Robert Lindsay Steele v Maurice Marshan - [2012] HCASL 198

ROBERT LINDSAY STEELE
v
MAURICE MARSHAN
[2012] HCASL 198
S148/2012

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.
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.
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.
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.
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.
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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] HCASL 198
Decision Date

CaseChat Overview and Summary

The applicant, Robert Lindsay Steele, appealed against the decision of the Court of Appeal of the Supreme Court of New South Wales, which dismissed his application for leave to appeal against the dismissal of his appeal from a decision of the Local Court of New South Wales. The underlying dispute related to legal fees incurred by the applicant in relation to a charge under the Inclosed Lands Protection Act 1901 (NSW). The respondent, Maurice Marshan, a solicitor, had appeared on the applicant's behalf at the Local Court, but the applicant later refused to pay the fees, contending that there had never been a retainer. The respondent sued for payment and succeeded at first instance, with the Local Court finding an implied retainer. The applicant's subsequent appeals were dismissed on the grounds that they lacked substance.

The legal issues in the case centred on whether there had been an implied retainer between the applicant and the respondent and, if so, whether the Local Court's assessment of legal fees was fair and reasonable. The applicant argued that the Court of Appeal had applied the wrong test for an implied retainer, which had not been raised in the lower courts. The Court of Appeal held that the argument had not been properly raised and that no issue of principle was involved. The applicant further argued that the proceedings below were unfair and that the costs assessment process was flawed.

The Court held that the applicant's appeal against the Court of Appeal's decision had insufficient prospects of success. The Court found that the argument regarding the test for an implied retainer had not been properly raised in the lower courts and that the Court of Appeal's decision was correct. The Court also found that the applicant's other grounds of appeal lacked merit and did not engage the interests of the proper administration of justice. Consequently, the Court dismissed the application for special leave to appeal. Pursuant to the relevant rule, the Registrar was directed to draw up, sign, and seal an order dismissing the application with costs.

Orders