Application for itemised bill of costs from previous solicitors — Application for declaration that costs assessment application is just and fair — TROUBLING ASPECTS

Benton v CMC Lawyers Pty Ltd [2022] NSWSC 1548

https://www.caselaw.nsw.gov.au/decision/184641fa7917818162c66b7cwww.caselaw.nsw.gov.au/decision/184641fa7917818162c66b7c

​74. Seventh, whilst I accept that the bifurcation between solicitor and barrister in New South Wales has reduced, and is reducing, markedly, the structure whereby Mr Quinlivan rendered a separate memorandum of fees to CMC, whilst in fact employed by it, must be assessed as unorthodox. And his role as an “in-house barrister” who was charging for advocacy services, when in the event he did not and could not appear in the District Court, inevitably gives rise to a concern about the opacity of any duplication of functions. And that concerning potential for overlap applies not only between his work and other solicitors within CMC, but also between his work and the work done in any event by counsel who ultimately appeared on the hearing.
75. Eighth, a request of any person to any other person that they backdate any document is troubling. A request made by a solicitor and former barrister to their client to that effect is very troubling. And such a request made in circumstances where the backdating at the least has the potential to be financially disadvantageous to the client is very troubling indeed (as to which, see the evidence of Mr Quinlivan at HT 137.15 ff). I respectfully reject the submission that what occurred here is a distraction; on the contrary, it plays an important role in my concerns about the matter.
​76. Ninth, the document prepared by CMC and suggestive on its face that “$Nil” of the advocacy services costs of Mr Quinlivan would be able to be recovered from HHT is also troubling. Mr Quinlivan could not provide any explanation of it (see HT 135.14 ff). As for the explanation on oath of Mr Moran, principal of CMC (see HT 118.06 ff), that perhaps one could read it whereby in fact the separation of sums in the rows in the first column in truth is not to be maintained in the second column, and some of the amounts sought to be recoverable from HHT could include a sum referable to the advocacy costs of Mr Quinlivan, I found it to be, with respect, intrinsically internally inconsistent and contrary to the plain meaning of the document. That is also troubling.