Supreme Court of WA|1999-05-21|Before: Parker J, Re P

Pryles & Defteros (A Firm) v Green [1999] WASC 34 (21 May 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PRYLES & DEFTEROS (A FIRM) -v- GREEN [1999] WASC 34

MATTER : Legal Practitioners' Act 1893; Review of taxation

Procedure - Costs - Review of taxation - Inherent jurisdiction

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, applied.

Thorne v Thorne [1979] 1 WLR 659, applied.

Procedure - Costs - Taxation - Practitioner and client bill - Principles where there is no statutory determination or prescribed scale or written agreement.

Harrison v Tew [1989] 1 QB 307, considered.

Clare v Joseph [1907] 2 KB 369, considered.

Procedure - Costs - Appeal to Court of Criminal Appeal (WA) - Taxation of practitioner and client bill - Jurisdiction exists even though practitioner instructed in another State.

Barfield v Friedman & Lurie, unreported; SCt of WA (Registrar Powell); LPA 63 of 1996; 27 March 1998

Bateman v Cookeson, unreported; SCt of WA (Parker J); Library No 980663; 13 November 1998

D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198

EMI Records Limited v Ian Cameron Wallace Limited [1982] 2 All ER 980

NSW Crime Commission v Fleming (1991) 24 NSWLR 116

Re P's Bill of Costs (1982) 45 ALR 513

Winspear v Galdarm Pty Ltd (1997) 18 SR (WA) 115

1 PARKER J: This matter comes before me on a review of the taxation of a bill of costs of the practitioners. The taxation of the practitioners' costs had been required by the practitioners' client, Mr Green, pursuant to s 66 of the Legal Practitioners' Act 1893. The practitioners brought in a bill dated 6 December 1966 by which the practitioners sought costs totalling $46,438.33. The bill was in respect of work undertaken in 1996 on behalf of the client pursuant to a retainer to pursue an appeal by the client to the Court of Criminal Appeal, another firm of practitioners having initiated the appeal. This appeal followed the client's conviction on 18 September 1995 in the District Court in Perth of an offence of conspiring to commit wilful murder in respect of which the client was sentenced to 14 years imprisonment. The practitioners' instructions were terminated shortly before the hearing of the appeal and another firm of practitioners was then instructed and acted for Mr Green during the actual hearing of the appeal.

2 Pryles and Defteros is a partnership of legal practitioners. It practices under that name not only in Western Australia but also in Victoria. In these reasons it will be convenient to refer to Pryles and Defteros as "the firm". It appears that the firm was actually instructed on behalf of Mr Green in Melbourne and much of the work pursuant to its retainer was carried out by partners or others in Melbourne. The retainer was, however, to pursue an appeal to the Court of Criminal Appeal in Western Australia in respect of a conviction in this State. In the circumstances it is surprising to note that a submission advanced by the firm before the Taxing Officer was that the firm's bill was not subject to taxation in this Court but was subject to the law of Victoria. The learned Taxing Officer correctly rejected that submission. The jurisdiction of this Court, including the statutory jurisdiction conferred pursuant to the Legal Practitioners Act 1893 and without attempting any exhaustive definition, extends to costs incurred or charged by practitioners of this Court in respect of proceedings conducted, or to be conducted, in the courts of this State. That jurisdiction is not avoided because the firm also practises in another jurisdiction and was instructed or gave some attention to the instructions in that other jurisdiction. That issue was not pursued on behalf of the firm before me.

3 For reasons which need not be explored there was considerable delay by the parties in pursuing the taxation of the firm's costs. It was not until 12 March 1999 that the parties came before a Taxing Officer of this Court. He announced his decision on that day and signed his certificate of taxation, or allocatur, on that day. He published written reasons for his decision on 15 April 1999. It is from that decision that this review is brought.

4 The learned Taxing Officer, a Registrar of this Court, allowed the practitioner's bill at nil, ie he disallowed every item claimed in the bill. The essential reason which persuaded the Taxing Officer that no costs should be allowed on the bill was the effect which the Taxing Officer ascribed to s58ZB(1) of the Legal Practitioners Act 1893 ("the LP Act").

5 The LP Act, relevantly, provides:

"58W(1) The Legal Costs Committee may make determinations regulating the remuneration of practitioners in respect of -

(a) non-contentious business carried out by practitioners;

(b) contentious business carried out by practitioners in or for the purposes of proceedings before -

58ZB(1) Subject to sections 59 and 70(2) of this Act and section 14 of the Legal Aid Commission Act 1976 -

(a) the taxation of bills of costs of practitioners, as between practitioner and client or party and party; and

(b) any other aspect of the remuneration of practitioners the subject of a determination,

shall be regulated by a determination in force under s58W.

(2) Where a determination is in force under s58W in respect of any business referred to in subsection (1) of that section any other subsidiary legislation fixing or purporting to regulate the remuneration of practitioners in respect of that kind of business shall be of no force or effect.

59(1) A practitioner may make a written agreement with any client of that practitioner respecting the amount and manner of payment for the whole or any part or parts of any past or future services, fees, charges, or disbursements in respect of business done or to be done by such practitioner, either by a gross sum or otherwise howsoever.

(5) An agreement made under subsection (1) may be reviewed by the Supreme Court or a Judge thereof ... and if ... the same is unreasonable the amount payable may be reduced or the agreement cancelled and the costs taxed in the ordinary way ..."

For the purposes of s 58W and s 58ZB the phrase "contentious business" and the word "costs" are defined by s 58L as follows:

"'contentious business' means business carried out as a practitioner in or for the purposes of any action, suit or proceeding before a court, but does not include the administration of estates and trusts;"

"'costs' includes fees, charges and disbursements."

6 In his reasons for decision the learned Taxing Officer incorporated by reference reasoning from two of his earlier decisions in which he had traced the history of the legislative changes affecting the taxation of costs in this jurisdiction since the major changes effected by the Acts Amendment (Legal Practitioners Costs on Taxation) Act 1987. This is the amending Act which first introduced into the LP Act the provisions under consideration on this review. By this process of reasoning the learned Taxing Officer was led to views which he summarised in this way:

"1. The taxing of solicitor and client bills under the LP Act does not exclude bills relating to work done in the criminal jurisdiction.

2. Solicitor and client bills can only be taxed pursuant to a costs agreement or a costs scale.

3. Where there is no costs scale it is an incumbent on the practitioner to enter into a costs agreement for allowances to be made at any subsequent taxation.

4. Where a solicitor has entered into a costs agreement and on the application of the client the court has set aside that agreement. The practitioner can be penalised if there is no scale. In that situation when a costs agreement is set aside the solicitor should apply to the court under s37 of (the Supreme Court Act 1935) for directions as to how such costs should be taxed."

7 As there is no reason on this review to give further consideration to the fourth proposition I should note that my failure to comment on it should not be taken as an endorsement of the views expressed in the fourth proposition as to the effect of s 37 of the Supreme Court Act, nor as to the appropriateness of the procedure envisaged. For reasons which follow, however, in my view there should not arise an occasion where it is necessary to consider following any such procedure.

8 The scheme of division 4 of the LP Act, ss 65 - 72, with respect to the taxation and recovery of costs as between practitioner and client is not limited by any express provision or by any implication, so as to exclude from the operation of those provisions costs in respect of business undertaken in the criminal jurisdiction of this or any other court. Section 65(1) sets the scope of the scheme by the words "... any services, fee, charges or disbursements ...", which are words of the widest import in this context and are apt to include services, fees, charges or disbursements in respect of work in the criminal jurisdiction, including appeals. Further, s 59(1) uses words of similarly wide reach with respect to written agreements as to costs, so that written agreements as to costs in respect of work in the criminal jurisdiction, including appeals, are within the operation of s 59(1). Thus the first of the four propositions summarised by the learned Taxing Officer is correct.

9 The second and third of the learned Taxing Officer's propositions are, however, directly at the heart of the issues on this review. They require detailed consideration. Each of these two propositions appears to be founded in the Taxing Officer's understanding of the effect of s 58W(1) and s 58ZB(1) of the LP Act. As I understand his reasoning, it is that s 58W(1) authorises a determination to be made to regulate the costs of practitioners in contentious business in this Court. The learned Taxing Officer appears to have understood that this included business in the criminal jurisdiction, including appeals. That issue was not raised by either party before me in these proceedings. I will not consider it further and these reasons proceed, therefore, on the assumption that it is competent for determinations to be made pursuant to s 58W(1) with respect to business in the criminal jurisdiction of this Court, including appeals. If that assumption were not correct the client's contentions would lose much of their foundation.

10 By s 58ZB(1)(a) the taxation of bills of costs as between practitioner and client "shall be regulated by a determination in force under s 58W", which apparently led the Taxing Officer to the view that if there was no determination in force applicable to the work performed by a practitioner then, in the absence of an agreement in writing pursuant to s 59 with respect to the costs of such work, no costs could be allowed. The effect of this view was summarised in his second proposition that practitioner and client bills "can only be taxed pursuant to a costs agreement or a costs scale". By "scale" the Taxing Officer was referring, it seems, to a s 58W determination, and by "costs agreement" reference was intended to a written agreement respecting costs pursuant to s 59.

11 It was common ground between the parties, both before the Taxing Officer and me, that no determination has ever been made by the Legal Costs Committee applicable to business in the criminal jurisdiction of this Court, including criminal appeals, and that there had not been any written agreement pursuant to s 59 entered into between the client and the firm as to its costs of this retainer.

12 In my respectful view, the reasoning of the learned Taxing Officer proceeds from a misunderstanding of the effect of the provisions which he considered, and has led in the present case to an erroneous decision in law.

13 Section 58W(1) is a permissive or empowering provision. The operative word is that the Committee may make determinations of the various types contemplated. It is not the effect of s 58W(1) that determinations must be made by the Committee in respect of all of the types of business contemplated by the provision, or indeed in respect of any of them. Nor was it the scheme of the relevant provisions that all or any of the determinations authorised by s 58W(1) must be in force on the date on which s 58ZB came into force.

14 Turning to s 58ZB(1), it appears to me that it is critical for present purposes to have regard to the words in force when considering the effect of the provision that bills of costs "shall be regulated by a determination in force under s 58W". The learned Taxing Officer apparently took the view that if no applicable determination was in force, then the effect of the provision was that no costs could be allowed on taxation. That is a very stage consequence, indeed, especially where, as has been mentioned in the last paragraph, it is the case that the legislature made no provision to ensure that the necessary determinations would be in force.

15 The words in force in s 58ZB(1) appear to me, more naturally, to indicate a legislative intention that the provision has effect only where an applicable determination is in force. Otherwise, as I read the provision, s 58ZB(1) is of no operation or effect. On this view the purpose of s 58ZB(1) is only to make clear that, where there is an applicable determination in force, all taxations of costs and other aspects of the remuneration of practitioners who conduct business within the scope of the determination should be regulated by the determination; save that is for the statutory provisions stipulated at the commencement of s 58ZB(1), which include s 59, but none of which is applicable in this present case.

16 Further confirmation of this view of the intended operation of s 58ZB(1) is provided by s 58ZB(2). This provides that subsidiary legislation fixing or purporting to regulate the remuneration of practitioners in respect of any kind of business, shall be of no force or effect "Where a determination is in force under s 58W in respect of" that kind of business. It is significant that other subsidiary legislation of the types contemplated by the provision, eg costs scales in Rules of Court, are of no force or effect only where a determination is in force which is applicable to the type of business undertaken. This carries the clear indication that, where there is no applicable determination in force, other subsidiary legislation applicable to the kind of business being considered would continue to have force and effect, and thus would still regulate the remuneration of practitioners in respect of the kind of business being considered.

17 On this view of the intended effect of s 58ZB(1) and (2), the surprising consequence inherent in the view of the learned Taxing Officer does not arise. It is not the case that, in the absence of a written agreement pursuant to s 59, no allowance may be made on taxation in respect of costs incurred in respect of business undertaken that is outside the scope of a determination in force under s 58W.

18 In my respectful view, the correct view of s 58ZB(1) is that it has no operation in respect of the costs of business undertaken by a practitioner where there is no determination in force under s 58W which applies to business of the type undertaken.

19 As has been indicated, in the present case there is neither an applicable determination nor a written agreement pursuant to s 59. There is no other applicable subsidiary legislation, and no other statutory provision applies to the costs of the business undertaken pursuant to the firm's retainer. It appears from the material placed before the learned Taxing Officer by the firm, and from the submissions before me, that no express terms as to remuneration arising from their retainer are contended for by the firm. It does appear, however, that an estimate was offered to the client that the costs and disbursements would be $45,000 for the appeal, which sum was demanded in advance by the firm and paid to them by the client in May 1996.

20 There can be no doubt that in the absence of a determination, or other scale, or written agreement, the taxation of a bill of costs is no easy task, either for the taxing officer or the parties. In particular, for the practitioner there can be no great confidence as to the likely outcome. So long as there is no s 58W determination covering costs for criminal trials and criminal appeals, practitioners who are retained in this field of work may be well advised to take notice of the advantages, for all, in proceeding on the basis of a written agreement pursuant to s 59. So long as a written agreement withstands judicial scrutiny for reasonableness pursuant to s 59(5), a Taxing Officer has a pre-determined reference against which to conduct a taxation and there can be a measure confidence about the outcome of a taxation..

21 Nevertheless, (in the absence of a written agreement pursuant to s 59) while a taxation of this nature is not an easy task, it is one which Taxing Officers (formerly Masters) in this jurisdiction have had to undertake at least since the enactment of the LP Act in 1893. In this respect the scheme of the LP Act did not introduce novelty. The taxation of solicitor and client bills of costs, whether or not in respect of business performed in a field of practice which was the subject of a prescribed scale of costs, had long been a feature of legal practice in England; see for example the Attorneys' and Solicitors' Act 1729 (2 Geo II C 23) s23, and the Solicitors' Act 1843 (6 and 7 Vict C 73) s37, and the quite distinct practice under the inherent jurisdiction from before 1729 considered by Dillon LJ in Harrison v Tew [1989] 1QB 307 at 316 - 320, and see also Harrison v Tew [1990] 2 AC 523, 529 - 530 per Lord Lowry; cf Storer & Co v Johnson (1890) 15 App Cas 203 at 206 per Lord Halsbury.

22 Quite apart from its statutory powers, the court has jurisdiction, both inherent and general, to secure that a legal practitioner (being an officer of the court) is remunerated properly, and no more, for work undertaken as a legal practitioner; Harrison v Tew [1989] 1 QB 307, 320; Electrical Trades Union v Tarlo [1964] Ch 720, 724; Sutton v Sears [1960] 2 QB 97. I note that in the House of Lords in Harrison v Tew [1990] 2 AC 523 Lord Lowry also referred at 532 with apparent approval to "the general principle and policy that a solicitor's remuneration should be fair and reasonable and no more".

23 In Woolf v Snipe [1933] HCA 5; (1932) 48 CLR 677, 678 Dixon J remarked on the jurisdiction of the Court to regulate the charges of its officers and to prevent exorbitant demands. While submissions for the firm in this review placed some emphasis on the word exorbitant, I am not able to read his Honour's general description of the jurisdiction as intended to be an exhaustive and precise formulation of its extent given the context, the cases cited by his Honour, and the cases referred to above. In this regard Dillon LJ's observations in Harrison v Tew at 324 are very much in point:-

"There is no doubt that gross overcharging may amount to serious professional misconduct. Moreover, where the solicitor's profit costs in a bill are, as with the bills in the present case, expressed as a lump sum, the most convenient course for finding out whether there has been gross overcharging, and, if so, to what extent, is to order the bill to be taxed.

But the inherent jurisdiction of the court, statute apart, to order the taxation of a solicitor's bill where it is established or is suspected that the solicitor has been guilty of serious professional misconduct by overcharging is not to my mind a separate jurisdiction from the inherent jurisdiction of the court, referred to by Wilberforce J in Electrical Trades Union v Tarlo [1964] Ch 720 to secure that the solicitor as an officer of the court is remunerated properly and no more for work he does as a solicitor, or from the inherent jurisdiction referred to by Lord Halsbury LC in Storer & Co v Johnson 15 App Cas 203, 206, to do justice in the premises when dealing with one of their own officers. They are merely applications of the general control which the court has inherently - statute apart - over its own officers."

24 The statutory scheme of ss 65 - 72 of the LP Act for the taxation of costs is not entirely distinct from the inherent jurisdiction of the court with respect to the remuneration of its practitioners. Indeed the statutory scheme may be seen to be very much complementary to the inherent jurisdiction. In part, the statutory scheme is dependant on the inherent jurisdiction as, in the absence of an applicable determination or other binding provision for regulating remuneration, such as a scale of costs in rules of court or a statutory jurisdiction such as s 59(5) of the LP Act, it is the inherent jurisdiction of the court which precludes overcharging by a practitioner. That jurisdiction exists even where the client has agreed to excessive charges as a matter of contract. As has been identified, in general terms this is achieved for the purposes of the taxation of costs by a Taxing Officer, or a Judge on a review of a taxation, applying the principle that the practitioner should be remunerated properly, but no more, and as will be seen, by the "jealous" scrutiny of any contractual terms which might be unfair to the client in any respect or have the effect that a practitioner could be rewarded more generously than that principle would allow; see Clare v Joseph [1907] 2 KB 369 at 376.

25 The statutory scheme of ss 65 - 72 necessarily invokes and depends upon this inherent or general jurisdiction by its provisions which enable and provide for the taxation of all practitioner and client bills, whether or not they are subject to regulation by a s 58W determination or otherwise, or a written agreement pursuant to s 59(1). That has been so since the enactment of the LP Act in 1893. More recent amendments to aspects of this statutory scheme, and the provisions for determinations by the Legal Costs Committee, have not affected this underlying scheme of these provisions. The statutory empowerment of Taxing Officers of the Court to undertake the taxation of practitioner and client bills necessarily carries with it the empowerment of the Taxing Officers of the Court to exercise this inherent jurisdiction of the Court for the purpose of conducting the taxation. Any such exercise of jurisdiction by a Taxing Officer of the Court is, of course, subject to review by a Judge, as will be seen both by virtue of s 71 of the LP Act and pursuant to the inherent power of the Court itself.

26 As has been revealed by the authorities, the measure or standard ultimately applied by a Taxing Officer in such a case as this is that the practitioner should be remunerated properly, and no more. In practical terms this may be seen to produce the result that in circumstances such as the present, on taxation costs will be allowed which, in the view of the Taxing Officer, constitute reasonable charges in respect of all work reasonably undertaken. As this is a practitioner and client taxation, costs reasonably incurred by the practitioner extend to include work actually authorised by the client even though the work might not ordinarily be regarded as necessary or proper for the attainment of justice for the client. While this standard is imprecise, it is one with which Taxing Officers are not unfamiliar, and it enables a measure of justice and fairness to be achieved between a practitioner and a client.

27 On such a taxation, the Taxing Officer will often be able to proceed by way of analogy, utilising as a guide, at least for the most part, one or more determinations or scales applicable in the jurisdiction to work which is substantially similar in nature and responsibility to the business which is the subject of the bill. In the present case, for example, the determination applicable to appeals to the Full Court may well prove a helpful guide, although it will no doubt require some adaptation and in respect of some items another determination or scale, such as that applicable to non-appellate business in this Court, may well prove useful. In respect of business or items for which there is no adequately comparable determination or scale in this jurisdiction, it will prove necessary for the Taxing Officer to draw more generally on his or her knowledge and experience of the remuneration of practitioners in this State to determine what level of charging is reasonable in the circumstances. This process necessarily involves regard, in particular, to the nature of the business undertaken, the degree of skill, responsibility, complexity and urgency which it requires, and which was given to it, as well as the time required to perform it. In some situations a Taxing Officer may even gain some assistance from the Solicitors' Costs Determination 1998 even though it is not intended to apply to contentious business. Contrary to one submission for the firm before the learned Taxing Officer, it would not be necessary or appropriate for a Taxing Officer to have regard to the charges provided or allowed for work in other State jurisdictions.

28 It remains at least theoretically possible, on such a taxation, that the practitioner or client may seek to set up an agreement as to costs which is not a written agreement pursuant to s 59. To do this, however, it is necessary first to overcome the problems of proof of an oral agreement. Further, and particularly where the agreement is favourable to the practitioners in any respect (whether relating to costs or some other aspect of the agreement) it will be necessary for the practitioner to overcome the disabilities in the way of such an agreement being acted upon. Section 59 of the LP Act was enacted to overcome these disabilities with respect to costs, as had been s 4 of the Attorneys' and Solicitors' Act 1870 (UK) on which it was modelled. There is a tendency these days to overlook the fact that s 59 was enacted to assist practitioners to overcome disabilities in the way of them contracting with clients for their fees. These difficulties arise by virtue of the fiduciary nature of the practitioner and client relationship. While s 59 commences by expressly enabling a practitioner to enter into a binding agreement with a client respecting fees, it does so subject to the requirement that the agreement be in writing (s 59(1)), and subject to the safeguard for the client that a Judge may cancel an agreement or vary its effect if the agreement is unreasonable (s 59(5)).

29 Some illustration of the purpose and effect of s 59, and of the position on taxation where there is no written agreement pursuant to s 59 or any determination or scale relating to the business undertaken by the practitioner, is to be found in cases dealing with s 4 of the Attorneys' and Solicitors' Act 1870. An example is Clare v Joseph (supra). In that case the Court of Appeal held against a solicitor who tried to avoid an oral agreement to charge less than would be usual on the basis that s 4 of the 1870 Act should be read as requiring all agreements as to costs to be in writing. In rejecting that basis of argument the Court of Appeal made observations which are illuminating for present purposes. Buckley LJ said at 378:

"The law in existence when the Act of 1870 was passed is clear; the solicitor could not charge his client more than the amount of his bill of costs when taxed, and it was his duty to advise his client that it was contrary to his interest to pay more. Further, if there were an agreement between them by which the client was to pay less, the solicitor, being in a fiduciary relationship to him, owed the duty of advising him that he ought not to enter into such an agreement if other provisions in it were contrary to the client's interest. The solicitor was under these disabilities when bargaining with his own client, because it was his duty to guard him from acting in a way prejudicial to his interest. Then came the Act of 1870. Its effect is as if it recited that the solicitor was under these disabilities, and then enacted that, notwithstanding such disabilities, he might make an agreement in writing with his client as to his remuneration, provided he complied with the requirements of the Act. The Act, when complied with, relieved the solicitor of his disability."

"Agreements as to costs were often made before 1870, and, upon the application of the client, they were considered and examined by the courts, and they were not infrequently held to be binding both on the solicitor and the client. The enquiry was always directed to the question whether the agreement was fair and reasonable, and an agreement by the solicitor to take less than the usual remuneration was not looked upon as unfair or unreasonable, but was held binding upon him."

"Let us now consider the state of the law on this subject at the date of the coming into operation of the Act of 1870. At that date agreements between a solicitor and his client as to the terms on which the solicitor's business was to be done were not necessarily unenforceable. They were, however, viewed with great jealousy by the courts, because they were agreements between a man and his legal adviser as to the terms of the latter's remuneration, and there was so great an opportunity for the exercise of undue influence, that the Courts were very slow to enforce such agreements where they were favourable to the solicitor unless they were satisfied that they were made under circumstances that precluded any suspicion of an improper attempt on the solicitor's part to benefit himself at his client's expense. But when it appeared that the agreement was favourable to the client, the courts often held the solicitor to his bargain, for there was no ground in equity why they should be suspicious of a bargain of that kind. Sect 4, therefore, was not required for the purpose of enabling persons to enter into these agreements, nor was it required in order to strengthen the hand of the courts in their examination of them. Before 1870 the court had full power to investigate their propriety, and in my opinion the specific provisions of s 4 did no more than provide and regulate a procedure for the control of such agreements; they did not in substance alter the law affecting them."

30 As between practitioner and client the position regarding costs and their taxation may be summarised as follows (subject to any prevailing Federal statutory provision and any express statutory provision of the State). Where there is a determination pursuant to s 58W of the LP Act in force which relates to the business undertaken by the practitioner, that determination will govern the costs which are chargeable by the practitioner in the absence of a written costs agreement pursuant to s 59. Where there is no such determination in force, but there is some other delegated legislative provision regulating the fees that may be charged for the business undertaken by the practitioner, such as a scale of costs prescribed by a court, that will regulate the fees that may be charged by the practitioner, subject again to any written agreement pursuant to s 59. Where there is a written agreement pursuant to s 59 the practitioner may charge a client pursuant to the terms of that agreement, notwithstanding that the charges differ from those provided by any determination or scale of fees in force. Only a written agreement pursuant to s 59 will prevail over an applicable determination or scale in force. Any agreement pursuant to s 59, however, is subject to cancellation or moderation where it is found by a judge to be unreasonable. Where none of the above applies, the obligation of the client to pay costs to the practitioner arises as a matter of express or implied terms from the contract of retainer. Where there are no express terms proved to the satisfaction of the Taxing Officer, usually it would be implied that the practitioner might make reasonable charges for work reasonably undertaken. If there are express terms proved, however, it is necessary for the practitioner to overcome the disabilities in the way of the practitioner contracting with his client as to costs before those express terms may be enforced. Any such express terms are "viewed with great jealously by the courts", the enquiry being directed to the question whether the agreement was "fair and reasonable"; see Clare v Joseph (supra) at 376 and 372 respectively. If not, the express terms would not be enforced and on taxation the practitioner would be confined to proper remuneration, the measure of which in practical terms would appear to be a reasonable amount in respect of work reasonably undertaken (including work undertaken on specific instructions).

31 For these reasons, I am persuaded that the learned Taxing Officer in this case erred in law in the view he took of the effect of s 58ZB(1) of the LP Act. As a consequence the learned Taxing Officer disallowed all items claimed in the bill without considering whether those items should be allowed in whole or part as being proper remuneration, and no more, for the work done. Allowances on this basis are in accordance with the principles which have been outlined in these reasons. By virtue of the view he took of s 58ZB(1), is also fair to say that in truth the learned Taxing Officer failed to tax the bill at all.

32 It is objected for the client that the chamber summons for the review of the taxation in this case is incompetent and should be dismissed. It is contended that pre-requisites for a competent application for review to a Judge have not been, and cannot be, made out in the present circumstances.

33 These submissions are grounded in s 71 of the LP Act which provides:

"71. Such taxation may be reviewed before a Judge in chambers as provided and allowed by the Rules of the Supreme Court for the time being in cases of taxations under those rules ..."

I note that in this respect s 71 is indistinguishable in its material provisions from s 41of the LP Act when it was first enacted in 1893. A provision essentially in these terms has existed in the Act since its first enactment. It is the submission on behalf of the client that the effect of this provision is to allow for review only in circumstances provided for by the Rules of the Supreme Court "in cases of taxations under those rules" and in no other circumstances. The submission in turn then relies on the provisions of O 66 r 53, r 54, r 55, and r 56 which are the provisions of the Rules dealing with the review of taxations by a Judge in cases of taxations under those Rules. By O 66 r 53(1) there is a requirement that, before a certificate of taxation dealing finally with an item in a bill is signed by the Taxing Officer, a party may carry in before the Taxing Officer an objection in writing to the disallowance or allowance of that item together with a statement of the grounds and reasons for objection. The Rules provides for objections of this nature to be reviewed by the Taxing Officer who may then come to a different decision in respect of any item the subject of written objection. Following that procedure, the Taxing Officer is to sign his final certificate of taxation, or allocatur. Order 66 r 55(1) then provides:

"If a party is dissatisfied with the certificate of the Taxing Officer as to any item or part of an item objected to under Rule 53 of this Order, he may, within 14 days from the date of the certificate ... apply to a Judge in chambers for an order to review the taxation as to that item or part of an item."

The Judge may rectify any error in principle which is identified on that review. Otherwise it is provided by r 55(3) that:

"(3) The certificate of the Taxing Officer is final and conclusive as to all matters which have not been objected to in accordance with these Rules."

34 In the present case there has been a failure to comply with the procedure for review provided by these Rules. There were no objections in writing pursuant to O 66 r 53(1) and the certificate of the Taxing Officer was signed immediately on his giving his decision on the taxation on 12 March 1999. It is the submission for the client that the practitioner cannot come within r 55(1) as the practitioner is not dissatisfied with the certificate of the Taxing Officer "as to any item or part of an item objected to under r 53 of this Order". Hence, it is submitted, there can be no review of the taxation pursuant to the Rules. Further, it is submitted that the effect of s 71 is that there may only be a review by a Judge "as provided and allowed by the Rules", so that the present application for review cannot be brought within s 71.

35 This procedural failure seems to have occurred as a consequence of the peculiar nature of the issue in this case. Before the taxation was conducted the learned Taxing Officer alerted the parties to his view that, in the absence of a determination or a s 59 written agreement, no allowances could be made on taxation. He expressly invited submissions on that issue before the taxation. Having received both written and oral submissions he gave his decision on 12 March 1999 and signed his certificate of taxation on the same day. He expressed the view in effect that the objection procedure would be a waste of time and money in the peculiar circumstances of this case and that, having set out fully his considered decision and his reasons for that decision, he would sign his certificate immediately to allow a review to proceed with delay.

36 As has been indicated, that having occurred, the client now objects that there is a final certificate to which there has been no written objection, so that by O 66 r 55(3) the Certificate is now "final and conclusive as to all matters".

37 Authorities in this jurisdiction and in other jurisdictions where the Rules are in essential similar form, indicate that there are difficulties in the way of the submissions for the client. First, a certificate of a Taxing Officer may be set aside by a Judge where the certificate has been signed before the parties have time to bring in objections to the Taxing Officer under O 66 r 53(1); Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, Rapoff v Daropoulos, unreported; SCt of WA (Nicholson J); Library No 7187; 8 July 1988, In Re Furber [1898] 2 Ch 538 at 539 - 540. While that occurred in this case, it is submitted for the client that this is not a case where the power should be exercised on this basis as the practitioner did not object to the certificate being signed forthwith or seek to have the Taxing Officer defer signing the certificate to allow objections to be brought in. While that might well be a telling submission in other circumstances, it is obvious from the express observations of the Taxing Officer at the time, and repeated in his written reasons for decision, why it was that in this case counsel for the practitioner was deflected from the usual course. In my view it would be unjust not to set aside the certificate in the present case given the unusual course followed by the Taxing Officer with knowledge of both parties. As has been made clear in the authorities, the Court's power in this respect is part of its inherent power with respect to the charges of practitioners.

38 Further, the exercise of the Court's inherent jurisdiction to set aside the certificate of taxation in this case is also justified on an application of the reasoning of Comyn J in Thorne v Thorne [1979] 1 WLR 659 at 664 that:

"... It is open to the Court to set aside a taxation certificate if it is proper to do so."

Indeed the decisions in Australian Coal and Shale Employees' Federation v The Commonwealth, Rapoff v Daropoulos, and In Re Furber may each well be applications of the one underlying general principle, reflected in the passage just quoted from Thorne v Thorne. In this respect Thorne v Thorne was referred to by Ipp J, Pidgeon J concurring, in Mossensons (a firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661A; 2 December 1997 at pp 7 - 9 and acted upon. It appears that Seaman J proceeded on a similar view in Biltoft Holdings Pty Ltd and Anor v Casselan Pty Ltd and Anor, unreported; SCt of WA (Seaman J); Library No 930162 at pp 5 - 7; 24 March 1993, although as his Honour there cautioned (p 6):

"... It is unnecessary in the present case to categorise all the circumstances in which in its inherent jurisdiction a Court might think it proper to set aside the certificate and I, for my part, would not confine them to the categories that are mentioned by Comyn J." (In Thorne v Thorne at 169),

a reservation with which I respectively agree. Indeed Comyn J himself seems to have seen the categories which he identified as examples of situations where the inherent power might be exercised rather than an exhaustive statement of those situations. The categories mentioned by Comyn J were fraud, mistake or breach of natural justice.

39 This inherent jurisdiction is clearly shown on the authorities to exist independently of any statutory jurisdiction. I find nothing in the terms of s 71 which provide reason to conclude that it was intended to be exclusive of the inherent or general jurisdiction of the Court. Indeed, given that the taxation of costs to which it refers is one conducted pursuant to the statutory scheme constituted by ss 65 - 72 of the LP Act, a statutory scheme which I have indicated is both complementary to and in part dependent on the Court's inherent jurisdiction with respect to costs charged by practitioners, it would be surprising indeed were s 71 to be intended to exclude the Court's inherent jurisdiction in this respect. In my view, it should not be so construed.

40 In the present case the summons of the practitioner seeking review is not made pursuant to s 71 of the Act, it is at large. In my view it is adequate to invoke both the statutory review contemplated by s 71 and the inherent jurisdiction of the Court to review a taxation by its Taxing Officer in appropriate circumstances.

41 While a review necessarily calls in question the certificate of the Taxing Officer, in an ordinary case under the Rules the application for review identifies the items or parts of items which are the subject of the certificate of the Taxing Officer and which have been objected to under O 66 r 55(1). The review is confined to those identified items and only in those respects may the certificate be varied on review. The application in this case may be criticised because of its failure to make clear that the application for review was in respect of all items the subject of the certificate, or more realistically that the application was in respect of the whole certificate. It was clear, however, that this was the position in the present case. Indeed, subject to the question of the effect of s 71 to which I have already referred, the written and oral submissions before me for both parties proceeded on the basis that the whole certificate was in question. Thus, while it would have been preferable for the summons to make it clear that on review the practitioner sought the setting aside of the whole of the certificate and did so pursuant to the inherent jurisdiction of the Court, the client has not been embarrassed or disadvantaged in the present case because this was not done. As the inherent jurisdiction of the Court extends to setting aside a certificate of taxation where it is proper to do so, I am persuaded in the present case that this should be the order made, given the fundamental nature of the error of law upon which the learned Taxing Officer approached the taxation in this case.

42 For these reasons I would set aside the certificate of the learned Taxing Officer and remit the taxation to him with a view to his further consideration of it in light of these reasons for decision.

Practitioners' Act 1893

Practitioners Act 1893

Aid Commission Act 1976

Practitioners Costs on Taxation) Act 1987

Solicitors' Act 1729

Solicitors' Act 1870

Pryles & Defteros (A Firm) v Green [1999] WASC 34

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Pryles & Defteros (A Firm) v Green [1999] WASC 34 (21 May 1999)

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Legislation Cited (7)

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