Richardson v Poon

[2023] QCATA 85

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Richardson v Poon  [2023] QCATA 85

PARTIES:

NEIL CHARLES RICHARDSON

(appellant)

v  

SARAH POON

(respondent)

APPLICATION NO/S:

APL096-22

ORIGINATING APPLICATION NO/S:

MCD148/21

MATTER TYPE:

Appeals

DELIVERED ON:

4 July 2023

HEARING DATE:

19 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – LEGAL PROFESSION – CONTRACT BETWEEN SOLICITOR AND BARRISTER – where the respondent barrister provided to the applicant solicitor a costs disclosure and retainer agreement – where applicant did not specifically accept the terms of the agreement – where agreement included a term of deemed acceptance by conduct – where the respondent undertook work in accordance with the applicant’s briefed instructions – whether the applicant accepted the offer contained in the costs agreement – whether acceptance by conduct – whether applicant bound by the costs agreement – whether the applicant liable for the fees rendered to the applicant under the costs agreement – whether separate agreement between the client and barrister to pay fees.

Queensland Civil and Administrative Tribunal Act 209 s 143(3)(a)(i)

Legal Profession Act 2007 ss 309 and 322

Principles of Contract Law; Robertson & Paterson 6^th ed.

Empirnall Holdings Pty Ltd v Machon Paull Partners ty Ltd

(1988) NSWLR 523 at 535

Rintoul v State of Queensland & Ors [2018] QCA 20

Bayly v Westbank Banking Corporation [2020]

QCA148;

RWC Plumbing & Excavations v Camporeale Holdings

Pty Ltd [2017

Terera v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. There was a time when a barrister could not sue an instructing solicitor for fees when briefed to act on behalf of a client. Traditionally the relationship between barrister and solicitor was not one of contract but what might be called a moral obligation, or convention, on the solicitor to pay a barrister fee. It was for the solicitor to ensure that sufficient monies were secured from the client to pay the fees. The usual procedure, in most cases, is for the anticipated outlays for counsel to be paid into the solicitor’s trust account.

2. However, since the introduction of the Legal Profession Act 2007 (“LPA”) a barrister can now enter into a costs agreement with the instructing solicitor and can sue on the agreement to recover fees if not paid. [1]  In fact, it is recommended as good practice to do so to ensure there is no doubt about the liability of the solicitor to pay the barrister’s fee. It goes without saying that the costs agreement must satisfy all of the necessary criteria to be a valid and enforceable contract.

   [1]Legal Profession Act 2007 s 322

3. This is an appeal from a decision of the minor civil disputes jurisdiction of the Tribunal where it was found that Ms Poon, a practicing barrister, and Mr Richardson, as practising solicitor, did enter into an enforceable…