A property developer who owns most of Melbourne’s theatres, including the Princess, the Regent, the Forum and the Comedy, sought to tax his lawyers’ fees for representing him in two appeals he brought. They had acted for him in litigation over a property development in Queensland, defending a claim that the developer and various of his companies owed the other side three million bucks.
It went on and on: the developer lost, then appealed successfully, lost on the remitter, and appealed unsuccessfully, though the other side only got a fraction of what they were after. (Incidentally, though the other side only got judgment for 10% of what they were after, the Court of Appeal held that Sloss J had not erred in ordering costs against the developer on the basis that costs should follow the event and that no issue-by-issue costs split was justified). It was an expensive exercise for the developer because the lawyers charged him $3M for defending the claim for $3M.
The original retainer was in May 2005, at which time the Legal Practice Act 1996 was in force. Then the Legal Profession Act 2004 came into operation on 12 December 2005. After that, some of the lawyers’ bills said that Mr Marriner could seek taxation under the Legal Profession Act 2004. (I’d say most Victorian lawyers’ bills had this problem after 12 December 2005 in relation to the many engagements which continued to be regulated by the 2004 Act after that date.)
The Costs Court threw out the developer’s summons for taxation for want of jurisdiction. The lawyers had charged throughout on an hourly rate, without demur from their client the developer. The Court found that the Legal Practice Act 1996 regulated his relations with them. And under that Act, there could be no taxation of fees charged under an hourly rates costs agreement: s. 101(2).
Which Act applied depended on (a) what a ‘matter’ was for the purposes of the transitional provisions between the 1996 Act and the 2004 Act, (a question I posted about here, but in relation to the next statute along, the LPUL) and (b) how different phases of the litigation should be characterised for that purpose.
Costs Judge Wood AsJ’s reasons for finding that it was all one matter governed by the 1996 Act (including the appeals which his Honour was clear were separate proceedings) are reported as Marriner v Meerkin & Apel  VSC 36.Continue reading “A matter where ‘matter’ mattered”