SUPREME COURT OF QUEENSLAND
CITATION:
Baker v Legal Services Commissioner [2006] QCA 145
PARTIES:
MICHAEL VINCENT BAKER
(respondent/appellant)
v
LEGAL SERVICES COMMISSIONER
(applicant/respondent)FILE NO/S:
Appeal No 9533 of 2005
SC No 9619 of 2004DIVISION:
Court of Appeal
PROCEEDING:
Appeal against order of Legal Practice Tribunal
ORIGINATING COURT:
Legal Practice Tribunal
DELIVERED ON:
5 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
29 March, 2006
JUDGES:
McPherson and Jerrard JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – MISCONDUCT, UNFITNESS AND DISCIPLINE – APPEAL AGAINST DECISION OF LEGAL PRACTICE TRIBUNAL – where tribunal ordered appellant’s name be removed from the roll of legal practitioners – whether solicitor acted dishonestly in claiming to be entitled to fees – whether finding of guilt of professional misconduct should be disturbed – whether wrongful charging of professional fees and disbursements where none properly chargeable and dishonest rendering of account constituted professional misconduct – where firm’s conduct misleading and deceptive – where solicitor aggressively and remorselessly pursued unsophisticated and inexperienced clients for fees conceivably owed – where tribunal ordered respondent practitioner pay costs – whether withdrawal or failure of some charges warranted an apportion of the quantum of costs – whether “exceptional circumstances” exist such as to defeat the mandatory requirement of s 286(1) of the Legal Profession Act 2004 (Qld)
CONTRACT – PARTICULAR PARTIES – SOLICITOR AND CLIENT – RETAINER – where terms of retainer “no win no fee” – circumstances where solicitor entitled to unilaterally terminate retainer – breach or repudiation – circumstances where solicitor entitled to charge professional fees – whether solicitor entitled to claim fees for work done before frustrating event – whether client liable in restitution for work done of which the client takes advantage after discharge of retainer
Legal Profession Act 2004 (Qld) s 286
Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, cited
Appleby v Myers (1867) LR 2 CP 651, cited
Attorney-General v Bax [1999] 2 Qd R 9, cited
Baker Johnson v Jorgensen [2002] QDC 205, cited
Bluck v Lovering & Co (1887) 35 WR 232, cited
Cachia v Isaacs (1985) 3 NSWLR 366, considered
Caldwell v Treloar (1982) 30 SASR 202, considered
In Re Continental C & G Rubber Co Pty Ltd (1919) 27 CLR 194, cited
Cutter v Powell (1795) 6 TR 320, cited
Re Elfis & Somers (OS 270 of 1981) 7 May 1982 (Qld Sup Ct, unreported), cited
Gamlen Chemical Co Ltd (UK) v Rochem Ltd [1980] 1 WLR 614, cited
Gange v Sullivan (1966) 116 CLR 418, cited
ex p Maxwell (1955) 72 WN NSW 333, considered
Meehan v Jones (1982) 149 CLR 571, cited
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, cited Planche v Colburn (1831) 8 Bing 14, cited
R v Lindsay [1963] Qd R 386, cited
State Rail Authority of New…
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- Case
- [2006] QCA 145
- Decision Date
CaseChat Overview and Summary
The reasoning of the court involved a detailed analysis of the written agreement between the parties, particularly focusing on clauses 3(a), 7(i), and 11. The court examined the nature of the retainer agreement, which included a "no win no fee" provision. The court found that the terms of the retainer did not allow the solicitor to unilaterally terminate the agreement or claim fees for work done before the retainer was terminated. The court also found that the retainer was frustrated due to the discovery of a conflict of interest, which made it impossible for the solicitor to continue acting for either party. Consequently, the court held that Baker's actions constituted professional misconduct and dismissed the appeal.
The court's decision upheld the tribunal's findings and ordered that Baker's name be removed from the roll of legal practitioners. The court also directed that Baker pay the costs of the appeal, noting that although some charges were withdrawn or failed, the overall circumstances did not warrant a reduction in the costs. The court found that there were no exceptional circumstances that would defeat the mandatory requirement of s 286(1) of the Legal Profession Act 2004 (Qld).
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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