I have never been quite clear about what you have to prove in a suit for fees. I was attracted to the proposition that if a client wants to go through a bill item by item, the place to do that is in a taxation, and if they do not go down that path, or they can’t because they’re out of time, then no challenge of the kind typical of a taxation ought to be allowed in the suit for fees, that is, that the bill may be sued on as a debt due and owing. But I was never entirely confident about it.
The Full Legal Profession Tribunal’s 16 June 2000 decision in B v Home Wilkinson Lowry  VLPT 1 is authority for many things (principally that state tribunals like VCAT have no jurisdiction over the costs of Family Court proceedings), and seems to be authority too for the proposition which attracted me.B v Home Wilkinson Lowry  VLPT 1 is discussed elsewhere on this blog, for example here. It is a decision of Justice Fullagar, a respected Supreme Court judge between 1975 and 1994, and thereafter Chairman of the Legal Profession Tribunal until his death. Those with an eye for these things look back on his tenure as Chairman with reverence.
The facts were that solicitors represented a wife in Family Court proceedings. They rendered a bill on 1 January 1997. They sued for outstanding fees on 19 January 1998. The Full Tribunal commented that at this stage, ‘the client was long out of time to dispute the bill,’ and ‘the client had lost all right to dispute in any way before the Family Court the liability to pay [the bill]’. The client lodged this defence:
‘The amount charged was about $21,000 for a job initially quoted at $2000.00, then to be capped at $4,000, there the solicitor offered to do amendments to documents for further (adjourned) hearing for free when total bill estimated at $6,000. Some work was not properly itemised despite my requests. Some work was done without my instructions and some I do not consider to be work done on my behalf, despite my requests information regarding my rights and process for disputing the bill was never sent to me. I am now making my own enquiries regarding making a complaint and disputing the costs.’
Two days before the Magistrates’ Court hearing, the client made 3 applications to the Family Court:
- for an order setting aside the costs agreement between herself and the practitioner;
- for an order requiring the practitioner to withdraw the Magistrates’ Court proceedings, and
- for an order that the practitioner deliver a bill of costs in taxable form, and then submit to taxation in the Family Court.
The Family Court’s Justice Carter heard and dismissed all 3. Fullagar J observed:
‘Carter J. held that the client’s application for a taxation was out of time, thus putting an end to (inter alia) any contention of the client that she did not receive a Notice of Rights with every single bill of costs. It is also clear in our opinion that the orders of Carter J. had the effect that there was thenceforth no power whatever in the client to dispute before any court or tribunal the fact that she owed to the practitioner a simple debt of $4276.40. No appeal was brought from the judgement and orders of Carter J.
10. On 16 September 1998 the proceedings in the Magistrates’ Court, having been adjourned because of the client’s eleventh hour proceedings in the Family Court, came on for hearing. It is to be observed that, in our opinion, the client was on 16 September 1998 faced with a res judicata that she owed the debt of $4276.40 to the practitioner which could simply enforce it as a debt. Any attempt to defend would be met by res judicata.
13 … the order of Carter J. of 3 August 1998 operates against the client as a res judicata not only for the proposition that the $4276.40 was a debt due and owing as at the date of the order of Carter J. but also for the proposition that it had been due and owing as soon as the time for disputing it in the Family Court had expired.’