His Honour Judge Michael Rackemann delivered the below paper at the Bundaberg District Law Association’s Conference on Lady Elliot Island on 11 November 2022. The article has been re-printed in Hearsay with his Honour’s permission.
Introduction
The topic of this paper suggests perhaps, that there is a well-defined line between conduct that will infuriate a judge and that which will not. As we all know however, judges, like any other group of human beings, are not homogonous or completely predictable. They exhibit varying degrees of patience and tolerance, have various likes and dislikes and their own idiosyncrasies. There are some things which particularly “push the buttons” of some judges, but do not ruffle the demeanour of others.
It is not possible to provide a complete catalogue of conduct which will, or might, have the result of infuriating a judge. This paper however, aims to provide some examples. The examples are drawn from actual experiences. As they say in the movies, they are based on true stories. In preparing this paper I asked fellow judges of the District Court to provide some examples of conduct which they had found infuriating. They were only too happy to oblige. One thanked me for initiating and facilitating the discussion, suggesting that it had been “one of our better judicial well- being sessions”.
I should, at the outset, acknowledge two things. First, judges are not perfect and I am sure that there are things that judges do that infuriate practitioners. In fact, having practised as a barrister, I know that there are. This paper is not intended to be a ‘holier than thou’ rant at the legal profession. Secondly, the paper’s focus on the things that infuriate should not be taken to be a lack of appreciation for the great assistance that the judges obtain from the members of the legal profession that appear before them. The purpose of the paper is to assist, by pointing out things to avoid.
Know your judge
I have already observed that judges are not all alike. One of the most important rules of advocacy is to know your judge. That is, to have regard to what you know from experience, or what you can glean from enquiry from others, about the judge who is to hear your matter and, in particular, what the judge expects of practitioners appearing before him/her and whether there is anything else of which you should be aware. Sometimes a judge will have particular ways of dealing with matters or a particular preference in relation to a matter of practice, procedure or conduct in the courtroom. For example there was once a Supreme Court judge who required silence after a practitioner formally read material to be relied on. That was to enable the judge to read the material for himself, without its effect being summarised by the practitioner.
Sometimes the judge will have a condition which you should to be sensitive to. For example, there was once a District Court judge who had a strong addiction to cigarettes, such that he would become agitated if you did not ask “would this be a convenient time?” for a brief adjournment after an hour of sitting time. There was another who would be prone to agitation close to lunchtime, when his blood sugar level was affected. There was another whose painful back condition would affect the judicial temperament late in the day, after hours of sitting time. These kinds of things will be well enough known if you ask experienced practitioners. Doing due diligence will assist you to avoid doing something that infuriates the particular judge.
Inappropriate unilateral communication
You do not need to appear before a judge in order to infuriate one. An increasingly popular way of doing so is by sending inappropriate unilateral communications to the judge or the judge’s associate. This is a matter dealt with in sections 22.5 to 22.7 of the Australian Solicitors’ Conduct Rules (ASCR). In essence, unilateral communication (not invited by the court) concerning any matter of substance in connection with a proceeding, should not occur without the prior consent of the opponent. The most common ways of breaching that rule are by ignoring it or by erroneously thinking that it is satisfied by copying the opponent into an unauthorised unilateral communication. The rule requires prior consent, not contemporaneous notice.
Mistreating or misappropriating the judge’s associate
Another way of infuriating a judge, without appearing before the judge, is to mistreat the judge’s associate. Judges are usually quite protective of their associates, as they should be. Any discourtesy, rudeness or verbal abuse of the judge’s associate will, of course, incur the wrath of the judge. An emerging (and most unwelcome) trend is to treat the judge’s associate as a de facto extension of the practitioner’s staff. This can be manifest in a number of different ways. One is by sending emails to the associate, well outside of business hours, seeking, or worse demanding, responses before the next business day. Leaving to one side any problem with the content of the email, this presumes that the practitioner can, in effect, require the judge’s associate to work out of hours, at the practitioner’s direction.
Another example is emailing, without request from the court or judge,1 bulky material, sometimes including colour copies of plans or other documents, to the judge’s associate in the expectation that the associate will copy and collate them to provide to the judge. This not only presumes upon the associate but also upon the judge, who may require the associate’s assistance otherwise. There also appears to be a misapprehension by some that emailing material to a judge’s associate has the same effect as filing it. The associate is not your filing clerk.
Late delivery of material
Late delivery of outlines of argument or other documents forwarded in advance of a hearing is also irritating. The reason for requiring, directing or requesting (as the case may be) such material in advance is to provide the judge with sufficient time for pre- reading. Late delivery not only shows disrespect for the timeline, but presumes upon the judge that he/she will either find time, presumably out of hours, to do the pre- reading to suit your convenience (as a consequence of your tardiness) or suffer their preparation for the hearing being adversely affected by not completing the pre- reading.
Disobeying court orders or directions
Where a proceeding has been the subject of orders or directions, including by way of case management, it is infuriating for a judge to see, on the next occasion the matter is before the court, that the previous orders or directions have been flouted, without the matter having been brought back before the court to seek excusal, together with such further orders as may be appropriate in the circumstances. To fail to comply with a court order or direction, without seeking excusal is tantamount to assuming the power to grant yourself an extension of, or excusal from, compliance with the order. Agreeing with your opponent that there ought be an extension of time does not excuse the non-compliance or effect an extension. That is a matter for the court. Particularly where a proceeding is subject to case management, the judge might not be prepared to accept the timetable that the parties agree between themselves.
It should be remembered that a failure to comply with an order of the court, without lawful excuse, is a contempt of court.2 Even where the order is directed to your client, the contempt may, depending on the circumstances, be one to which you, as the legal practitioner responsible for the conduct of the litigation on behalf of the client, is a party.
Punctuality and failing to appear
The most obvious way of infuriating a judge before actually appearing is by being late or not turning up at all. This most commonly occurs in relation to callovers and mentions/reviews. One way I have dealt with that is to direct the bailiff to telephone the practitioner (usually a solicitor) and put them on loud speaker in the courtroom. I then introduce myself, tell them that the court is sitting, that the matter is being dealt with and that everything they say is being recorded. I proceed to ask for an explanation as to why they have not appeared. That is usually the last time they fail to appear before me.
You should always allow a generous time to get to court on time, allowing for some unforeseen delay. On rare occasions however, there will be a genuine reason why you have been unavoidably delayed. In such circumstances an immediate apology and frank explanation will usually suffice. Unfortunately however, that is not always the case. Sometimes a practitioner appears late due to tardiness, and offers little, if any, explanation or apology. That is not only disrespectful to the judge and indeed to the court, but also to everyone else involved in the hearing, including the opponent.
A particularly infuriating circumstance of a practitioner not appearing on time, or at all, is when they have double-booked themselves and not made an arrangement for another to step in to take over the matter. The Barrister’s Conduct Rules (BCR)3 prohibits a barrister from accepting a second brief where, in the normal course of events, the barrister would not be able to appear on it. Sadly, that is a rule which is not always observed. There are, in the criminal jurisdiction, circumstances in which a prior request by the lawyers, through the list manager, for the allocation of sentences for a particular day in the one court to take account of the fact that some counsel are in more than one matter is accommodated. There are however, too many instances of unacceptable double-booking. For example, I recall one instance where I was simply informed, in court, on the morning of a criminal sittings in Southport, that a practitioner could not appear on the matter listed before me until after lunch, because that practitioner was instead appearing in the Beenleigh Magistrates Court that morning. That showed a high level of disrespect. It should hardly need to be said that a judge should not be expected to sit to suit the diary commitments of a legal practitioner, nor to maximise the revenue that the practitioner can generate in the day. Further, the efficient conduct of the court’s work is not to be compromised in this way.
Suitable and respectful attire
When you appear in court, do so appropriately and respectfully attired. Barristers should be robed or not, depending upon what is appropriate. The courts publish a robing policy on the website.4 That is subject to the practice of the particular judge. Any doubt can be resolved by contacting the judge’s associate in advance. Your appearance should be neat and respectful, whether you are robed or not. For example, a male dressed in a suit, but with his top button undone and tie half undone signifies a lack of respect. The judges show respect for the institution and for their office by dressing appropriately and expect practitioners to do likewise.
Proper preparation
It is infuriating to encounter a practitioner who is unable to provide the basic level of assistance that the judge is entitled to expect. This may be due to an obvious lack of knowledge or preparation or both. An example is a practitioner for an applicant who cannot identify all of the following:
what (the relief) is being sought;
the statute, rule or other source of the court’s power to do as it is asked;
the things of which the court must be satisfied in order to make the order/s sought;
the leading authority or authorities which establish any relevant principle the court ought apply or take into account;
the affidavit material (identifying the relevant parts) and/or evidence otherwise which establishes the relevant facts, and
the reasons the court should find as requested and/or exercise any discretion in the way sought.
It is also infuriating to find that the person appearing has not brought the relevant statute/rules/copies of authorities with them, for their own reference, as well as copies for the judge (offers to hand up the practitioner’s iPad do not count and, at least in my case, are only likely to further infuriate). Worse still are the occasions where it becomes clear that the practitioner has not even read the relevant provisions/authorities/material.
Proof of facts
Asking the court to consider relief without properly attending to proof of the facts upon which you rely can also be irritating. This is something which often affects pre- trial applications in the criminal jurisdiction and certain civil applications, including those for substituted service. It was the subject of my paper at last year’s conference.5 Trying to overcome this defect by proving something in an inadmissible way simply adds to the irritation. Asserting facts in submissions does not prove them. It is not only wrong, but irritating as well, because it undermines the judge’s confidence in what the submissions otherwise say about the relevant “facts”, without cross- checking everything with the affidavit material. Attempting to solve the problem by “handing up” documents does not assist. Affidavits can be filed and read (by leave if necessary). Some documents can be tendered as exhibits. Witnesses can give testimony. Facts can be formally admitted. Whilst a copy of an authority might be “handed up”, one does not prove facts by “handing up” things. A further difficulty is that some practitioners cannot explain the relevance of the affidavit material or exhibits they rely on.
Where an ex parte application (e.g. for substituted service) is requested to be determined on the papers, but is supported by inadequate affidavit material, the judge is left with the option of dismissing the application or going to the trouble of asking the solicitor to appear, so that the deficiency can be explained and the application adjourned to enable the defect to be cured. It is disappointing to be put in that position when the affidavit material could have been formulated in an appropriate way in the first instance. I have usually adopted the second option. I have done so in order to save the costs of a fresh application. It is irksome that my preparedness to give the solicitors the opportunity to cure the defect, rather than dismiss the application, is rarely met by apology and gratitude. I suspect most just wish I had overlooked the deficiency.
Document management – swamping the judge
Document management is another area prone to infuriate. Rule 435 of the Uniform Civil Procedure Rules 1999 requires that, where an exhibit to an affidavit is comprised of a group of documents or there is more than one documentary exhibit to an affidavit, the documents are to be prepared in a way that will facilitate the court’s efficient and expeditious use of them. That is an approach that you should apply not just to exhibits to affidavits, but to all bulky documents or masses of documents, of any significant length, that you intend to put before the court in any way.
The first step is to sequentially paginate the document/s from the very first page to the very last page, inclusive of any schedules or appendices and provide an index.6 Otherwise everybody, including the judge, will become frustrated in trying to fossick through the document in order to find the particular page to which someone is referring at a particular point in time. Whilst one would imagine that pagination is a simple skill to master, I have come to realise in my time on the bench, including in my time on the Planning and Environment Court, where practitioners are frequently reminded of the need for correct pagination in that document heavy jurisdiction, that it is a skill that eludes some. Some do not paginate at all. Some only paginate the judge’s copy or the judge’s copy and their own. That is unhelpful because the witness and the opponent will still be left behind, trying to find the relevant page and no one will be able to progress until everyone is on the same page. Others stop paginating after the substantive text, leaving annexures and appendices unpaginated.
Another basic step is to make sure that all copies are of every page of the document/s. The problem of having copied only every second page of a document, the original of which is two-sided, still raises its ugly head from time to time.
If a failure to paginate a single lengthy document or bundle of documents can cause justifiable irritation, the failure of practitioners to exercise proper judgment about the extent of documentation necessary to be put into evidence can cause judicial meltdown. Recently one of my fellow judges was confronted with an agreement between the parties to tender, on the first day of a hearing, over 1,000 documents. Whilst I have no knowledge of the specifics of that matter, one must immediately question how many of those documents could possibly be influential to the final outcome of the case. Judges are not there to receive every document that has ever been produced in relation to a matter. They are there to determine the real issues. They rely on the exercise of professional skill and judgment, by the legal practitioners, to focus their cases on what is necessary for that purpose. Judicial “pushback” should come as no surprise when parties bury the judge in a mountain of documents where it is not absolutely necessary to do so. It is also poor advocacy. Comprehension is a prerequisite to persuasion. It is difficult to see how burdening a judge with mountains of documents is conducive to having the judge comprehend your case, so as to be persuaded of it.
Mouthpieces
Whilst legal practitioners have a duty to their client, they have a higher duty to the court. A judge is likely to become infuriated when a legal practitioner acts simply as the mouthpiece of their client, contrary to r 41 of the BCR and r 17 of the ASCR. The practitioner’s role is not to run every point the client wishes, no matter how meritless. Rather, the role is to make forensic judgments, in an independent way, so as to confine any hearing to the real issues, whilst presenting the client’s case as quickly and simply as may be consistent with its robust advancement. The practitioner should also draw the court’s attention to any persuasive authority which is against the client’s case.7 Because the lawyer who acts as the client’s mouthpiece runs their arguments in an unfiltered way, those arguments are prone to be variously irrelevant, unsupportable on the facts or at law or even positively misleading or otherwise improper. At the very least they tend to muddy the water, rather than clarify the issues and to elongate, rather than expedite, the consideration of the real issues.
Frankness
Any conduct of a misleading or deceptive nature will not only infuriate, but is apt to result in a referral to the Legal Services Commission. It is important that you are not only truthful with the judge, but that you do not mislead, including by withholding something which renders your communication misleading. Frankness is, of course, particularly important in ex parte applications where there must be disclosure of legal or factual matters which would support an argument against granting the relief sought, or support placing limitations on the relief.8 Trust is the most valuable commodity a legal practitioner has. You do not want to be a practitioner whose honesty and frankness is in doubt.
Etiquette
Non observance of court etiquette can also infuriate. These may be thought to be small things, but none is unimportant and it is easy to do the right thing. By not following etiquette you show that you are either ignorant of what to do or sufficiently ambivalent about the dignity of the court to care. Neither is likely to be welcome. Examples of what not to do include:
positioning yourself at the wrong end of the bar table;
standing when it is not your turn to speak. That includes when your opponent has stood to make an objection and whenever the judge is speaking to someone else;
speaking when a witness is being sworn;
talking over a witness – this is rude, makes it difficult for people to understand what is being said and affects the transcript;
talking over the judge – same problem as with talking over the witness but adds a layer of insolence;
saying what “we” submit if you do not have a leader or are not leading another barrister;
telling the judge what you “think” or what your “opinion” is rather than what you “submit”9;
making audible informal comments/objections, including about a witness or your opponent (you may ask the judge for permission to approach your opponent);
leaving your place, without permission, to speak to your opponent or for any other reason;
looking at and/or addressing your opponent, rather than the judge, when making your submissions;
using “slang” expressions in addressing a judge – a barrister recently responded “my bad” to a judge pointing out a pleading deficiency;
not thanking the judge if the judge has sat extended hours in order to accommodate a request or to finish a witness or even the entirety of a hearing;
leaving the judge with an empty bar table without first being excused (by leaving the bar table once your matter is finished when those appearing in the next matter are not yet ready to take your place and the judge has not excused you);
addressing the judge as “you” instead of “your Honour”, and
chewing gum or eating in court.
Submissions
Judges can be irritated by submissions when:
outlines are delivered late – for the reasons discussed earlier;
outlines exceed any limitation on length;
textbooks are relied on for propositions of law, without checking the cases relied upon by the authors for the relevant proposition;
the effect of the evidence is mis-stated;
important evidence or relevant law, particularly that contrary to your case, is ignored rather than confronted;
reliance is placed on provisions, authorities, exhibits or anything else the advocate has evidently not read;
they are, or include, things for the benefit of the client’s satisfaction, not focused on the real issues in the case – for the reasons discussed earlier, or
they are either exaggerated or overly insistent. For example, in a case where it is open to a judge to make different findings of fact and/or to exercise a discretion in different ways, it is both irritating to the judge and poor advocacy to tell the judge what he/she “must” find lest he/she fall into error. If you effectively dare the judge to find against your client you risk the challenge being accepted.
Time estimates
The time estimates by legal practitioners determine, or at least influence, the time allocated to hearing matters in the various lists. Whilst it is not possible to estimate the length of hearing time with absolute precision, the efficiency of the court depends upon the estimates being reasonable approximations. It is infuriating for a judge to discover, part way into a hearing, that the time estimate (and hence the time allocated for the hearing) is grossly inadequate such that it could never have been a properly considered approximation.
In the case of a civil application a gross underestimate might mean that the matter should have been put on the list for civil hearings rather than civil applications. In the civil or planning and environment jurisdictions it means that the matter might be part heard, disrupting the hearing and compromising the court’s calendar for future sittings. In the criminal jurisdiction it might imperil a trial being completed within the allocated time for a circuit or the time for which the jury panel was otherwise required. There might be consequences for trials set down to follow it.
Time estimates should not be gut reactions. They should be genuine estimates, after an earnest consideration of the time likely to be required for each component of the hearing, including the time for each witness. In the case of a criminal trial the estimate ought include time for jury deliberation.
Disputation without substantial purpose or value
High on my personal “hit parade” of things that infuriate is needless disputation with no little agitation, but no clear purpose or benefit for the parties. I have encountered this most frequently when hearing civil applications. The first indication is a file, usually in multiple parts, sitting about 30cm or more high on the bench. The matter will often have commenced some years ago, following which there will have been a number of interlocutory fights about pleadings, disclosure and the like. It will be evident that the costs built up are already approaching, if not have already exceeded, the amount in dispute, thereby rendering the litigation uneconomic. In that context the application that falls for me to consider will usually be yet another procedural fight, the resolution of which will probably just be the precursor to yet another.
It is apparent, in such cases, that great time, energy and cost has been committed to various preliminary fights, without much thought to whether it is worthwhile having them. It is not necessary to litigate every pre-trial disagreement. It is because of cases such as these that I often have the civil trial calendar with me when I sit in civil applications. When dealing with such matters I often take ten deep breaths (to recover my composure) and then ask why I ought not dispense with (or truncate) further pre- trial steps and immediately set the matter down for trial.
Model litigants
Those who advise and act for the Crown or for a government body, which ought behave as a model litigant, should be particularly conscious of their client’s position when commencing or pursuing litigation. I cannot recall being more infuriated than during the hearing of an originating application brought by a local government for declarations and orders against an elderly retired couple who had purchased a property with the intention of both residing there and earning an income from a certain activity. The local government had told them, prior to purchase, that the activity was permitted on the land. After they had purchased, the council informed them that, in fact, they needed an approval, which they duly obtained. The council then instituted proceedings for declarations and other orders to the effect that the activity required a different approval, which was unlikely to be granted.
There was no suggestion that the activity was causing any adverse impacts or generating any complaint. The retired couple had always been open with the local government, had acted in accordance with its advice and were doing no harm. There was nothing before the local government that required it to address the issue in relation to the retired couple’s property. Counsel for the local government ultimately conceded that the proceeding was brought in order for his client to get clarity on the proper construction of part of its planning scheme (a matter about which it was otherwise interested). I was concerned (to put it mildly) that a retired couple, who had done all they could to ensure that they purchased a property with the appropriate use rights, were being dragged through a court process by a local government not because of a genuine concern about the activity on their property, but rather because their circumstance was deemed, by the local government, to be a convenient (for it) vehicle to clarify an interpretation issue otherwise of interest to it. The retired couple were, in a sense, collateral damage to the local government’s curiosity about a point of interpretation. I questioned, in strong terms, why, in the circumstances, I would consider granting the local government relief that is discretionary in nature. I adjourned briefly, to permit the council to consider its position. When I returned, the council consented to the application being dismissed and to an adverse costs order against it.
Sometimes your client will have broader responsibilities. Local governments, for example, make appealable decisions on development applications that are assessed against, amongst other things, their respective planning schemes. As the local planning authority, a local government also has a wider interest in the broader application of its planning scheme, beyond any decision on a single development application. When, as a barrister, I acted for a local government in appeals to the Planning and Environment Court concerning its decisions on development applications, I was always conscious of that. Consequently, I sought to make submissions in relation to the meaning and effect of the provisions of its planning scheme that were consistent from case to case, unless there was a good reason to alter the submission (e.g. a recent court decision dealing with the proper interpretation of the provision).
I have, as a judge, expressed some concern, when, without good reason, inconsistent submissions have been made, from case to case, on behalf of a single local government. I do not know the particular reason for the inconsistency in every case. I suspect however, that it has sometimes happened because different lawyers have been engaged who have made different submissions without consideration of the broader role of their client and without ascertaining or giving due consideration to the submissions made to the court, on their client’s behalf, in other cases. I should acknowledge that such instances are now relatively rare in the Planning and Environment Court.
Conclusion
As an advocate your primary goal is to persuade. Infuriating the judge is not a good start towards achieving that goal. There will be occasions when a judge has a bad day and is more easily agitated than usual or than he/she should be. If the judge is agitated however, you should, before too quickly laying blame at the feet of the judge, critically examine what you have done that might have triggered or exacerbated the response. It might be that by being more aware of what potentially infuriates a judge, you can avoid or minimise such experiences in the future and find the goal of persuasion that much easier.
There is no criticism of the parties sending material, such as sentencing material or an outline of argument, requested by the court or the judge.
M Rackemann DCJ, ‘Evidence in pre-trial applications’—paper delivered at the Bundaberg District Law Association’s Conference, Lady Elliot Island, 22 October 2021.
R 435(11) of the UCPR requires, as far as practicable, an indexed paginated book of exhibits to affidavits to which r 435(9) applies.
ASCR r 17.2, BCR r 42.
See r 19.4 of the ASCR, r 29 of the BCR. The duty to disclose is subject to legal professional privilege. There are however, obligations to seek instructions for the waiver of that privilege – see r 19.5 ASCR, r 30 BCR.
Indeed r 43 of the BCR provides that a barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s personal opinion on the merits of the evidence or issue.
Please see the link to the current Queensland Courts Robing Policy and Naming Conventions here.
Ramsay v Gatland [2022] NSWSC 1514.
Perhaps little known to the Bar is that under the Legal Profession Act 2007 (Qld) – like its interstate analogues – provision is made for the briefed (and contracting) barrister, not just to sue for fees – ss 319, 329 – but also to seek an assessment of the fees as costs incurred – ss 326, 327.
Application for and making of assessment, however, in some circumstances, might be argued, at least by a solicitor, on the facts, to preclude the barrister recovering fees.
Understandably, given the conventional good relationship between the Bar and the solicitors’ profession, such disputes rarely arise. They did so arise in Ramsay v Gatland, a decision of Schmidt AJ of the Supreme Court of New South Wales, obviously decided in respect of the NSW legislation.
“Those approaches are consistent with the conclusion I have reached, that the statutory scheme is not intended to have the draconian outcome for which Ms Ramsay and Mr Conolly contended”
Analogous provisions to those under consideration in Ramsay exist in Queensland. The costs involved in the case were $38,358.48, including interest. No doubt the costs of the parties, at first instance and on appeal to the Supreme Court, greatly exceeded that.
The court wrote (NSW s 194 being the analogue of Qld s 329; NSW s 198 being the analogue of Qld s 337):
[1] Ms Ramsay and Mr Conolly appeal a decision of the Local Court concerning a dispute over unpaid costs which Ms Gatland, a barrister, claimed they were liable to pay to her, they being the partners of the firm A R Conolly & Co which had retained her to act in various matters in which costs agreements had been entered.
[2] Various alleged legal errors are advanced as to the proper construction of s 73 of the Legal Profession Uniform Law Application Act 2014 (NSW) and the operation of the statutory scheme, which it is claimed precluded the Local Court from making orders in Ms Gatland’s favour in relation to the disputed costs, despite the applications for costs assessment having been made out of time and the costs, as a result, not assessed.
…
[4] There were eight invoices in respect of which Ms Gatland made applications for her unpaid costs to be assessed under the Application Act and the Legal Profession Uniform Law 2014 (NSW). In the case of three of them, in the Bespoke and Bartlett matters, it was found that her applications had been made out of time. Contrary to the case Ms Ramsay and Mr Conolly advanced, Atkinson LCM took the view that this did not preclude Ms Gatland pursuing her claim for their payment in the Local Court.
[5] Atkinson LCM did not accept that costs determinations to which s 73 of the Application Act applied had been made in respect of any of the three out of time invoices. In the case of the Bartlett invoice by the Manager, Costs Assessment and in the case of the two Bespoke invoices, by a review panel. Nor that the result of Ms Gatland’s out of times applications was that s 73 prohibited pursuit of the proceedings brought in the Local Court for payment of those invoices.
…
[8] There was no issue that:
Ms Gatland issued one invoice in the Bartlett matter in 2016 and her 2018 application for costs assessment of that invoice was rejected by the Manager, Costs Assessment as being out of time. She did not challenge this rejection of her application;
the two invoices which Ms Gatland issued in the Bespoke matter had also been issued more than 12 months before she made her costs assessment application in 2018. But despite this they were accepted by the Manager, Costs Assessment, even though no application to have time extended had been made by Ms Ramsay or Mr Conolly;
instead Ms Ramsay and Mr Conolly contended before the costs assessor that the costs could not be assessed, the applications having been made out of time. That depended on the construction of s 198(3) of the Uniform Law. The costs assessor concluded that s 198(3) did not prevent those two invoices being assessed, with the result that the certificate of determination issued assessed the costs claimed under both out of time invoices, as well as five other invoices brought within time;
that conclusion was then successfully challenged by Ms Ramsay and Mr Conolly before a review panel. It concluded that the two invoices were out of time and so could not be assessed, but it agreed with the costs assessor’s assessment of the other five invoices;
the review panel’s certificate thus reflected its assessment of the costs of the five invoices where Ms Gatland had brought her application within time, the calculation of which the review panel explained in the reasons given, by deducting from the amount the costs assessor had arrived at, the sums assessed in relation to the two out of time invoices;
neither Ms Ramsay and Mr Conolly nor Ms Gatland appealed the review panel’s decisions and when Ms Gatland brought her proceedings in relation to the out of time invoices in the Local Court, they did not seek to have those invoices assessed; and
Atkinson LCM concluded that in all the circumstances Ms Gatland was entitled to pursue her contractual claim for payment of the three out of time invoices.
…
[38] Section 73 of the Application Act provides:
A costs determination is binding on all parties and no appeal or other assessment lies in respect of the determination, except as provided by this Part.
…
[84] Section 194 of the Uniform Law regulates when legal proceedings to recover legal costs may be brought, providing:
194 Restriction on commencing proceedings to recover legal cost
A law practice must not commence legal proceedings to recover legal costs from a person unless a bill has been given for the legal costs and the bill complies with the requirements of this Law and the Uniform Rules.
A law practice must not commence legal proceedings to recover legal costs from a person who has been given a bill until— (a) where the legal costs are the subject of a costs dispute before the designated local regulatory authority — the authority has closed or resolved the dispute; and (b) at least 30 days after the later of—
(i) the date on which the person is given the bill; or
(ii) the date on which the person receives an itemised bill following a request made in accordance with section 187.
“Neither the Application Act nor the Uniform Law contemplate that when an application for costs assessment cannot be received, entertained or made because the 12-month limitation period has passed, that a party to a costs agreement who has been provided with legal services is thereby relieved from the contractual obligation to pay for those services”
[85] There was no suggestion in this case that there was any such costs dispute in relation to the three invoices in issue. Rather, what was disputed on assessment was whether Ms Gatland’s applications for costs assessment had been made within the 12 month limitation period imposed by s 198 of the Uniform Law and in the Local Court, whether the proceedings were available to be pursued, given the proper construction of s 73 of the Application Act.
[86] There is no conflict between ss 73 and 194, given what they respectively regulate, which also accords with what is provided in s 198(7). It precludes commencement of legal proceedings only if an application for costs assessment has been made and then “until the costs assessment has been completed”. It is relevant that commencement of such proceedings does not depend on a costs determination or certificate having been issued. That reflects that not all decisions which bring an assessment application to an end involve such a determination, including in the case of out of time applications.
[87] It follows that the proceedings Ms Gatland commenced in the Local Court after the review panel issued its determination and certificate were brought in accordance with requirements of ss 194 and 198.
[88] That conclusion accords with what was decided in Gilles, where the provisions of predecessor legislative schemes arose for consideration.
[89] In Gilles, both recovery proceedings and an application for costs assessment had been brought by a law practice. In issue was whether s 331 of the Legal Profession Act 2004 (NSW) or s 192 of the Legal Profession Act 1987 (NSW), applied. Those provisions, like s 194 of the Uniform Law, also precluded a law practice pursuing proceedings for the recovery of costs unless at least 30 days had passed since a bill for those costs had been given to the client.
[90] In the 1987 Legal Profession Act, however, there was no explicit prohibition upon the commencement of recovery action once 30 days had passed, even if an application for costs assessment had been made and the assessment had not been completed. But s 355(b) of the 2004 Legal Profession Act precluded a law practice from commencing or maintaining any proceedings to recover such legal costs, until the costs assessment had been completed. Section 198(7) of the Uniform Law does not preclude the maintenance of such proceedings if already commenced.
[91] It was concluded in Gilles v Palmer [2017] NSWCA 320 that in the circumstances it was the provisions of the 1987 Legal Profession Act which applied, with the result that the recovery proceedings brought in the District Court were not precluded.
[92] There consideration was also given to whether leave to appeal should be given, in circumstances where, if the District Court proceedings were reinstated, recovery of the legal costs could proceed without barrier under s 198(7) of the Uniform Law, even while the application for costs assessment was on foot. Leave to appeal was granted, Barrett JA observing at [45] that the costs assessment process “is, first and foremost, a means of quantifying the amount properly payable to a lawyer.”
[93] Thus the view taken was that while the 1987 Legal Profession Act did not preclude legal action for the recovery of costs while the cost assessment process was in progress, because the result of both an action for recovery and the assessment process itself was a judgment of the court, in the latter case, a deemed judgment being created by filing of the costs assessor’s certificate, “the appropriate course is likely to be that one process is stayed pending the outcome of the other so that the possibility of inconsistent judgments is avoided”: at [45].
[94] Barratt JA’s approach in Gilles was consistent with that taken in Branson v Tucker [2012] NSWCA 310 where the 2004 Legal Profession Act also arose to be considered, there in circumstances where another barrister was seeking to recover costs from a solicitor. His Honour explained the purpose of the costs assessment system which the current statutory regime continues, in terms apposite to what is here in issue:
the costs assessment process is no more than a means of quantification made available to the billing practitioner and the person billed, which they may resort to it if they chose, the objective being to provide an efficient method of objective quantification by experienced practitioners; to protect those upon whom lawyers impose charges; and to regulate the conduct of lawyers: at [127];
if advantage is taken of the procedure, the simple procedural step of filing the costs assessor’s certificate in a court registry will be translated into a deemed judgment debt which will supersede or satisfy the parties’ contractual entitlement, so that there is no longer any possibility of an action in contract to recover the lawyer’s fees: at [128];
if there is, for any reason, no quantification by means of the statutory assessment process, the costs can be dealt with in the same way as any other contractual claim: at [129]; and
the mere existence of the statutory assessment process does not preclude the deployment of the court’s general jurisdiction in relation to costs. It is only when the statutory mechanism has been put into operation and has resulted in quantification, that the statutory mechanism has a bearing on the determination of the recoverable amount: at [131].
[95] Those approaches are consistent with the conclusion I have reached, that the statutory scheme is not intended to have the draconian outcome for which Ms Ramsay and Mr Conolly contended.
[96] Namely, that an application for assessment of legal costs, even when brought out of time so that the costs cannot be assessed in accordance with the statutory regime and then recovered by way of a deemed judgment created by the filing of the costs assessor’s certificate, has the result that the costs also cannot be pursued by way of proceedings brought in the normal way, as s 194 of the Uniform Law provides for.
[97] Such a conclusion would be inconsistent with the statutory objective of proportionate regulation of the legal profession, depriving practitioners as it would of any payment for the work they had performed. That is not what the legislative scheme contemplates or provides for.
…
“I am thus satisfied that Atkinson LCM was correct in concluding that Ms Gatland was not prevented by s 73 of the Application Act from seeking to recover her unpaid costs under the three disputed out of time invoices in the Local Court”
The evidence
[98] In evidence is:
the three out of time invoices;
the 28 November 2018 letter from the Manager, Costs Assessment in relation to the disputed Bartlett invoice, advising Ms Gatland that her application was out of time and thus could not proceed to costs assessment. Further, that it could not be referred to a costs assessor, given the provisions of s 198(4) of the Uniform Law, which did not permit a law practice to seek an extension, with the result that steps would be taken to close the file;
the costs assessor’s February 2019 certificate of determination of the two Bespoke invoices, together with the statement of reasons which explained why the costs assessor concluded that the application had been made within time. There is no suggestion in the Local Court or on this appeal, that the costs assessor was correct in those conclusions; and
the review panel’s April 2020 certificate of determination and its statement of reasons for having concluded that the application in relation to the disputed invoices had been made outside the time limit imposed by s 198 of the Uniform Law. That certificate thus reflected only the costs of the other five invoices which the review panel agreed had been correctly assessed by the costs assessor. There was no suggestion on this appeal, that the review panel was wrong in its decision.
The statutory regime did not preclude Ms Gatland’s application to the Local Court
[99] On this evidence, given the statutory scheme I have explained, the case advanced for Ms Ramsay and Mr Conolly that both the letter from the Manager, Costs Assessment refusing to accept the Bartlett application and the review panel’s certificate in relation to the Bespoke application, evidenced a costs determination to which s 73 of the Application Act attaches, cannot be accepted.
[100] The evidence establishes that the out of time applications Ms Gatland made in relation to the Bespoke invoice and the two Bartlett invoices could neither result in either an assessment of those costs conducted under the statutory regime, or a costs determination to which s 73 of the Application Act applied.
[101] It also establishes that no costs determination or certificate which evidenced such a determination was brought into existence in relation to the Bespoke invoice. That is because the Manager, Costs Assessment did not have or purport to exercise the statutory function of undertaking a costs assessment, making a costs determination, or issuing a certificate evidencing such a determination.
[102] In the case of the Bartlett invoices the evidence establishes that the review panel disagreed with the conclusion which the costs assessor reached on the question of whether the application in respect of those invoices had been made within time. The result was that the review panel set aside the costs assessor’s determination and substituted its own. In doing so, because it concluded that the application had been brought out of time, it did not assess those costs in accordance with the statutory regime. The result was that its costs determination and the certificate which evidenced it, was confined to the assessment of the application which Ms Gatland made within time, in respect of the other five Bartlett invoices.
[103] There was thus also no costs determination in relation to the out of time Bartlett invoices nor any certificate which evidenced such a determination brought into existence, to which s 73 could attach.
[104] I am thus satisfied that Atkinson LCM was correct in concluding that Ms Gatland was not prevented by s 73 of the Application Act from seeking to recover her unpaid costs under the three disputed out of time invoices in the Local Court. Those proceedings were within the legislative contemplation, given the provisions of ss 194 and 198 of the Uniform Law and not precluded by s 73 of the Application Act.
[105] Neither the Application Act nor the Uniform Law contemplate that when an application for costs assessment cannot be received, entertained or made because the 12 month limitation period has passed, that a party to a costs agreement who has been provided with legal services is thereby relieved from the contractual obligation to pay for those services.
[106] Instead, what the statutory regime contemplates in such a case is that the client even then may make an application, out of time, to have those costs assessed. If recovery proceedings have been brought in a court and such leave is sought and given, that may result in a stay of those proceedings while the costs assessment is undertaken. But Ms Ramsay and Mr Conolly did not make such an application and so Ms Gatland was entitled to pursue the Local Court proceedings as she did.
[107] The legislative scheme permitted such recovery of the unpaid costs to be pursued by Ms Gatland against Ms Ramsay and Mr Conolly.
(emphasis added)
Mammoth Investments Pty Ltd v Donaldson [2022] 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 [1]):
[1] 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.
Background
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
Regards Grant Donaldson
[7] The invoice was covered by a tax invoice in the following terms:
Hotchkin Hanly First Floor, BGC Centre 28 The Esplanade PERTH WA 6000
Attention: Michael Mistilas
DESCRIPTION Professional Fees: Mammoth — Rural Bank
GST AMOUNT: $12,600.00
AMOUNT: $126,000.00
TAX TOTAL: $12,600.00
SUBTOTAL: $138,600.00
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).
With Compliments Grant Donaldson
[8] Together, the four invoices totalled just over $800,000.
[9] 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.
[10] 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.
[11] 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.
[12] The appellants challenge both conclusions on this appeal. Ground 1 challenges the conclusion in [10] and ground 2 challenges the conclusion in [11] 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)
…
[16] 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’.
[17] 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.
[18] 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).
[19] 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.
[20] 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’.
…
[95] 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 [34] to [37] 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.
[96] 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.
[97] 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.
[98] 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.
[99] 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)
[100] 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])
[101] The invoices also contain similar line items in respect of blocks of several hours at a time.
[102] 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.
[103] 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’.
[104] After referring to the decision of the Victorian Court of Appeal in Piper Alderman v Smoel [2017] VSCA 42 considered further below, the master said (Primary reasons [28]):
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 …
[105] 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.
[106] 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.
…
[120] 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.
[121] 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.
…
[128] 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 [37]):
… 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.
[129] 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’.
[130] 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.
The Law Society Gazette (UK) recently reported that Raymond McKeeve, a former partner with City firm Jones Day, was found in contempt in August by intentionally causing the destruction of documentary material, an encrypted 3CX messaging system, that were part of a court order made following an application by retailer Ocado in an action concerning breach of contract. The 50-year-old told the court that he ‘panicked’ after speaking to his client and sent ‘a burn it’ instruction to an IT manager. He denied contempt, saying he had no experience of search orders and did not intend for any documents to be destroyed.
A link to The Law Society Gazette (UK) article by Michael Cross is here.
In October 2022 The Law Society Gazette (UK) reported on a law firm being barred by the England and Wales High Court from making any further court applications for at least 18 months after failing to heed warnings to stop.
His Honour Judge Pelling KC, sitting as a judge of the England and Wales High Court, imposed the civil restraint order against Kazakhstan-based Michael Wilson & Partners Limited.
