Solicitor not allowed to substitute higher bill for lower where decision to charge lower amount deliberate

Cowen’s case [2006] VCAT 231

A solicitor felt sorry for an unrepresented criminal defendant and rendered a paltry bill. When he copped a costs complaint, he purported to revise his bill to include all the things he had omitted to bill the first time. Mr Butcher said — no way.The respondent solicitor bumped into the applicant in the Sunshine Magistrates’ Court, unrepresented on the day of his criminal trial. He procured an adjournment, spoke on the phone with client 2 days later and conferred for an hour the next day, when he gave a receipt for $270 the applicant paid him in cash. The solicitor gave a handwritten receipt which said “for deposit for criminal defence … $225 owing, due one week before contested hearing”. Three days later, he rendered a bill for the $270 he had already been paid, the applicant having sacked him. It was not an ambitious document. It said:

“2 May 2005 Appearance at Sunshine Magistrates’ Court before Her Honour Ms Toohey $200.00; 4 May 2005 Telephone conference, 10 minutes $10.00; 10 May 2005 Conference in person, 1 hour $35.45: $245.45 plus 10% GST = $270.00″

Three days later again, the alleged criminal lodged a costs complaint. The respondent rendered another bill, for $1,185 which he sought to substitute for the first.

Mr Butcher upheld Mr Hebb’s submission by reference to Re: Edwin Sutherland & Co’s Bill of Costs (1971) QLDR 318 that a solicitor may not substitute a further account for one already given without special circumstances, which did not include the fact that the original account had been diminished in amount by a desire in the solicitor, before his former lodged the costs dispute, to “save the [then client] money”.

But the original bill contained sufficient detail to justify an order that the alleged criminal pay the solicitor’s original bill.

Alan Hebb was for the Tribunal; there were no other appearances.

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