Martinez v Al Maha Pty Ltd

Martinez v Al Maha Pty Ltd - [2021] NSWSC 932 - NSWSC 2021 case summary — Zoe

[3]

The relevant legislation

Before turning to consider whether the application was filed out of time, it is necessary that I first briefly set out the relevant legislation.
The Legal Profession Uniform Law is an Act passed in Victoria and given force of law in New South Wales under s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW). The Legal Profession Uniform Law Application Act repealed the previous Legal Profession Act 2004 (NSW), which had similar but not identical counterparts in other States and Territories, including in Victoria (Legal Profession Act 2004), the ACT (Legal Profession Act 2006), Northern Territory (Legal Profession Act 2006), Queensland (Legal Profession Act 2007), Tasmania (Legal Profession Act 2007) and Western Australia (Legal Profession Act 2008) (the former uniform legislation).
To date only New South Wales and Victoria have enacted the Legal Profession Uniform Law.
Section 3 Legal Profession Uniform Law relevantly states: "3 Objectives The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by- … (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and …"
As the Legal Profession Uniform Law was enacted not as an Act of the New South Wales Parliament but enacted in Victoria and applied as a law of New South Wales by s 4 of the Legal Profession Uniform Law Application Act, under s 7(1) of the Legal Profession Uniform Law this Court is to apply the Interpretation of Legislation Act 1984 (Vic) rather than the Interpretation Act 1987 (NSW).
Section 25 of the Victorian Interpretation of Legislation Act relevantly reads: "In the interpretation of a provision of an Act or subordinate instrument- (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; …"
Part 4.3 of the Legal Profession Uniform Law is headed "Legal Costs". Its objectives are set out in s 169. It reads: "169 Objectives The objectives of this Part are - (a) to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and (b) to provide that law practices must not charge more than fair and reasonable amounts for legal costs; (c) and to provide a framework for assessment of legal costs."
Part 4.3 imposes obligations on solicitors to make disclosure of legal costs, including an estimate of the total legal costs which will be incurred in a matter (s 174(1)(a)). A "costs agreement" may be made between a law practice and a client (s 180(1)(a)), but that agreement cannot provide that the legal costs to which it relates are not subject to a costs assessment (s 180(4)). Part 4.3 also gives a client a right to make application for assessment of the whole or any part of the legal costs payable to a law firm by a client (s 198(1)(a)).
Division 7 of the Legal Profession Uniform Law is headed "Costs Agreement". Its objectives are set out in s 193. It reads: "193 Interim bills (1) A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide. (2) Legal costs that are the subject of an interim bill may be assessed under Division 7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has previously been assessed or paid."
Section 198 of the Legal Profession Uniform Law relevantly reads: "198 Applications for costs assessment (1) Applications for an assessment of the whole or any part of legal costs payable to a law practice may be made by any of the following- (a) client who has paid or is liable to pay them to the law practice; … (3) An application under this section must be made within 12 months after- (a) the bill was given to, or the request for payment was made to, the client, …; or (b) the legal costs were paid if neither a bill nor a request was made. (4) However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client … 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."
The expressions of "final bill" and "interim bill" are not defined in the legislation. It has been accepted that the equivalents of s 193(1) provide an effective definition of "interim bill", being a bill "covering part only of the legal services the law practice was retained to provide": see Turner v Mitchells Solicitors [2011] QDC 61 at [3] ("Turner").
A number of courts in considering the uniform legislation have construed earlier equivalents of ss 193 and 198 of the Legal Profession Uniform Law. All but one of those cases have accepted, construing ss 193 and 198 harmoniously, that the 12 month period referred to in s 198 means that the application must be made within 12 months of the "final bill", even if the interim bill which is this subject of the application, was issued more than 12 months before the application was made. A primary consideration in reaching this construction has been that the alternative could lead to dysfunction and disruption to the relationship between the solicitor and client where the provision of legal services is continuing.
At the hearing, counsel for the parties accepted that the effect of s 193 is to permit interim bills to "piggy back" on the timing imposed on a final bill in this manner (T12.6-16 and T20.4-9). However, their submissions diverge with regards to how this 'piggy back' concept operates, which I will explain shortly.
Both parties referred to Challen (t/a Hawthorn Cuppaidge & Badgery) v Golder Associates Pty Ltd [2012] QCA 307 ("Challen"), where the Queensland Court of Appeal considered the issue of what constitutes a "final bill" for the purposes of imposed time limits. Although Challen concerned s 333 of the Legal Profession Act 2007 (Qld), it is in the same terms as s 193 of the Legal Profession Uniform Law. In considering the effect of s 333, the Queensland Court of Appeal relevantly stated at [44]: "[44] The conclusion of the primary judge that the final bill is merely the last in time rather than the ultimate bill would have the unsatisfactory consequence that over the course of the retainer the delivery of another bill would give rise to a new right of assessment of an interim bill under s 333(2). Although there is no definition in the LPA of 'final bill', the expression is used in contrast to 'interim bill' which is effectively defined in s 333(1) as a bill for part of the legal services that the law practice was retained to provide. That suggests that the final bill must be the last bill for the legal services that the law practice was retained to provide. Whether a bill is a final bill may not be apparent at the time that it is issued by the solicitor. By way of an example, a bill may be issued in anticipation that further work will be undertaken under the retainer, but that expectation is overtaken by the termination of the retainer immediately after the issue of the bill and before any further work is undertaken, resulting in the bill being the final bill."
This reasoning in Challen has since been followed in Queensland by the District Court, Supreme Court and Court of Appeal; in Victoria by the Supreme Court in Viscariello v Oakley Thompson & Co Pty Ltd [2012] VSC 351; Collection Point Pty Ltd v Cornwalls Lawyers Pty Ltd [2012] VSC 492; Mackie & Staff Pty Ltd v Khor & Burr [2013] VSC 696 (but not by Wood AsJ in Dromana Estate Ltd v Wilmoth Field Warne (a firm) [2010] VSC 308); and in Western Australia by the District Court.

[4]

The Costs Assessor's decision

On 25 September 2020, the Costs Assessor determined that the application made by Al Maha was filed in time. His reasoning is as follows: "By Response to Application for Assessment dated 29 July 2020 the respondent submits that the Application has not been brought within the time limited by s 198 of the Legal Profession Uniform Law (NSW) ('the Law'). I called for submissions on the point from each party on 2 September 2020 so as to determine the question as a preliminary issue. I received no submissions from the applicant I was advised by the respondent that it relied on its submissions of 29 July 2020. The applicant seeks the assessment of 10 tax invoices, identified in paragraph 2 of the Application, issued on dates from 28 February 2018 to 9 July 2019. The Application was filed on 8 July 2019. The client first instructed the law practice on or after 1 July 2015, thus the assessment of costs is governed by the provisions of the Law."
The Costs Assessor then set out ss 198 and 193 of the Legal Profession Uniform Law (the law), before continuing: "Section 6 of the Law provides the following definitions: 'legal costs' means- (a) 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, or … 'legal services' means work done, or business transacted, in the ordinary course of legal practice; The expression 'final bill' is undefined by the legislation. The respondent submitted that the tax invoice dated 9 July 2019 is for barrister's fees only and not for the respondent's professional fees. They further submit that as the applicant states in paragraph 2 of the Application that it does not seek assessment of barrister's fees, it does not seek assessment of the tax invoice of 9 July 2019. I accept those submissions but the resolution of the question put to me by the respondent turns on whether the tax invoice of 9 July 2019 is a final bill."
The Costs Assessor then set out [44] of Challen, reproduced earlier in this judgment. The Costs Assessor continued: "Is the 9 July 2019 invoice the 'last bill for the legal services that the law practice was retained to provide'? It is a tax invoice for barrister's fees. The barristers, Mr Faulkner and Ms Garsia, rendered prior bills in the matter, as evidenced by the other tax invoices referred to in the Application and which were paid. No barrister's fees are challenged by the applicant, I assume from those facts that the services rendered by Mr Faulkner and Ms Garsia were in relation to the work which was the subject of the respondent's retainer and their fees were a legal cost for which the applicant was liable to reimburse the respondent noting that the parties have not produced a copy of their costs agreement to me. Legal costs include amounts the client may become liable to pay to a law practice for the provision of legal services, including disbursements. Legal services include 'business transacted in the ordinary course of legal practice' and this includes the retaining of counsel for the conduct of proceedings which are the subject of their retainer. Accordingly, the 9 July 2019 tax invoice is a bill for legal services as defined by s 6 of the Law and is therefore a final bill for the purpose of s 193 of the law. The fact that the applicant does not object to the barrister's fees but only items contained in interim bills does not preclude this assessment. Section 193(2) of the Law is clear, 'Legal costs that are the subject of an interim bill may be assessed under Division 7, either at the time of the interim bill or at the time of the final bill'. The respondent also submits that pursuant to the principle in Port of Melbourne Authority v Anshun Pty Ltd [19811 HCA 45 ('the Anshun principle') the applicant should be prevented from bringing the Application as it would not be fair and just for the reasons set out at paragraph 8(ii)(A)-(F) of the Response to Application for Assessment. The Anshun principle is to the effect that a party can be prevented from making claims which should have been pursued in former proceedings between the same parties, it is a principle based on reasonableness. Paragraphs 8(ii)(A) and (B) do not sustain the respondent's application on the basis that the right to have the interim bills assessed pursuant to s 193 of the Law is expressly granted whether the bills are paid or not and in the event that further work on the same matter is conducted, that is, within 12 months of the final bill and without caveat as to the conduct of further work on other matters. Paragraphs 8(i)(C)-(F) set out that there was a previous Costs Assessment Application made by the respondent against the applicant in 2019 for unpaid tax invoices due to it by the client, that assessment was determined in favour of the law practice in the sum of $40,630.15, the determination has been entered as a judgment of a court and the judgment remains unsatisfied. The submissions do not indicate whether the work the subject of the other assessment related to the retainer pursuant to which the tax invoices before me were issued but, in any event, that is not relevant to my decision. The tax invoices the subject of the other assessment are not the ones before me because the ones before me are paid and the ones the subject of the other assessment are not. An assessment is not a legal proceeding. It was not open to the client to bring a 'cross claim' in the other assessment, as would be the case in court proceedings. That assessment was limited to the tax invoices the subject of the application. Where a respondent to an application for assessment wishes to have assessed other tax invoices between it and the same applicant, that respondent must make its own separate application for assessment of those tax invoices. While the second application may be referred to the same assessor, if they are concurrent, it is a separate and distinct application determined on its own merits. The Law gives a client the right to make an application pursuant to s 198 within the time set outin that section. The Anshun principle cannot restrict that right in circumstances where the current claim could not be made as part of the earlier assessment. The respondent is free to bring its application at any time within the period prescribed by the Law. I have found that there is a final bill dated 9 July 2019, I have found that the application was brought within time limited by s 198 of the Law, I have found that the Anshun principle has no application to this Application and so the applicant is entitled to proceed to have assessed all or any interim bills without any need to object to any item in the final bill."

[7]

The law practice's submissions

It is the law practice's case that the termination of its retainer on 8 April 2019 is determinative of which bill is the "final bill" for the purposes of the application, despite Al Maha's subsequent reinstitution of the retainer.
On this point, the law practice referred to Turner which concerned an application for assessment of a number of invoices issued by the solicitors acting for Mr Turner for the period between 10 May 2002 and 4 February 2010. In Turner, the legal services were found to fall into three categories: the provision of advice, the application to set aside a default judgment in the Queensland Magistrates Court and the representation of Mr Turner in the proceedings before the Queensland Commercial and Consumer Tribunal ("the Tribunal").
In Turner, there was no issue that all the invoices relating to the proceedings before the Tribunal before the final bill were interim bills. The solicitors provided advice in May and October 2002 and rendered an interim bill while awaiting further instructions. On 30 June 2003, Mr Turner instructed the solicitors to seek to set aside the default judgment. This was done by consent and the matter was transferred to the Tribunal. In March 2004, the solicitors were then instructed to act in relation to the proceedings before the Tribunal.
In considering the issue of which were interim bills and which was a final bill in Turner, McGill DCJ held that as the work that the solicitors were retained to do prior to March 2004 was completed, the bills in relation to it were final bills, despite being marked as "interim".
In Turner, McGill DCJ considered the issue of categorising the bills at [3], [28] and [29] as follows: "[3] Obviously the question of what legal services the law practice was retained to provide is a question of fact. The matter may be quite straightforward, or there may be some complexity about it. For example, there may be a costs agreement which contemplates that certain work will be done, but the client may subsequently request the law practice to undertake further legal services. The matter may be defined with considerable precision or very vaguely. … [28] The applicants deposed to not terminating or breaking the retainer of the respondent after the consent order was made in the Magistrates Court, but this I think is not the point: if there is a retainer to do further work, the issue may be whether it was terminated or broken, but if the work the solicitors have been retained to perform has been completed, the issue is whether there is a retainer to do further work. There is no evidence that after the consent order was obtained in the Magistrates Court there was a retainer to do any further work until February 2004. There is in the letter of 14 April 2004 some discussion of what had happened previously, which is consistent with my analysis, except that it speaks of the retainer being suspended or modified. In a sense, perhaps, that may be appropriate if one uses the term 'retainer' in a broader sense of the relationship between the client and the solicitor, but what matters for the purposes of the Legal Profession Act, and particularly s 333, is a retainer to provide legal services. This letter confirms that there were significant periods prior to the letter when there were no legal services that he respondent was retained to provide, and indeed that that was the situation at the time when that letter was written. [29] There can be a situation where a costs agreement can be entered into to cover particular legal work, and any other legal work which the solicitor is instructed to carry out. If the particular legal work is then completed, and there have been no further instructions, then the legal services the solicitor is retained to provide have been performed. If a bill is sent at that point it is a final bill, and it does not become an interim bill simply because at some later stage further instructions are given for additional legal services to be provided to which the earlier costs agreement also applies. In my opinion it is important to apply s 333 according to its terms, and not by reference to extraneous considerations, such as whether the legal work is undertaken under a single costs agreement or multiple costs agreements. In any case, it may be a nice point whether in the circumstances I have outlined the later instructions to perform additional legal services amount to a variation of the earlier costs agreement, or a new agreement which incorporates the terms of the earlier costs agreement. Section 333 operates by reference to the legal services the law practice is retained to provide. It is possible for the scope of those services to be expanded before the services previously sought have been all provided, in which case the opportunity to deliver a final bill will have been postponed; but if the legal services sought have been provided, the fact that later additional legal services are sought does not in my opinion produce the same result."
The law practice submitted that as in Turner, Al Maha in these proceedings retained the law practice to appear in relation to its appeal, but then terminated the retainer on 8 April 2019, a month prior to the appeal. The law practice completed the work required to be done under its retainer up to that point in time and issued a completed bill to Al Maha on 15 April 2019. The law practice submitted that this constituted the "final bill" in relation to those services, and the broken retainer is the situation envisaged by McGill DCJ in Turner at [28].

[8]

Al Maha's submissions

Al Maha submitted that the law practice seeks to assert that the time limit under the Legal Profession Uniform Law runs from the "final bill" in any period in which current instructions under the retainer are held. It submitted that the division of the retainer in this way is artificial in this case, where the two retainers were on the same terms in the same matter, separated by about 24 days, and where the retainer was resumed after the client brought its fees up to date.
Al Maha submitted that the facts in Turner are not the same as those in these proceedings. In Turner, McGill DCJ found that there were three distinctive retainers in relation to separate and discrete pieces of work, arising at different times, and that there were periods where the law firm received no instructions to do work. Al Maha submitted that it was in this context that McGill DCJ made his determination at [29], as set out earlier in this judgment. Al Maha submitted that Turner is not a case in which the Court was required to finally determine the question of the time limit for assessment in the context of a retainer which has been terminated and then resumed.
Al Maha noted that in Turner, McGill DCJ considered that terminating or breaking a retainer is "not the point", and that what is relevant for consideration is whether "the work the solicitors have been retained to perform has been completed" and, if it had, "whether there is a retainer to do further work" (at [28]). His Honour drew a distinction between a retainer in which there is work left to perform and a retainer in which the work has been completed. Al Maha submitted that in circumstances where the retainer continues, even after breaks caused by termination, the "final bill" is not issued until the work under the retainer is completed. The breaking or terminating of the retainer does not change "the legal services the law firm was retained to provide", viewed prospectively. This is especially the case where retainer has been resumed on the same terms.
Al Maha submitted that it is difficult to draw clear lines between "the legal services the law firm was retained to provide" in the circumstances of this case, where charges in relation to multiple matters appeared in the same bill, and where a number of retainers were conducted at overlapping times.
Al Maha referred to Dart Mining NL v Foster Nicholson Jones [2016] VSC 836 ("Dart Mining"), where Woods AsJ considered a matter where the law firm had issued 10 invoices to the client over a period of 15 months, which were all headed "General Advice" and managed by the law firm under one file. Woods AsJ identified the question which arose for determination as being "whether the 'General Advice' file constitutes one retainer to provide general advice from time to time when matters arose or whether there are separate retainers for discrete issues which arise from time to time and are just conveniently run under the 'General Advice' file" (at [2]).
In Dart Mining at [14], Woods AsJ concluded that "[t]he answer to the preliminary issue is that there were separate retainers for discrete issues". His Honour also found that costs for discrete issues were at times contained in one bill, and that it was necessary to identify which costs related to which retainer in order to determine when the "final bill" in any matter was issued. For example, a bill could constitute both an interim bill for one retainer and a final bill for another retainer (at [23]-[34]).
Al Maha submitted that there is no evidence that the law practice issued a written retainer or costs agreement, nor that it made the disclosure of costs required by the Legal Profession Uniform Law. There is also no evidence that the law practice treated or considered any retainer on the second appeal to be distinct from its retainer in the specific performance proceedings.
Rather, the invoices in evidence in these proceedings cover work done for the specific performance proceedings, the second appeal, and some invoices combine charges for the work done in respect of those two proceedings.
Al Maha referred to the tax invoices (No 977821 dated 30 May 2019 and No 1011019 dated 16 August 2019) in evidence in these proceedings. Each invoice bears the same matter reference, "Our reference: AIW- 869736", and each invoice was issued by HWL to Al Maha bearing the heading "Coplin - Specific Performance Proceedings." They are stated to be in relation to the Coplin matter, both in its first instance and appeal proceedings, which affirmed that result. Al Maha submitted that a further indication that all the work done was part of the same retainer is that the hourly rates of the fee earners remained the same for the whole period covered by the invoices in evidence.
In light of this evidence, Al Maha submitted that the break in the retainer does not materially separate the "legal services the law firm was retained to provide", and that it would be artificial to describe the 16 April 2019 invoice as the "final bill" on that basis.

[11]

The law practice's submissions

It is the law practice's case that s 193(2) of the Legal Profession Uniform Law required Al Maha to bring its 8 July 2020 application "at the time of" the law practice's 29 August 2019 assessment application. If so, then the assessment is still out of time, even where the 16 November 2019 invoice is determined to have been the "final bill".
At the hearing of these proceedings, the law practice referred to Turner where McGill DCJ considered the rationale for what is now s 193(2)(T11.8-12.4): "[27] In my opinion s 333(2) means what it says: if there is an interim bill, then the legal costs which it covers may be assessed at the time of the interim bill or at the time of the final bill. Accordingly, the client may apply under s 335 for an assessment at either time, and will be subject to the applicable limitation at either time. An application in respect of the legal costs covered only by the interim bill will have to be made within 12 months after that bill was given or request for payment made or the costs were paid, but if the legal costs are to be assessed at the time of the final bill, then the application must be made within 12 months of the final bill. It follows that if an application is made within 12 months of the final bill, the legal cost which may be assessed under s 335(1) include (or at least may include) all of the legal costs subject to any interim bill which was part only of the legal services the law practice was retained to provide, even though those costs are not included in the "final bill". For practical purposes, the section preserves the rights that would have been available to obtain assessment if the lawyer could only charge on the basis that the retainer was an entire contract. I agree with and follow the reasoning in Retemu Pty Ltd, but not the reasoning in Dromana Estate Ltd."
The law practice argued that McGill DCJ's statement in Turner that the provision "means what it says" suggests that a literal interpretation of the words should be adopted (T7.22-25): "…we say the effect of section 193(2) is that the application by the client should have been made at the same time, at the time of the assessment of the final bill, which was 29 November 2019 or during the period when the assessment was proceeding."
The law practice also set out what they argue is the rationale for their interpretation of the provisions (T7.30-36): "That is what the section clearly states. It says that the bill is to be assessed either at the time of interim bill or at the time of the final bill. The rationale for that, as I say, is either so that when the matter is completed the bill can be assessed without interrupting the relationship between the solicitor and the client or prejudicing that relationship. Secondly, as was stated by Judge Coorey, that it was practical and useful purpose in allowing all the bills to be assessed at the same time."
The first rationale is derived from the ruling of Coorey DCJ in Retemu Pty Ltd v Ryan NSWDC, 16 April 2010 (unreported) ("Retemu")(at p 13): "I accept the client's submission that where there is a 'continuing relationship' in the conduct of legal services it would be dysfunctional to that relationship if the client had to make applications to an assessor for interim bills to be queried while the solicitor was continuing to carry out legal services for the client. In addition to having an adverse effect on the solicitor/client relationship it is possible that a costs dispute could prejudice the conduct of any litigation that was being carried out on behalf of the client."
At the hearing of these proceedings, counsel for the law practice submitted that this rationale for allowing the interim bills to be assessed with the final bill does not apply in this case. The law practice's services were completed before the 29 November 2019 application for costs assessment. As the relationship between the law practice and Al Maha was at an end, there was no question of their relationship being prejudiced by the assessment of "interim bills" (T15.49-T16.2).
The second rationale is again derived from the ruling of Coorey DCJ in Retemu (at p 15): "I accept the client's submission that s334 has a practical and useful purpose because in allowing all bills to be assessed at the same time it enables scrutiny of the work that has been done and scrutiny of moneys that have been claimed for or paid".
Applying this rationale, the law practice submitted that Al Maha has provided no reason why it did not file its application during the time of the 29 November 2019 assessment application. It waited seven months, creating a practical difficulty for the Costs Assessor, whose efforts to determine whether costs were fair and reasonable is increased when he cannot consider the bills in the context of the matter as a whole (T16.6-14).
The law practice submitted that while it is now well established that interim bills even more than 12 months old can be assessed at the time of the final bill, "piggy back" so to speak on the final bill, and thus create an exception to the time limit set in section 198(3), that is something very different from what Al Maha is seeking to do here.
Counsel argued that this is not a case of an interim bill "piggy backing" on a final bill, but one where it has "jumped off its back and is racing ahead on its own" (T16.19-20).
The counsel for the law practice further submitted that Al Maha are trying to create a new time limit which is not provided in ss 193 or 198 (T16.24-25).
The law practice submitted that as far as their perusal of the cases that dealt with assessment of interim bills, the present situation has not been considered. They argue that these cases have been dealing with assessment of the interim bills at the time of the application for assessment of the final bill.

[12]

Al Maha's submissions

Al Maha argued that the law practice's submissions are flawed. There is only one time limit provided by s 198(3) of the Legal Professional Uniform Law. The meaning of the words "at the time" in that section cannot literally mean "at the time", as in on the same day or in the same application, when the costs assessment scheme is considered as a whole.
The scheme permits either a law practice or a client to make an application for the assessment of costs. Al Maha submitted that on the law practice's construction of the clause, if a law practice made an application for a final bill, it would bar the client (or the law firm itself) from ever seeking assessment of interim bills, because they were not made the subject of assessment "at the time" of the final bill. This construction would permit one party - a law practice or client - to take control of the costs assessment process and effectively extinguish the rights of the other parties in relation to interim bills by applying to assess the final bill. The result would be that costs which were the subject of many interim bills would be locked out of assessment, despite the statute allowing assessment within 12 months of the final bill. The negative implications of this are set out by Al Maha during the proceedings (T22.5-9): "…one can imagine that it would be easy for law firms to maybe presume to know more about the operation of the cost assessment system than their clients to issue a final bill, perhaps even a small one for $100 and have it assessed and thereby block out any opportunity for any assessment of interim bills."
Al Maha submitted that the negative implications of this construction have manifested in this case (T21.22-27): "Yes and as happened in this case the law firm applied for assessment of the final bill because it did not care to apply for assessment of any other bill because it had been paid then on the [law practice's] argument that would bar any other party applying for assessment of an interim bill because it was not done at the time of the application for the final bill and we say that is an illogical or the result is illogical"
It is Al Maha's submission that ss 193 and 198 should be construed harmoniously in accordance with the dictates of the rules of statutory construction so they can be given a meaning which supports the overall purpose and whereby they do not contract one another because on a literal interpretation they have the capacity to do so (T17.40-44).
Al Maha referred to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 at [69] ("Project Blue Sky"), where the plurality stated at [69] and [78]: "[69] 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'… … [78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction56 may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Citations omitted)
Al Maha submitted that the clear purpose of s 193(2) is to allow assessment of interim bills (T22.29-35): "We say that the Pt 4.3 containing all the costs provisions is the reference or the language to which your Honour ought to have regard and that it is regulating the rights of clients and law firms to go to cost assessment and that in circumstances where s198(3) is clarified by s193(2) your Honour would not prefer a construction that would not achieve that purpose."
Al Maha submitted that ss 193 and 198 of the of the Legal Profession Uniform Law evince a clear intention that costs which are the subject of interim bills are to be available for assessment within the time frame that applies to costs which are the subject of final bills. This is what has been described as "piggy backing", where the application for assessment rides along with the time limit created by the issue of the final bill.
As to the "piggy back" concept, counsel for Al Maha submitted (T20.17-22): "Where we depart from Mr Bartos' submission is you can only piggy back where the application relates to the final bill, if the application relates to the final bill you can piggy back the interim bill. My submission is that the piggy backing that goes on is in relation to the period of time in which application can be made. That is to say if the final bill is within the last 12 months then the interim bills can piggy back on the time."

[13]

Consideration

It would appear that McGill DCJ quite aptly described these provisions in Turner when he said: "[26]…it does not appear that a great deal of intellectual rigor has been applied to the formulation of the time limitation provisions in this division, or indeed its provisions generally."
The parties have differing views with regards to the "piggy back" concept. The law practice submit that the interim bills can "piggyback" on the assessment of the final bill so long as the application for assessment for the interim bills is made "at the time" of the application for the final bill. Al Maha submitted that if the final bill is within the last 12 months then the interim bills can piggy back on the time.
I accept the law practices submission that the rationale deployed by Coorey DCJ in Retemu in his interpretation of s 193(2) does not apply in this factual scenario. The litigation was finalised by the time the application was filed in November 2019 and therefore there could be no "dysfunction caused to the relationship" between the parties if the law practice's interpretation is accepted.
However, there does appear to be a contradiction in the law practices reliance upon Coorey DCJ's rationale for what is now s 193 as allowing all bills to be assessed at the same time which enables scrutiny of the work that has been done and scrutiny of moneys that have been claimed for or paid (see Retemu at p 15).
The law practice used this rationale to argue that in waiting seven months to file their application, Al Maha created a practical difficulty for the Costs Assessor, whose effort to determine whether costs were fair and reasonable is increased when he cannot consider the bills in the context of the matter as a whole.
However, the law practice's construction of the ss 193 and 198 provisions can result in the costs the subject of many interim bills being locked out of assessment, effectively enabling one party to take control of the cost assessment process and bar any other party from assessing costs. This is an unduly restrictive interpretation and would appear to cause a greater practical difficulty for a cost assessor being able to fulfill the purpose of the provision, as stated by Coorey DCJ, to enable scrutiny of the work that has been done and scrutiny of the moneys that have been claimed for or paid. It is my view that Al Maha's application for costs assessment did not have to be made concurrently with the law practice's application for costs assessment made on 29 November 2019.
As the application for assessment was filed on the 8 July 2020, it was within the 12 month period specified by the legislation. The Cost Assessor's decision that the application was filed within time is affirmed. The plaintiff's amended summons filed 9 March 2021 is dismissed.

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