Lukic v de Luca-Leonard

1. [1]

   HIS HONOUR: By her summons filed on 29 November 2016, Miroslavka Lukic seeks the following relief:

   1. (1)

      An order pursuant to s 728(1)(a) of the Legal Profession Act 2004 that the defendant provide to the plaintiff a bill of costs in itemised form of costs and disbursements in respect of the legal services provided by the defendant to the plaintiff in connection with the plaintiff’s claim for work injury damages.

   2. (2)

      An order that the defendant produce to the plaintiff’s legal representative the plaintiff’s file relating to the conduct of the plaintiff’s work injury damages claim, including the mediation and settlement of the matter.

   3. (3)

      An order that the defendant pay the plaintiff’s costs of and incidental to this summons on an indemnity basis.

2. [2]

   For the reasons that follow, I consider that I am not presently able to determine whether or not Ms Lukic is entitled to the relief that she seeks.

Background

1. [3]

   Ms Lukic originally retained Ms de Luca-Leonard as her solicitor in workers compensation proceedings in May 2010. Ms Lukic sought to recover compensation from her employer St George Private Hospital following continuous bullying in the workplace. Ms Lukic subsequently also retained Ms de Luca-Leonard in about March 2011 for the purpose of instituting a work injury damages claim. That followed a medical assessment that diagnosed Ms Lukic as suffering from a chronic major depressive disorder with an assessed whole person impairment of 60 percent.

2. [4]

   Ms Lukic signed a costs agreement with Ms de Luca-Leonard on 14 March 2011.

3. [5]

   On 2 April 2014, Ms Lukic settled her work injury damages claim, at mediation at the Workers Compensation Commission, for $300,000 inclusive of costs and disbursements but clear of workers compensation payments. Ms Lukic executed a deed of release on the same day giving effect to the settlement.

4. [6]

   Some few weeks later, on 22 April 2014, Ms Lukic received a letter from Ms de Luca-Leonard with a tax invoice for costs and disbursements in the amount of $74,000 inclusive of GST. She was not provided with an itemised bill of costs. Ms Lukic says that she was advised by Ms de Luca-Leonard that if she wanted an itemised bill the costs would be $105,000 whereas if she accepted the lump sum bill she would receive a discount. In the events that occurred, Ms Lukic decided to accept the lump sum bill.

5. [7]

   On 12 August 2014, Ms Lukic was involved in a motor vehicle accident and was injured. She instructed Johnson Vaughan Solicitors to assist her with her compulsory third party damages claim. She later changed solicitors on 13 May 2015 and instructed LHD Lawyers to take over that claim. On 5 September 2015, Ms Lukic changed solicitors again, this time engaging Wilson Fox Lawyers, her present solicitors. In the course of examining documents provided to him by Ms Lukic, Mr Hernandez, her present solicitor, advised Ms Lukic that he believed that the costs originally charged by Ms de Luca-Leonard in acting for her on the work injury damages claim were excessive. Ms Lukic was advised that it may have been possible to make a claim against Ms de Luca-Leonard for overcharging, although since over 12 months had passed since the tax invoice was issued, she could not be given any guarantee.

6. [8]

   Ms Lukic, in effect, instructed Mr Hernandez to proceed with this line of inquiry in pursuit of the recovery of any amounts that may have been owed to her by Ms de Luca-Leonard and to commence legal proceedings if necessary. On 23 June 2016, Ms Lukic was advised by Mr Hernandez that all reasonable attempts had been made to obtain her complete file from Ms de Luca-Leonard concerning the work injury damages proceedings, and also an itemised bill of costs. Those attempts were unsuccessful and these proceedings then followed.

7. [9]

   Before that occurred, a relatively large amount of correspondence passed between Ms de Luca-Leonard and those representing Ms Lukic. It is instructive to refer to some of it.

8. [10]

   Mr Hernandez wrote to Ms de Luca-Leonard in terms suggesting that, for a matter that settled at mediation, the costs charged by her were excessive. He foreshadowed the commencement of legal proceedings. By her letter dated 1 April 2016, Ms de Luca-Leonard replied relevantly as follows:

9. [11]

   Somewhat more quickly than anticipated, Ms de Luca-Leonard wrote again to Mr Hernandez, this time on 4 April 2016, in the following relevant terms:

10. [12]

    Ms de Luca-Leonard wrote again on 5 April 2016 in these terms:

11. [13]

    Mr Hernandez indicated by his letter dated 5 April 2016 that it would be satisfactory if an itemised bill were received by 26 April 2016.

12. [14]

    On 4 May 2016, Ms de Luca-Leonard wrote to Mr Hernandez as follows:

13. [15]

    Mr Hernandez wrote to Ms de Luca-Leonard on 27 May 2016 in the following terms:

14. [16]

    Ms de Luca-Leonard replied in relevant terms on 2 June 2016:

15. [17]

    Mr Hernandez wrote to Ms de Luca-Leonard on 5 June 2016. The letter referred to a number of other topics, but for present purposes included the following:

16. [18]

    The correspondence thereafter is not germane to the current dispute.

Discussion

1. [19]

   Ms Lukic relies upon s 728 of the Legal Profession Act 2004. That Act was repealed and replaced by the Legal Profession Uniform Law (NSW). Neither counsel referred to this Act in the course of the proceedings before me.

2. [20]

   Schedule 4 to the Legal Profession Uniform Law (NSW) contains the following relevant clauses:

3. [21]

   Section 728 of the Legal Profession Act 2004 now finds expression in s 427 of the Legal Profession Uniform Law (NSW) in relevantly identical terms as follows:

4. [22]

   In a similar way, s 332A of the Legal Profession Act has been repealed. It was in the following form:

5. [23]

   Section 332A has been effectively replaced by s 187 in the Legal Profession Uniform Law (NSW). The two sections are not identical. Section 187 is as follows:

6. [24]

   It can be seen that s 187(2) of the Legal Profession Uniform Law (NSW) had no equivalent in the Legal Profession Act 2004. Moreover, s 332A (6) finds no direct equivalent in s 187. However, s 191 of the Legal Profession Uniform Law (NSW) is in these terms:

7. [25]

   An examination of these provisions makes it clear that many of the issues that appear to have occupied Ms de Luca-Leonard’s attention in her correspondence with Mr Hernandez were completely beside the point. For example, it is not permissible to charge for the preparation of an itemised bill, even though Ms de Luca-Leonard appeared on one view to be asserting that she was entitled to be paid for providing one. Secondly, the suggestion that Ms Lukic might have been dissatisfied with the fees she was charged is not of any particular relevance or significance if she is otherwise entitled to an itemised bill. Thirdly, and to a similar effect, the fact that Ms Lukic may have been contemplating proceedings against Ms de Luca-Leonard in negligence for compromising her claim for what Ms Lukic contends was an undervalue is beside the point. Fourthly, there is no present suggestion that Ms Lukic proposes either to seek to set aside the costs agreement with Ms de Luca-Leonard in general or the lump sum costs agreement in particular. To that extent, Ms de Luca-Leonard’s concern about whether or not Ms Lukic will agree to pay the difference if the costs payable in accordance with the itemised bill are more than the lump sum is also beside the point.

8. [26]

   However, what seems to have been overlooked by both parties is the possible effect of s 187(2) of the Legal Profession Uniform Law (NSW). Unless I have misunderstood the factual background, Ms Lukic never requested an itemised bill within 30 days after the date on which the legal costs became payable.

9. [27]

   Mr Stitt of counsel who appeared for Ms Lukic made specific written submissions in writing concerning s 332A of the Legal Profession Act 2004. In that respect he said this:

10. [28]

    None of these cases dealt with circumstances that attracted the operation of the Legal Profession Uniform Law (NSW). It seems to me that, contrary to Mr Stitt’s submission, there may very well be a significant question, by reason of s 187(2) of the Legal Profession Uniform Law (NSW), about whether or not Ms Lukic was or is now entitled to make her application for an itemised bill “at this time”. I consider that some attention should be directed to whether there is any scope for contending that that subsection does not apply in the circumstances of this case.

11. [29]

    The answer to that question will depend upon whether the Legal Profession Uniform Law (NSW) governs the present dispute having regard to the savings and other provisions in Schedule 4 of that Act. I put aside the question, which for obvious reasons has not yet been addressed or considered in argument, of whether there is any power to extend the time for making any such application out of time, and what, if any, factors in the present case might inform such a decision if the Legal Profession Uniform Law (NSW) applies to the present dispute.

12. [30]

    Obviously different considerations will operate upon the resolution of this case, depending upon whether s 332A of the Legal Profession Act or s 187(2) of the Legal Profession Uniform Law (NSW) applies. In the circumstances I consider that the parties should be invited to make further submissions about the operation and effect, if any, of the Legal Profession Uniform Law (NSW) in general and s 187(2) in particular, upon Ms Lukic’s application for an itemised bill. A date that is suitable to them and to the Court should be arranged as soon as possible in consultation with my Associate.