Le v Brydens Lawyers Pty Limited

1. [1]

   In 2005, Mr Le was seriously injured at work when he was struck by a forklift. He was represented by Brydens Lawyers when he later brought proceedings against his employer in the District Court. In May 2013, Levy DCJ awarded him considerable damages. An appeal brought by his employer was later settled.

2. [2]

   The orders Mr Le sought in his summons, requiring Brydens to produce its files to his current legal representatives were not finally pressed, Mr Le not challenging evidence led for Brydens that his files have been lost. What he did press, over Brydens’ objections, was an order that Brydens provide him with an itemised bill for the work it performed, as well as leave to permit him to pursue an assessment of its costs, out of time.

Issues

1. [3]

   There is no issue as to the fiduciary nature of the relationship which exists between a solicitor and a client; the Court’s inherent and statutory powers to order a solicitor to provide a client with a bill of costs; or to grant leave to pursue a costs assessment after the time prescribed by the Legal Profession Uniform Law (NSW) and its predecessors has expired.

2. [4]

   The purpose of such powers were discussed by Moffitt P in Zizza v Seymour [1976] 2 NSWLR 135 at 139:

3. [5]

   In issue is, however, the proper construction of relevant provisions of the Legal Profession Act 2004 (NSW) and whether the discretions there granted would be exercised in Mr Le’s favour.

4. [6]

   The proper construction of those provisions has already been considered in Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087. Mr Hagipantelis is the principal of Brydens. Even though Mr Hagipantelis did not appeal or otherwise challenge that judgment, Brydens did not abide by what was there decided as to the statutory obligation to provide a client such as Mr Le with an itemised bill.

5. [7]

   In these proceedings, Brydens challenges the correctness of the conclusions which Garling J reached in Mackowiak as to the obligations which s 332A of the Legal Profession Act 2004 imposed upon legal practitioners to whom it applied.

The evidence

1. [8]

   Mr Le is a native Vietnamese speaker. He relied on affidavits to which are annexed relevant documents, one sworn by him and others by Mr Andrew Le, the solicitor who represented him after he instructed Gajic Lawyers in 2014; Ms Misitano, who now represents him; and Mr Duc, an interpreter who assisted him after he became concerned about Brydens’ costs. Only Mr Duc was required for cross-examination. The other evidence was unchallenged and thus must be accepted.

2. [9]

   Brydens relied on affidavits sworn by Ms Villar, a solicitor employed by Brydens, who deposed to the searches made for Mr Le’s files, which were lost after they were returned to Brydens in December 2014. No evidence was given by Mr Hagipantelis. Mr Le’s case was that the Court would draw the inference that Mr Hagipantelis’ evidence would not have assisted Brydens’ case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

3. [10]

   The principles in Jones v Dunkel are concerned with a party’s unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. Their operation was explained in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.

4. [11]

   When those conditions are satisfied, the inference that the evidence would not have helped the party’s case may be drawn and used in two ways. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about.

5. [12]

   It was not suggested that Mr Hagipantelis did not have relevant evidence to give. He plainly could have given evidence in relation to matters of the kind about which he gave evidence in Mackowiak. No explanation was given for his absence. In the result, I am satisfied that an inference must be drawn that the evidence which Mr Hagipantelis could have given about what was in issue in Mr Le’s case, would not have assisted Brydens’ case.

6. [13]

   There was finally no dispute as to the relevant facts.

7. [14]

   Mr Le first instructed Brydens in 2006. Proceedings were commenced in the District Court in 2007. His case was heard on 9 October 2012, 28 February 2013 and 1 March 2013. Orders were made in his favour in May 2013. It was only on 4 June 2013 however, that Mr Le entered a “conditional cost agreement” between solicitor and client under the Motor Accidents Compensation Act 1999 (NSW). It contained an express provision in relation to the retention of Mr Le’s files.

8. [15]

   The agreement also provided in clause 2 “Costs” – that when payable, costs would only be charged “for the successful outcome of the work”, subject to clause 14 “Termination of the agreement”. The order already made in favour of Mr Le was for a sum in excess of $1 million. It was common ground that this figure included a considerable sum, in excess of $500,000, which had to be repaid by Mr Le to the workers’ compensation insurer. The settlement later reached on the appeal resulted in only a modest reduction in the sum which was left in his hands.

9. [16]

   On 26 June 2013, the employer filed a notice of intention to appeal Levy DCJ’s judgment. By consent, it was then ordered that Mr Le be paid $650,000 and the employer continue to pay him weekly workers compensation, until resolution of the appeal.

10. [17]

    The $650,000 was paid to Brydens on 12 July 2013. On 19 July, Brydens forwarded $345,311.78 to Mr Le, together with a cash statement and memorandum of costs and disbursements totalling $304,688.72. Brydens then also transferred $221,379.03 from its trust account to its office account. Brydens’ letter of 19 July 2013, which accompanied the bill, advised:

11. [18]

    The memorandum contained advice in small print to the effect that:

12. [19]

    It is relevant to note that this advice did not inform Mr Le of Brydens’ view that any request for an itemised bill had to be made within 12 months.

13. [20]

    On 1 March 2014, Mr Le wrote to Brydens, with Mr Duc’s assistance. He there raised concerns about the carriage of his matter and advice he had received about a proposed settlement. In order to make an informed decision about the offer, he asked to be informed of the workers’ compensation payback amount and the clear amount he would receive, after repayment of that amount and payment of costs he had already paid and anticipated costs which he would receive under the motor vehicle accident regime. He also asked for documents including the court’s determination which he had earlier requested, but had not received.

14. [21]

    On 7 July 2014, Mr Le instructed Gajic Lawyers to act for him and on 19 August, consent orders were made which settled the appeal. Mr Andrew Le’s unchallenged evidence was that when initially instructed, he was primarily concerned with obtaining the files for the purpose of the appeal, understanding that all of Brydens’ costs had been paid out of the moneys received from the insurer, but not that they had all been transferred into its office account. He only became aware of that in September.

15. [22]

    On 4 September 2014, Gajic Lawyers wrote to Brydens requesting it to provide Mr Le an itemised bill, advising:

16. [23]

    In October 2014, a bill in assessable form was requested. Neither were provided. Correspondence ensued with Mr Hagipantelis, not all of which it is necessary to refer to. Much of it was terse.

17. [24]

    In March 2015, Gajic Lawyers notified the manager of the Court’s costs assessment unit about Brydens’ refusal to provide an itemised bill and Mr Le’s intention to file an application for assessment. On 17 July, the manager advised that Mr Le would have to make an application to the Court for leave under s 350 of the Legal Profession Act 2004 and that Brydens’ refusal to comply with the requirements of s 332A could be raised with the Office of the Legal Services Commissioner.

18. [25]

    Even after Garling J’s judgment in Mackowiak was delivered in August 2015, Brydens failed to give Mr Le an itemised bill.

19. [26]

    These proceedings were commenced in July 2016.

The parties’ cases

1. [27]

   Mr Le relied on the conclusions reached in Mackowiak to submit that Brydens had failed to abide by the statutory obligation imposed by s 332A of the Legal Profession Act 2004 to provide him with the itemised bill he had requested and that in the circumstances, where costs orders had been made in his favour in the District Court and his employer’s appeal had been settled as it was, the Court would exercise its discretion to give him leave to pursue an application for assessment of the costs, out of time.

2. [28]

   Brydens’ case was that at the time Mr Le first requested an itemised bill it had no statutory obligation to provide one and that in all of the circumstances the Court would not exercise its discretion to require that one be provided. Nor would the Court permit Mr Le to pursue an assessment out of time.

3. [29]

   In written submissions Brydens relied, amongst other things, on:

Was Brydens obliged to give Mr Le an itemised bill given the proper construction of the Legal Profession Act 2004?

1. [30]

   I am satisfied that despite the views which Mr Hagipantelis continued to hold even after the judgment in Mackowiak was delivered, s 332A obliged Brydens to give Mr Le the itemised bill he was entitled to request, as Mr Le did in September 2014.

2. [31]

   At the time the request was made, Brydens’ files were with Gajic Lawyers. Even after they were returned in December 2014, Brydens refused to provide Mr Le either with the itemised bill he first requested, or as had been requested in October 2014, a memorandum of costs and disbursements in assessable form.

3. [32]

   Whatever might have been Brydens’ obligations in relation to the second request, a matter which need not be resolved in order to determine the issue of what Brydens' obligations under s 332A were, Mr Le’s case that his September request had triggered the obligations imposed on Brydens by s 332A must be accepted.

4. [33]

   That Brydens accepted this, at least at one point, in relation to the work it had undertaken on the appeal, is apparent from a request made in a letter of 12 November 2014, in which Brydens sought clarification of what Mr Le was seeking and the return of Mr Le’s files “to enable preparation of an itemised bill”. The files were then returned, but the requested bill was never provided.

5. [34]

   Brydens contended that the right to request an itemised bill under s 332A was subject to the 12 month limitation period imposed by s 350 on the making of an application for a costs assessment. That construction faces a number of difficulties, not the least that of the kind discussed in Thompson v Goold & Co [1910] AC 409 at 420, where it was observed that:

6. [35]

   Section 332A does not expressly impose any limitation period. In this statutory scheme, it is difficult to see the necessity for a 12 month limitation period on a request made under that section for an itemised bill.

7. [36]

   As recently discussed in State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147 at [49] the approach to the proper construction of Div 9 of Pt 3.2 “Costs disclosure and assessment” of the Legal Profession Act 2004 is that stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] - [71], [78]:

8. [37]

   The purpose of this statutory scheme is expressly specified in s 3, which provides:

9. [38]

   The purposes of the costs provisions of the Act are specified in s 301, which provides:

10. [39]

    Consistently with these purposes, s 332 permits a lawyer to give a client either a lump sum or an itemised bill. Section 332A, however, permits certain persons, including clients such as Mr Le, to request that an itemised bill be provided. Unlike other provisions made in Part 3.2 “Costs disclosure and assessment”, there is no time limit imposed in the section for the making of such a request.

11. [40]

    Section 332A provides:

12. [41]

    An “itemised bill” is defined in s 302(1) to mean “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 11”. Section 363 specifies as to such an assessment:

13. [42]

    In this statutory scheme, s 332A is undoubtedly a beneficial provision which must, accordingly, be construed in favour of those who are intended to benefit from the rights they are thereby given: see Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384; [1913] HCA 60 and the discussion in Pearce and Geddes, Statutory Interpretation in Australia, (8th ed, 2014, Lexis Nexis) at [9.2]-[9.4].

14. [43]

    As a matter of statutory construction, it is difficult to see that the unfettered right given by s 332A is to be properly confined by reading in a 12 month limitation period. Even where a gap has been unintentionally left in a statute, it is for the legislature and not the courts to fill that gap: see Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 12; [1972] HCA 21.

15. [44]

    In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302, McHugh JA (as his Honour then was) identified the three conditions which must exist, before words are read into a statute as being:

16. [45]

    That approach was followed in R v Young (1999) 46 NSWLR 681 at 687-8; [1999] NSWCCA 166 and later cases.

17. [46]

    In the case of s 332A, the mischief to which the section was addressed is apparent, namely the lack of information provided about the work performed for which the costs are rendered, when a lump sum bill is provided by a legal practitioner. Its purpose is to protect clients.

18. [47]

    Further light is shed on the purpose of the section, when consideration is given to the predecessor to the 2004 Act, the Legal Profession Act 1987 (NSW), which did not contain a provision such as s 332A. Section 193 in the 1987 Act provided that the regulations could make provision for the form and particulars to be included in bills of costs. What was required to be provided by regulation 22A of the Legal Profession Regulation 1994 was:

19. [48]

    This was a considerably different obligation to that introduced by the enactment of s 332A on 1 July 2007. That section granted a new right to those entitled to make a request for an itemised bill and introduced a new obligation on legal practitioners to provide a bill which provided specific detail as to how the legal costs were made up, “in a way that would allow them to be assessed”.

20. [49]

    That in enacting s 332A, Parliament overlooked an eventuality which “must be dealt with in the section” if the purpose of the 2004 Act was to be achieved, namely by the imposition of a time limit on the right to seek an itemised bill, is not apparent. To the contrary, the imposition of a 12 month time limit on making a request for such an itemised bill is not a provision of obvious necessity.

21. [50]

    In coming to that conclusion, it is necessary to take into account the consequences of giving the 2004 Act the construction for which the parties respectively contend: see Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350; [1975] HCA 28, where Gibbs J observed that “where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”.

22. [51]

    In construing s 332A, attention must of course be given to s 350, given that s 332A(1) gives the right to request an itemised bill to “any person who is entitled to apply for an assessment of the legal costs to which the bill relates”. Those persons are identified in s 350. It provides:

23. [52]

    The term a “third party payer” is defined inclusively. It is not confined to those involved in litigation and it includes persons to whom the lawyer does not owe a legal obligation, but who has a legal relationship with the client, such as a litigation funder (see Mackowiak at [128] - [129]).

24. [53]

    Section 728, which appears in Chapter 8 “General provisions” is also relevant. It relevantly provides:

25. [54]

    In construing these provisions it must not be overlooked that even if an application for costs assessment is not made within 12 months, in the circumstances specified in s 350(5) leave to pursue the application may be given by the Court. It follows that the right to request an itemised bill under s 332A, being exercisable after such leave is given, accords entirely with the operation of this legislative scheme.

26. [55]

    That is but one obvious circumstance in which a client may need to request an itemised bill more than 12 months after a lump sum bill has been rendered and paid.

27. [56]

    Others include circumstances where a concern that a lump sum bill was excessive arises only after 12 months. That situation could arise, for example, when interim lump sum bills have been rendered during commercial transactions and a concern about excessive billing does not arise until after 12 months following the rendering of the first or subsequent bills, but before the transaction is complete. Section 334 permits such interim bills to be assessed at the time of the final bill, even where that is more than 12 months after it has been rendered and paid. The right then to seek an itemised bill under s 332A, also clearly accords with the statutory scheme.

28. [57]

    In litigation, a concern which leads to an itemised bill being requested may additionally arise when a costs order is made in favour of the client. An itemised bill may then also be needed in respect of interim lump sum bills rendered and paid more than 12 months previously, so that either an agreement as to the costs may be reached, or an assessment pursued.

29. [58]

    However, on Brydens’ approach to the construction of s 332A there would be no obligation to provide an itemised bill if more than 12 months had elapsed, even in cases where leave to pursue an out of time costs assessment was given under s 350(5). Such a construction seems quite contrary to what was intended by this statutory scheme.

30. [59]

    Another consideration which also supports the conclusion that the construction for which Brydens contended cannot be accepted, is that “third party payers”, defined as that term is to include executors, administrator and trustees of the estate of a third party payer, are also given the right to request an itemised bill. Such “third party payers” may not come within the statutory definition before the expiry of 12 months from the time a particular bill was rendered or paid. The right to request an itemised bill in their cases would be rendered nugatory, if the limitation period in s 332A for which Brydens contends was accepted.

31. [60]

    In construing s 332A, it is also relevant to take into account that its successor, s 187 of the current Uniform Law, imposes a time limit on the making of a request for an itemised bill of “30 days after the date on which the legal costs become payable”: Legal Profession Uniform Law (NSW), s 187(3). The introduction of that time limit, which would appear to give rise to various practical problems which it is not here necessary to discuss, supports the conclusion that there was no time limit for requesting an itemised bill imposed by s 332A of the 2004 Act.

32. [61]

    It should also finally be noted that in some cases, where no time period has been specified in a statute for the doing of an act, a requirement that it be done within a reasonable time has been implied: see for example Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-4; [1949] HCA 65.

33. [62]

    Neither party contended for such a construction, but were it to be adopted, in all of the circumstances I have earlier discussed, I would be satisfied that the September 2014 request for an itemised bill was made within a reasonable time.

34. [63]

    It is also relevant to take into account that the conclusion which I have reached, that the right given by s 332A was not constrained by any time limit, is supported by conclusions which have been reached in a number of earlier cases.

35. [64]

    In Dale v Firth [2012] NSWSC 1, McCallum J concluded at [12] that “the legislature is likely to have intended in s 332A that there should be a bare right to information as to the work undertaken by a solicitor, even if that information would not give rise to any remedy.” At [17], her Honour also found that “the legislature intended, by the inclusion of the power under s 728, that this Court would have power to grant a variety of remedies including the specific remedy of making an order in the event of failure to comply with a request properly made under s 332A. That is consistent with the remedial and protective objects of the Act.”

36. [65]

    In Brown v Firth [2013] NSWSC 677, Hall J held at [96] that the limitation period provided in s 350(4) and the requirement for leave of the Court to dispense with that limitation period under s 350(5) did not preclude the exercise of the right to obtain an itemised bill under s 332A when the limitation period to make an application for a costs assessment had expired. His Honour found at [98] that:

37. [66]

    Brydens relied on what was observed in Firth v Yang [2014] NSWCA 92, where in March 2014, Macfarlan and Ward JJA refused an application for leave to appeal Hall J’s judgment, the itemised bill having already been provided as his Honour had ordered. In those circumstances, their Honours observed at [2] - [3]:

38. [67]

    The question of whether the time limitations in s 350 restricted the right given to clients by s 332A arose again for consideration in Mackowiak. Mr Hagipantelis was a party to those proceedings and was bound by the result.

39. [68]

    Garling J there also concluded that the Legal Profession Act 2004 imposed no time limit on a client making a request of a lawyer for an itemised bill under s 332A. Orders were thus made in favour of two of Brydens’ other clients, even though, like Mr Le, they had not made their applications under s 350 for costs assessment within the 12 months provided for such applications. His Honour was satisfied that the circumstances in both those cases were such that the Court’s discretion should be exercised in their favour.

40. [69]

    In reaching his conclusions, Garling J considered the contractual nature of the relationship between a client and a solicitor, as well as its fiduciary nature; the obligations which flow therefrom; and the resulting remedies available to clients at law and equity, in respect of any overcharging (see Mackowiak at [104] to [113]). His Honour also observed at [127] that:

41. [70]

    Uses there identified included a client who wishes to consider or pursue proceedings for breach of contract or of a fiduciary obligation; or one who wishes to be assured that the solicitor has included all relevant items in the lump sum bill, so that financial decisions with respect to the proceeds of litigation can be made (see Mackowiak at [125] - [126]).

42. [71]

    In reaching the conclusion that the 12 month limitation period in s 350 did not prevent a client requesting an itemised bill in accordance with s 332A after that 12 month period, his Honour was swayed by considerations which included that an application for an assessment made even after the 12 month period provided by s 350 was valid (unless made by a sophisticated client, or a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned). In that event, an application could be made to this Court under s 350 by the costs assessor, or the client or third party payer who had made the application for assessment, for leave to pursue the application out of time.

43. [72]

    For my part, I agree with the conclusions which McCallum J, Hall J and Garling J each reached as to the proper construction of these provisions of the 2004 Act. Section 332A is not only concerned with the provision of an itemised bill for the purpose of a costs assessment. It is a general right in relation to billing. In that regard, it is relevant to consider that the section appears in Division 7 “Billing” of Part 3.2 “Costs disclosure and assessment”, not Division 11 “Costs Assessment” of Part 3.2.

44. [73]

    It is also relevant to take into account that neither s 350 nor s 332A, empowered the Court to order a legal practice to provide an itemised bill, when one was sought outside the 12 month limitation period for which Brydens contended.

45. [74]

    It was s 728, appearing in Chapter 8 “General provisions”, which empowered the Court to order that a bill be provided. Understandably, that section did not contemplate that there was any time limit imposed on a client seeking an itemised bill, given that costs assessment was not the only purpose for which an itemised bill might be sought. Nor did it even impose a time limit on a client approaching the Court for an order that a legal practitioner provide such a bill.

46. [75]

    The conclusion that the Legislature intended that there be no limitation period imposed by the 2004 Act on the making of a s 332A request for an itemised bill seems to me inescapable, when its provisions are considered in light of those now in force under the Uniform Law, which came into operation on 1 July 2015. Its provisions reveal that the balance between the rights and obligations established by the 2004 Act was different to that established in 2015 by the enactment of the Uniform Law.

47. [76]

    In 2014, Brydens refused to comply with its statutory obligation to provide the itemised bill Mr Le had requested, an unfettered right given to him by s 332A of the 2004 Act.

48. [77]

    It persisted with that refusal contrary to the obligations then imposed upon it by s 332A. The question which remains is whether the Court’s power to make the order Mr Le sought should be exercised in his favour.

49. [78]

    I am satisfied that justice demands that the order Mr Le seeks be made.

50. [79]

    Contrary to the case advanced for Brydens, I consider that it is relevant to take into account all of Brydens’ conduct following receipt of Mr Le’s request in September 2014. It was not in issue that after the judgment in Mackowiak to which Mr Hagipantelis was a party was given, it being neither appealed or otherwise challenged, still Mr Le was not provided with an itemised bill. That was despite the decision having settled the question of the proper construction of s 332A of the 2004 Act.

51. [80]

    For Brydens it was argued, however, that Garling J’s judgment and its response should not be given any “factual weight”, because while the judgment had “legal persuasiveness”, it had no “evidentiary value”. Further, that its failure to appeal that judgment was “of no relevance at all”.

52. [81]

    Amongst the difficulties with these submissions is that there was no factual issue as to Brydens’ response to Mr Le’s request, including after the question of the proper construction of s 332A had been resolved in Mackowiak. That explains why no objection to the use sought to be made of the judgment was taken under s 91 of the Evidence Act 1995 (NSW), it not being relied on “to prove the existence of a fact that was in issue in that proceeding”.

53. [82]

    On its face, Brydens’ persistent refusal to provide Mr Le with the itemised bill he had requested, even after the question of the proper construction of s 332A was resolved in Mackowiak, involved a contravention of the 2004 Act. “Contravene” was defined in s 4 of that Act to include “fail to comply with”. In the context of s 138 of the Evidence Act 1995, where the word is not defined, it was considered by French CJ in Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 at [30] to include:

54. [83]

    Section 498(1)(a) of the 2004 Act specified that conduct capable of being unsatisfactory professional conduct or professional misconduct, as defined in s 496 and s 497, includes “conduct consisting of a contravention of this Act, the regulations or the legal profession rules”. In cases such as Council of the Law Society of NSW v Pizzinga [2012] NSWADT 211 and Legal Services Commissioner v King [2013] QCAT 260, failures to provide an itemised bill when requested has led to findings of such misconduct. Those considerations all weigh in favour of the Court’s discretion being exercised in favour of Mr Le.

55. [84]

    Brydens relied on the difficulties it would face in now providing the bill, given that it has lost Mr Le’s files, to resist the orders sought.

56. [85]

    It was in November 2014 that Mr Hagipantelis asked for the return of the files. They were provided in December. Not only did Brydens then have a statutory obligation to retain the files, but a contractual one. Under the costs agreement that it had entered with Mr Le (only after judgment was given in his favour in the District Court), it was expressly agreed:

57. [86]

    This requirement took effect when the files were returned to Brydens in December 2014.

58. [87]

    Brydens relied on the evidence of Ms Villar, now a solicitor in Brydens’ employ, who was the paralegal assisting the solicitor with carriage of Mr Le’s matters from September 2012 to March 2013, that the files cannot now be found. Her evidence was not challenged by Mr Le and accordingly, must be accepted.

59. [88]

    That evidence certainly did not establish that when Garling J gave his judgment in August 2015, that Brydens did not have, or could not have retrieved Mr Le’s files. The appeal file had been sent to Blue Ribbon Legal in January 2015 for preparation of an itemised bill, but still none was provided.

60. [89]

    Ms Villar described the searches she had undertaken to locate the files, given the systems maintained at Brydens for storage and archiving of files. In a second affidavit sworn in February 2017, Ms Villar explained the LEAP software system Brydens utilises for preparation of all documents with respect to its cases and the copies of Mr Le’s file documents therein stored. Physical file notes are not maintained there, nor are documents such as those received from Mr Le, witnesses and other parties, including pleadings, reports and subpoenas or court documents.

61. [90]

    What this evidence did not deal with was, as was submitted for Mr Le, that many of these documents are obtainable from Court files, witnesses, other parties, those who responded to subpoenas and Mr Le himself. Blue Ribbon Legal is also likely to have relevant information which is accessible to Brydens.

62. [91]

    The evidence establishes that Brydens' problems are not the result of Mr Le’s actions. It is Brydens’ own actions which have resulted in it being in the difficult position in which it finds itself, unable to meet its obligations to Mr Le to maintain his files and facing undoubted difficulty in now complying with its obligations under s 332A, in circumstances when Mr Le still requires an itemised bill.

63. [92]

    In all of those circumstances, I am well satisfied that despite the difficulties confronting Brydens, the balance must sway in favour of the Court’s discretion being exercised to make the order Mr Le seeks, that being what the dictates of justice require in the circumstances which have arisen to be considered.

Costs assessment: should the discretion to permit an out of time assessment be exercised in favour of Mr Le?

1. [93]

   In the circumstances I have discussed, I am also satisfied that the leave which Mr Le seeks must also be granted.

2. [94]

   In Mackowiak, where Mr Hagipantelis did give evidence, Garling J also exercised the Court’s s 350(5) discretion in favour of the plaintiffs, taking into account matters such as:

   1. (1)

      The time which had elapsed since the bill was provided;

   2. (2)

      The view that “a lump sum tax invoice is by its nature opaque. It is almost impossible for a lay person, unskilled in the area of legal costs and inexperienced as to what is or is not a fair charge, to realise that the sum charged by the solicitors is, or is not, fair and reasonable. Adding the notice at the bottom of the tax invoice in a smaller font, and in a way which is less than easily readable and complex, does not, in my opinion, constitute adequately notifying the client of their rights and entitlements” (at [140]);

   3. (3)

      The clients had instructed another solicitor within a reasonable time after hearing of his ability to challenge a bill (at [142]);

   4. (4)

      The appropriateness of the steps pursued by that solicitor in the respective circumstances (see at [143] to [145]);

   5. (5)

      The existence of the files, there being no evidence to suggest that a full bill of costs could not be provided and the absence of specific prejudice(see at [146] and [147]);

   6. (6)

      The grounds attached to the application for a costs assessment which suggested that, if established, there may be substance in the plaintiff’s submissions that an outcome substantively in favour of the plaintiff could be achieved (see at [148]); and

   7. (7)

      His Honour’s view that “it is generally in the public interest that, where an apparent issue of substance is raised with respect to the costs of a solicitor, that solicitor ought be required to justify those costs by the provision of an itemised bill, and by that itemised bill being submitted to the assessment process” (at [152]).

3. [95]

   The circumstances which arise for consideration in this case are different, but similar considerations arise, including in relation to his Honour’s observations at [140], with which I agree.

4. [96]

   The extent of Mr Le’s command of English was irrelevant to Brydens’ refusal to provide the itemised bill, given its statutory obligation. I accept that is not, however, irrelevant to the question of whether the leave he now seeks under s 350 should be granted.

5. [97]

   A real difficulty for Brydens’ case is that Mr Le’s evidence as to his limited command of English and that it was not until he instructed Gajic Lawyers that he became aware of his right to challenge Brydens' bill and of the existence of time limits for the exercise of that right, was finally not challenged. While Mr Duc was cross-examined, his evidence that earlier he had assisted Mr Le with the preparation of the letter he sent to Brydens in March 2014, must also be accepted.

6. [98]

   Brydens was obliged by s 332A of the 2004 Act to give Mr Le an itemised bill within 21 days of the request made on his behalf on 4 September 2014. He had instructed Gajic Lawyers in a timely way. His solicitors had pursued his request for the itemised bill soon after the appeal was settled and the question of the costs order made in Mr Le’s favour had to be resolved with the employer. Once the unchallenged judgment in Mackowiak was given in August 2015, there could no longer have been any question for Brydens, that it had no right to continue refusing Mr Le’s request, notwithstanding that it no longer acted for him, or that he proposed to rely on its itemised bill in pursuit of the costs which the employer had been ordered to pay.

7. [99]

   Mr Le was concerned about incurring further legal costs, but in the face of Brydens’ continued refusal to give him an itemised bill, even despite what was decided in Mackowiak, he was, as was his evidence, finally left with no alternative but to pursue these proceedings.

8. [100]

   Notwithstanding that these proceedings were not commenced until July 2016, there was no evidence that this delay caused Brydens any further prejudice, in addition to that caused by its loss of Mr Le’s files.

9. [101]

   In all of those circumstances, when the nature of Mr Le’s command of English and the difficulties that posed for him are considered together with the nature and result of the proceedings he brought in the District Court; the length of the hearing; the time that the costs agreement was entered; the amount of the fees charged and the circumstances in which Brydens transferred its costs to its office account; the pursuit and settlement of the employer’s appeal and the circumstances in which Mr Le came to engage Gajic Lawyers; and Brydens’ persistent refusal, in breach of its statutory obligation, to provide Mr Le an itemised bill even after judgment was given in Mackowiak, I am satisfied that the order sought to permit an out of time costs assessment must be made.

Costs

1. [102]

   The usual order is that costs follow the event, which in this case would be an order that Brydens bear Mr Le’s costs, as agreed or assessed.

2. [103]

   Unless the parties approach within 14 days to be heard, that will be the Court’s order.

Transitional Provisions

1. [104]

   The parties did not address the effect of the transitional provisions of the Uniform Law relating to costs. Relevantly, clause 18(1)(b) in Schedule 4 “Savings and transitional provisions” of the Uniform Law provides that “the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day” (emphasis added). Clause 18(1)(a) in Schedule 4 provides that “Part 4.3 of this Law applies to a matter if the client first instructs the law practice on or after the commencement day”.

2. [105]

   As Mr Le first instructed Brydens in 2006, before the commencement day of the Uniform Law on 1 July 2015, clause 18(1)(b) requires the issues lying between the parties to be dealt with by order made under the 2004 Act.

3. [106]

   For the reasons given, I order:

   1. (1)

      Under s 728(1)(a) of the Legal Profession Act 2004 (NSW) that the defendant gives the plaintiff a bill of costs in itemised form in respect of the legal services provided to the plaintiff within 42 days of the date of this order;

   2. (2)

      Under s 350(5) of the Legal Profession Act 2004 (NSW), that it is just and fair for the plaintiff’s application for assessment filed on 15 July 2015 (NSWSC matter number 2016/199623) be dealt with by a costs assessor, notwithstanding the expiration of a 12 month period; and

   3. (3)

      The defendant pay the plaintiff’s costs of these proceedings, unless the parties approach to be heard within 14 days.