Barristers’ Fee Notes: Sufficiency of Itemisation and Standing of Lay Client to Request an Itemised Bill
Mammoth Investments Pty Ltd v Donaldson  WASCA 144
A recent – 4 November 2022 – decision of the Court of Appeal of the Supreme Court of Western Australia considered germane questions in relation to a fee invoice issued by a barrister (importantly, publication of this case implies no suggestion of misconduct on the part of the barrister concerned, but rather is to inform the practising reader for their professional edification – Ed).
The provisions of ss 252, 292, 294 and 295 of the Legal Profession Act 2008 (WA) were pivotal in the outcome. Analogues of those provisions are contained in ss 300, 332, 334 and 335 of the Legal Profession Act 2007 (Qld) which, relevantly, provide:
- Section 300:
300 Definitions for Pt 3.4
In this part –
Itemised bill means a bill stating, in detail, how the legal costs are made up in a way that would allow legal costs to be assessed under division 7
- Section 332:
332 Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
Note— A bill in the form of a lump sum bill includes a bill other than an itemised bill.
(2) The law practice must comply with the request within 28 days after the date on which the request is made.
- Section 334:
334 Definition for div 7
In this division—
client means a person to whom or for whom legal services are or have been provided.
- Section 335:
335 Application by clients or third party payers for costs assessment
(1) A client may apply for an assessment of the whole or any part of legal costs.
The Court of Appeal of Western Australia wrote (answering “yes” and “no” to the two questions identified immediately below in ):
 This appeal from a decision of the master of this court raises the following two issues:
(a) whether, in circumstances where a lay client has instructed a solicitor and that solicitor has then instructed a barrister to provide legal services for the benefit of that lay client, s 292(1) of the Legal Profession Act 2008 (WA) (Repealed) (LPA) permitted that lay client to request the barrister to give them an itemised bill; and
(b) whether certain invoices issued by a barrister satisfied the definition of ‘itemised bill’ in s 252 of the LPA.
 The respondent is engaged in legal practice on his own account as a barrister. At all relevant times, he was admitted to the legal profession under the LPA or a corresponding law and held a local practising certificate. He was a law practice within the meaning of the LPA.
 The partnership trading as Hotchkin Hanly was, at all relevant times, a partnership consisting only of persons admitted to the legal profession under the LPA. It was consequently a law practice within the meaning of the LPA.
 On about 29 May 2019, Hotchkin Hanly and the respondent entered into a costs agreement pursuant to s 282(1)(c) of the LPA. The purpose of the costs agreement was for the respondent to act as senior counsel for the appellants, who were parties in Supreme Court proceedings CIV 1923 of 2016 (consolidated with CIV 2111 of 2016), being Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v Mammoth Investments Pty Ltd.
 The respondent issued four invoices between 4 September 2019 and 22 December 2019 for legal services. The first of these was dated 4 September 2019. It was expressed to be in respect of work for the period from 13 September 2018 to the date of the invoice. The earliest date on which work was recorded on this invoice was 4 February, presumably 4 February 2019. In any event, it is apparent that this invoice was partly in respect of work that preceded the costs agreement of 29 May 2019. The other invoices were dated 31 October 2019, 2 December 2019 and 22 December 2019.
 The four invoices the respondent issued over the period 4 September 2019 to 22 December 2019 were in broadly the same form. The invoice rendered 31 October 2019 read as follows:
ACCOUNT WITH GRANT DONALDSON
Mammoth — Rural Bank
I enclose my tax invoice in respect of the above matter being:
For the period from 5 September 2019 to 31 October $149,380.00
Being my professional fee of $126,000.00 plus GST and Mr Sippe’s fee of $9,800.00 plus GST.
Being in respect of:
• Advice on expert report — 2 days (September)
• Getting up — day (1 October)
• Getting up — 2 hours (2 October)
• Getting up — day (10 October)
• Getting up and conference — 2 hours (14 October)
• Getting up — day (17 October)
• Getting up and conference — 4 hours (18 October)
• Getting up — day (21 October)
• Getting up — day (22 October)
• Getting up — 6 hours (23 October)
• Getting up and attending court — day (24 October)
• Getting up — day (29 October)
• Getting up — day (30 October)
• Getting up — day (31 October)
This is a total of 11 days and 16 further hours.
In addition, I have paid the account of Mr Sippe, whose work was indispensable to the preparation of the pleadings. I attach a copy of his account. I have included this as a disbursement in my account.
Thank you for your instructions in this matter.
 The invoice was covered by a tax invoice in the following terms:
First Floor, BGC Centre
28 The Esplanade
PERTH WA 6000
Attention: Michael Mistilas
Professional Fees: Mammoth — Rural Bank
GST AMOUNT: $12,600.00
TAX TOTAL: $12,600.00
JAMES SIPPE FEES: $10,780.00
Total Including GST: $149,380.00
Interest is payable on these legal costs if the costs are unpaid 30 days or more after this bill is given to you. I will not charge interest until I have provided written notice to your firm stating that interest will be charged if the bill is not paid. If I provide such notice interest is payable from the 30 days after the date of this bill until payment; at the rate prescribed from time to time for the purposes of s 273(4) of the Legal Profession Act 2008 (WA).
 Together, the four invoices totalled just over $800,000.
 By originating summons filed on 14 August 2020, the appellants sought orders that included the following:
1. Pursuant to section 16 of the Supreme Court Act 1935 (WA), and further and alternatively, the inherent jurisdiction of the Supreme Court, or otherwise, within 21 days of the date of this order the defendant must provide to the plaintiffs itemised bills for the following invoices issued by the defendant to Hotchkin Hanly:
1.1. invoice number 1797 dated 4 September 2019;
1.2. invoice number 1804 dated 31 October 2019;
1.3. invoice number 1807 dated 2 December 2019; and
1.4. invoice number 1811 dated 22 December 2019,
in the manner and form they are required to be provided, in response to a request made for them, pursuant to section 292 of the Legal Profession Act 2008 (WA) (Act), including so that they specify in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8 of the Act.
 On 2 June 2021, the master found that the appellants did not have standing to bring the application and determined to dismiss it, having determined that s 292 of the LPA gave the appellants no right to apply for itemised bills for the invoices. The gravamen of the reasoning of the master was:
The scheme of the LPA reserves to the solicitors engaging a barrister the right to seek an assessment of the barrister’s costs. It may be that the solicitors would take that step at the behest of the client. But the legislation does not, by its terms, provide to the client a means of directly challenging the barrister’s costs.
 The master further held that, while it was not necessary to decide, the bills produced by the barrister were in any event sufficient to meet the requirements of itemised bills. Had the appellants had the right under s 292 to make the request, he would not have ordered the provision of any further itemised bill.
 The appellants challenge both conclusions on this appeal. Ground 1 challenges the conclusion in  and ground 2 challenges the conclusion in  above.
Did the LPA permit the appellants to apply to a taxing officer for an assessment of the whole or any part of the respondent barrister’s bill for legal costs? (Ground 1)
 Section 3 of the LPA defined ‘legal costs’ to mean ‘amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest’.
 Section 292, pursuant to which the appellants sought the itemised bills, was in div 7 of pt 10, headed ‘Billing’. Section 292(1) provided:
If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
 The question of construction raised on the appeal is directed to whether the appellants are a ‘person who is entitled to apply for an assessment of legal costs to which the bill relates’ as contemplated by s 292. Sections 295 to 297 identify the persons who are entitled to apply for an assessment of legal costs. Four classes of such persons are identified, namely ‘clients’ and third party payers (s 295), law practices which retain other law practices to act on behalf of a client (s 296), and the law practice giving the bill (s 297).
 Whether the appellants are so entitled in the present case is governed by s 295, which appeared in div 8 of pt 10, headed ‘Costs Assessment’. Section 295 provided, in part:
(2) A client may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs.
(3) A third party payer may apply to a taxing officer for an assessment of the whole or any part of a bill for legal costs payable by the third party payer.
(4) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(5) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment.
(6) An application by a client or third party payer under this section must be made within 12 months after—
(a) the bill was given in accordance with Division 7 or the request for payment was made to the client or third party payer; or
(b) the costs were paid if neither a bill was given nor a request was made.
(7) However, an application that is made out of time, otherwise than by—
(a) a sophisticated client; or
(b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,
may be dealt with by the taxing officer if the Supreme Court, on application by the taxing officer or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12 month period.
(8) If the third party payer is a non-associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.
 Section 294 defined ‘client’ for the purposes of div 8 of pt 10 to mean ‘a person to whom or for whom legal services are or have been provided’.
 Part 10 of the LPA was, at its core, consumer protection legislation with the evident object of protecting the rights and interests of the consumers of legal services in relation to the costs of those services.18 The relationship between barrister and lay client was not defined by whether there was a costs agreement between them pursuant to s 282(1)(b). An ordinary reading of the words ‘to whom or for whom legal services are provided’ in the definition provided by s 294 suggests strongly that a lay client was a person ‘for whom’ a barrister provided legal services. In providing the lay client with a direct mechanism to have the costs assessed, that reading serves the manifest consumer protection purpose of the Part, whichever paragraph of s 282(1) governed the costs agreement, and where there was no costs agreement. It also reflects the evidence purpose of the ‘person for whom’ limb, which is to cater for the tripartite situation as explained in  to  above. That reading also advances the purpose of the broad definition of client, with its ‘person for whom’ limb, as identified in the Explanatory Memorandum for the Bill.
 The respondent relied on various surrounding provisions as contextual indicators against the broader reading of ‘client’. These charted a possible means of accommodating the narrower interpretation of ‘client’ by reference to the statutory character of the costs agreement. However, none of the sections relied on, individually or together, provide a persuasive reason for concluding that Parliament intended to depart from the natural and ordinary meaning of the words in s 294.
 Further, as explained above, the respondent’s construction means that the ‘person for whom’ limb of the definition of client would have had no work to do.
 Moreover, the respondent’s reading of the various sections required the defined terms to be read with different, exclusive meanings in different situations. In addition, the respondent’s necessary reading of s 296 placed a further burden on the lay client that was inconsistent with the consumer protection purpose of the Part.
 In our view, the definition of ‘client’ in s 294 permitted a lay client to apply for an assessment of a barrister’s costs under s 295(2), and consequently to request an itemised bill under s 292(1), notwithstanding the existence of a costs agreement between the solicitor and barrister under s 282(1)(c). We would allow ground 1 of the appeal.
Did invoices issued by the respondent satisfy the definition of ‘itemised bill’ in s 252 of the LPA? (Ground 2)
 The appellants’ primary complaint is that in each of the four bills issued by the respondent, there appears in respect of a whole day, for many days in each case, nothing more than a single line item taking the form:
Getting up — day ([date])
 The invoices also contain similar line items in respect of blocks of several hours at a time.
 The question is whether these items of ‘getting up’ allowed each invoice to meet the definition of ‘itemised bill’ in s 252, by being ‘a bill that specifies in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8’. In an assessment under div 8, the taxing officer may have regard to the matters in s 301(2) and must consider the mandatory considerations set out in s 301(1):
(a) whether or not it was reasonable to carry out the work to which the legal costs relate; and
(b) whether or not the work was carried out in a reasonable manner; and
(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 302 or 303 applies to any disputed costs.
 To fall within the definition it is not enough that a bill is able to be assessed under div 8. How the costs are made up must be specified in detail in a way that would allow them to be assessed. Thus, the focus is on how the legal costs are made up: is the make-up of the legal costs specified in detail in a way that allows those costs to be assessed? The two aspects of specificity — ‘specifies in detail’ — required by the definition should be noticed. To require, as the definition does, that something is ‘specified in detail’, is to require more than that it is ‘specified’.
 After referring to the decision of the Victorian Court of Appeal in Piper Alderman v Smoel  VSCA 42 considered further below, the master said (Primary reasons ):
As noted by counsel for the defendant, what is decisive in this case is that the defendant, as barrister, was rendering accounts to a solicitor for work in which the solicitor was intimately involved. The solicitor is a sophisticated client. Furthermore, it was not entirely clear from the plaintiffs’ counsel just what would have satisfied his interpretation of the phrase ‘itemised bill’. He acknowledged it would not have involved the defendant producing time sheets. Just what more needed to be provided remained unclear. In my view, the itemised bills were sufficient …
 The appellants’ challenge to this conclusion can be expressed in relatively straightforward terms. First, they submitted that the concept of an ‘itemised bill’ is, at its essence, a bill with sufficient detail for the recipient to assess what work was done and whether the amount charged for that work was reasonable.
 Secondly, the appellants complained that the master failed to take into account that over 2/3 of the amount charged across all invoices, being some 52 entries, comprising a total of 36 days and 70 hours, were populated by the words ‘getting up’ only. That phrase does not reveal what work was done.
 A solicitor disclaiming sufficient knowledge of how many hours and days described only as ‘getting up’ were spent may not be decisive, but it will be highly relevant to the question of sufficiency of itemisation in the bill.
 More fundamentally, the respondent emphasised that the question was whether, as contemplated by s 252, ‘the bill specifies in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8’. To this end, he pointed to O 66 r 42(1) of the Rules of the Supreme Court 1971 (WA) which provides:
42. Bills of costs, content of
(1) A bill of costs for taxation shall be prepared so as to show clearly—
(a) items consecutively numbered, together with a reference to the item in the scale to which the item in the bill relates; and
(b) dates of items (specifying years, months and days); and
(c) where necessary, particulars of the services charged for; and
(d) disbursements; and
(e) professional charges.
 As explained above, inclusion of the item ‘getting up’ in an invoice, without particularisation, may in some cases satisfy the definition of ‘itemised bill’ for the purposes of s 252 of the LPA. However, in the present case, insofar as the respondent’s four invoices contained the 52 entries referred to above, comprising a total of 36 days and 70 hours, populated by the words ‘getting up’ only, the invoices did not show clearly the necessary particulars of the services charged. How the costs for those entries were made up was not specified in detail. The extent of deployment of the item ‘getting up’, absent any particulars, rendered the bills opaque as to the work done by the respondent, such that they did not –(Smoel at ):
… include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court.
 To deploy the language in s 252 of the LPA, they did not ‘specif[y] in detail how the legal costs are made up in a way that would allow them to be assessed under Division 8’.
 In reaching this conclusion, we have had particular regard to the mandatory considerations in s 301, O 66 r 42(1) and r 44 and the practicalities imposed by Practice Directions 4.7.3 and 4.7.4. Against that framework, we have considered the number of days and hours in respect of which the item ‘getting up’ was deployed in the invoices, the period of time to which these invoices related, the prevalence of the items ‘getting up’ as a proportion of the total time billed in the invoices and the apparent inability of the solicitors to make a judgment about the reasonableness of the hours.