Adamson v Williams

[2000] QDC 438

[2000] QDC 438

IN THE DISTRICT COURT

HELD AT SOUTHPORT  APPEAL NO. 971 of 1999

QUEENSLAND

BETWEEN              CHRISTOPHER MICHAEL ADAMSON

Appellant

AND  LYLE JAMES WILLIAMS

Respondent

REASONS FOR JUDGMENT – HANGER, DCJ

(Delivered the  day of  2000)

The appellant, a solicitor, instituted proceedings in the Magistrates Court for the recovery of legal fees and out goings due from the respondent/defendant, a client.  The fees related to civil proceedings for personal injuries instituted in the District Court, and for other work done by the solicitor.  Some monies were paid by the respondent.  The Magistrate dismissed the claim and gave lengthy reasons for her decision.  It is against that decision that the plaintiff in the original action now appeals. 
The main grounds of appeal involve a challenge to the Magistrate’s findings of fact.  It is quite clear from the Magistrate’s reasons that she gave careful consideration to the evidence, both oral and documentary.  Apart from a number of exhibits, oral evidence was given by the parties only, Mr Adamson and Mr Williams.  The Magistrate indicated that she was impressed by the demeanour of both witnesses.  She took into account Mr Williams’ psychiatric problems and his consequential less than perfect memory.  She considered that he gave his evidence “earnestly and truthfully”.  One of the principle matters in issue between the parties was the nature of the agreement as to the payment of fees.  It was an oral agreement.  Put briefly the appellant’s evidence was that he told the respondent that the normal Supreme Court fees would be charged.  The respondent’s evidence was that the agreement was on a “no win no fee” basis.  The District Court action never went to trial. 

It is implicit in the Magistrate’s findings that she must have preferred the evidence of the respondent to that of the appellant, or at least have had a doubt as to whether the appellant had discharged the onus placed on him.  I can see no reason for interfering with her decision. 

One further matter should be mentioned in relation to the findings of fact.  In the course of her decision the Magistrate said:

“However, I find that there is no rule or precedent that the benefit of the doubt should be given to either the client or the solicitor.  In this case, I should simply determine whether the plaintiff has proved to the required standard his – all the matters set out in the statement of particulars of his claim.  If he has failed to do so, then he will lose the case today if he has proved those matters on the balance of probabilities, then he is entitled to Judgment.”

and at page 19 of her Judgment she continued:

“I accept that Mr Adamson is a solicitor, as I said, of the Supreme Court of Queensland and New South Wales and an oath taken before any Court by such a legal practitioner is never lightly taken, and ordinarily, the evidence of a solicitor must be heard by the court and accepted as evidence given seriously, truthfully and honest.”

This would seem to be an incorrect approach.  In “Cordery on Solicitors” 8^th ed. there appears the following passage dealing with oral retainers between solicitor and client: 

“If however, there is no evidence of the retainer except the statement of the solicitor which is contradicted by the client, the court will treat the solicitor as having acted without authority.  The onus of proof is on the solicitor, and more weight will be given to the affidavit of the client than to that of the solicitor.”

One of the authorities cited for that proposition was Griffiths v. Evans (1953) 2 All England reports 1364 at 1369.  There Dening Lord Justice stated:

“On this question of retainer, I would observe that where there is a difference between a solicitor and a client on it, the courts have said for the last 100 years or more that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it.”

He then cited a number of authorities and proceeded:

“The reason is plain.  It is because the client is ignorant and the solicitor is, or should be, learned.  If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.”

Had the magistrate adverted to this principle it would no doubt have provided some support for her decision.

In the course of submissions reference was made to a number of provisions of the Queensland Law Society Act and the Legal Practitioners Act of 1995.  However, it seems to have been accepted by both parties that provisions in that legislation have no application to the circumstances of the present case.  No submission has been made that because the agreement was oral it was not enforceable. 

The result is that the appeal is dismissed.  The appellant is ordered to pay the costs including reserve costs to be taxed. 

J M Hanger

Hanger/Judgement – Adamson