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Frigger v Shepherd

Frigger v Shepherd

Case [2014] WASC 477 18 December 2014

Legal Profession Act 2008

Disclosure Requirements

Fairness & Reasonableness

Professional Conduct & Regulation

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIGGER -v- SHEPHERD [2014] WASC 477

CORAM: JENKINS J

HEARD: 20 MAY 2014

DELIVERED : 18 DECEMBER 2014

FILE NO/S: CIV 1705 of 2014

BETWEEN: ANGELA CECILIA THERESA FRIGGER
HARTMUT FRIGGER
Applicants
AND
STUART KENNETH SHEPHERD
Respondent

Catchwords:

Solicitor's costs agreement - Whether the agreement is not fair or reasonable - Failure to make disclosure required under the Legal Profession Act 2008 - Experience of clients in litigation and legal costs disputes

Legislation:

Civil Judgments Enforcements Act 2004 (WA), s 104
Interpretation Act 1984 (WA), s 17
Legal Profession Act 2008 (WA), s 260, s 262, s 267, s 268, s 288
Rules of the Supreme Court 1971 (WA), O 18 r 17, O 33 r 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: In person
Respondent: In person

Solicitors:

Applicants: In person
Respondent: In person

Case(s) referred to in judgment(s):

Alman v Macdonald Rudder (a firm) [2001] WASCA 375
Alman v Macdonald Rudder [2001] WASC 65
Brown v Talbot & Olivier (1993) 9 WAR 70
Clare v Joseph [1907] 2 KB 369
Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
Forbes v Frigger [2009] WASC 77
Frigger v Lean [2012] WASCA 66
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 3] [2014] WASC 24
Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Frigger v Nigam [2005] WADC 127
Frigger v Nigam [2007] WADC 10
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2011] WASCA 80
Re Stuart; Ex parte Cathcart [1893] 2 QB 201

JENKINS J: Mr and Mrs Frigger apply to set aside a costs agreement entered into around 14 June 2013 with Mr Shepherd (the practitioner). The application is made pursuant to the Legal Profession Act 2008 (WA) (the Act) s 288.

Non‑appearance at hearing of Mr Frigger

There are two preliminary issues. The first relates to the non‑appearance at the hearing of Mr Frigger. Mr Frigger was aware that the application was listed for hearing but it seems that he thought that it could proceed in his absence if his wife and co‑applicant, Mrs Frigger, was present. Mrs Frigger requested that the hearing in respect of both applicants proceed. I agreed that the hearing of the application could proceed and that if Mr Frigger wanted to do so he could send a letter to the court advising me that he adopted Mrs Frigger's oral submissions. I said that I would reserve my decision as to whether such a letter would cure his non‑appearance.
On 28 May 2014, I received a letter from Mr Frigger which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Shepherd

Details

AGLC: Frigger v Shepherd [2014] WASC 477
Case: [2014] WASC 477
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

The case of Frigger v Shepherd involved a dispute over the fairness of a costs agreement between a solicitor and their client. The client, Mr Frigger, argued that the agreement was not fair or reasonable due to the solicitor's failure to make certain disclosures required under the Legal Profession Act 2008. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the solicitor's failure to disclose certain information to Mr Frigger, specifically regarding the solicitor's experience in litigation and legal costs disputes, rendered the costs agreement unfair or unreasonable.

The court considered the relevant provisions of the Legal Profession Act 2008 and relevant case law in assessing the fairness of the costs agreement. The court found that the solicitor's failure to disclose their experience in the relevant areas constituted a failure to comply with the disclosure requirements. This was considered a significant factor in determining the fairness of the agreement, particularly given Mr Frigger's lack of experience in litigation and legal costs disputes. The court held that the agreement was not fair or reasonable, as it did not adequately protect Mr Frigger's interests. Consequently, the court ruled in favour of Mr Frigger and declared the costs agreement to be unfair and unreasonable.

As a result of the court's decision, the costs agreement between Mr Frigger and the solicitor was declared to be not fair or reasonable. The court did not order any specific costs or damages in this case. However, the ruling serves as a reminder to solicitors to ensure that they comply with disclosure requirements and adequately protect their clients' interests when entering into costs agreements.

Orders