Robert Lindsay Steele v Maurice Marshan

[2012] HCASL 198

ROBERT LINDSAY STEELE

v

MAURICE MARSHAN

[2012] HCASL 198
S148/2012

1. In 2009, the applicant was charged with an offence contrary to the Inclosed Lands ProtectionAct 1901 (NSW). He contacted the respondent, a solicitor who had previously acted for him. The parties met the next day and on 11 January 2010, the respondent appeared on the applicant's behalf at the Local Court of New South Wales. On 29 January 2010, the respondent sent a costs disclosure to the applicant. A dispute then arose after which time the applicant appeared on his own behalf in respect of the charge. When the respondent later rendered an invoice for his fees, the applicant refused to pay claiming the respondent had never been retained, nor instructed to undertake the work he did.

2. The respondent sued the applicant for payment of legal costs and the matter was heard in the Local Court of New South Wales by Farnan LCM.  On 30 June 2011, her Honour found for the respondent, ordering the applicant pay the assessed legal fees plus interest and costs.  Farnan LCM held that an implied retainer arose in the circumstances.  Although it was regrettable that fees were not discussed at the parties' first meeting, that did not preclude a finding that there was an implied agreement that the respondent's services would be paid for.

3. The applicant sought leave to appeal from Farnan LCM's decision to the Supreme Court of New South Wales.  On 7 February 2012, Adamson J dismissed the proceedings with costs.  The applicant advanced six grounds of appeal which challenged, among other things, the costs assessment process, the existence of the implied retainer, and the fairness of the proceedings below.  Her Honour refused to grant leave on any of the grounds advanced; none had any substance and the small amount of money involved militated against a grant.

4. On 14 May 2012, the Court of Appeal of the Supreme Court of New South Wales (Basten JA, Whealy JA agreeing) dismissed the applicant's application for leave to appeal from Adamson J's judgment.  The applicant contended that the wrong test for implied retainer had been applied by Farnan LCM.  Basten JA rejected that contention on two bases: it had not been raised below; and no issue of principle was involved. 

5. In his application for special leave to appeal to this Court, the applicant challenges the Court of Appeal's conclusions.  However, an appeal to this Court would not carry sufficient prospects of success, nor are the interests of the proper administration of justice engaged so as to warrant a grant of special leave.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

S.M. Kiefel
12 December 2012 S.J. Gageler