Lukic v de Luca-Leonard (No 2)

1. [1]

   HIS HONOUR: I published some reasons for judgment in this matter yesterday: see Lukic v de Luca-Leonard [2017] NSWSC 814. That judgment is required reading for present purposes. In it I invited the parties to make further submissions upon the question of whether or not the provisions of the Legal Profession Uniform Law (NSW) or the Legal Profession Act 2004 applied in this case. Although the answer to that question was probably evident and uncontroversial, and possibly for that reason, neither of the parties made any submissions about it. However, having regard to the substantial and potentially significant difference between s 332A of the Legal Profession Act and s 187(2) of the Legal Profession Uniform Law I thought it best to invite specific attention to the question. Having done so, the parties agree, in my view correctly, that the 2004 Act applies to these proceedings.

2. [2]

   Mr O’Sullivan of counsel also made some further submissions in elaboration of his earlier contentions on behalf of Ms de Luca-Leonard in opposition to Ms Lukic’s application. I have had regard to those further submissions as well.

3. [3]

   In my opinion, Ms Lukic is entitled to the order that she seeks for the provision of an itemised bill of costs. I am not prepared to order that Ms de Luca-Leonard produce her file. This is for the following reasons.

4. [4]

   First, s 728 of the 2004 Act confers a wide discretion upon the Supreme Court to order a law practice to give a client a bill of costs in respect of any legal services provided by the law practice. That discretion is unqualified by the terms of the section itself. It is nevertheless a discretion that must be exercised judicially.

5. [5]

   It is reasonably apparent from the correspondence referred to by me in the earlier judgment that Ms de Luca-Leonard appreciated, and on one view accepted, Ms Lukic’s right to request an itemised bill of costs from her. I note that the section refers merely to “a bill of costs” but nothing turns upon that minor difference. Ms de Luca-Leonard’s letters to Mr Hernandez tacitly acknowledge that Ms Lukic should be provided with the bill that she sought. Indeed, at one point Ms de Luca-Leonard provided Mr Hernandez with a time-frame within which she would do so. That offer was relevantly unqualified.

6. [6]

   Secondly, none of the reasons for declining to provide Ms Lukic with an itemised bill of costs, which slowly emerged as the correspondence increased, is a proper basis for refusing to do so. As I have previously indicated, Ms Lukic is not required, as a precondition to establishing an entitlement to the bill, to provide a sound reason, or indeed any reason, for the request. Mr O’Sullivan resorted to the language of subpoenas, suggesting that Ms Lukic had no legitimate forensic purpose. He intimated that the request in effect was a stalking horse for a claim that Ms Lukic had been over-charged, or that Ms de Luca-Leonard had been negligent in settling her work injury damages claim at an under value, or in anticipation of seeking to apply for a costs assessment or to set aside the lump sum costs agreement. Whether or not Ms Lukic’s motives were one or any of these things is of no particular significance. The language of s 728 is clear.

7. [7]

   Thirdly, I am not satisfied that any discretionary consideration urged upon me by Ms de Luca-Leonard stands in the way of the relief that is sought. For example, delay can hardly be an issue. As recently as May 2016 Ms de Luca-Leonard was speaking in terms of providing the bill in question. It will be recalled that in her letter of 2 June 2016 Ms de Luca-Leonard said this:

8. [8]

   I accept that the request for provision of the bill is inconvenient and patently annoying. However, Ms de Luca-Leonard did not then in June 2016, and does not now, say that the preparation of an itemised bill is or will be impossible, or that its preparation will impose some unreasonable hardship upon her. Indeed, if the suggestions or intimations to be found in the correspondence are taken to their logical conclusion, Ms de Luca-Leonard anticipated both that she will be shown to be entitled to a much larger amount for her legal costs and also that she proposed to, and is entitled to, pursue that difference if there is one.

9. [9]

   Each party referred me to several authorities, including Yang v Stephen Paul Firth trading as Firths The Compensation Lawyers [2013] NSWSC 676. In that case Hall J dealt with a similar dispute and said this at [90]-[99]:

10. [10]

    His Honour’s detailed consideration and evaluation of the relevant provisions of the 2004 Act has direct application in the present case.

11. [11]

    Fourthly, I do not consider that there has been an accord and satisfaction, consisting in the lump sum costs agreement between Ms Lukic and Ms de Luca-Leonard, which operates to preclude the present application. As Hall J said in Yang at [100]:

12. [12]

    Fifthly, I do not consider that the present application is an abuse of process. For example, Hall J said this in Yang at [105]:

13. [13]

    The evidence in this case reveals that Ms Lukic considered that she had been “ripped off” by Ms de Luca-Leonard. In context, that expression and Ms Lukic’s concern must be taken to include her impression that the proceedings had been settled for less than their true value. However, it is also apparent that Ms Lukic, perhaps with the benefit of advice, now considers, or at least fears, that the sum she agreed to pay for legal costs was excessive. Her desire to examine that prospect is a sufficient and reasonable reason to explain the present application.

14. [14]

    Ms Lukic also requires the production of her file retained by Ms de Luca-Leonard relating to the work injury damages claim, including the mediation and settlement. There is evidence that Ms de Luca-Leonard has already provided a copy of this file to solicitors that previously acted for Ms Lukic. Somewhat confusingly, however, the evidence before me suggests that Ms de Luca-Leonard still retains the file or some parts of it. There is also evidence to suggest that the file that was provided to previous solicitors was not the entirety of the file.

15. [15]

    Mr O’Sullivan explained the position relating to the file in response to my inquiry when the proceedings before me commenced:

16. [16]

    The issue became even more clouded a little later in the proceedings. Mr O’Sullivan told me this:

17. [17]

    Mr Stitt’s response put this in context:

18. [18]

    Mr O’Sullivan responded:

19. [19]

    Mr Stitt had the last say:

20. [20]

    Ms de Luca-Leonard’s evidence at paragraph 19.2 of her affidavit, is relevantly as follows:

21. [21]

    Ms de Luca-Leonard was not tested on her evidence in general or that paragraph in particular. In the circumstances I am prepared to accept that she has provided a complete copy of her file to Ms Lukic’s previous lawyers but that she retains the original of that file herself. This is undoubtedly so as her indication given to Mr Hernandez in mid-2016 that she would provide an itemised bill of costs could only have been understood in the context that she retained the whole of Ms Lukic’s file. The preparation of an itemised bill of costs in such a matter could not possibly have been prepared without access to such a file, especially the correspondence and files notes that it must have contained.

Conclusions

1. [22]

   In my opinion, Ms Lukic is entitled to an itemised bill of costs as requested. I am however satisfied that the relevant file has already been produced. Ms de Luca-Leonard, a solicitor of this Court, has given sworn evidence that that is so. It would be an obviously very serious matter if that evidence were false. I am not prepared on the material before me to conclude that it is.

Costs

1. [23]

   The summons seeks costs on an indemnity basis. Such an application was long ago foreshadowed in the correspondence, referred to in my earlier judgment.

2. [24]

   Mr Stitt’s written submissions reiterate that claim. No submissions on costs on any basis have been made by Ms de Luca-Leonard. I will refrain from making a final order as to costs until Mr O’Sullivan has had an opportunity to address the issue of costs in general and indemnity costs in particular.

Orders

1. [25]

   I make the following orders:

   1. (1)

      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)

      Reserve costs of the plaintiff’s application pending final submissions.