Introduction
The recent Western Australian State Administrative Tribunal (SAT) decision in Kaya and WA Summit Lawyers [2025] WASAT 22 offers valuable insights into when clients may obtain an extension of time to have legal costs assessed. In this case, Ms Kaya engaged WA Summit Lawyers for a family law dispute but later became dissatisfied with both the representation received and the costs charged. She sought to have a particular bill (Invoice 107) assessed, but her application came approximately 7.5 months after the statutory 12-month time limit had expired. The Tribunal had to determine whether it was "just and fair" to allow the assessment to proceed despite being out of time.
The Legislative Framework
Under the Legal Profession Uniform Law (WA), s 198(3) requires that applications for assessment of legal costs must be made within 12 months after the bill was given to the client. However, s 198(4) provides that late applications may proceed if the designated tribunal "determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period."
This provision balances the legitimate expectations of legal practitioners to have their bills finalized within a reasonable timeframe against the right of clients to challenge potentially excessive costs.
Key Factors in Determining Extensions
The Tribunal in Kaya referenced several significant cases that have established principles for determining when extensions should be granted. Drawing from Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112, the following factors are particularly relevant:
1. Reasons for Delay
The tribunal will examine why the client failed to bring the application within the statutory timeframe. In Kaya, the applicant's limited English proficiency, financial constraints, family responsibilities, and initial attempts to resolve the matter through the Legal Practice Board were considered adequate explanations for the delay.
2. Potential Injustice to the Client
Courts consider whether refusing an extension might result in injustice to the client. This involves evaluating whether there appears to be merit in the client's concerns about the bills.
3. Evidence of Potentially Excessive Bills
If there is preliminary evidence suggesting the bill might be excessive or contain charges for work not performed, this weighs in favor of granting an extension. In Kaya, the applicant asserted that the bill included costs for work that could not have been done on days for which costs were claimed.
4. Prejudice to the Practitioner
As noted in Frigger v Murfett Legal Pty Ltd [2012] WASC 447, law practices have legitimate expectations that bills will be finalized within the statutory period. They may arrange their business accordingly, and delays can prejudice them through fading memories or staff changes. However, in Kaya, the Tribunal noted that the firm had not provided evidence of any specific prejudice beyond delayed payment.
5. Practitioner's Reasons for Opposition
As officers of the court, legal practitioners should be acting honestly, ethically, and with proper motives when opposing an extension—not merely to prevent assessment. In Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52, the court noted that an unjustified reluctance to provide an itemized bill or serious delay in providing one might favor allowing an out-of-time application.
6. Statutory Purpose
The provisions exist to protect clients against excessive charges while preventing frivolous objections or tactical delays in payment. As Master Sanderson stated in Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184, "the discretion, while unfettered, must pay particular regard to the length of the delay and the reasons for the delay."
Special Considerations for Self-Represented Litigants
The Kaya decision underscores that tribunals may give some latitude to self-represented litigants, particularly those with language barriers. The Tribunal acknowledged that navigating the legal system would likely be difficult for someone in Ms Kaya's position. Similarly, in Lin v WJ Legal (Aust) Pty Ltd, the court considered the applicant's incomplete knowledge of English as a constraint in enforcing his rights.
The Balancing Exercise
Ultimately, the question requires exercising a broad discretion to ensure that the interests of justice are properly administered. As Justice Dixon noted in Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52, the test "requires a consideration of the right of one party to seek an assessment against the legitimate expectation of the other party that any request for an assessment will be made within the statutory period."
Conclusion
For practitioners, the Kaya decision highlights the importance of maintaining detailed records of work performed and being prepared to justify charges if challenged, even outside the standard timeframe. For clients, while the 12-month limitation period should be respected, there remains scope for extensions where justified by the circumstances.
The case reinforces that the "just and fair" test is applied on a case-by-case basis, with tribunals weighing multiple factors to balance the competing interests at stake. While time limitations serve important purposes in finalizing legal obligations, they will not be rigidly enforced where doing so would produce an unjust outcome.