Wang v Vaughan

EX TEMPORE Judgment 1CAMPBELL J: By an amended summons filed on his behalf when he was legally represented, the plaintiff, who I will refer to as Mr Wang, sought an order under s 350(5) of the Legal Profession Act 2004 (NSW) extending the time fixed by that section for the client of a legal practice to make an application for a costs assessment in respect of the costs charged by the legal practice. 2Mr Wang retained the legal practice, of which the second defendant is the principal, in or about December 2010-January 2011 to represent him in proceedings then pending in the Federal Magistrate's court, as it then was. 3When the solicitor employed by the firm went to court on 16 February 2011, the case was dismissed because it was commenced by Mr Wang out of time. It is unnecessary to go further into the detail of those matters. 4The solicitors charged Mr Wang $4,000 for the performance of their professional services in relation to the matter under a written fee agreement. In an affidavit sworn on 25 September 2012 and filed on 26 September 2012, Mr Wang explains that he was unhappy with the performance of the legal services provided by the solicitor, and by letter dated 27th April 2011 he asked that the solicitor refund if not the whole $4,000, then most of it. Mr Wang says he did not receive a reply to that letter. When he had heard nothing by July, he made a complaint about the solicitors to the Legal Services Commissioner which took some months to resolve. 5By letter dated 8 December, the Legal Services Commissioner rejected Mr Wang's complaint, giving reasons why he thought it had not been made good. I infer from Mr Wang's affidavit that he was under a misapprehension about the steps he should be taking in relation to his dissatisfaction with the legal practice's charges, and that he accordingly did not appreciate that he was running out of time to make an application for a bill to be assessed. I accept that it is sometimes hard for a person in Mr Wang's position, who has not much money and for whom English is not a first language, to get legal help. I also appreciate that even though Mr Wang has been in Australia for quite a long time migrants sometimes have more difficulty understanding the intricacies of our legal system than other ordinary members of the community. It is understandable therefore in these circumstances that Mr Wang did not appreciate that time was running against him to have the solicitors justify their charges in an assessment process. 6In February 2012, Mr Wang consulted a solicitor with an organisation called The Aged-Care Rights Service Incorporated. They may have misapprehended the need at that stage to move on the costs issue with celerity because according to Mr Wang's evidence, which I accept in this regard, all they did on his behalf was to write a letter of complaint to the solicitors on 26 March 2012. Probably by then Mr Wang was already out of time. In any event, the solicitor lodged an application for assessment in the registry of this Court on 27 April 2012, but it was not until 10 September 2012 that the manager of the costs assessment unit realised that Mr Wang's application was out of time. Until Mr Wang received that letter through his solicitors, I infer that neither he nor the solicitor appreciated the difficulty. 7Mr Wang's ignorance is entirely understandable. The ignorance of the solicitor is harder to understand, but the fact that the solicitor made that mistake, it seems to me, provides further explanation of why Mr Wang was late in lodging his application for an assessment. I should say that it is also unfortunate that it took five months for the Court to appreciate, through the relevant official, that the application was out of time. However, this is not a criticism. The demands on the costs assessment unit are very great and the resources provided for the discharge of their functions reasonably small. There has been a problem with the statutory system for costs assessment which the Chief Justice has addressed so far as it is within his power, by streamlining the procedures and proposing simplified modes of assessment especially in small cases. 8The summons came before me for hearing on 22 March 2013. On that day the parties announced that they had resolved their differences and that their agreement would be given effect to by entry into a deed containing their mutual promises. On that basis, I dismissed the proceedings with no order as to costs, reserving liberty to each party to apply in the event that the deed was not executed by 22 April 2013. 9Pursuant to that liberty, the parties approached the registrar on 23 April 2013 and the matter was listed before me on 20 May 2013. Mr Wang had filed a motion with an affidavit seeking relief, which I formed the view was inappropriate to the situation, which was apparently that the settlement had broken down. I made directions for the second defendant to file a motion and supporting affidavit seeking an order for specific enforcement of the compromise by 31 May 2013. I gave Mr Wang leave to file evidence in response, and listed the matter for hearing before me today at 2:00pm. In the remarks I made at the commencement of today's hearing, I outlined some recent developments, which I will not repeat. In short, the defendant thought better of seeking to enforce the agreement and I infer from what Mr Dlakic has said, the defendant accepts that there was a failure to achieve a true agreement between the parties. 10Mr Wang, with my permission, filed a notice of motion on 15 July 2013 seeking to enforce what he regarded as the settlement together with an affidavit supporting that motion and he seeks an order specifically enforcing what he says is the compromise under s 73 Civil Procedure Act 2004 (NSW). I have read his affidavit. I need to record that as English is not Mr Wang's first language, his written and spoken English are difficult for me to understand. I mean no offence by that. However, that difficulty has been overcome because Mr Wang is assisted at court today, as he was on 20 May 2013 and on 22 March, by an accredited interpreter. It has been of great assistance to the Court and to Mr Wang that the same person has been able to appear on each occasion to interpret. 11Despite the difficulty I had in understanding the written word, Mr Wang carefully and fully explained to me, through the interpreter, what he regarded as the agreement that had been arrived at in March. It is obvious to me from considering the deed, that had been drafted by Mr Dlakic, which Mr Wang has put before me as part of his affidavit, on the one hand, and from considering Mr Wang's evidence about his expectations on the other, that in fact no agreement was arrived at by the parties in March. A reasonable person considering each party's version of what was said would come to the conclusion that the parties had in fact not reached agreement. Applying the objective legal test, I am of the view that no agreement was arrived at to settle the dispute that was brought before the Court for resolution by Mr Wang's amended summons. 12Accordingly, the power that the Court has under s 73 Civil Procedure Act is not engaged. That section confers jurisdiction on a court to determine any question in dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised or settled between them. The Court has power to make such orders as it considers appropriate to give effect to its determination. My determination, on the basis of the evidence before me today, is that the parties had not compromised or settled the proceedings. Accordingly, no question arises about what terms they may have tried to agree upon. 13Mr Dlakic has indicated that he has no objection to my orders made on 22 March 2013 being set aside. I also understand him to say that he no longer opposes the relief sought by Mr Wang in that summons and I commend him for that sensible approach. I should add however, that for the reasons I have already expressed this afternoon, that even had Mr Dlakic maintained his opposition to that relief, I have been persuaded by Mr Wang that I should grant it for the reasons given above based upon the evidence he advances in his affidavit of September last year. 14Accordingly, I make the following orders: (1)The orders I pronounced on 22 March 2013 are set aside and the proceedings are restored to be heard and dealt with instanter. (2)I dismiss Mr Wang's notice of motion seeking relief under s73 Civil Procedure Act 2005. (3)The time for Mr Wang to apply for a costs assessment is extended under s 350(5) Legal Profession Act 2004 to 27 April 2012. (4)I order the second defendant to pay such costs as Mr Wang may be entitled to as a self represented person in respect of these proceedings after they have been agreed or assessed. (5)I recommend to the manager costs assessments that Mr Wang's application for assessment be processed with all due despatch. (6)I direct that the registrar provide the manager with a copy of today's judgment.