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Requesting itemised Bill of Costs: Effect of Firth v Yang [2014] NSWCA 92

Even if a client or third party payer does not have an entitlement under s 350 of the Legal Profession Act 2004 (NSW) (“the Act”) to have a bill assessed (for example, if 12 months had passed since a lump sum bill was given to the client or third party payer), the client or third party payer may still have a right under s 332A of the Act to request an itemised bill.

Firth v Yang [2014] NSWCA 92 (31 March 2014)

Before:Macfarlan JA, Ward JA

A solicitor (Mr Firth) sought leave to appeal from a decision of Hall J requiring Mr Firth to give his client (Mr Yang) a Bill of Costs in itemised form in respect of legal services provided by Mr Firth to Mr Yang.

The primary judge made the order under s 728 of the Act, which gives the Supreme Court discretionary power to order delivery up of documents, including Bill of Costs. In exercising his discretion under s 728, His Honour:

  • took into account non-compliance by Mr Firth with an earlier request by Mr Yang under s 332A of the Act for an itemised bill;
  • considered that Mr Firth had been obliged to comply with requests for an itemised Bill of Costs notwithstanding that the requests were made more than 12 months after Mr Firth provided a lump sum bill to Mr Yang;
  • rejected Mr Firth’s arguments that a client’s right under s 332A to request an itemised bill only exists if a client has an entitlement under s 350 of the Act to have the bill assessed and that Mr Yang did not have such a right because 12 months had passed since the delivery of the lump sum bill and Mr Yang had not obtained an order from the Supreme Court under s 350(5) of the Act permitting the application to be dealt with after the expiration of the 12 month period.

As Mr Firth had complied with his Honour’s order and the reason for appeal was academic so far as the issues in these proceedings were concerned, the Court of Appeal dismissed the application for leave to appeal with costs and declined to opine on whether the time limitations in s 350 restrict the right given by s 332A. However, the Court of Appeal stated that:

Section 332A, which gives a right to itemisation of a lump sum bill, clearly cross-refers to s 350 because the right is given to a person “who is entitled to apply for an assessment of the legal costs to which the bill relates”. However the extent of the role s 350 plays in relation to s 332A is a matter for argument.

Until this issue is given further judicial considerationBlackstone advises all practitioners to maintain accurate records enabling them to provide itemised bills whenever required in the same manner in which other important documents are maintained.

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