Steele v Marshan

Case [2012] NSWCA 141

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Steele v Marshan [2012] NSWCA 141
Hearing dates:14 May 2012
Decision date: 14 May 2012
Before: Basten JA at 1;
Whealy JA at 20
Decision:

(1) Dismiss the application for leave to appeal from the judgment of Adamson J in the Common Law Division.

(2) Order the applicant to pay the costs of the respondent in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - leave to appeal - second appeal in series - appeal below limited to question of law - issue of principle raised for the first time in application for leave to appeal - whether application without merit

LEGAL PRACTITIONERS - existence of retainer - solicitor performed work and appeared prior to provision of written agreement and costs disclosure - whether relationship of solicitor and client existed - discussion of Pegrum v Fatharly (1996) 14 WAR 92; Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Rep ¶81-942; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Legislation Cited: Inclosed Lands Protection Act 1901 (NSW)
Legal Profession Act 2004 (NSW), ss 309, 311, 317 Div 11
Local Court Act 2007 (NSW), ss 39, 40
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Rep ¶81-942
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Pegrum v Fatharly (1996) 14 WAR 92
Category:Principal judgment
Parties: Robert Lindsay Steele - Applicant
Maurice Robert Marshan - Respondent
Representation:

Counsel:

Mr J Hyde Page - Applicant
Ms E M Peden - Respondent
Solicitors:

Respondent Self-represented
File Number(s):CA 2012/67158
 Decision under appeal 
Jurisdiction:
9111
Citation:
Steele v Marshan [2012] NSWSC 32
Date of Decision:
2012-02-07 00:00:00
Before:
Adamson J
File Number(s):
2011/241943

Judgment

  1. BASTEN JA: In 2009 the applicant, Robert Lindsay Steele, was charged with a summary offence under the Inclosed Lands Protection Act 1901 (NSW) arising from his presence on land owned by the Uniting Church in Australia, namely the Wesley Mission in Pitt Street, Sydney. On 22 December 2009 the applicant approached the respondent, a solicitor, with respect to the charge in the Local Court. The proceedings were ultimately dismissed, the applicant appearing for himself. However, before that occurred various steps had been taken by the respondent, ostensibly as the applicant's solicitor.

  1. The present dispute arises out of a…

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Steele v Marshan [2012] NSWCA 141
Case
[2012] NSWCA 141
Decision Date

CaseChat Overview and Summary

In *Steele v Marshan*, the applicant sought leave to appeal to the Court of Appeal of New South Wales from a judgment of Adamson J in the Common Law Division. The dispute concerned the existence of a solicitor-client retainer, with the applicant alleging that the respondent solicitor had performed work and appeared in court prior to the provision of a written agreement and costs disclosure.

The primary legal issues before the Court of Appeal were whether a solicitor-client relationship had been established in the absence of a formal written agreement and costs disclosure at the commencement of the retainer, and whether an application for leave to appeal, raising an issue of principle for the first time, was without merit. The Court was required to consider the principles governing the formation of a retainer and the circumstances in which leave to appeal might be granted, particularly in a second appeal.

The Court of Appeal dismissed the application for leave to appeal. Applying established principles regarding the existence of a retainer, the Court found that the conduct of the parties indicated a solicitor-client relationship had been formed, notwithstanding the absence of a written agreement and costs disclosure at the outset. The Court also considered that the issue of principle was not sufficiently compelling to warrant granting leave to appeal, particularly in the context of a second appeal. Consequently, the Court ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal from the judgment of Adamson J in the Common Law Division.

(2) Order the applicant to pay the costs of the respondent in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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