Whether Some Bills Interim Bills – Whether Final Bill Delivered - What constitutes an itemised bill.

Golder Associates P/L v Challen [2012] QDC 11

Mr Challen is a solicitor practicing as the principal of the legal practive Hawthorn Cuppaide & Badgery. Until his retainer was terminated on 25 January 2011 he was retained by Golder Associates (applicants) to act for them in the Supreme Court Proceedings.

The applicant seeks that the respondent release his file to the applicant relating to the proceedings in the SC and that there be an assessment of all the legal costs charged by the respondent to the applicant.

In relation to the release of the file relating to the SC proceeding, the respondent submits that he has a lien over the file because of the $65,346.10 that the applicant owes to him but not in relation to the unbilled work in progress. The respondent also expressed to the applicant that he was prepared to accept satisfactory security as an alternative in which event the lien would not be maintained. In his submissions, the respondent quoted RE Weedman (1996) FCA 1112 where it was said that “where it is the client who has terminated the retainer otherwise than for the solicitors misconduct, I doubt whether there is any residual discretion in the court to order that the former client shall have access to the documents in the face of the lien even where the denial of access to the documents may leave the client facing what can be regarded as catastrophic disruption to his litigation. “ The judge stated that he was not satisfied that circumstances existed to order the respondent to give up his lien and in his opinion a satisfactory alternative has not been put forward by the applicant.

In relation to the assessment of the bill of costs his honour considers the meaning of final and interim. He agreed with the judgment in Turner v Mitchells Solicitors which defined interim bills as a bill covering part only of the legal services the law practice was retained to provide. Further it was his honours opinion that the final in the relevant sections of the LPA should have their plain English meaning and should not be construed as ultimate. As a result he came to the conclusion that the bills of 9 December 2010 were final bills despite the uncharged work in progress for the period 8 December 2010 to 25 January 2011. The judge accepted the construction of the relevant provisions of the LPA from Turners case that an assessment could be ordered of all the interim bills once there is a final bill and an application is made within 12 months of that final bill. As a result his honour believed all the bills preceding the final bills were interim and that the effect of s333 of the LPA is that as the final bill has been delivered all interim bills can be assessed including those bills delivered more than 12 months before the application was filed. As such he ordered that the 27 bill be assessed.

In relation to itemised bill, his honour referred to the case of Malleson, Stewart and Nakivell v Williams where it was said that “the authorities show that the Courts have repeatedly held that a bill of costs must contain such details as will enable the client to make up his mind on the subject of taxation, and will enable those advising him effectively as to whether the taxation is desirable or not. His honour believes that although time ledgers were attached to the invoices, they do not disclose by whom the work was done and what was the size of the letter, fax which was drafted or perused or how long a phone call took. As a result he came to the view that the respondent should deliver itemised bills with respect to each of the bills delivered between 5 July 2006 and 9 October 2010.

Importantly the SamiosDCJ stated what constitutes am itemised bill at [50] being

(a) Full details of each item of work done;

(b)The date each item of work was done;

(c)The basis of the charge for the work;

(d)The amount charged for carrying out each item of work; and

(e)The details of the person that carried out the work