53 On 9 August 2007 the Protective Commissioner wrote to the defendant in terms which included the following:
"With respect, this matter is far from clarified. Despite repeated requests, you have failed to provide itemised accounts and any costs agreements you have entered into with our client. As you know, our client no longer has the capacity to challenge or dispute transactions that she may have entered into or seek any entitlements she may have. It is therefore incumbent upon this office to ensure that our client's rights and protected and that she receives her entitlements. Given your lack of co-operation and assistance to date, the writer will now seek instructions to force the production of our client's files with your office and to make an application to the court for a full and proper accounting."
54 The next letter in evidence before me was almost twelve months later. That was a letter to the defendant dated 17 July 2008 from Makinson and d'Apice, the solicitors for the Protective Commissioner, requiring production of all documents which had been sought in the Commissioner's letter of 2 April 2007 (see paragraph [47] above). The defendant's reply dated 22 July 2008, included the following paragraph:
"We confirm our telephone advice that our instructions from Mrs Allwood are not to further provide the documents to which you refer. We hold instructions that in particular the costs we have rendered are approved and accepted by our client and that such instructions were given prior to the appointment of the Protective Commissioner."
55 On 6 August 2008 Makinson and d'Apice responded, drawing the defendant's attention to s 23A(1) of the Protected Estates Act 1983 which provides that the power of a protected person to deal with his or her estate is suspended when committed to the management of the Protective Commissioner. It was therefore not open for the defendant to rely upon "instructions" from Mrs Allwood to deny the Commissioner access to documents or information which it had requested. The letter continued in the following terms:
"Substantial costs appear to have been charged by your office in relation to the administration of Mrs Allwood's late husband's estate and in relation to the proceedings before the Guardianship Tribunal. Our client wishes to ascertain whether those costs were properly disclosed and incurred in relation to those matters. We note your submission that you hold instructions that the costs were rendered, approved and accepted by Mrs Allwood prior to the appointment of the Protective Commissioner. In the absence of any evidence of any proper disclosure by way of costs agreement and records in relation to correspondence and communications and instructions between yourself and Mrs Allwood our client in not in a position to accept your assertion. In any event, any rights or causes of action attaching to the estate are not extinguished by our client's appointment. Section 24(2)(o) of the Act provides that the Protective Commissioner may bring and defend actions, suits and other proceedings, on behalf of the protected person."
56 On the evidence before me, no further documents or information were provided by the defendant. On 28 November 2008 the present proceedings were commenced. In an affidavit filed on 12 February 2009 the defendant annexed a costs agreement signed by Mrs Allwood in March 2005. This was the first occasion upon which the costs agreement was provided by the defendant, notwithstanding the various requests which had been made over a period of almost two years.
57 With this background I return to the matters relied upon by the defendant in submitting that the Court should not exercise its discretion to order the delivery of a bill of costs.
58 The first matters relied upon relate to the failure of Mrs Allwood to raise an objection or complaint in relation to the bills at the time of payment. It must be remembered that Mrs Allwood at that stage was 99 years old, and had been found to have mild cognitive impairment. The "payment" did not involve any voluntary action on her part, but consisted of the defendant transferring the relevant funds from the trust account which was held on her behalf. In these circumstances I can attach no weight whatsoever to Mrs Allwood's failure to complain about the defendant's fees.
59 The next matters relied upon by the defendant relate to the Protective Commissioner's failure to seek a cost assessment within the period prescribed under s 199. However, as Mr Armfield pointed out, when one examines the timing at which the various events occurred, when the Protective Commissioner first came into a position to seek an assessment under s 199, the prescribed time had already expired in relation to all but the last memorandum. It is not physically possible for a client, or a client's representative, to seek an assessment of costs when he or she has no information as to the amount of those costs or how they have been made up. But this was precisely the Protective Commissioner's situation until he received the defendant's letter dated 21 June 2007 enclosing trust account statements and copies of memoranda of costs, brief and general as these memoranda were. By that time, as Mr Armfield pointed out, the time limit had already expired in relation to three of the memoranda.
60 In these circumstances there is no basis whatsoever for the defendant's criticism of the Protective Commissioner's failure to seek an assessment within the prescribed time limit.
61 Two further matters need to be considered under this head. The first relates to Mr Bolger's submission that the Court should not use its discretionary power to order the provision of a bill of costs in the circumstances where this will involve circumscribing the peremptory requirements of s 199 and regulation 52. In many situations this submission would carry very significant weight, given the discretionary nature of the Court's power. However the situation here is a most unusual one. First, no relevant bills of costs have even been given by the defendant to the client. Mr Bolger acknowledges that the memoranda did not comply with the requirements of regulation 45. As Young J said in Sunman (incorporating part of the citation from para [37] above):
"It must be remembered that the whole purpose of the provisions in Division 5 of Pt11 are to give the person liable to pay the bill sufficient information to decide whether or not he or she will pay the bill or refer it for taxation. Accordingly, the law, either in legislation or by the use of the inherent power of the court, has always required there to be a detailed statement from the solicitor both as to costs and disbursements. The authorities show that unless there is such a detailed statement, what is provided by the solicitor is not to be regarded as a bill of costs within the meaning of the Division. This is so even though some of the cases which have been decided thereby throw considerable hardship on a solicitor in having to set out and prepare a bill years after he or she has done the work; see eg Swane v Marsh, NSW Court of Appeal, 18 October 1978, unreported."