Roland Ofria v Robert William Cameron

[2008] NSWCA 159

New South Wales

Court of Appeal

CITATION:	Roland Ofria v Robert William Cameron [2008] NSWCA 159
HEARING DATE(S):	1 July 2008
JUDGMENT DATE:	1 July 2008
JUDGMENT OF:	Beazley JA at 11; Ipp JA at 12; Handley AJA at 1
EX TEMPORE JUDGMENT DATE:	1 July 2008
DECISION:	1. Appeal allowed with costs. 2. Judgment of the District Court set aside and in lieu thereof enter judgment for the defendant in the action with costs. 3. The respondent is to have a certificate under the Suitors' Fund Act.
CATCHWORDS:	LEGAL PRACTITIONERS - barrister - action against lay client for fees - whether contract with lay client exists - whether costs agreement with lay client exists
LEGISLATION CITED:	Legal Profession Act 1987 (repealed) Suitors' Fund Act 1951
CATEGORY:	Principal judgment
PARTIES:	Roland Ofria (Appellant) Robert William Cameron (Respondent)
FILE NUMBER(S):	CA 40804/07
COUNSEL:	N Nicholls (Appellant) A Tudehope (Respondent)
SOLICITORS:	Niall Connolly Lawyers (Appellant) McLaughlin & Riordan (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	5504/05
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	22 October 2007

CA 40804/07

BEAZLEY JA
IPP JA
HANDLEY AJA

Tuesday 1 July 2008

ROLAND OFRIA v ROBERT WILLIAM CAMERON

LEGAL PRACTITIONERS – barrister – action against lay client for fees – whether contract with lay client exists – whether costs agreement with lay client exists.

HEADNOTE

The respondent, a former barrister, sued the appellant, his former lay client for fees. The trial judge found that there was no contract between the parties for the provision of legal services within s 38I of the Legal Profession Act 1987. However he found that there was a costs agreement between them and gave judgment for the plaintiff. On appeal HELD: (1) On its true construction the costs agreement relied on was one between the barrister and the solicitor;

(2) Without deciding what were the elements of a cause of action against the lay client for a barrister’s fees without either a contract with the lay client within s 38I or a cost agreement with him the barrister had no cause of action.

ORDERS

1. Appeal allowed with costs.

2. Judgment of the District Court set aside and in lieu thereof enter judgment for the defendant in the action with costs.

3. The respondent is to have a certificate under the Suitors’ Fund Act.

CA 40804/07

BEAZLEY JA
IPP JA
HANDLEY AJA

Tuesday 1 July 2008

ROLAND OFRIA v ROBERT WILLIAM CAMERON

Judgment

1 HANDLEY AJA: This is an appeal by leave granted by this court on 6 May this year from the judgment of Hungerford ADCJ on 22 October last year in favour of the plaintiff, a former barrister, against his former lay client for $39,123.87 for unpaid fees. The trial judge found that there was a costs agreement between the barrister and the lay client but no contract within s 38I of the Legal Profession Act 1987 (now repealed) between them for the provision of legal services.

2 Section 38I(3) enabled a barrister to contract with a solicitor or a lay client but did not require such a contract to be evidenced in any particular way. On the other hand s 184(4), (5) and (6) required a costs agreement between the barrister and a lay client or between a barrister and a solicitor or between a solicitor and a lay client to be in writing or evidenced in writing.

3 The only written evidence that the barrister can rely on is his letter of 8 October 1999 to his instructing solicitor, Mr Vella, together with the enclosed schedule. Mr Vella had no recollection of passing on these documents to the defendant but his usual practice was to pass such letters on to the lay client and the judge found that he had done so in this case. There was no evidence of the terms of any oral or written communication by the solicitor to the lay client when Mr Cameron’s documents were passed on to him. The costs agreement between the solicitor and the lay client was not in evidence.

4 The judge was not satisfied that the plaintiff had contracted with the defendant for the provision of legal services. Mr Tudenhope, counsel for the respondent, did not challenge this finding but argued that an arrangement had been made which had contractual force for the plaintiff’s fees to be paid directly by the defendant to Mr Cameron without Mr Vella’s involvement and that they would not be paid by the defendant through Mr Vella.

5 An arrangement of this kind need not have contractual force and the judge did not find that that particular arrangement was intended to be contractual. There was therefore no contract for the provision of legal services between the plaintiff and the defendant.

6 It remains to consider the respondent’s argument that there was a costs agreement between the barrister and the lay client. The letter of 8 October 1999 was addressed by the barrister to Mr Vella, the solicitor, and was as follows:

“Confirming that I can appear in this matter to commence on Monday next, could you convey on to the clients the obligatory disclosure material as required under the Legal Profession Act.
The material is provided to establish a cost agreement only, not a contract for legal services under s 38l of the Act, my general law immunity as an advocate should remain unaffected.
The brief is not accepted on a contingency basis.
My memoranda of fees of work to date is herewith. Also enclosed is my memorandum for the District Court proceedings and the Equity proceedings when you acted at the outset. An amount of $6,281.00 remains owing on those.”

7 The enclosed schedule expressly disclaimed any intention of entering into a s 38I contract with any party. It referred in terms to s 176(2)(b), (c) and s 177(2) and evidenced an intention to comply with the requirements of those sections. They define the costs disclosures required of a barrister who is retained by a solicitor on behalf of a lay client. The sections are not relevant where a barrister entered into a costs agreement with the lay client.

8 The schedule refers in a number of places to “you”, “your” and “us”. Many of these references are to the solicitor. For example the schedule stated that the barrister would send memoranda of fees to “you”, clearly meaning the solicitor, and this can also be said of most of the other references.

9 In my judgment therefore the letter of 8 October and the enclosed schedule on their true construction constituted a costs agreement between the barrister and the solicitor and were not capable of being a costs agreement between the barrister and the lay client. Thus even if a costs agreement between a barrister and a lay client would confer a cause of action on the barrister against the lay client for unpaid fees, no such agreement was proved in this case.

10 Accordingly, the appeal should be allowed and I would propose the following orders:

1 Appeal allowed with costs.
2 Judgment of the District Court set aside and in lieu thereof enter judgment for the defendant in the action with costs.
3 The respondent is to have a certificate under the Suitors’ Fund Act .

11 BEAZLEY JA: I agree.

12 IPP JA: I agree.

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