent's submissions fail to explain why the legislature should be taken to have embarked upon such a course of definitional adventurism.
4. The other remarkable aspect of this submission is that subject to the impact of s 296, considered below, it amounted to a concession that the appellants were entitled to apply for an assessment of the respondent's costs, albeit under s 295(3), rather s 295(2).
5. Section 296 consequently and for the reason in [53] to [54] above assumed considerable importance for the purposes of the respondent's argument. In essence, that section empowered a solicitor to apply for an assessment of the barrister's costs. The respondent observed that such a situation might arise where the solicitor considered that it was not appropriate to present the barrister's bill to the client as a disbursement. Section 296 provided:
   1. Application for costs assessment by law practice retaining another law practice

(1) A law practice that retains another law practice to act on behalf of a client may apply to a taxing officer for an assessment of the whole or any part of the legal costs.

(2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment.

(3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.

(4) An application under this section must be made within 60 days after ‑

(a) the bill was given or the request for payment was made; or

(b) the costs were paid if neither a bill was given nor a request was made.

(5) An application cannot be made under this section if there is a costs agreement between the client and the other law practice.

1. The respondent submitted that s 296 was the exclusive means by which a barrister's costs could be assessed directly in the case of a 'relationship between solicitor and barrister pursuant to a costs agreement made under s 282(1)(c)'.[16] In support of this submission, he referred to s 295(6), which required an application pursuant to s 295(2) to be made within 12 months after the bill was given in accordance with div 7, or the request for payment was made to the client. That suggested, in the respondent's submission, that it was only a person to whom a bill had been given in accordance with div 7, or to whom a request for payment had been made, who was entitled to apply for an assessment under s 295.
2. This argument emphasised that, where a solicitor and a barrister had entered into a costs agreement under s 282(1)(c), the barrister's bill would not be given by the barrister to the lay client in accordance with div 7. Neither would the barrister make a request for payment to the lay client. Any such request would be made to the instructing solicitor. Consistently with that scheme of billing under div 7, the respondent argued, it was s 296 that set out the regime for applying for a costs assessment in those circumstances.
3. There can be no doubt that s 296 set out a regime empowering a solicitor to apply for an assessment of legal costs as the respondent described. Whether it did so to the exclusion of the lay client when the costs agreement was made under s 282(1)(c), however, is another matter. The respondent's argument that it did so did not travel much beyond mere assertions. He submitted that in a s 292(1)(c) situation, if both s 295 and s 296 apply, two different people would each have a right to apply for an assessment of the costs, with those rights governed by materially different regimes, a position which could not have been intended (appeal ts 75 ‑ 76).
4. There is nothing in the text of s 296 that suggests such exclusivity. The structure of div 8 counts against the respondent's contention that s 296 impliedly limits the ambit of s 295. As already noted, div 8 identifies four classes of person upon whom a right to apply for a costs assessment is conferred: clients and third party payers (s 295); a retaining law practice (s 296) and the billing law practice (s 297). Whether and if so in what respects the exercise by one person of their right impinges on the rights of other persons is dealt with in other provisions in div 8 (s 299, s 305; see also s 295(9) and s 259(10)).
5. To this end, s 296(5) on which the respondent also appeared to rely (appeal ts 76 ‑ 77) warrants attention. Applied to the present context, this sub-section prevented a solicitor law practice from engaging the facility in s 296 where there was a costs agreement between the client and the barrister, under s 282(1)(b). That is to say, it operated as a limit on the solicitor's ability to apply for an assessment of a barrister's legal costs. The reason for this seems clear: where there was a costs agreement under s 282(1)(b), the solicitor would have no interest in obtaining a costs assessment.
6. No section contained a comparable express prohibition on the lay client from obtaining a costs assessment in the case of an agreement under s 282(1)(c). Clearly enough, however, the lay client nonetheless would have an interest in the legal costs billed by the barrister. If s 296(5) provided any contextual assistance, it tended to support the proposition that Parliament did not impose any prohibition on the lay client from applying for an assessment of the barrister's costs.
7. This in turn supports the proposition that s 296 simply offered a further facility for the obtaining of a costs assessment, in addition to that in s 295. It does not provide a basis for reading down s 295 to exclude the client from the means in that section in the case of a s 282(1)(c) costs agreement.
8. Against this, the respondent submitted that such a reading would give rise to a risk of double assessment, in that the client could apply for an assessment under s 295, and the solicitor under s 296, in respect of the same invoices, with the potential for inconsistent assessments. This risk is more theoretical than actual. In practical terms, s 299 removes the spectre of two assessments of a barrister's account. It provides:
   1. Persons to be notified of application

(1) An applicant for a costs assessment must cause a copy of the application to be given to any law practice or client concerned or any other person whom the taxing officer thinks it is appropriate to notify.

(2) A person who is notified by the applicant under subsection (1) ‑

(a) is entitled to participate in the costs assessment procedure; and

(b) is to be taken to be a party to the costs assessment; and

(c) if the taxing officer so determines, is bound by the costs assessment.

1. Section 305 then provided for the taxing officer to certify the disputed costs allowed, and for that certification to be binding on the parties to the costs assessment, subject to s 299(2)(c) and to s 308, which provided for Supreme Court review.
2. It was also necessary for the respondent, in addressing the contextual importance of s 296, to identify how, consistent with the purposes of the LPA, the LPA would address the prospect that the solicitor considered the barrister's legal costs to be appropriate, but that the lay client did not. The respondent submitted that in such a case, the solicitor may have to cease to act. The client could retain another solicitor, and '[t]he barrister would be required to accept instructions from the new solicitors to act in respect of the matter the subject of the barrister's bills, even if the matter had concluded'.[17] The new solicitor could then invoke s 292(1) and the barrister would be required to respond.
3. This presents as a tortured solution to the difficulty arising, on the respondent's construction, from the risk that a solicitor would not accept a client's instructions to apply for an assessment of a barrister's bills. To the extent that the risk is real, it is not immediately clear how it would be ameliorated by the client instructing another solicitor, who may take the same view as the first solicitor. Further, from a purposive perspective, it is not at all clear why s 296 should be read with the exclusivity for which the respondent contended, if a necessary consequence would be to impose such an artificial work-around in some situations.
4. In our view, the position is simple and does not require an elaborate artifice of this kind. Section 296 does not impliedly exclude the client's rights under s 295. This conclusion is confirmed by what was said when the Bill that became the LPA was at the committee stage (see Western Australia, Parliamentary Debates, Legislative Council, 8 May 2008, 2685 (Ms Adele Farina)).

1. Part 10 of the LPA was, at its core, consumer protection legislation with the evident object of protecting the rights and interests of the consumers of legal services in relation to the costs of those services.[18] The relationship between barrister and lay client was not defined by whether there was a costs agreement between them pursuant to s 282(1)(b). An ordinary reading of the words 'to whom or for whom legal services are provided' in the definition provided by s 294 suggests strongly that a lay client was a person 'for whom' a barrister provided legal services. In providing the lay client with a direct mechanism to have the costs assessed, that reading serves the manifest consumer protection purpose of the Part, whichever paragraph of s 282(1) governed the costs agreement, and where there was no costs agreement. It also reflects the evidence purpose of the 'person for whom' limb, which is to cater for the tripartite situation as explained in [34] to [37] above. That reading also advances the purpose of the broad definition of client, with its 'person for whom' limb, as identified in the Explanatory Memorandum for the Bill.
2. The respondent relied on various surrounding provisions as contextual indicators against the broader reading of 'client'. These charted a possible means of accommodating the narrower interpretation of 'client' by reference to the statutory character of the costs agreement. However, none of the sections relied on, individually or together, provide a persuasive reason for concluding that Parliament intended to depart from the natural and ordinary meaning of the words in s 294.
3. Further, as explained above, the respondent's construction means that the 'person for whom' limb of the definition of client would have had no work to do.
4. Moreover, the respondent's reading of the various sections required the defined terms to be read with different, exclusive meanings in different situations. In addition, the respondent's necessary reading of s 296 placed a further burden on the lay client that was inconsistent with the consumer protection purpose of the Part.
5. In our view, the definition of 'client' in s 294 permitted a lay client to apply for an assessment of a barrister's costs under s 295(2), and consequently to request an itemised bill under s 292(1), notwithstanding the existence of a costs agreement between the solicitor and barrister under s 282(1)(c). We would allow ground 1 of the appeal.

Did invoices issued by the respondent satisfy the definition of 'itemised bill' in s 252 of the LPA? (Ground 2)

1. The appellants' primary complaint is that in each of the four bills issued by the respondent, there appears in respect of a whole day, for many days in each case, nothing more than a single line item taking the form:

1. The invoices also contain similar line items in respect of blocks of several hours at a time.
2. The question is whether these items of 'getting up' allowed each invoice to meet the definition of 'itemised bill' in s 252, by being 'a bill that specifies in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8'. In an assessment under div 8, the taxing officer may have regard to the matters in s 301(2) and must consider the mandatory considerations set out in s 301(1):

(a) whether or not it was reasonable to carry out the work to which the legal costs relate; and

(b) whether or not the work was carried out in a reasonable manner; and

(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 302 or 303 applies to any disputed costs.

1. To fall within the definition it is not enough that a bill is able to be assessed under div 8. How the costs are made up must be specified in detail in a way that would allow them to be assessed. Thus, the focus is on how the legal costs are made up: is the make-up of the legal costs specified in detail in a way that allows those costs to be assessed? The two aspects of specificity - 'specifies in detail' - required by the definition should be noticed. To require, as the definition does, that something is 'specified in detail', is to require more than that it is 'specified'.
2. After referring to the decision of the Victorian Court of Appeal in Piper Alderman v Smoel,[19] considered further below, the master said:[20]

As noted by counsel for the defendant, what is decisive in this case is that the defendant, as barrister, was rendering accounts to a solicitor for work in which the solicitor was intimately involved. The solicitor is a sophisticated client. Furthermore, it was not entirely clear from the plaintiffs' counsel just what would have satisfied his interpretation of the phrase 'itemised bill'. He acknowledged it would not have involved the defendant producing time sheets. Just what more needed to be provided remained unclear. In my view, the itemised bills were sufficient ...

1. The appellants' challenge to this conclusion can be expressed in relatively straightforward terms. First, they submitted that the concept of an 'itemised bill' is, at its essence, a bill with sufficient detail for the recipient to assess what work was done and whether the amount charged for that work was reasonable.
2. Secondly, the appellants complained that the master failed to take into account that over 2/3 of the amount charged across all invoices, being some 52 entries, comprising a total of 36 days and 70 hours, were populated by the words 'getting up' only. That phrase does not reveal what work was done.
3. In this regard, the appellants referred to the Supreme Court of Western Australia Consolidated Practice Directions 2009 (as updated on 2 January 2020). Paragraph 1 of Practice Direction 4.7.3 reads:

The purpose of this Practice Direction is to provide guidance as to the use of schedules in bills of costs filed in the Supreme Court, the certification of agreed costs (allocaturs), the use of different methods of taxation and the seeking of directions from the taxing officer prior to the taxation commencing.

A schedule may be attached to a bill of costs where:

(a) an allowance is claimed in a bill by reference to any of the following scale items in the Schedule to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012:

(i) ...

1. Practice Direction 4.7.3.1 then provides a 'Sample bill of costs schedule (getting up)'. The sample includes descriptions such as 'Proofing witnesses', which then includes the name of the witness, the length of the proof and the hours spent; 'Conferences with counsel'; 'Considering proofs of evidence received from the defendant'; and 'Perusing expert reports and conferences with expert'.
2. The appellants did not suggest that any point of statutory interpretation was in issue. Rather, they submitted that the use of the phrase 'getting up', alone, in respect of so many days and blocks of hours did not explain what work had been charged for and whether any particular charge was sustainable.
3. The appellants did not go so far as to submit that the descriptor 'getting up' could never be sufficient on its own. Its use may suffice in the case of, for example, a one-day hearing for which one day of preparation is required. Further, they accepted that if the barrister is in regular contact with the solicitor, the notion of the solicitor being 'intimately involved' with the barrister's work, on which the master placed emphasis in the present matter, may have salience. To this end, regard should be had to all of the circumstances, and to what is envisaged by the Practice Direction as capable of falling under the descriptor 'getting up'.
4. In Smoel, which was invoked by the master and on which the respondent relied, the Victorian Court of Appeal considered whether invoices rendered by Piper Alderman were 'itemised bills' within the meaning of s 3.4.2 of the Legal Profession Practice Act 2004 (Vic). This defined 'itemised bill' as 'a bill that specifies in detail how the legal costs are made up in a way that would allow them to be reviewed under Division 7'. Section 3.4.43(2) then provided:

If, before giving an itemised bill the law practice had previously given a lump sum bill, on a costs review the law practice is not bound by the amount and matters stated in the lump sum bill.

1. In that statutory context, the Court described the requirement for an itemised bill as follows:[21]

Given the statutory language in the LPA, it is perhaps better to express as an overarching requirement for an itemised bill that it include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court. To give that more content however, it is necessary to look to the context and purpose of the provisions.

1. The context to which it had regard included the contrast between the definitions of 'lump sum bill' and 'itemised bill',[22] the practical procedure required by s 3.4.43 of the Legal Profession Practice Act and the surrounding provisions of the Supreme Court Act 1986 (Vic),[23] and the procedure in the Costs Court.[24] Then, as to the knowledge of the recipient of the bill:[25]

In addition, whether the bill has sufficient detail to enable it to be reviewed cannot be assessed in a vacuum. The knowledge of the recipient about the context in which the charges were made is relevant. One would expect the recipient to have some knowledge (at least at a high level) of the work that was required. So, for example, in a litigious matter, one would expect the bill recipient to know (in addition to other things) that discovery was a task that had to be performed; the names of the partners, associates and lawyers working on the matter; and the name of the law practice acting for the opponent.

1. In the present case, however, the solicitors appeared to be at the same disadvantage as the appellants. For example, an email from Hotchkin Hanly to the respondent dated 6 March 2020 included the following paragraph in support of a request for itemised bills in addition to the invoices rendered:

The invoices are not itemised bills, specifying in detail how the legal costs are made up. For example, they do not describe the way that all of the hours were spent, so that a judgment can be made about the reasonableness or otherwise of the hours. For example, in the period from 7 March 2019 to 15 December 2019 you appear to have charged $516,000 (ex. GST) for 'Getting up', without any further particularisation of the activities completed or the itemisation of the legal cost for each of those activities.

1. The respondent submitted that correspondence of the kind set out above could have no significance to the sufficiency of an itemised bill.
2. The respondent contended, first, that there could not be a situation where a bill was an itemised bill for the purposes of the solicitor, given what may be expected of the solicitor's knowledge, but not for the client. While it is not necessary to decide in the present matter, there is force in the proposition that given that a barrister's bill under a s 282(1)(c) agreement will be rendered to the solicitor, it should not be expected that the barrister's bill need go beyond a level of detail that the solicitor could reasonably be expected to have, the solicitor then being able to inform the client accordingly.
3. The difficulty for the respondent in the circumstances of the present case, however, is that the solicitor's correspondence disclaimed any capacity to assess the reasonableness of the repeated items, 'Getting up'.
4. The expected knowledge of a recipient of a bill, to which the Victorian Court of Appeal referred in Smoel, will not act as a panacea for all generalisations. As identified above, the adequacy of generalisations will be context specific. An 'intimate knowledge' of the matter on the part of a solicitor will not necessarily translate into a sufficient understanding of the item 'getting up' in a barrister's bill, where that is the only item entered for days at a time. By contrast, half a day assigned to 'getting up' in respect of a one-day hearing will likely be much more self-explanatory, given the solicitor's understanding of the preparation by counsel necessary for such a matter, including reading and noting the brief.
5. A solicitor disclaiming sufficient knowledge of how many hours and days described only as 'getting up' were spent may not be decisive, but it will be highly relevant to the question of sufficiency of itemisation in the bill.
6. More fundamentally, the respondent emphasised that the question was whether, as contemplated by s 252, 'the bill specifies in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8'. To this end, he pointed to O 66 r 42(1) of the Rules of the Supreme Court 1971 (WA) which provides:
   1. Bills of costs, content of

(1) A bill of costs for taxation shall be prepared so as to show clearly -

(a) items consecutively numbered, together with a reference to the item in the scale to which the item in the bill relates; and

(b) dates of items (specifying years, months and days); and

(c) where necessary, particulars of the services charged for; and

(d) disbursements; and

(e) professional charges.

1. The respondent then turned to Practice Direction 4.7.3, extracts of which are set out above. He submitted that this Practice Direction does not set out what must be included in the bill itself, beyond the items listed (such as 'item 16 "getting up a case for trial"'). Rather, it permits particulars by way of schedules, in order to amplify what is in the bill of costs. However, the respondent emphasises, those particulars are not required of a bill of costs for taxation. Thus, as far as the line 'item 16 "getting up"' is concerned, that is all that is required.
2. That submission then necessarily drew attention to O 66 r 42(1)(c), which requires the bill to show clearly, 'where necessary, particulars of the services charged for'. The respondent submitted that bearing in mind the onus was on the practitioner to show the reasonableness of their fees, the words 'where necessary' are not mandatory. However, if further particulars are not provided, that would be taken into account in the taxation. The failure to provide them does not render the bill non-compliant with O 66 r 42. Rather, Practice Direction 4.7.4 makes provision for an application to the Supreme Court for a costs assessment. What is 'necessary' will then be a matter for the taxation process. The taxing officer has powers of compulsion under O 66 r 44.
3. This interpretation of O 66 r 42(1)(c) cannot be accepted. First, it proceeds from the premise that O 66 r 42 contemplates that a person contesting a bill of costs must do so without the benefit of the particulars contemplated by it (i.e. without the particulars that might, at some stage, become 'necessary'). That would appear to be a highly unsatisfactory starting point from which to have to apply for an assessment.
4. Moreover, whether a bill is properly characterised as itemised is to be evaluated at the time the bill is given and any request for itemisation responded to, not by reference to what subsequently occurs by the time of an assessment.
5. More fundamentally, the respondent's interpretation does not accord with the words of the rule. Relevantly, O 66 r 42(1)(c) provides:

(1) A bill of costs for taxation shall be prepared so as to show clearly -

(c) where necessary, particulars of the services charged for; ... (emphasis added)

1. The plain reading of this sub-rule is that where the particulars are necessary, the bill of costs shall be prepared to show those particulars clearly. That is not a statement of option on the part of the practitioner. It is a statement of requirement. Whether, in the particular case, it is necessary for the practitioner to show those particulars depends on the matters set out above. Adopting the reasoning of the Victorian Court of Appeal in Smoel,[26] the necessity referred to can only be the necessity for the recipient to have sufficient information to make an informed decision as to whether to apply for an assessment under Division 8.

1. As explained above, inclusion of the item 'getting up' in an invoice, without particularisation, may in some cases satisfy the definition of 'itemised bill' for the purposes of s 252 of the LPA. However, in the present case, insofar as the respondent's four invoices contained the 52 entries referred to above, comprising a total of 36 days and 70 hours, populated by the words 'getting up' only, the invoices did not show clearly the necessary particulars of the services charged. How the costs for those entries were made up was not specified in detail. The extent of deployment of the item 'getting up', absent any particulars, rendered the bills opaque as to the work done by the respondent, such that they did not:[27]

... include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court.

1. To deploy the language in s 252 of the LPA, they did not 'specif[y] in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8'.
2. In reaching this conclusion, we have had particular regard to the mandatory considerations in s 301, O 66 r 42(1) and r 44 and the practicalities imposed by Practice Directions 4.7.3 and 4.7.4. Against that framework, we have considered the number of days and hours in respect of which the item 'getting up' was deployed in the invoices, the period of time to which these invoices related, the prevalence of the items 'getting up' as a proportion of the total time billed in the invoices and the apparent inability of the solicitors to make a judgment about the reasonableness of the hours.
3. We would allow ground 2 of the appeal.

1. The appellants require, and have sought, a short extension of the time to appeal. The delay has been adequately explained in the affidavit of the appellants' solicitor. The extension of time was not opposed by the respondent and we would grant it.
2. For these reasons, we would order that the time for appealing be extended, allow the appeal, set aside the master's orders and, in substitution for those orders, make orders in substance to the effect sought by the appellants in their orders wanted (WAB 45 ‑ 46), requiring the respondent to provide to the appellants itemised bills for the four invoices referred to in [5] above. We would hear from the parties as to the precise form of the orders and as to the costs of the appeal and of the primary proceedings. On the face of things, as the successful party, the appellants should have their costs below and of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mammoth Investments Pty Ltd v Donaldson [2021] WASC 175 [25] (primary reasons).

[2] The master eventually dismissed the application on 21 September 2021, subsequent to parties filing competing minutes of proposed orders to dispose of the appellants' application and as to costs.

[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].

[4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).

[5] Heydon v NRMA [2000] NSWCA 374; (2000) 51 NSWLR 1 [144] - [148].

[6] See, for example, Project Blue Sky [78]; SZTAL [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 [64].

[8] In so observing we do not mean to exhaust the potential scope of the 'person for whom' limb.

[9] Namely, the matters in ss 260(1)(a), (c) and (d) as summarised in [41] above.

[10] Juris Cor Group Pty Ltd v Price [2020] WASC 308 [42].

[11] Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618.

[12] See, for example, Carroll v Secretary to the Department of Justice [2015] VSCA 156 [22].

[13] Stevenson v Zafra [2021] WASCA 181 [240] - [246].

[15] LPA s 3, definition of 'legal costs'.

[16] Respondent's written submissions [43].

[17] Respondent's written submissions [36].

[18] See, by analogy, Andrew Koh Nominees Pty Ltd v Receiver & Manager of the Balneum Joint Venture [2007] WASCA 152; (2007) 33 WAR 561 [35] - [36].

[19] Piper Alderman v Smoel [2017] VSCA 42.