Whitten v Barrett

Raymond Laurence Whitten was the applicant and Jeanette Evelyn Barrett was the respondent in an application for special leave to appeal to the High Court of Australia. The dispute concerned a concession made at first instance regarding the burden of proof in a matter involving a contract, likely a costs agreement, between a solicitor and a client.

The legal issues before the High Court revolved around the significance and effect of a concession made by the applicant's solicitor at the trial. Specifically, the court considered whether the solicitor had wrongly assumed the burden of proving that the respondent entered into the contract of her own free will, and whether this concession, once made, could be withdrawn or its implications revisited. The court also considered the applicability of previous Full Court decisions, such as *P's Bill of Costs*, and the potential for a presumption of undue influence.

The applicant argued that even if the concession had not been made, the trial would have proceeded in a substantially similar manner, with the primary judge likely applying the presumption of undue influence based on binding precedent. The applicant contended that the attempt to withdraw the concession at a later stage, based on the absence of a substantial benefit, was misplaced. The court questioned whether a substantial benefit was not inevitably present once the costs agreement was construed as involving a sum of money, irrespective of the necessity or performance of the work.