Hegarty v Keogh (No 2)

[2023] SASCA 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HEGARTY v KEOGH (No 2)

[2023] SASCA 30

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

23 March 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - STATUTE OF FRAUDS, SECTION 4 - NON-COMPLIANCE WITH STATUTE - EXECUTED CONTRACTS AND ACTIONS FOR QUANTUM MERUIT

RESTITUTION - CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS - ILLEGAL CONTRACT - RECOMPENSE FOR SERVICES RENDERED

The appellant solicitor made a claim for costs and disbursements incurred in representing the respondent client between 2004 and 2012. 

The respondent had been convicted of murder and gaoled and required legal representation to challenge his conviction.  The appellant claimed that the retainer agreed in December 2004 was in the nature of a contingency costs agreement: payment of costs and disbursements was conditional on the appellant securing the respondent's release from prison and a payment of compensation to him. 

The appellant’s retainer was terminated in 2012 and a different legal team represented the respondent before the Court of Criminal Appeal, which in 2014 ordered that the respondent’s conviction be set aside and that there be a new trial.  Instead, the Director of Public Prosecutions entered a nolle prosequi in 2015.  The State government later made an ex gratia payment of $2.57 million to the respondent in 2018.

The appellant then claimed his legal costs and disbursements of $535,000 on the basis that the contingency in his retainer was satisfied.

On the respondent’s application, a Master gave summary judgment against the appellant on the basis that there was no “reasonable basis” for prosecuting the claim. 

By the hearing of the appeal from the Master’s decision, the appellant had abandoned all appeal grounds save that he was entitled to reasonable fees and disbursements by way of a claim in quantum meruit.

HELD (the Court), dismissing the appeal and refusing permission to appeal the order that the respondent recover the costs of the action from the appellant:

1.There is no reasonable basis for the appellant’s claim within the meaning of r 144 of the Uniform Civil Rules 2020 (SA). 

2.The claim in quantum meruit fails because it was not unjust for the respondent client to accept the benefit of the appellant solicitor’s legal services without making restitution where those legal services were never to be remunerated unless the agreed contingency manifested, but it never did. 

3.The three limbs of the contingency were not satisfied: the appellant was not acting for the respondent and did not perform the work required in connection with the respondent’s release and receipt of compensation and, properly understood, the respondent was neither released nor compensated as the contingency costs agreement anticipated. 

4.Observations made about the law of maintenance and the requirements for a complying contingency costs agreement at common law and under the Legal Practitioners Act 1981 (SA) and the Professional Conduct Rules in force at the time of the alleged retainer in December 2004.

Criminal Law Consolidation Act 1935 (SA) s 353A; Legal Practitioners Act 1981 (SA) s 42, Sch 3; Rules of Professional Conduct and Practice 2003 (SA) r 42; Statutes Amendment (Appeals) Act 2013 (SA) s 7; Uniform Civil Rules 2020 (SA) r 144, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Alabaster v Harness [1895] 1 QB 339; Alexiadis v Zirpiadis (2013) 302 ALR 148; Amadio Pty Ltd v Henderson (1998) 81 FCR 149; Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22; Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; Australian Medic Care Company Ltd (2011) 278 LSJS 137; Awwad v Geraghty & Co (a firm) [2000] 1 All ER 608; Baker Johnson v Jorgensen [2002] QDC 205; Beckett v New South Wales (2013) 248 CLR 432; Bolitho v Banksia Securities Ltd (No 6) (2019) 63 VR 291; Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221; British Waterways Board v Norman (1993) 26 HLR 232; Brown v Talbot & Olivier (1993) 9 WAR 70; Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; Catto v Hampton Australia Limited (in liquidation) (2007) 251 LSJS 164; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Clare v Joseph [1907] 2 KB 369; Clyne v NSW Bar Association (1960) 104 CLR 186; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Dietrich v The Queen (1992) 177 CLR 292; DW Fox Tucker Pty Ltd v Morgan [2023] SASCA 11; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; Estate of the late Sir Donald Bradman v Allens (2010) 107 SASR 1; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Farrow Mortgage Services Pty Ltd (in liq) v Edgar (1993) 114 ALR 1; Findon v Parker (1843) 11 M & W 675; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Gregory v Portsmouth City Council [2000] 1 AC 419; Hegarty v Keogh [2020] SASC 237; Hegarty v Keogh [2021] SASCA 46; Hurst v Vestcorp Ltd (1988) 12 NSWLR 394; In Re Stuart; Ex parte Cathcart [1893] 2 QB 201; Jones v Brian K Deegan & Associates [2011] SASC 44; Kadeh v Gill [2000] SASC 367; Kellar v Williams [2004] UKPC 30; Kelleher v Parole Board of New South Wales (1984) 156 CLR 364; Ladd v London Road Car Co (1900) 110 LT Jo 80; Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; Mann v Paterson Construction Pty Ltd (2019) 267 CLR 560; Mayfair Trading Company Pty Ltd v Dreyer (1958) 101 CLR 428; McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382; McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129; Morris v Southwark London Borough Council (Law Society intervening) [2011] 2 All ER 240; Nelson v Nelson (1995) 184 CLR 538; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co [2006] SASC 134; R v Chryssomallos (2019) 134 SASR 568; R v Keogh (2007) 175 A Crim R 153; R v Keogh (No 2) (2014) 121 SASR 307; R v Keogh South Australian Court of Criminal Appeal, Matheson, Millhouse and Mullighan JJ, 22 December 1995; R v Keogh [2014] SASCFC 20; R v Keogh (No 1) [2015] SASC 179; R v Keogh (No 2) [2015] SASC 180; Re Sheehan and Sheehan (1990) 13 Fam LR 736; Renton Resources Pty Ltd v Johnson Winter & Slattery (2005) 240 LSJS 434; Ruddock v Taylor (2005) 222 CLR 612; Schokker v Commissioner of Taxation (No 2) (2000) 106 FCR 134; Sevastopoulos v Spanos [1991] 2 VR 194; Sievwright v Ward [1935] NZLR 43; Smits v Roach (2002) 55 NSWLR 166; Smits v Roach (2004) 60 NSWLR 711; Spencer v Commonwealth (2010) 241 CLR 118; Thai Trading Co v Taylor [1998] QB 781; Weiss v Barker Gosling (1993) 114 FLR 223; Wild v Simpson (1919) 2 KB 544; Winslade v Steri-Flow Filtration (2012) 113 SASR 69; Woodgate v Keddie (2007) 242 ALR 234; XX v Whittington Hospital NHS Trust [2021] AC 275, considered.

HEGARTY v KEOGH (No 2)
[2023] SASCA 30

Court of Appeal – Civil:  Livesey P, Doyle and Bleby JJA

THE COURT:

Introduction

1. The appellant is a solicitor, and the respondent his former client.  The appellant sued the respondent for unpaid fees and disbursements.  By this appeal the appellant challenges a Master’s order granting summary judgment on that claim in favour of the respondent.  The Master found that the evidence adduced by the appellant “demonstrates that he has no reasonable basis for prosecuting the claim” against the respondent.[1]

   [1]     Hegarty v Keogh [2020] SASC 237, [136] (Judge Bochner).

2. As a result, the appellant cannot recover the legal fees and disbursements he claims from the respondent.  These were incurred when the appellant acted as solicitor for the respondent between 2004 and 2012 in connection with various litigation which was intended to facilitate a challenge to the respondent’s conviction for murder.  The appellant retained Mr Borick QC (as he was) as counsel to appear for the respondent.

3. Later, a different legal team represented the respondent in the Court of Criminal Appeal when that Court set aside the respondent’s conviction and directed that he be retried.[2]  The Director of Public Prosecutions instead entered a nolle prosequi.  The respondent was released after spending around 19 years in prison.  The respondent later received an ex gratia payment of $2.57 million from the State government.

   [2]     R v Keogh (No 2) (2014) 121 SASR 307.

4. The appellant always acknowledged that the respondent was unable to pay his fees.  However, he claimed that his retainer with the respondent included terms that he would work to secure the respondent’s release from prison and obtain compensation for the respondent and, in the event of success, the respondent would then pay to the appellant his fees and disbursements.[3]  It was pursuant to this “contingency costs agreement” that the appellant claimed a sum exceeding $535,000, of which more than $427,000 is said to be due to Mr Borick.

   [3]     Hegarty v Keogh [2020] SASC 237, [8] (Judge Bochner).

5. Clause 25 of Schedule 3 to the Legal Practitioners Act 1981 (SA), as now in force since 1 July 2020, defines “contingency fees” as an arrangement where the fees are referrable to the amount or value of the judgment or settlement, whereas under “conditional costs agreements” the fees are referrable to the outcome.[4]  Notwithstanding this change in nomenclature, it is convenient to describe what is now a conditional costs agreement as a “contingency costs agreement” as that was the term used at the time of the retainer in 2004.

   [4]     The current South Australian Legal Practitioners Conduct Rules (SA) (adopted on 25 July 2011, as amended by the Society on 21 December 2021) no longer address “contingency fees” or “conditional costs agreements”.  

6. Before the hearing of this appeal, the appellant abandoned most of his appeal grounds and accepted that there was no written retainer as was required by s 42 of the Legal Practitioners Act 1981 (SA) (as in force at the time) (the Act).  The appellant contended that he may nonetheless make a claim for reasonable fees by way of quantum meruit.

7. The applicant also sought leave to appeal against the order of the Master made on 11 December 2021 that the applicant pay the respondent’s costs of the action. 

8. For the reasons that follow, the appeal should be dismissed.  There is no reasonable basis for the claim within the meaning of r 144 of the Uniform Civil Rules 2020 (SA).  The claim in quantum meruit fails because it was not unjust for the respondent client to accept the benefit of the appellant solicitor’s legal services without making restitution where those legal services were never to be remunerated unless the agreed contingency manifested, but it never did.  The three limbs of the contingency were not satisfied: the appellant was not acting for the respondent and did not perform the work required in connection with the respondent’s release and receipt of compensation and, properly understood, the respondent was neither released nor compensated as the contingency costs agreement anticipated. 

9. Leave to appeal against the costs order made by the Master concerning the action should be refused.

10. These reasons are set out as follows:

    The murder trial, the conviction and retainer

    The alleged written retainer

    The absence of advice from the appellant

    The proceedings at first instance

    The appeal to this Court

    The claims in quantum meruit and unjust enrichment

    Pleadings

    The context: the common law and s 42 of the Act

    Two further common law considerations

    The Legal Practitioners Act and the Conduct Rules and maintenance

    Did the Act and Conduct Rules bar restitutionary relief?

    Consideration of the quantum meruit claim

    Elements of a claim in quantum meruit

    The concept of unjust enrichment in the context of quantum meruit

    Determination: quantum meruit

    The contingency in this case – three limbs

    Was the contingency satisfied?

    The release from prison

    The payment of compensation

    Did the appellant secure the respondent’s release and payment?

    The costs of action where quantum meruit is not available

    Conclusion

    The murder trial, the conviction and retainer

11. On 23 August 1995, following a second trial by jury, the respondent was convicted of the murder of his fiancée, Ms Anna Jane Cheney, and sentenced to a term of life imprisonment.  On 22 December 1995, the respondent’s first appeal to the Court of Criminal Appeal was dismissed.[5]  On 13 May 1997, the Court of Criminal Appealdismissed an application to reopen the first appeal and refused to entertain a second appeal on the ground that it had no jurisdiction to do so.[6]  On 3 October 1997, the High Court refused special leave to appeal this decision.[7]

    [5]     R v Keogh (South Australian Court of Criminal Appeal, Matheson, Millhouse and Mullighan JJ, 22 December 1995).

    [6]     R v Keogh (No 2) (South Australian Court of Criminal Appeal, Matheson, Millhouse and Mullighan JJ, 13 May 1997).

    [7]     Keogh v The Queen [1997] HCA Trans 313.

12. The primary pathology evidence led at trial was from Dr Colin Manock, the pathologist who conducted the autopsy.  Dr Manock’s evidence was supported, in most respects, by another senior pathologist, Dr Ross James.  From around 2002, the appellant, along with various legal academics and medical experts, began to publicly criticise the conduct of the respondent’s trial, particularly the evidence and conclusions expressed by the pathologists.

13. On 4 December 2004, the appellant visited the respondent at Port Augusta Prison to discuss the respondent’s criminal conviction.  Thereafter, the appellant provided legal services to the respondent under a retainer to “do whatever was needed to be done in order to achieve his release from prison and hopefully a payment of compensation to him”.[8] This included instructing counsel, pursuing complaints before the Medical Board of South Australia against the forensic pathologists Dr Manock and Dr James, submitting a number of petitions for mercy to the Governor,[9] and attempting to pursue a second appeal against the respondent’s murder conviction in the Court of Criminal Appeal of the Supreme Court of South Australia[10] and the High Court of Australia.[11]

    [8]     The retainer was described in those terms in the Affidavit of Michael S Hegarty sworn 2 July 2020.

    [9]     The applicant petitioned the Governor for mercy five times.  The first three petitions were rejected.  The fourth petition was withdrawn.  The Attorney-General deferred resolution of the fifth petition pending the outcome in R v Keogh (No 2) (2014) 121 SASR 307.

    [10]   On 22 June 2007, a second application to the Court of Criminal Appeal to reopen the first appeal was dismissed again on the ground that the Court had no jurisdiction to entertain the appeal, R v Keogh (2007) 175 A Crim R 153.

    [11]   On 16 November 2007, the High Court refused special leave to appeal against the decision dated 22 June 2007, Keogh v The Queen [2007] HCA Trans 693.

14. The appellant’s claim to recover legal fees was initially made jointly with Mr Kevin Borick.  Mr Borick had represented the respondent before December 2004.  He had prepared a petition for mercy and lodged a complaint to the Medical Board regarding Dr Manock.  Following the December 2004 meeting Mr Borick was then briefed by the appellant as counsel for the respondent.  Mr Borick continued to act for the respondent until mid-2010 when Mr Keogh instructed the appellant that he no longer wanted Mr Borick to represent him.  

15. The materials before the Master included an article written by Mr Borick in September 2011.  In that article Mr Borick referred to the respondent’s lawyers as “his pro bono lawyers”.  Following objection, the Master allowed the article to be adduced for the limited purpose of demonstrating that the respondent’s defence to the appellant’s claim is “not spurious, unreasonable or lacking in prospects”.[12]

    [12]   Hegarty v Keogh [2020] SASC 237, [25] (Judge Bochner).

16. In mid-2012, the respondent told the appellant that he no longer wished to receive legal advice from the appellant, and any retainer agreement between the respondent and appellant was terminated.  The respondent subsequently instructed different solicitors to prosecute the application for a second or subsequent appeal against the respondent’s conviction.

17. In 2013, the Criminal Law Consolidation Act 1935 (SA) was amended to permit a person to seek permission to prosecute a second or subsequent appeal against conviction in certain circumstances.[13]  Soon after, on 21 June 2013 the respondent’s new legal team applied for permission to appeal, which was heard between 30 January and 3 March, and then granted on 11 March 2014.[14]

    [13]   Statutes Amendment (Appeals) Act 2013 (SA) s 7 inserting s 353A into the Criminal Law Consolidation Act 1995 (SA).  This is now s 159 of the Criminal Procedure Act1921 (SA).

    [14]   R v Keogh [2014] SASCFC 20 (Nicholson J).

18. In 2014, the Court of Criminal Appeal heard the respondent’s second appeal and found that “fresh and compelling evidence” had been adduced, concluding that a substantial miscarriage of justice had occurred in respect of the respondent’s conviction.  An important issue was the recantation by Dr Manock of various of his opinions, together with the availability of contrary pathology opinion evidence:[15]

    Professor Vernon-Roberts’ report of 2004 was released to the applicant’s advisors on 5 December 2013. In February 2014, the testing recommended by Professor Vernon-Roberts was undertaken by Professor Thomas. This testing confirmed the tentative view expressed by Professor Vernon-Roberts that tissue taken from a possible lesion on the medial aspect of Ms Cheney’s left leg contained haemosiderin. As a consequence, if the possible lesion was in fact a bruise, the conclusion could be safely drawn that it had been sustained at least 24 hours before death. The consequence of such a finding is that Dr Manock’s opinion as to the mechanism of murder is materially undermined.

    [15]   R v Keogh (No 2) (2014) 121 SASR 307, [16] and [18] (Gray, Sulan and Nicholson JJ).

19. The respondent’s conviction was set aside, and the Court directed that he be retried:[16] 

    In our opinion, the evidence, as identified in these reasons, demonstrates that the trial process was fundamentally flawed. A number of highly significant observations and opinions of Dr Manock materially misled the prosecution, the defence, the trial Judge and the jury. In these circumstances, there has been a substantial miscarriage of justice.

    The applicant’s argument before this Court and our consideration of this appeal has focussed primarily on the forensic pathology evidence. The task of the jury involved consideration of all of the circumstances of the case, including the fact that a young and apparently healthy woman died suddenly while taking a bath in circumstances where the applicant may have had a motive to murder her and had the opportunity to do so on the night of her death. Nevertheless, the forensic pathology evidence was a central component of the prosecution case before the jury.

    We do not accept the submission made by the applicant’s counsel that there should be a direction of acquittal. To the contrary, we consider that the non-expert circumstantial evidence, when considered together with the forensic pathology evidence as it is now understood, is such that it would remain open to a properly directed jury to convict…

    [16]   R v Keogh (No 2) (2014) 121 SASR 307, [353]-[356] (Gray, Sulan and Nicholson JJ).

1. On 13 November 2015, the Director of Public Prosecutions entered a nolle prosequi and, in 2018, the respondent received the ex gratia payment from the State, earlier mentioned.  During this period the appellant wrote to the respondent’s new solicitors, seeking advice about the respondent’s compensation claim and providing estimates of Mr Borick’s fees at $1.5 million and for his own fees at around $350,000.[17]

   [17]   Letter from Michael Hegarty & Associates to Barbaro Thilthorpe Lawyers dated 5 January 2018.

2. In January 2020, the appellant commenced proceedings in the Supreme Court seeking a declaration that, on 4 December 2004, the appellant entered into a costs agreement with the respondent pursuant to which the respondent agreed to pay the appellant’s legal fees and disbursements incurred when representing him in attempts to overturn his murder conviction.  It was the appellant’s case that his fees and disbursements would only become due and payable in the event that the respondent was released from prison and he received compensation in relation to his imprisonment. 

3. On the hearing of this appeal, counsel for the appellant carefully framed the claim for compensation which his client discussed with the respondent in December 2004 as one based on an action for “wrongful imprisonment”.[18]

   [18]   Presumably counsel was referring to the tort of “false imprisonment”, which depends upon an absence of lawful justification for the imprisonment, Ruddock v Taylor (2005) 222 CLR 612, 651; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1, 354-355. There was no suggestion made of malicious prosecution: Beckett v New South Wales (2013) 248 CLR 432, 438 [4] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Gregory v Portsmouth City Council [2000] 1 AC 419, 426 (Lord Steyn).

   The alleged written retainer

4. The meeting at Port Augusta Prison on 4 December 2004 is central to the appellant’s claim.  It is not disputed that this meeting took place.[19]  It is not disputed that the appellant represented the respondent in the period between 2004 and 2012.

   [19]   Although there is a discrepancy between the asserted date of the meeting and the date of the meeting as recorded in the appellant’s time entries.

5. The appellant said that during the December 2004 meeting he acknowledged that the respondent could not pay his fees at the time that the work was done and so he was prepared to wait until the finalisation of the matter.  The appellant claimed that during this meeting it was agreed that he would act for the respondent on the basis that his fees would be paid out of any compensation payment received by the respondent following the finalisation of his matter.  The appellant said that there was “no suggestion that [he] was to act ‘pro bono’ or without fee”. 

6. The respondent denied the appellant’s version of what occurred, contending that he accepted the appellant’s offer to act for him on the condition that any professional services provided by the appellant would be on a “voluntary basis with no expectation of any fee or other reward in any circumstances”.  At the time of the meeting the respondent had been in gaol for nearly a decade and was indigent.

7. The appellant claimed that at the December 2004 meeting he provided the respondent with a written retainer document, being his “Standard Terms of Engagement”.  The appellant maintained that he invited the respondent to read the retainer and return a signed acknowledgement slip.  He admitted that the respondent did not ever sign and return the acknowledgement slip.

8. Curiously, in later correspondence dated 10 April 2012 the appellant said that what he provided to the respondent was “a draft agreement to that effect”.

9. The respondent denied that he was provided with any written retainer or terms of engagement.  He denied that there was any retainer in the terms alleged by the appellant.  The written retainer has never been provided to the Court. According to the appellant, that is because he no longer has a copy of the document.  He said that it was kept on the file which was provided to the solicitors who represented the respondent after the appellant ceased acting in mid-2012.

10. The appellant’s affidavit sworn on 2 July 2020 exhibited what the appellant described as his ‘Standard Terms of Engagement’ at the time of the December 2004 meeting.  The appellant described this document as containing “similar provision to that provided to Mr Keogh”.  However, these standard terms comprised “a letter of engagement which incorporates a costs agreement” and purported to apply to “your family law dispute”. 

11. These standard terms did not apply to the retainer between the appellant and the respondent.  The terms stipulated that the appellant “shall act as counsel … appearing before the Court to argue your case as necessary”.  They required that the client pay disbursements as they became payable.  They stipulated that the appellant’s legal practice would not request an expert report until money was paid into his practice trust account.  The terms also specified that work would be charged on the basis of “time charging” at a specified hourly rate.  An itemised invoice for work undertaken by the appellant’s practice was to be provided monthly and payment was expected within 14 days of receipt of the invoice.  Work on a matter could be stopped where an account remained overdue.  The terms warned that if there was a payment of party/party costs there may be a shortfall which would have to be paid.  Before the appellant would commence work, $1,000 had to be paid into trust.  The total likely cost of the matter could not be predicted.

12. Clearly, these terms were not put into effect during the course of the appellant’s retainer.

    The absence of advice from the appellant

13. The appellant did not suggest that he gave the respondent any advice about the retainer, nor about the prospect of securing the respondent’s release from prison, together with the payment of any compensation.

14. There is no suggestion that the appellant advised the respondent that he could or should obtain legal advice about the terms of the draft written retainer, or that the appellant was advised about the difference between the “time charging” set out in the draft and the ordinary scale of fees, as set out in the Schedules to the Supreme Court Rules which were then in force. 

15. There is no suggestion that the respondent received any specific advice from the appellant, and certainly no written advice, about what would be regarded as a successful outcome for the purposes of triggering an obligation in the respondent to make payment of the appellant’s fees and disbursements.  For example, the appellant’s evidence did not address whether the appellant’s proposal depended upon an acquittal or a pardon together with, as his counsel submitted during the hearing of this appeal, the payment of compensation to the respondent by way of damages for false imprisonment, with or without an order for costs.

16. All of these matters were simply left unaddressed on the evidence of the appellant.  The only inference open is that no advice was given by the appellant to the respondent about these matters.[20]

    [20]   The parties agreed that the affidavit of the appellant sworn on 2 July 2020 must be taken to represent the “high water mark” of the appellant’s claim.

    The proceedings at first instance

17. These problems were not ameliorated by a properly pleaded case.

18. By his revised draft Statement of Claim,[21] the appellant entirely abandoned his claim for relief by way of a declaration and instead only pleaded a claim in debt.  The appellant sought judgment in the sum of $535,907.39 and pleaded that the following legal services and disbursements had been provided:

    25.1.1. … by the Applicant between December 2004 and about August 2012 in the sum of $108,157.39; and

    25.1.2. by Kevin Borick QC of counsel between December 2004 and about August 2011 in the sum of $427,750.00;

    [21]   The proceedings before the Master proceeded on the basis of a draft, revised Statement of Claim: Hegarty v Keogh [2020] SASC 237, [3] (Judge Bochner).

19. The appellant pleaded an alternative case based on quantum meruit.  In the further alternative, the appellant sought judgment for legal costs and disbursements to be taxed.  The basis for that taxation was not identified. 

20. By an interlocutory application dated 22 May 2020, the respondent sought orders that the proceedings be dismissed or, alternatively, that summary judgment be given against the appellant and Mr Borick, or in the further alternative, that the statement of claim be struck out. The respondent argued that the retainer failed to conform to the requirements of s 42(6)(c) of the Act and the Rules of Professional Conduct and Practice 2003 (SA) (the Conduct Rules) and was incapable of proof.

21. Prior to the hearing of the respondent’s interlocutory application, Mr Borick sought leave to discontinue his proceedings.  His fees were to be claimed by the appellant as disbursements.  On 31 July 2020, the Master gave Mr Borick leave to discontinue his proceedings. 

22. The respondent’s interlocutory application was heard on 31 July and 13 August 2020.  On 11 December 2020, the Master found that the respondent was entitled to summary judgment on the basis that the appellant had no reasonable prospect of successfully prosecuting his claim.

23. In determining to give summary judgment, the Master considered whether the appellant had a real, as opposed to fanciful, prospect of success if the matter continued to trial.[22]  Her Honour first considered whether there was a reasonable prospect that the Court would find that the alleged retainer relied upon by the appellant was enforceable under the Act, as in force in December 2004, before considering enforceability at common law.

    [22]   Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [59] (Doyle J), citing Spencer v Commonwealth (2010) 241 CLR 118, [24]-[26] (French CJ and Gummow J), [52]-[60] (Hayne, Crennan, Kiefel and Bell JJ) and Davies v Minister for Urban Development and Planning (2011) 109 SASR 518, [43] (Bleby J).

24. The Master was not satisfied there was a reasonable prospect that the retainer was enforceable as a “contingency costs agreement” under the Act. Section 42(6) required that the essential terms be in writing,[23] and the appellant had no real prospect of establishing that there was an agreement in writing because the costs agreement exhibited by the appellant “in no way accords with the evidence that [the appellant] gives as to the terms of the agreement between them”.[24] Her Honour reasoned that it was not the appellant’s evidence that the essential terms of the agreement were set out in writing. Rather, the speculative or “no win - no fee” component of the costs agreement was an oral term which did not comply with s 42(6) of the Act.

    [23]   See Renton Resources Pty Ltd v Johnson Winter & Slattery [2005] SASC 231 (Renton Resources), [30] (Anderson J, with whom Vanstone and Layton JJ agreed); McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [61]-[64] (Gray, Sulan and Layton JJ); Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co [2006] SASC 134 (Pirone), [21] (Layton J); Catto v Hampton Australia Ltd (in liq) [2007] SASC 360, [7]-[8] (Judge Lunn).

    [24]   Hegarty v Keogh [2020] SASC 237, [82] (Judge Bochner).

25. In the event the appellant was able to establish that the agreement complied with s 42(6)(c), her Honour found that there was no reasonable prospect that the appellant could establish that the manner in which the agreement was entered into was fair, which was also required by the Act.[25]

    [25]   Hegarty v Keogh [2020] SASC 237, [97] (Judge Bochner).

26. In these circumstances, the Master held that a claim in quantum meruit was the only cause of action available to the appellant.

27. The appellant submitted that he provided the respondent with legal services, and the respondent took the benefit of those services, “satisfying elements one and two of a claim in quantum meruit”.  He contended that the decision of Clynev NSW Bar Association applied equally to a retainer for a civil or a criminal matter.[26] 

    [26]   Clyne v NSW Bar Association (1960) 104 CLR 186 (Clyne).

28. After reviewing the common law position in the United Kingdom and Australia, the Master concluded that speculative or “no win - no fee” contingency costs agreements are sanctioned by the common law in respect of civil matters in South Australia, but that in criminal matters they are contrary to the Conduct Rules and the Act, and void as contrary to public policy. 

29. The Master ruled that the appellant’s submission that the alleged retainer was not in respect of a criminal matter had “no reasonable prospect of success” and the appellant could not succeed with any claim based on quantum meruit.  Accordingly, the Master found that the respondent was entitled to summary judgment in respect of the appellant’s claim.

    The appeal to this Court

30. By his notice of appeal dated 30 December 2020, the appellant initially advanced seven grounds of appeal.[27]  However, by 26 May 2021, the appellant had abandoned all claims and appeal grounds save the sole ground that the Master erred in law in finding that the appellant’s quantum meruit claim had no reasonable prospect of success:

    [The Master] [e]rred in law in failing to find that the appellant was entitled to payment of proper legal fees on the basis of a quantum meruit, or by reference to the doctrine of unjust enrichment.

    [27]   Hegarty v Keogh [2021] SASCA 46, [17] (Livesey JA).

31. On this appeal, the question is whether the appellant should have been permitted to press a claim for the recovery of fees and disbursements on a restitutionary basis, whether as on a quantum meruit or otherwise, by reference to the principles of unjust enrichment.

32. The appellant did not challenge the Master’s conclusions that the retainer agreement alleged between the appellant and respondent was not a “complying contingency costs agreement” which was not enforceable under the Act and Conduct Rules, and that the retainer concerned a matter which was criminal in nature.[28]  One of the reasons for these conclusions which was not challenged was the absence of any evidence that the appellant had ever exercised his professional judgment to “conclude that there was some prospect of the respondent being released from prison and receiving compensation”.[29]

    [28]   Hegarty v Keogh [2020] SASC 237, [130]-[133] (Judge Bochner).

    [29]   Hegarty v Keogh [2020] SASC 237, [90] (Judge Bochner).

33. In addition, the appellant did not challenge the Master’s findings that there was no reasonable prospect that he could demonstrate that “the manner in which the [retainer] agreement was entered into was fair”, and that there was no reasonable prospect he could demonstrate “that the agreement was fair”,[30] with the result that the appellant did not demonstrate that he had any reasonable basis for contending that the retainer agreement was not “unfair and unreasonable” as required by r 42.2 of the Conduct Rules.

    [30]   Hegarty v Keogh [2020] SASC 237, [97]-[101] (Judge Bochner).

34. The parties agreed that the task for this Court was to review the material before the Master and determine whether she was correct in finding that “there is no reasonable basis for prosecuting the claim” within the meaning of r 144.2(2)(a) of the Uniform Civil Rules 2020 (SA).  The parties generally approached that issue in accord with the reasons of Doyle J in Adelaide Brighton Cement, where his Honour explained:[31]

    For these reasons, I agree with the observation by Bleby J in Davies v Minister for Urban Development and Planning to the effect that any need for debate about the extent of the lowering of the bar under the South Australian rules has been overtaken by the decision in Spencer v Commonwealth. While aspects of the reasoning in cases such as Ceneavenue Pty Ltd v Martin remain of assistance, they should be seen through the prism of the High Court’s reasons in Spencer v Commonwealth.

    By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.

    (Citations omitted)

    [31]   Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 (Adelaide Brighton Cement), [59]-[60] (Doyle J). See also Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65, [26]-[30] (Livesey J).

35. The appellant nonetheless relied on authorities which were decided long before introduction of the test set out in r 144 of the Uniform Civil Rules 2020 (SA).  In particular, the appellant referred to authorities such as Dey v Victorian Railways Commissioners (NSW),[32] General Steel Industries Inc v Commissioner for Railways[33] and Fancourt v Mercantile Credits Ltd,[34] without recognising that these authorities – like Ceneavenue Pty Ltd v Martin[35] - must now be approached with considerable caution.  It is necessary to apply the test laid down by the present rule rather than former tests, such as whether “there is no real question to be tried” or ‘the action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail’.  Whilst these authorities demonstrate that the exercise of the power to summarily terminate proceedings must “always be attended with caution”,[36] the question for the Master, and for this Court, is whether the appellant has a “reasonable basis” for prosecuting his claim.

    [32]   Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 (Dixon J).

    [33]   General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

    [34]   Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.

    [35]   Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 (Debelle J, with whom Duggan and Anderson JJ agreed). To this may be added Kadeh v Gill [2000] SASC 367, [29] (Doyle CJ, with whom Williams and Wicks JJ agreed) and Estate of the late Sir Donald Bradman v Allens (2010) 107 SASR 1, [132] (Sulan and Layton JJ).

    [36]   Spencer v Commonwealth (2010) 241 CLR 118, [24] (French CJ and Gummow J).

36. The essential question on this appeal is therefore whether there is a reasonable basis for prosecuting a claim in quantum meruit.  Before considering the requirements for that kind of claim, it is first necessary to address the common law, as well as the Act and the Conduct Rules that were in place at the time of the alleged retainer, because these assist in identifying the extent to which a “contingency costs agreement” was permitted in South Australia, or alternatively was contrary to public policy.

37. Whether a “contingency costs agreement” was permitted in South Australia, or was contrary to public policy, informs the extent to which there remained scope to recognise a claim in quantum meruit in respect of the appellant’s claim for costs and disbursements.

    The claims in quantum meruit and unjust enrichment

    Pleadings

38. The appellant did not plead the cause of action now relied upon before the Master and this Court in his Statement of Claim.  The appellant first sought to rely on a claim in quantum meruit in his “draft proposed Statement of Claim (Revision 1)”.  This draft claim was never filed but it was provided to the Court and the respondent as an exhibit to the affidavit of the appellant’s solicitor dated 28 July 2020.  The Master proceeded on the basis of the draft claim, as was agreed by the parties.  Paragraph two of the draft claim stated:

    2.     The cause of action relied on is debt for the provision of legal services:

    2.1    Pursuant to a specific retainer; or

    2.2    On the basis of quantum meruit.

1. The appellant has never pleaded the essential elements of his claim in quantum meruit.  The parties agreed that the affidavit of the appellant sworn on 2 July 2020 must be taken to represent the “high water mark” of the appellant’s claim. 

2. One preliminary point that may be addressed is the proper characterisation of the appellant’s retainer. That is, whether it should be considered to be advice and representation of the respondent in a civil matter or a criminal matter or something else. The proper characterisation of the retainer is relevant to the prohibition on contingency costs agreements in criminal matters specified by the combination of s 42(6) of the Act and r 42.2 of the Conduct Rules. One may accept that the proper characterisation of the retainer must be made at the time of entry into the retainer when the likely work required is being considered, and that a retainer may evolve over time, requiring work which differs from that which was initially envisaged.

3. In this case the respondent was concerned about his criminal conviction for murder.  However, the strategy which was adopted in December 2004 was, apart from pressing further appeals before the Court of Criminal Appeal for which there was no jurisdiction in 2004, one of challenging the work of the pathologists in various regulatory or disciplinary hearings.  This was presumably intended to lay a foundation for a favourable exercise of the prerogative of mercy in connection with the various petitions that were being submitted to the Attorney-General for consideration by the Governor in Council.  On one view of it, this work was not strictly criminal in nature, though it was directed to achieving the outcome of undermining the respondent’s criminal conviction. 

4. On the appellant’s case, it would also appear that the retainer envisaged the payment of compensation.  Again, it is difficult to see how that kind of work could be regarded as strictly criminal in nature, though it might have been thought to be a consequence of addressing the respondent’s criminal conviction.[37] 

   [37]   One may interpolate here the question whether it was realistically thought that compensation could be achieved from an acquittal when the likely best outcome before the 2013 amendments was a favourable exercise of the prerogative of mercy and some form of pardon coupled, for example, with a finding of false imprisonment.  It will be necessary to return to these issues later in these reasons.

5. Whilst these issues tend to call into question the accuracy of describing the appellant’s retainer as one concerned with a criminal matter, that characterisation is not the subject of any appeal ground and it is convenient to proceed on the basis of the Master’s finding that the retainer concerned a criminal matter, at least as at December 2004.

   The context: the common law and s 42 of the Act

6. In McNamara Business & Property Law v Kasmeridis the Full Court addressed on two occasions and in some detail the common law before and after the introduction of s 42 of the Act,[38] as well as aspects of the proper construction of s 42. Relevantly, s 42 then provided:

   [38]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382 (Gray, Sulan and Layton JJ) (Kasmeridis (No 1)); McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129 (Kasmeridis (No 2)) (Doyle CJ, with whom Gray and David JJ agreed).

   42—Costs

   …

   (6)     A legal practitioner may make an agreement in writing with a client for—

   (a) payment of a specified amount by way of legal costs (which may—but need not—consist of a daily, hourly or other time-related rate for professional work carried out by the legal practitioner on the client's behalf); or

   (b) payment of legal costs in accordance with a specified scale; or

   (c) subject to any limitations imposed by the Society's professional conduct rules or the regulations—payment of a contingency fee to be calculated on a basis set out in the agreement on fulfilment of a condition stated in the agreement.

   (7)   The Supreme Court may, in proceedings under this section, rescind or vary an    agreement under subsection (6) if it considers that any term of the agreement is not fair and reasonable.

7. On the first occasion, in Kasmeridis (No 1), the Full Court held that a costs agreement could be said to be in writing where the terms were all in writing even though there was no signature or written assent from the client, but the client orally assented to the written retainer, as was recorded in a contemporaneous file note.[39] The Court explained that the requirements of s 42(6) of the Act operated as protections for a client which were additional to those which applied at common law:[40]

   The retainer in the present case attracts to the relationship the fiduciary duties that are inherent in a solicitor-client relationship. The principles of equity and the common law are available to protect a client against any unfairness in an agreement.

   …

   Section 42(6) is to be interpreted against the background that its terms were designed to promote sound and reasonable regulation of a profession that owes fiduciary duties to clients. The subsection, by its very terms, acknowledges that it is addressing an aspect of the relationship of solicitor and client. That relationship carries accepted obligations of confidence, trust and dependence. The section is not to be construed as taking away the protection provided to a client by the common law.

   (Citations omitted)

   [39] The existence of a written record of assent in the form of a file note was not essential to the decision that there was an enforceable retainer for the purposes of s 42(6) of the Act.

   [40]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [37] and [47] (Gray, Sulan and Layton JJ).

8. The Full Court emphasised that the onus of establishing that an agreement was made in accordance with the Act rests on the solicitor and that what was required to discharge the onus depended on the nature of the fiduciary relationship and the circumstances of dependence and vulnerability that may exist.[41] 

   [41]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [64] (Gray, Sulan and Layton JJ).

9. The Full Court proceeded on the assumption that it was necessary for the costs agreement to be in writing.[42]  It will be necessary to return to that assumption because it has been made in a number of cases and, consistently with it, the necessity for a written retainer was accepted by the appellant on this appeal. 

   [42]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [3], [20] and [61] (Gray, Sulan and Layton JJ): “The statutory requirement that an agreement be made in writing…”.

10. The issue before the Full Court was whether a single Judge was correct to follow earlier authorities in other jurisdictions which had required that the client sign or otherwise indicate assent in writing, where the evidence was that the client had only indicated his assent to the costs agreement to the solicitor over the telephone.[43] The Court referred to another line of authorities, unrelated to solicitors’ costs agreements, which had accepted that a written offer containing all material terms could be accepted orally and regarded as a “written contract”.[44] 

    [43]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [24] (Gray, Sulan and Layton JJ), where the authorities which required the client’s signature or written assent were collected.

    [44]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [31]-[35] (Gray, Sulan and Layton JJ).

11. The Full Court regarded it as significant that the earlier iteration of the Act had required that the written costs agreement be “signed by the party to be charged” (or a duly authorized agent) but that this requirement was jettisoned when s 42(6) was introduced in 1981.[45]  The Court concluded that “legislative change was intended” and that an oral acceptance of the written costs agreement was sufficient.[46] The Full Court emphasised the need for full disclosure to be made by a solicitor to a client and that the presence of s 42(7), which empowered “the court to set aside retainer agreements in the event of unfairness”, diminished the need for the client’s assent to be in writing.[47] 

    [45]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [38]-[40] (Gray, Sulan and Layton JJ).

    [46]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [40]-[41], [62]-[63] (Gray, Sulan and Layton JJ).

    [47]   McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [49]-[55], [58] (Gray, Sulan and Layton JJ).

12. The matter was then remitted to the Master, who applied s 42(7) of the Act and set aside the costs agreement, finding that the terms were not “fair and reasonable”. That decision was appealed, which brought the matter back before the Full Court.

13. The second Full Court, in Kasmeridis (No 2), dismissed the appeal from the Master’s decision, finding that the costs agreement was not fair and reasonable, emphasising the absence of any advice given by the solicitor to the client at the time the costs agreement was made.[48] 

    [48]   McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129, [19] (Doyle CJ, with whom Gray and David JJ agreed).

14. Chief Justice Doyle, speaking for the Full Court in Kasmeridis (No 2), explained the need for advice to be given by the solicitor to the client, particularly where the solicitor seeks to agree a retainer incorporating time charging.[49]  Indeed, it had been held in many cases that the failure to give advice, of itself, warranted the conclusion that that the costs agreement was not fair.[50] 

    [49]   McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129, [48] (Doyle CJ, with whom Gray and David JJ agreed).

    [50]   Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22, 32 (Mildren J), citing Weiss v Barker Gosling (1993) 114 FLR 223 (Weiss), 256 (Fogarty J): “the failure of a solicitor to explain fully the degree and impact of the difference between the proposed fees and the relevant scale is fatal to the agreement being held to be fair”. See also In the Marriage of S; Re S and P (1982) 66 FLR 315, 328 (Evatt CJ and Fogarty J) and Brown v Talbot & Olivier (1993) 9 WAR 70 (Ipp J).

15. On the question of fairness generally, Doyle CJ relied on, amongst others, the decision in Weiss, where various of the earlier authorities were helpfully collected by Fogarty J:[51]

    Although fairness has been a consistent requirement of the common law there is limited discussion in the cases as to precisely what is meant by that term. In fact many of the cases ultimately turned on questions of undue influence or unreasonableness.

    However, reference to some of the cases indicates the concept that the common law courts had in mind in relation to this issue. For example, in Stedman v Collett (1854) 17 Beav 608; 51 ER 1171 the reference at 614-615; 1173-1174 is to the transaction being “open and fair and without pressure”; in Re Stuart; Ex parte Cathcart, Lord Esher (at 204) …, referred to fairness as the requirement that the “solicitor makes an agreement with a client who fully understands and appreciates that agreement”; in Clare v Joseph [1907] 2 KB 369 at 376 the reference is to the contract being made “under circumstances that precluded any suspicion of an improper attempt on the solicitor's part to benefit himself at his client’s expense”; in Bear v Waxman, Cussen J (at 301-302) referred to it as being that “his client was not under the influence of the pressure arising from the relation of solicitor and client, but was acting either by good advice, or on the dictates of his own judgment, with every opportunity of exercising it properly, from his own good sense and intelligence, with a sufficient capacity and knowledge of business”; in Emeritus Pty Ltd v Mobbs [1991] NSW Conv R 55-588 the reference at 59,319 by Studdert J of the Supreme Court of New South Wales is to the requirement that the solicitor must not “take advantage of the relationship between his client and himself or receive any benefit from an agreement into which the client has been induced to enter by reason of his reliance upon the solicitor”; in New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 at 123 the reference is to “improper advantage of their clients”.

    [51]   Weiss v Barker Gosling (1993) 114 FLR 223, 255-256 (Fogarty J).

16. The common law consistently recognised that it was necessary that costs agreements be shown to be both fair and reasonable and that the burden of proving those requirements rested with the solicitor seeking to uphold the agreement.[52] 

    [52]   Weiss v Barker Gosling (1993) 114 FLR 223, 266 (Fogarty J); Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22, 29 (Mildren J): “At common law, a costs agreement is enforceable if it is made to appear to the Court that the agreement is “fair and reasonable”, the burden of proof resting on the solicitor seeking to uphold the agreement”.

17. These requirements informed the terms of the Act, which operated in addition to the common law protections. Doyle CJ relied on the approach of Lord Alverstone CJ in Clare v Joseph to the effect that the 1870 legislation provided “fresh safeguards for the protection of the client” as well as certain rights to a solicitor provided the solicitor complied with the requirements of the legislation.[53] 

    [53]   Clare v Joseph [1907] 2 KB 369, 372 (Alverstone LCJ).

18. Chief Justice Doyle pointed out that “on one view s 42(6) of the Act was purely permissive, and a practitioner can enter into a costs agreement independently of that provision”. Where that is done, the agreement is subject to “control by the court in the exercise of its inherent powers”.[54] As will be seen, the cases on s 42(6) have regarded this provision as both permissive and restrictive, for though a solicitor was not obliged to comply with it, a retainer of the kind specified by s 42(6) could not be agreed or enforced unless the solicitor complied with terms of the provision. This aspect of s 42(6) did not arise for decision in Kasmeridis (No 2).

    [54]   McNamara v Kasmeridis (2007) 97 SASR 129, [7], citing Athanasiou v Ward Keller (6) Pty Ltd (1988) 8 NTLR 23, 30 (Mildren J).

19. In the course of explaining his approach to s 42(7) of the Act, Doyle CJ emphasised the long history of scrutiny by the courts of costs agreements:[55]

    There is a long history of scrutiny by courts of agreements, between a solicitor and prospective client or existing client, as to the fees the solicitor will charge the client.  Such agreements were permitted, but were scrutinised with care.  In 1870 the United Kingdom Parliament enacted the Attorneys’ and Solicitors’ Act 1870 (UK).  It is clear that this Act was not required to enable solicitors to enter into a costs agreement with a client.  The intent was to provide a procedure for the scrutiny and control of such agreements.  The effect of the legislation was that an agreement for payment of costs could not be enforced until it had been determined whether or not the agreement was “in all respects fair and reasonable between the parties”:  s 9.

    [55]   McNamara v Kasmeridis (2007) 97 SASR 129, [19] (Doyle CJ, with whom Gray and David JJ agreed).

20. Chief Justice Doyle explained that agreements between a solicitor and a client were scrutinised with particular care by the courts, and this informed the approach to be taken to s 42(7) of the Act, citing the following observations of Fletcher Moulton LJ in Clare v Joseph:[56]

    … At that date agreements between a solicitor and his client as to the terms on which the solicitor’s business was to be done were not necessarily unenforceable.  They were, however, viewed with great jealousy by the Courts, because they were agreements between a man and his legal adviser as to the terms of the latter’s remuneration, and there was so great an opportunity for the exercise of undue influence, that the Courts were very slow to enforce such agreements where they were favourable to the solicitor unless they were satisfied that they were made under circumstances that precluded any suspicion of an improper attempt on the solicitor’s part to benefit himself at his client’s expense. …

    [56]   Clare v Joseph [1907] 2 KB 369, 376 (Fletcher Moulton LJ).

21. Whereas the English legislation had required that the Court determine whether the costs agreement was “fair and reasonable”, the Act required that the Court determine whether any term was “not fair and reasonable”.  Doyle CJ did not regard the difference in language as material.[57]  He held that the following passage from the reasons of Lord Esher MR in In Re Stuart applied to the application of s 42 of the South Australian Act:[58] 

    … By s 9 the Court may enforce an agreement if it appears that it is in all respects fair and reasonable. With regard to the fairness of such an agreement, it appears to me that this refers to the mode of obtaining the agreement, and that if a solicitor makes an agreement with a client who fully understands and appreciates that agreement that satisfies the requirement as to fairness. But the agreement must also be reasonable, and in determining whether it is so the matters covered by the expression “fair” cannot be re‑introduced. As to this part of the requirements of the statute, I am of opinion that the meaning is that when an agreement is challenged the solicitor must not only satisfy the Court that the agreement was absolutely fair with regard to the way in which it was obtained, but must also satisfy the Court that the terms of that agreement are reasonable. If in the opinion of the Court they are not reasonable, having regard to the kind of work which the solicitor has to do under the agreement, the Court are bound to say that the solicitor, as an officer of the Court, has no right to an unreasonable payment for the work which he has done, and ought not to have made an agreement for remuneration in such a manner.

    [57]   McNamara v Kasmeridis (2007) 97 SASR 129, [25] (Doyle CJ, with whom Gray and David JJ agreed).

    [58]   In Re Stuart; Ex parte Cathcart [1893] 2 QB 201 (In re Stuart), 204-205; McNamara v Kasmeridis (2007) 97 SASR 129, [22] and [45] (Doyle CJ, with whom Gray and David JJ agreed).

22. In In Re Stuart Lord Esher had given emphasis to whether the circumstances of entry into the retainer could be described as “fair” and, separately, whether the terms of the agreement were “reasonable”.  That approach to whether a costs agreement is not “fair and reasonable” has since been followed.[59]

    [59]   Jones v Brian K Deegan & Associates [2011] SASC 44 (Judge Withers); Piper Alderman (A Firm) v Australian Medic‑Care Company Ltd (2011) 278 LSJS 137; [2011] SASC 234 (Stanley J).

23. As will be seen, the common law demarcation between whether the circumstances of entry were “fair” and whether the terms of the agreement were “reasonable” was, to some extent, blurred by the requirement under r 42.2 of the Conduct Rules to determine whether “the terms of a cost agreement are unfair or unreasonable”.  Nonetheless, that rule required that explicit consideration be given to both the circumstances of entry and to the terms of the costs agreement.  And, as has been mentioned, there was no challenge made on this appeal to the Master’s findings against the appellant solicitor and in favour of the respondent client to the effect that there was no reasonable prospect that the appellant could demonstrate that the circumstances of entry were fair and that the terms of the retainer were also fair.[60]

    [60]   Hegarty v Keogh [2020] SASC 237, [97]-[98] and [100]-[101] (Judge Bochner). Although the Master used the word “fair”, it may be that her Honour had in mind reasonableness when addressing the terms of the retainer rather than the circumstances surrounding entry into it.

24. As Doyle CJ explained in Kasmeridis (No 2), the courts scrutinise costs agreements which provide for time charging with particular care because of their potential to operate to the advantage of the solicitor and to the disadvantage of the client:[61]

    … I consider that this Court should, as I have already said, follow the approach taken by the English cases, and the approach taken in other Australian jurisdictions under similar legislation.  It is for the practitioner to show that the agreement is fair and reasonable, if the client raises a challenge on those grounds and those terms are to be applied in the manner indicated by Lord Esher in the passage set out above.

    However, the cases emphasise as a basic consideration the question of whether the client’s decision to agree to the terms of the costs agreement was a free and informed choice, the client having been given the advice that would give the client a fair understanding of the operation and effect of the costs agreement:  see, for example, Brown v Talbot & Olivier (1993) 9 WAR 70 at 77; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 435-437 Mahoney JA.

    This is not surprising, having regard to the foundation on which the Court’s inherent power over solicitors and costs agreements is based:  see Clare v Joseph.  The cases have emphasised the fiduciary nature of the solicitor and client relationship, and the importance of the solicitor dealing with a potential conflict between the solicitor’s interests and the solicitor’s duty to the client by making full disclosure to the client.

    …

    … There is also the obvious point that time charging does nothing to discourage inefficiency, and indeed has a tendency to reward slowness and prolixity. Particular concern has been expressed by courts about agreements which provide for a flat hourly rate of charging, without regard to the experience of the practitioner or the kind of work being done.  Some examples of these concerns can be found in New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 (at 126) per Gleeson CJ and (at 141) per Kirby P; in Law Society of NSW v Foreman (at 436-437) per Mahoney JA and in Re Morris Fletcher and Cross’ Bill of Costs (at 243-244) per Fryberg J. A helpful summary of the relevant considerations can be found in Dal Pont at [2.36]-[2.37].

    None of this leads to the conclusion that such agreements are not permissible.  The effect of the cases is that such agreements should be scrutinised with particular care because of their potential to work in favour of the interests of the solicitor and against the interests of the client…

    [61]   McNamara v Kasmeridis (2007) 97 SASR 129, [26], [28], [29], [31] and [32] (Doyle CJ, with whom Gray and David JJ agreed).

1. Reference was earlier made to the assumption that a costs agreement under s 42(6) must be in writing. That assumption has been made in a number of cases, as was explained by Judge Lunn in Catto v Hampton:[62]

   S[ection] 42(6) stipulates that “a legal practitioner may make an agreement in writing with a client”. The “may” in sub (6) is imperative and does not allow an agreement in terms of subs (6)(a) for time based charges to be made other than in writing: Civil Procedure SA, Vol 2, [23,920.5]. I am not aware of any direct authority to this effect, but it is implicit in the reasons in Renton’s case and Pirone’s case mentioned below. If it were otherwise, the requirement of writing would be pointless. Counsel for the defendants referred to authorities that a retainer for a solicitor need not be in writing. The mandatory effect of subs (6) is not contrary to those authorities, but it means that that part of the retainer agreement which deals with a solicitor’s right to charge on a time-costing basis must be in writing. The writing referred to in subs (6) must be sufficient to constitute the essential terms of a legal agreement for the solicitor to be paid its costs in this manner.

   …

   This does not mean that there cannot be some implied terms in such an agreement, but the essential terms have to be in writing.

   [62]   Catto v Hampton Australia Limited (in liquidation) (2007) 251 LSJS 164; [2007] SASC 360, [7]-[8] (Judge Lunn), citing Renton Resources Pty Ltd v Johnson Winter & Slattery (2005) 240 LSJS 434; [2005] SASC 231, [30] (Anderson J, with whom Vanstone and Layton JJ agreed); McNamara Business & Property Law v Kasmeridis (2005) 92 SASR 382, [61]-[64] (Gray, Sulan and Layton JJ); Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co [2006] SASC 134, [21] (Layton J).

2. Judge Lunn was an experienced Master who reviewed costs agreements and conducted Supreme Court taxations of costs over many years. His views on costs agreements warrant serious consideration. So, whilst Doyle CJ observed that s 42(6) of the Act was expressed in permissive terms, and costs agreements may be made other than in accordance with s 42(6), the point of the assumption made in the cases relied on by Judge Lunn was that time charging was not permissible unless the requirement for writing in s 42(6) was satisfied. That followed because the use of the word “may” in s 42(6) had been construed as “imperative”. The consequence was that if a solicitor wished to enter into a retainer which contained a costs agreement based on time charging, not only must those terms be in writing and the subject of advice from the solicitor to the client, there must also be assent to those written terms by the client.

3. The corollary was that if a solicitor wished to enter into a costs agreement outside the reach of s 42(6) of the Act, that costs agreement could not incorporate time charging. The solicitor was confined to charging fees at the scale recognised in the Schedules to the Supreme Court Rules, as Judge Lunn found in Catto v Hampton. In addition, where s 42(6) was not satisfied the solicitor could of course agree to act without reward of any kind, that is, pro bono.

4. The cases referred to by Judge Lunn illustrate these propositions.  Importantly, they demonstrate the necessity for costs agreements to be made in writing not only where the solicitor sought time charging, but also where the solicitor wished to agree a specified sum or scale for costs, or enter into a speculative, “no win – no fee” contingency costs retainer. 

5. In Renton Resources the solicitor contended that there was a costs agreement made with the client under s 42(6)(a) of the Act for a specified amount for costs and disbursements.[63] A taxing master agreed and held that it was for the client to apply to rescind or vary the agreement under s 46(7) of the Act. On appeal, the Full Court disagreed, finding that an agreement to pay a specified amount by way of legal costs had to be in writing and, on the facts of that case, there was no written agreement made under s 42(6) which contained all of the material terms:[64]

   Section 42(6) requires an agreement in writing for the payment of a specified amount by way of legal costs. The question of what was an agreement in writing for these purposes was discussed by Fry J in Re Raven; Ex parte Pitt (1881) 45 LT 742 at 743 as follows:

   What is an agreement in writing? It must be a document which shall show all the terms of the bargain between the parties and show by writing the accession of both parties to those terms.

   This passage was cited and applied by White J in McNamara Business and Property Law v Kasmeridis (2004) 90 SASR 151.

   In my view the terms which have been articulated by Mr Howard have not all been reduced to writing in the emails alleged to constitute the second agreement. 

   …

   … I do not consider that “all the terms of the bargain between the parties” as referred to by Fry J, have been reduced to writing as is required by s 42(6) of the Act…

   [63]

   [64]

6. The result was that as the agreement to pay a specified amount was not in writing, as s 42(6) required, the costs agreement could not be enforced by the solicitor and the client was entitled to a taxation of costs.

7. In Pirone the solicitor succeeded before a magistrate in enforcing a “no win – no fee” retainer where the solicitor had reserved the right to require that the client pay costs if she failed to follow legal advice (Clause 3).[65] Justice Layton proceeded on the basis that s 42(6) of the Act stipulated the “legislative requirements for entering into an agreement for the purposes of a contractual arrangement between lawyer and client” concerning costs.[66]  That is, unless there was an agreement in writing, Clause 3 of the “no win – no fee” contingency costs retainer could not be agreed or enforced. 

   [65]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co (2006) 244 LSJS 284; [2006] SASC 134, [7]-[8] (Layton J).

   [66]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co (2006) 244 LSJS 284; [2006] SASC 134, [21] (Layton J).

8. Justice Layton held that the magistrate was wrong to find that the client had received and entered into the “no win – no fee” retainer.  The onus of proving the existence of the retainer lay with the solicitor.[67]  In addition, her Honour was not satisfied that the client had expressly or impliedly accepted its terms, or that correspondence between the solicitor and the client could be regarded as a written retainer containing all material terms.[68]  Justice Layton was in any event critical of the solicitor’s conduct:[69]

   The [solicitor’s] case is that it seeks to enforce a retainer which includes a condition in Clause 3 that, notwithstanding the assertion of “no fee”, there are certain circumstances in which the client would be obliged to pay. Bearing in mind the description of "no win – no fee", it would be incumbent on the plaintiff, as a firm of solicitors who owe fiduciary obligations of disclosure, to ensure that the client was made aware of the specific terms of that condition, particularly when fees would be payable by the client.

   …

   Bearing in mind that the solicitor/client relationship is a fiduciary relationship and that there is a requirement for disclosure, it was incumbent on the solicitor to ensure that the client was made aware that her conduct was regarded as falling within Clause 3 such that she was liable to pay costs. None of the letters in which the plaintiff adverts to the poor behaviour of the defendant, refer to the fact that Clause 3 of the no win – no fee retainer agreement may have been triggered. Most importantly the letters do not indicate that if the defendant failed to comply with Clause 3, and if she continued to refuse to accept his advice, she could be liable to pay costs pursuant to the agreement.

   [67]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co (2006) 244 LSJS 284; [2006] SASC 134, [22]-[27], [32] (Layton J).

   [68]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co (2006) 244 LSJS 284; [2006] SASC 134, [35]-[40] (Layton J): “Accordingly, it seems to me that the requirements of s 42(6) have not been complied with…”.

   [69]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co (2006) 244 LSJS 284; [2006] SASC 134, [36], [42] (Layton J).

9. Whilst acknowledging that the solicitor had performed legal work and encountered difficulties in acting for the client, Layton J entered judgment for the client, observing that it was “incumbent upon legal practitioners to ensure that they comply with the terms of any retainer in order to recover costs from the client”.[70]

   [70]   Pirone v Craig J Roberts (Solicitor) trading as Paul Kirk, Roberts & Co [2006] SASC 134, [51] (Layton J).

10. These cases demonstrate the following propositions regarding costs retainers at common law and under s 42 of the Act:

    1.At common law, it was necessary that a costs agreement be shown to be both fair and reasonable.  Fairness was concerned with the circumstances of entry into the agreement whereas reasonableness was concerned with the terms and operation of the costs agreement.  The burden of proving these requirements rested with the solicitor seeking to uphold the agreement.

    2.The terms of costs agreements have been “viewed with great jealousy by the Courts”.[71]  At common law, it was necessary for a solicitor to give explicit advice to a client because of “the fiduciary nature of the solicitor and client relationship, and the importance of the solicitor dealing with a potential conflict between the solicitor’s interests and the solicitor’s duty to the client by making full disclosure to the client”.[72]

    3.Although expressed in permissive terms, s 42(6) of the Act was consistently interpreted in an imperative manner, requiring a solicitor to make a costs agreement in writing with the client if the solicitor wished to agree time charging, agree a specified amount or scale for fees, or enter into a contingency costs agreement in the form of a speculative or “no win – no fee” retainer.

    4.Consistently with the imperative approach taken to s 42(6) of the Act, solicitors could not enter into costs agreements of the kind addressed by s 42(6) which did not conform to the requirements of the Act and the Conduct Rules. The onus of proving the existence of a written costs agreement with a client that accorded with the Act and Conduct Rules lay with the solicitor.

    5.Where the costs agreement did not conform to the requirements of the Act and the Conduct Rules, for example because there was no writing as required by s 42(6) of the Act, the solicitor could not enforce an agreement for the payment of costs on the basis of time charging, or for a specified sum or scale, or on the basis of a contingency costs agreement, such as under a “no win – no fee” retainer.

    6.Where all material terms had been reduced to writing, it was sufficient if the client signed the costs agreement or otherwise indicated assent to its terms, whether in writing or orally or by conduct.[73]

    7.Where a retainer ostensibly complies with the requirements of s 42(6) of the Act, it nonetheless remained open to a client to challenge a retainer under s 42(7) of the Act and apply to the Supreme Court to “rescind or vary” an agreement under subsection (6) if it considers that “any term of the agreement is not fair and reasonable”.

    [71]   In Re Stuart [1893] 2 QB 201, 204-205 (Lord Esher); McNamara v Kasmeridis (2007) 97 SASR 129, [26] (Doyle CJ, with whom Gray and David JJ agreed).

    [72]   McNamara v Kasmeridis (2007) 97 SASR 129, [28] (Doyle CJ, with whom Gray and David JJ agreed).

    [73]   See, for example, DW Fox Tucker Pty Ltd v Morgan [2023] SASCA 11, [28] (Livesey P, Doyle and Bleby JJA) where acceptance was evidenced by conduct, in that case by payment.

11. Where these requirements were not satisfied, solicitors were generally required to have their costs taxed on the basis of the scale under the applicable rules of court. Similarly, whilst costs agreements could be entered into outside the terms of s 42(6) and regulated under the court’s inherent powers, in practice these were agreements permitting the recovery of scale costs, or no costs at all, such as where the solicitor agreed to act “pro bono”.[74]  In Pirone, where the solicitor brought the “no win – no fee” retainer to an end, it prevented the solicitor from seeking any payment at all by way of costs for work done for the client.

    [74]   From the Latin “pro bono publico” meaning “for the public good”, see Jill Anderson and Gordon Renouf, “Legal Services ‘for the public good’” (2003) 28(1) Alternative Law Journal 13.

12. As has been mentioned, there is no suggestion that there was a relevant written retainer which conformed to s 42(6) of the Act, nor that the appellant gave the respondent any advice about what appears to have been a draft written retainer, nor about the terms of the proposed speculative or “no win – no fee” contingency costs agreement. The necessity for considered advice to be given by a solicitor to a client about costs under a retainer has been a consistent requirement at common law, long before the introduction of s 42(6) of the Act. It will be necessary to return to this issue.

    Two further common law considerations

13. Before addressing the terms of the Act and the Conduct Rules in more detail, it is next necessary to consider two further aspects of the common law: first, the extent to which maintenance is permissible in South Australia and, associated with that, the common law requirements for a contingency costs agreement in Australia.  The second aspect relates to whether a contingency costs agreement has been recognised as permissible in a criminal matter in Australia.

14. Where a solicitor acts for a client on the basis that the client will not be expected to pay the solicitor’s fees and disbursements unless the client obtains an agreed outcome, such as success in the litigation, that kind of retainer involves both a contingency costs agreement and a form of “maintenance”.[75]  Maintenance has been described as “the act of assisting the plaintiff in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he acts from any improper motive”.[76] 

    [75]   See generally, G E Dal Pont, The Law of Costs (LexisNexis, 5^th ed, 2021), [3.42ff].

    [76]   Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 (Campbells Cash & Carry v Fostif), [68] (Gummow, Hayne and Crennan JJ), footnote 137, citing Stephen ‘A Digest of the Criminal Law (Crimes and Punishments)’ (1877), 86.

15. Champerty is a form of maintenance.  Champerty is maintenance in which “the subject matter of the suit shall be divided between the plaintiff and the maintainor”.[77]

    [77]   See Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 226 CLR 386, [68]-[82] (Gummow, Hayne and Crennan JJ), footnote 137, citing Stephen ‘A Digest of the Criminal Law (Crimes and Punishments)’ (1877), 86.

16. At common law, maintenance and champerty were unlawful and regarded as torts.  Until relatively recently, they were also crimes.[78]  Whilst there has been considerable relaxation in modern attitudes to maintenance, there has remained opposition to champerty in Australia, particularly where a solicitor seeks a share of the client’s award as is apparently routinely done in the United States.  Nonetheless, the point of the decision of the High Court in Campbells Cash & Carry v Fostif was to recognise the circumstances in which it was lawful for a litigation funder to take a share of the client’s award for profit, and the Court held that to do so was not necessarily contrary to public policy or an abuse of process.[79]

    [78]   Although whether maintenance was properly regarded as a crime at common law was doubted by the High Court in Clyne v New South Wales Bar Association (1960) 104 CLR 186, 203.

    [79]   Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, [88]-[91] (Gummow, Hayne and Crennan JJ, with whom Gleeson CJ [1] and Kirby J [146] agreed). Discussed in G E Dal Pont, The Law of Costs (LexisNexis, 5^th ed, 2021), [3.45].

17. The history of maintenance and champerty, and the way in which public policy attitudes have evolved over time, was reviewed in some detail by the High Court in Campbells Cash & Carry v Fostif.[80]  For example, the corrupting influence of maintenance and champerty was adverted to in the following way by Gummow, Hayne and Crennan JJ:[81]

    Maintenance and champerty, though well known in early English law, “were known almost exclusively as modes of corruption and oppression in the hands of the King's officers and other great men”.[82] 

    [80]   Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 226 CLR 386, [68]-[82] (Gummow, Hayne and Crennan JJ). See also Clyne (1960) 104 CLR 186, 203-205.

    [81]   Campbells Cash & Carry v Fostif (2006) 226 CLR 386, [72] (Gummow, Hayne and Crennan JJ).

    [82]   Winfield, “Assignment of Choses in Action” (1919) 35 Law Quarterly Review 143 at 143 referring to Winfield, “The History of Maintenance and Champerty” (1919) 35 Law Quarterly Review 50 at 65ff.

18. Nonetheless, by 1843 some forms of maintenance were regarded as appropriate at least where, as Lord Abinger CB explained, they were not:[83]

    … confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions, or to make defences which they have no right to make ... [By contrast], if a man were to see a poor person in the street oppressed and abused, and without the means of obtaining redress, and furnished him with money or employed an attorney to obtain redress for his wrongs, it would require a very strong argument to convince me that that man could be said to be stirring up litigation and strife, and to be guilty of the crime of maintenance.

    [83]   Findon v Parker (1843) 11 M & W 675, 682‑683 [152 ER 976, 979].

19. Later still, Lord Esher MR explained the role of public policy, as distinct from “general principles of right and wrong or of natural justice”, when evaluating the doctrine of maintenance in Alabaster v Harness:[84]

    The doctrine of maintenance, which appears in the Year Books, and was discussed briefly by Lord Loughborough in Wallis v Duke of Portland,[85] and more elaborately by Lord Coleridge, CJ, in Bradlaugh v Newdegate,[86] does not appear to me to be founded so much on general principles of right and wrong or of natural justice as on considerations of public policy.  I do not know that, apart from any specific law on the subject, there would necessarily be anything wrong in assisting another man in his litigation.  But it seems to have been thought that litigation might be increased in a way that would be mischievous to the public interest if it could be encouraged and assisted by persons who would not be responsible for the consequences of it, when unsuccessful.  Lord Loughborough, in Wallis v Duke of Portland, says that the rule is, ‘that parties shall not by their countenance aid the prosecution of suits of any kind, which every person must bring upon his own bottom, and at his own expense.’ 

    [84]   Alabaster v Harness [1895] 1 QB 339 at 342, cited in Stevens v Keogh (1946) 72 CLR 1, 28 (Dixon J).

    [85] (1797) 3 Ves Jun 494 [30 ER 1123].

    [86] (1883) 11 QBD 1.

20. Reflecting the relaxation in modern attitudes to maintenance, in 1992 the South Australian Parliament introduced Schedule 11 into the Criminal Law Consolidation Act 1935 (SA).[87] By clause 1(3) of Schedule 11, the common law offences of maintenance and champerty were abolished. Clause 3 of Schedule 11 provides:

    [87]   The other Australian jurisdictions are referred to in G E Dal Pont The Law of Costs, (LexisNexis, 5^th ed, 2021), [3.42] footnote 192.

    3—Special provisions relating to maintenance and champerty

    (1) Liability in tort for conduct constituting maintenance or champerty at common law is abolished.

    (2) The abolition of criminal and civil liability for maintenance and champerty does not affect—

    (a)     any civil cause of action accrued before the abolition;

    (b)     any rule of law relating to the avoidance of a champertous contract as being contrary to public policy or otherwise illegal;

    (c)     any rule of law relating to misconduct on the part of a legal practitioner who is party to or concerned in a champertous contract or arrangement.

1. It is noteworthy that the appellant went no further than to suggest that the respondent “appeared to accept” his proposal. 

2. However even if one leaves the vague nature of the appellant’s evidence to one side, he acknowledged that his fees would only become payable in the specific circumstances he described.  In doing so, the appellant assumed that he would act for the respondent when obtaining the respondent’s release and the payment of compensation. 

3. Whether the contingency inherent in the retainer has manifested has an important bearing on whether the denial of a restitutionary remedy can be said to be relevantly unjust.  One way of looking at that issue is by considering whether the grant of a restitutionary remedy would be inconsistent with the contractual retainer which it is alleged was agreed: the contractual arrangement is not “an inconvenient distraction”,[174] because:[175]

   The doing of work, or payment of money, for and at the request of another, are archetypal cases in which it may be said that a person receives a “benefit” at the “expense” of another which the recipient “accepts” and which it would be unconscionable for the recipient to retain without payment. And as is well apparent from this Court’s decision in Steele v Tardiani, an essential step in considering a claim in quantum meruit (or money paid) is to ask whether and how that claim fits with any particular contract the parties have made. It is essential to consider how the claim fits with contracts the parties have made because, as Lord Goff of Chieveley rightly warned in Pan Ocean Shipping Co Ltd v Creditcorp Ltd, “serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract”. In a similar vein, in the Comments upon §29 of the proposed Restatement, (3d), “Restitution and Unjust Enrichment”, the Reporter says:

   Even if restitution is the claimant’s only recourse, a claim under this Section will be denied where the imposition of a liability in restitution would overturn an existing allocation of risk or limitation of liability previously established by contract.

   (Citations omitted)

   [174] Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635, 654 [45] (Gleeson CJ); 662 [77] (Gummow, Hayne, Crennan and Kiefel JJ).

   [175] Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635, 663 [79] (Gummow, Hayne, Crennan and Kiefel JJ). See also at [127]: “identification of the rights and obligations of the parties, in this as in any matter, requires close attention to the particular facts and circumstances of the case. Necessarily that requires close attention to what contractual or other obligations each owes to the other”.

4. This passage was applied by the Full Court in Winslade v Steri-Flow Filtration, where the claimant sought by way of restitution payment for work done in connection with a Government application where it had been agreed that any payment would be on the basis of a “success fee”.  The work was done but the application was rejected.  There was no “success”.  Neither the agreed fee nor the alternative of a reasonable sum could be claimed for, as Doyle CJ explained:[176]

   The contract was for a payment by Steri-Flow to Winslade in the event that the first application succeeded. The possibility that the application would not succeed was foreseen by the parties. It is not a case in which the agreement has failed, nor has it been frustrated. The case does not fall under the category identified in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516. That is a case involving “payment for a purpose which has failed as, for example, where a condition has not been fulfilled, or a contemplated state of affairs has disappeared”: Gleeson CJ, Gaudron and Hayne JJ at [16]. I do not accept Mr Manetta’s submission that the contract between Winslade and Steri-Flow has failed. An event that the parties contemplated has occurred, and the contract makes no specific provision for what is to occur in that event. But the concept of a “success fee” used by the parties strongly suggests that a fee was to be payable by Steri-Flow to Winslade only in the event that the application prepared by Winslade was successful as it stood, or successful with minor adjustments of a kind that must have been contemplated by the parties. To my mind, the circumstances strongly suggest that the risk of Winslade not receiving a payment was allocated by the parties because the parties had agreed upon the circumstances in which Winslade was entitled to payment, using language that suggested an entitlement to payment only in one event.

   [176] Winslade v Steri-Flow Filtration (2012) 113 SASR 69, [34] (Doyle CJ, with whom Vanstone and Peek JJ agreed).

5. This passage emphasises the importance of respecting the contractual allocation of risk made by the parties, as well as the need to recognise their failure to make “specific provision” for any other consequence. 

6. The cases show that retainers incorporating contingency costs agreements are “fraught with difficulties if they are not drafted with exquisite clarity”.[177]  Not only is there a particular need to define what is meant by a “win”, including where there is an appeal, it is necessary to address what is to occur where the retainer has come to an end before the contingency is achieved.[178]  That was not done in this case.

   [177] Spence v Gerard Malouf & Partners Pty Ltd [2010] NSWSC 764, [110] (Bergin CJ in Eq).

   [178] Woodgate v Keddie (2007) 242 ALR 234 (FC); Ireland v Trilby [2011] 2 Qd R 320.

7. Whilst the cases on contingency costs retainers have generally been decided on the basis that they will be construed in favour of the client, or at least according to “what ordinary people in the position of the parties would have … understood”,[179] for present purposes they demonstrate the scope for considerable uncertainty about whether and in what circumstances a solicitor can claim that it is unjust for a client to fail to make restitution when it is unclear whether the contingency has been satisfied. 

   [179] Baker Johnson v Jorgensen [2002] QDC 205, [17] (McGill DCJ).

8. For example, the effect of a number of the appellant’s submissions on appeal was that the use of the terms “release” and “compensation” are capable of a broad meaning and need not be construed by reference to their ordinary meaning. 

9. There are two answers to this suggestion.  The first is that these terms must be considered in the context of the events and circumstances surrounding the December 2004 meeting.  That is, in the context of an initial meeting between a solicitor and his prospective client where the client was in gaol, indigent and vulnerable. 

10. As the appellant’s submissions in this Court acknowledged, at that time the respondent was maintaining his innocence (as he has, consistently) lodging petitions seeking mercy, and the compensation which was apparently discussed was associated with false imprisonment.  In that context, release and compensation could only be associated with an acquittal (possible, but unlikely ahead of the 2013 amendments) or a pardon (conditional or otherwise) following the favourable exercise of the Royal prerogative of mercy resulting in compensation by way of damages for false imprisonment (as the appellant submitted in this Court).[180] 

    [180] Catherine Greentree, “Retaining the Royal Prerogative of Mercy in New South Wales” (2019) 42(4) UNSW Law Journal 1328, 1340-1344.

11. In the events that have transpired, the respondent has not been acquitted, nor pardoned, and he has not as a result received compensation in any accepted sense.  If something else was intended by the appellant, that needed to be articulated in December 2004 and agreed to by the respondent. 

12. This leads to the second answer to the appellant’s approach to the meaning of the words used.  Where the solicitor has failed to draft a contingency costs agreement, let alone a complying contingency costs agreement exhibiting the virtue of “exquisite clarity”, that solicitor cannot later complain if the ordinary meaning of the terms is used rather than some form of broader meaning which has, on the evidence, never been explained to the client nor made the subject of independent legal advice.

13. It follows that, in a case where the solicitor has willingly assumed the considerable risk that legal services will be supplied but no payment will be made for them unless the agreed contingency manifests, it may be difficult indeed for that solicitor to claim that it is unjust for a client to fail to make restitution where there remains doubt about whether the relevant contingency has manifested.

    The contingency in this case – three limbs

14. The appellant has at all times accepted that the payment of his costs and disbursements was conditional on the manifestation of the contingency which he maintains was agreed with the respondent in December 2004.

15. To be clear, there are three limbs to the contingency agreement alleged by the appellant.  They may be summarised in a broad way, consistently with the nature of the appellant’s evidence.  The first is that the respondent was to be released from prison and the second is that he received compensation following release from prison.  The third limb is, at least implicitly, that the first two limbs would be achieved under the appellant’s retainer, or where they were at least substantially the product of the legal services provided by the appellant for the benefit of the respondent. 

16. On the appellant’s own case he assumed the risk that, if the retainer came to an end before the contingency was achieved, or if the contingency was not achieved, such as where the respondent’s release was not obtained or the payment of compensation was not received, then he would not be remunerated. 

17. As the appellant’s counsel conceded in argument on this appeal, the relevant contingency would need to “come good” before the appellant could make any claim by way of quantum meruit.  As will be explained, there is no reasonable basis for the claim that any of these limbs was satisfied, with the result that the contingency inherent in the appellant’s retainer did not manifest.

    Was the contingency satisfied?

18. The appellant submitted that the contingency was satisfied and his entitlement to reasonable remuneration fell due because on 22 December 2014 the respondent was released from prison on bail and in 2018 the State Government made an ex gratia payment to the respondent of $2.6 million.  It was submitted that the ex gratia payment fell within the “compensation” contemplated by the alleged retainer for it “plainly” included any “compensation for any wrongful imprisonment after I, the appellant, have sprung you”. 

19. As has been explained, when one has regard to the context in which the retainer is alleged to have been agreed in December 2004, it is difficult to see how the respondent’s mere release short of an acquittal or a pardon resulting in compensation could have been in contemplation.

20. Given the circumstances in which the alleged bargain was struck, and acknowledging the way in which the matter was put in this Court, the respondent’s mere release (for example on bail) could not have been what was contemplated as a precondition to the payment of legal fees and disbursements.  If fees and disbursements were to be paid they had to be funded and so release must have been contemplated in the context, for these purposes, that it was the precursor to the payment of compensation.  The respondent was not, and has never been, acquitted or pardoned of murder, nor has he in consequence received compensation in respect of his prosecution, conviction or imprisonment.  If any broader meaning was to be given to the concepts of release and compensation that needed to be clearly stipulated and, as has been explained, that was not done.  In any event, in 2012 the appellant’s retainer was terminated, some time after Mr Borick’s retainer was terminated in 2010, and well before the 2014 appeal and the 2018 payment.  To adapt counsel for the appellant’s submission, the respondent was not “sprung” by the appellant and the appellant did not secure the payment of any compensation. 

    The release from prison

21. In order to explain these conclusions, it is first convenient to address the limb concerning the respondent’s release from prison.  In 2014, the Court of Criminal Appeal set aside the respondent’s conviction and directed that he be retried.  In November 2015 the Director of Public Prosecutions subsequently entered a nolle prosequi. 

22. Unlike an acquittal or pardon, the entry of a nolle prosequi did not prevent the respondent from being retried for murder. It amounted to no more than a statement that the Director was unwilling to proceed with the re-prosecution of the respondent at that time,[181] and cannot be equated to a finding of not guilty, following an acquittal,[182] or with a full pardon.[183]

    [181] R v Chryssomallos (2019) 134 SASR 568, [28] (Parker J, with whom Kelly P and David AJA agreed), citing Question of Law Reserved on Acquittal(No 3 of 1995) (1996) 66 SASR 450, 458 (Debelle J).

    [182] Davis v Gell (1924) 35 CLR 275, 287 (Isaacs ACJ, with whom Gavan Duffy J agreed).

    [183] Although even if pardoned on the basis that the prisoner is deemed innocent, the conviction is not expunged: Kelleher v Parole Board of New South Wales (1984) 156 CLR 364, 371 (Wilson J); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, 350-351 (Heydon J).

23. Certainly, the nolle prosequi did not suggest that the respondent’s imprisonment was in any sense wrongful, still less contrary to law, sufficient to support any claim for compensation.

    The payment of compensation

24. Next, it is convenient to address the limb concerning the payment of compensation.  The appellant made no attempt to demonstrate that the respondent had any viable cause of action for damages or other compensation, such as a claim for damages in tort for malicious prosecution, wrongful conviction or for false imprisonment.  No payment of compensation for false imprisonment could have been made without a finding or admission that the appellant’s imprisonment was wrongful.  It follows that, despite the outcome in the Court of Criminal Appeal in 2014, there has been no finding nor admission that the respondent’s conviction, prosecution or imprisonment was relevantly wrongful or that the State Government (or anyone else) was liable to compensate the respondent.  Indeed, the views of the Court of Criminal Appeal in favour of a retrial (set out at the outset of these reasons) might be thought incompatible with the existence of a legal liability to compensate the respondent. 

25. The respondent did not receive any “compensation” from anyone.  He received an ex gratia payment from the State Government.  The evidence shows that this was made on the basis of an express denial by the State of any liability for any entitlement of the respondent to compensation.  The respondent’s payment was not made ex debito justitiae but ‘out of grace’.  That is the sine qua non of an ex gratia payment, which avoids any implication that there has been any admission of liability upon which an entitlement to the payment of compensation might be based.

    Did the appellant secure the respondent’s release and payment?

26. Notwithstanding the foregoing, let it be assumed for the purposes of the summary judgment application that there is a reasonable basis for the first two limbs.  The critical difficulty remains that even if the nolle prosequi and the ex gratia payment could be regarded as a release from prison coupled with the payment of a form of compensation for the purposes of the retainer, so that the first two limbs of the contingency are therefore satisfied, it was not the appellant who secured the respondent’s release and payment.  It cannot be shown that the appellant was acting or that his legal services secured, wholly or at least substantially, what later occurred.[184]

    [184] Perhaps some broad analogy might be drawn with when a liquidator’s remuneration is secured by the general law charge upon any fund raised by the work done by a liquidator.  That is, it arises only where the liquidator’s work generates the fund, In re Universal Distributing Co Ltd (In Liq) (1933) 48 CLR 171, 174-175 (Dixon J). The same could be said about the solicitor’s particular lien over a client’s monies recovered in litigation, for it only operates over the monies generated by the work of the solicitor, Commissioner of Taxation v Government Insurance Office of New South Wales (1992) 36 FCR 314, 327 (Wilcox J).

27. After the termination of the appellant’s retainer, the respondent retained a different legal team.  It is not suggested that the appellant performed any of the work required for what followed.

28. It might arguably have been different if the appellant had performed all of the necessary work before the Court of Criminal Appeal and when seeking payment, but the retainer was then terminated before, for example, the outcome was known.  By contrast, in this case the only inference open is that the new legal team performed all of the legal work required for the second statutory appeal and the claim that was later made.  The successful appeal was lodged in 2013, permission was granted in March 2014, the second appeal was first heard on 22 September 2014 and it was determined on 19 December 2014.  Work was then done in connection with the new trial before the Director entered a nolle prosequi in November 2015.[185]  The ex gratia payment was not secured until 2018. 

    [185] R v Keogh (No 1) [2015] SASC 179 (Blue J); R v Keogh (No 2) [2015] SASC 180 (Blue J).

29. Taking the appellant’s affidavit as the high-water mark of his claim, as the parties agreed, the contingency agreement was dependent on the appellant performing all or at least substantially all of the work required to satisfy the contingency.  That is apparent from the brief, pleaded terms of the alleged retainer, namely, that the appellant assumed that he would continue to represent the respondent until satisfaction of the contingency. 

30. By failing to address the possibility that the retainer might be discharged before the contingency was satisfied, the appellant assumed the risk that no expectation of payment of legal fees would in those circumstances arise.[186]  

    [186] Smits v Roach (2004) 60 NSWLR 711, 750-751 (Sheller JA, with whom Ipp and Bryson JJA agreed).

31. The respondent relied on the decision of McClellan J in Smits v Roach, both before the Master and in this Court, although an appeal against that decision was allowed by the Court of Appeal.[187]  In that case Smits, a law firm, made a claim against a former client, Roach, based on two retainer agreements which had been terminated.  Both retainers were in part champertous.  The client had wanted to sue another firm, Freehills, for around $970 million over alleged negligence in the late 1980s, early 1990s, in connection with the steps required to exploit substantial peat deposits in Victoria. Under the second retainer the firm stood to gain between 10 and 15 per cent of any recovery, in addition to the costs and disbursements recovered from the defendants.[188] The firm investigated litigation funding once it became clear that the matter would not settle and the firm was exposed to considerable financial risk. The relationship between the firm and the client soured,[189] and the second retainer was terminated by the firm in 1999. Thereafter there were acrimonious negotiations, and the firm sued the client for its fees:[190]

    There can be little doubt that the timing of the proceedings, including these allegations, would have affected the likelihood of Justice Corporation funding the litigation [against Freehills]. The pleading is fairly described as an ambit claim. Although a catalogue of allegations were pleaded in relation to contract and misrepresentation, the allegations of fraud were not separately particularised. Smits Leslie sought damages, equitable compensation as well as aggravated and exemplary damages.

    [187] Smits v Roach (2002) 55 NSWLR 166, [221]-[266] (McLellan J); Smits v Roach (2004) 60 NSWLR 711 (Sheller JA, with whom Ipp and Bryson JJA agreed).

    [188] Smits v Roach (2004) 60 NSWLR 711, [1]-[4] (Sheller JA, with whom Ipp and Bryson JJA agreed).

    [189] The relevant extracts do not appear in the NSW Law Reports, see Smits v Roach [2002] NSWSC 241, [97] (McLellan J): “the relationship of solicitor and client was now under significant threat”. See [115]: “Roach had come, in my opinion correctly, to believe that Smits, in his negotiations with Justice Corp [a litigation funder], was acting primarily to secure the position of Smits Leslie which was, in part, in conflict with the best interests of himself, his wife and the companies. It was becoming increasingly unlikely that the parties could continue to cooperate effectively”.

    [190] Smits v Roach (2002) 55 NSWLR 166, [195] (McLellan J).

1. Ultimately the retainer was found by McLellan J to be champertous and illegal, relying on the ruling made by Atkin LJ (as he was) in Wild v Simpson to the effect that public policy was concerned not only with the relationship between the solicitor and the client but also with the wrong occasioned to the other party to the litigation:[191] 

   The view of the learned Chief Justice seems to me, with all respect, contrary to principle, and if the case is an authority for the proposition that a person employed on an express contract to do work for a remuneration that is illegal can, where the special contract fails for illegality, recover upon a quantum meruit, I think it is wrong and should be overruled. The result would be to make the law of champerty as between solicitor and client of very little effect. A solicitor would only have to bargain to receive the champertous sum in addition to his ordinary costs. He would never be in a worse position financially for the illegality. He could always recover as much as an innocent solicitor, and would take his chance of also recovering the fruits of the wrongdoing.

   [191] Wild v Simpson (1919) 2 KB 544. Applied in Smits v Roach (2002) 55 NSWLR 166, [225]-[228] (McLellan J).

2. Justice McLennan reviewed the terms of the Legal Profession Act 1987 (NSW), which permitted a contingency costs agreement allowing an uplift in fees of up to 25 per cent but proscribed any retainer which allowed the solicitor to take an interest in the amount recovered by the client. McLennan J found that the retainer was illegal and void and the champertous clauses were not severable.[192]  The claim for reasonable remuneration by way of quantum meruit was rejected.  McLennan J concluded that, in any event, no claim could be made following termination of the retainer:[193]

   … as the agreement was conditional on a successful outcome in the Freehills litigation, the solicitors accepted that they would only be paid if the retainer was maintained and a verdict recovered. Given that the agreement was itself contingent on a successful outcome, I see no unfairness in it operating so that, in the event that the relationship was no longer effective, the solicitors could withdraw, but could not seek remuneration.

   [192] Smits v Roach (2002) 55 NSWLR 166, [231]-[238] (McLellan J). His Honour later also relied on Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 (FC) and the decisions reviewed by Bryson J in Re William Felton & Co Pty Ltd (1998) 145 FLR 211 which sanctioned the professional funding of litigation in return for a share in the proceeds but rejected retainers which permitted solicitors to take a share of the proceeds.

   [193] Smits v Roach (2002) 55 NSWLR 166, [282] (McLellan J).

3. In the Court of Appeal, the ruling on severance was overturned.  The Court found that the Legal Profession Act 1987 (NSW) recognised that the champertous provisions could be severed and it declined to follow Wild v Simpson.[194]  On the question of recovery by way of quantum meruit, the Court explained why the nature of the contingency costs agreement precluded recovery by way of restitution:[195]

   … But the agreement legitimately made recovery contingent upon a successful outcome of the matter, as the appellants conceded, on the assumption that the appellants continued to act for their clients until there was an outcome.  Furthermore, properly understood, the parties deliberately made no provision for the appellants to be paid anything if, pursuant to cl 14, the solicitors decided to stop acting for their clients before that outcome was achieved.  In K Mason and J W Carter, Restitution Law in Australia, (1995) at 477-8 para [1228], in a section dealing with restitution for non-monetary benefits, the learned authors point out that in analysing the right to restitution the contractual allocation of risk must not be forgotten. …

   …

   … here, quite clearly, the appellants were prepared to receive remuneration only if there was a successful outcome of the Freehills proceedings and took the risk that for one reason or another the venture would not reach fruition.

   In my opinion, the appellants are not entitled to recover anything from their clients in contract or on a quantum meruit.  The terms of the second retainer agreement properly construed make that plain.

   [194] Smits v Roach (2004) 60 NSWLR 711, [69]-[99] (Sheller JA, with whom Ipp and Bryson JJA agreed).

   [195] Smits v Roach (2004) 60 NSWLR 711, [82], [84]-[85] (Sheller JA, with whom Ipp and Bryson JJA agreed).

4. Whilst decided before cases such as Lumbers v W Cook Builders Pty Ltd (in liq), referred to earlier, this aspect of the decision was clearly informed by the contractual allocation of risk made in the retainer.[196] 

   [196] Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635, 654 [45] (Gleeson CJ) and 662 [77] (Gummow, Hayne, Crennan and Kiefel JJ); Winslade v Steri-Flow Filtration (2012) 113 SASR 69, [34] (Doyle CJ, with whom Vanstone and Peek JJ agreed).

5. In this case, on the appellant’s own evidence, his retainer for the respondent ended in mid-2012, after the respondent’s fourth unsuccessful petition for mercy.  It was not until after the appellant’s retainer was terminated that legislation was introduced in South Australia to enable a second or further appeal against conviction.[197]  For the entire period of the appellant’s retainer, therefore, the jurisdiction on which the second appeal was founded and the conviction was set aside did not exist.  The appellant did not perform the work required on the second appeal nor for the purposes of securing the ex gratia payment. 

   [197] Section 353A of the Criminal Law Consolidation Act 1935 (SA) commenced on 5 May 2013.

6. The appellant accepts that his retainer was terminated by the respondent in mid-2012, but contends that it would be unjust to allow the respondent to escape his obligation to remunerate the appellant as the result of his “unilateral” termination. 

7. This contention must be rejected.  The termination was apparently accepted by the appellant. There is no allegation that termination was in any sense regarded as wrongful. After receiving the respondent’s termination letter, the appellant transferred his complete file to the respondent’s new solicitors.  There is no evidence before the Court that the appellant claimed any lien over the file, nor made any claim for the preservation of whatever rights he arguably had, nor sought any commitment from the respondent or his new solicitor that the respondent would account to the appellant if he was released from prison and received compensation.  Notably, the appellant did not plead that it was a term of the alleged retainer that the respondent’s obligation to remunerate the appellant would withstand the termination of the retainer (regardless who terminated the retainer) and the satisfaction of the contingency by a different legal team. 

8. The expectation said to found the action by way of quantum meruit was not one of payment regardless of outcome, but payment upon the performance by the appellant of the specified contingency. 

9. In circumstances where the specified contingency never manifested, or was not performed by the appellant, it cannot be said that a reasonable person standing in the respondent’s shoes should have realised that the appellant would expect to be paid for his services.  Even on the case advanced by the appellant, the appellant has failed to demonstrate that it would be unjust for the respondent to fail to make restitution and that equity should intervene on the basis of a quantum meruit.  The factor on which the appellant advances his quantum meruit claim has not been made out. 

10. There is no reasonable prospect that the appellant can establish that it would be unjust for the respondent to fail to account to the appellant from the ex gratia payment he received following his release from prison as a consequence of proceedings and a claim commenced and prosecuted by different solicitors and counsel after the appellant accepted the termination of his retainer.

11. It follows that, for these reasons, the Master was correct to find that the appellant had no reasonable basis for his claim on the basis of a cause of action in quantum meruit. 

    The costs of action where quantum meruit is not available

12. Before the hearing of this appeal, the appellant abandoned all bases advanced to support his claim for costs and disbursements, relying only on quantum meruit.

13. The appellant has failed to demonstrate a reasonable basis for the contention that it would be unjust for the respondent not to make restitution.  The appellant’s claim in quantum meruit fails in limine.  That is so regardless whether the public policy underpinning the Act and Conduct Rules in force at the time of the retainer in December 2004 prohibited the appellant from recovering his fees by way of quantum meruit.

14. Accordingly, the appellant cannot succeed with a challenge to the Master’s order that the appellant pay the respondent’s costs of the action on the usual basis.  Assuming it is required, leave to appeal against this finding should be refused.

    Conclusion

15. For these reasons, the appeal against the Master’s decision will be dismissed and leave to appeal the costs order will be refused.  The orders of the Court are:

    1.The appeal is dismissed.

    2.Leave to appeal against the costs order is refused.

16. Subject to hearing from the parties, the appellant must pay the respondent’s costs of this appeal.

    
    

  Renton Resources Pty Ltd v Johnson Winter & Slattery (2005) 240 LSJS 434; [2005] SASC 231,

[18]-[19] (Anderson J, with whom Vanstone and Layton JJ agreed).

  Renton Resources Pty Ltd v Johnson Winter & Slattery (2005) 240 LSJS 434; [2005] SASC 231,

[30]-[33] (Anderson J, with whom Vanstone and Layton JJ agreed).  Whilst the Full Court allowed the appeal against the decision of White J in Kasmeridis (No 1), that ruling was confined, as has been seen, to the requirement that a client’s assent be in writing which was not in issue in Renton Resources.