Richardson v Poon[2023] QCATA 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   There was a time when a barrister could not sue an instructing solicitor for fees when briefed to act on behalf of a client. Traditionally the relationship between barrister and solicitor was not one of contract but what might be called a moral obligation, or convention, on the solicitor to pay a barrister fee. It was for the solicitor to ensure that sufficient monies were secured from the client to pay the fees. The usual procedure, in most cases, is for the anticipated outlays for counsel to be paid into the solicitor’s trust account.
2. [2]
   However, since the introduction of the Legal Profession Act 2007 (“LPA”) a barrister can now enter into a costs agreement with the instructing solicitor and can sue on the agreement to recover fees if not paid.^[1]  In fact, it is recommended as good practice to do so to ensure there is no doubt about the liability of the solicitor to pay the barrister’s fee. It goes without saying that the costs agreement must satisfy all of the necessary criteria to be a valid and enforceable contract.
3. [3]
   This is an appeal from a decision of the minor civil disputes jurisdiction of the Tribunal where it was found that Ms Poon, a practicing barrister, and Mr Richardson, as practising solicitor, did enter into an enforceable costs agreement. The Tribunal ordered that Mr Richardson pay to Ms Poon the sum of $8,250 fees pursuant to the agreement. Mr Richardson denied that he entered into any such agreement.
4. [4]
   In 2014, Ms Cole, the client, was referred to Ms Poon through the Queensland Bar Association pro bono scheme to assist her with representation in what was a serious prosecution by the Motor Accident Insurance Commission (“MAIC”) for fraudulent conduct. Ms Poon was prepared to represent Ms Cole, but to avoid the direct brief process barristers are required to follow under the Queensland Bar Association Rules, she needed an instructing solicitor. Mr Richardson was contacted by Ms Cole to provide instructions to Ms Poon to represent her at the hearing, and presumably to be on the record.
5. [5]
   Mr Richardson’s contact with Ms Cole, was through her partner Mr Arnett in a telephone conversation on 24 September 2014. The conversation is recorded in a diary note. The main point for the discussion was to have the matter, which was listed for hearing on 8 October 2014, adjourned to further date to give time to prepare for the hearing. Fees were discussed and he recorded that:

I would need some sort of money upfront and without trying to embarrass his wife he said that $3,000 would be a starting point.

6. [6]
   The diary note then goes on to discuss Ms Poon’s involvement in the matter. It records:

I then discussed with him the fact that the barrister, Sara Poon (Robinson) was supposed to be going to act for him on some sort of payment plan……..I told him I had a preliminary discussion with Ms Robinson but it appeared she had little of (sic) any knowledge of the matter. I told him that after my conversation with him tonight I would attend to the adjournment.

7. [7]
   The hearing was adjourned and listed for mid-February 2015. On 6 February 2015 Mr Richardson’s firm delivered a brief to Ms Poon with instructions “to appear on behalf of Delena Rose-Aria Cole who is the subject of a prosecution by the MAIC”. The instructions in the brief contained detailed particulars of the allegations the subject of the prosecution against Ms Cole by the MAIC (which need not be detailed here). 
8. [8]
   The costs agreement, Ms Poon contends, is contained in what she has described as a retainer agreement (“retainer”) dated 9 February 2015 sent to Mr Richardson after the delivery of the brief. The retainer is directed to Mr Richardson’s firm, to his attention, and relevantly provides that it is written as:

• My disclosure under s 309(2) of the Legal profession Act 2007;
• My offer to you:

• Setting out the terms upon which I will accept your instructions,
• To enter into a costs agreement with you in relation to this matter under s 322(1)(c) of the Legal Profession Act.

9. [9]
   The agreement goes on to provide that acceptance of the offer, as contained in the document, will result in a “retainer agreement” with Mr Richardson (and his firm) and not the client. Instructions will be taken from Mr Richardson and not the client.
10. [10]
    The fee disclosure sets out the fees to be charged for the work to be undertaken and provides a general estimate of the total fees to be charged and “payable to me under the retainer agreement”. It also stipulates that the fees will be invoiced to Mr Richardson’s firm and that “you will pay my fees for the work done calculated on a time basis by reference to the above rates”.
11. [11]
    To dispel any notion that the document does not constitute a costs agreement between the parties, there is a further provision that:

This letter is also an offer by me to you to enter into a costs agreement relating to my proposed retainer in this matter. Upon acceptance of my offer the above terms will comprise the terms of the agreement.

12. [12]
    Thus far there is the emergence of an enforceable contract. The only remaining issue is whether the terms proposed by Ms Poon were accepted by Mr Richardson to conclude the making of the contract. It is not disputed he did not respond to the offer contained in the retainer in any overt way by accepting the offer put forward by Ms Poon. However, the retainer goes onto provide that:

You may accept this offer to enter into the retainer agreement:

• by writing to me to that effect; or
• by your conduct in not writing to me immediately in response notifying me that you do not accept these terms, and me in turn embarking upon the work required to be undertaken under the retainer agreement.^[2]

13. [13]
    It is Ms Poon’s contention that because Mr Richardson did not write to her immediately saying that the terms were not accepted, and that she in fact undertook the work under the retainer, by his conduct he accepted the offer contained in the retainer.
14. [14]
    It should also be noted that Mr Richardson did not play an active role in the hearing. He did not attend court, nor did he instruct on any of the conferences between Ms Poon and Ms Cole. He was of the view that any payment for Ms Cole’s work would be attended to by Ms Cole directly or her partner Mr Arnett.
15. [15]
    Ms Poon appeared for Ms Cole on a two-day trial in the Magistrates Court in mid- February, followed by a half day for a ‘sentencing hearing”. She rendered two invoices to Mr Richardson, the first on 27 February for $4,125.00 and the second on 29 April 2015 for $4,125.00. They were not paid although forwarded to the client on their receipt by Mr Richardson. In his letter forwarding the invoices, he notes that ‘the only amounts which we hold in trust on account of fees for counsel is $400.00”. The effect of this will be discussed later in these reasons.
16. [16]
    Because the fees were not paid, Ms Poon commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal on 26 May 2021. It was defended by Mr Richardson on the basis there was never any contract or costs agreement with Ms Poon because the retainer was not accepted. Further, if there was any agreement about the payment of fees it was between Ms Poon and the client directly.
17. [17]
    The matter came on for hearing on 16 March 2022. In a well-reasoned judgment, the learned adjudicator found that there was a contract between Mr Richardson and Ms Poon for payment of Ms Poon’s fees and ordered that she be paid $8,250.00.
18. [18]
    Mr Richardson has filed an application for leave to appeal or appeal that decision. In his grounds of appeal he challenges: the learned adjudicator’s findings of fact; her application of s 35.1 of the Australian Solicitors Conduct Rules 2012; her application of the law with respect to sections 309 and 322 of the Legal Profession Act, and finally that the finding of a contract existed between the parties was not open on the evidence.
19. [19]
    As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Appeal Tribunal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

1. (a)
   the appeal is necessary to correct a substantial injustice;

2. (b)
   there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal^[3]  

20. [20]
    Mr Richardson does not dispute the primary facts set out above with respect to the retainer. However, he contends firstly, that he did not seek out Ms Poon for the purposes of briefing her and secondly, that by not responding to it, that does not constitute acceptance of the offer of engagement. It is of course well established that silence does not amount to acceptance.^[4] However, acceptance can be inferred by conduct. In Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd^[5] Justice McHugh said:

Where an offeree with a reasonable opportunity to reject the offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer, it is open to the tribunal of fact to hold that the offer was accepted according to its terms.

21. [21]
    Mr Richardson had an opportunity to reject the offer or clarify the terms of the retainer. Even confirming that the client would be responsible for the fees payable to Ms Cole. However, there was no evidence of any discussion about fees between either Ms Poon and Mr Richardson or the client once the brief was delivered and the retainer received by Mr Richardson. Further, after the receipt of the retainer he did not withdraw his instructions to Ms Poon. He knew or must have known that she would appear in the Magistrates Court on behalf of Ms Cole in accordance with the instructions contained in the brief. His conduct in continuing to be on the record and instructing Ms Cole to appear is consistent with acceptance of the retainer.
22. [22]
    In his evidence before the Tribunal Mr Richardson said that having been in practice for many years, before the introduction of the LPA, he would never brief counsel without getting money in trust and he had not briefed Ms Poon before this matter. There is no reason not to accept that evidence. But unfortunately, that does not go directly to the issue. None of this was communicated to Ms Poon and the only issue was whether the retainer constituted a contract between Ms Poon and Mr Richardson.
23. [23]
    Mr Richardson contends that the learned adjudicator was in error in concluding that the s 309 of the LPA referred to costs agreements, whereas the section only refers to costs disclosure. That is correct, but the costs disclosure is a precursor to entering into a costs agreement under s 322 of the LPA. What she actually said was:

The terms of the contract were clear and in my view complied with sections 309 and 322 of the LPA. I therefore find that there was a valid written contract between the parties.

24. [24]
    She did not just rely on s 309 in coming to the conclusion but on both sections. There is no basis to contend that in doing so she fell into error.
25. [25]
    Mr Richardson then relies on the conversation between the client and Ms Poon at the hearing whereby it was agreed that the fees could be paid in two instalments. Mr Richardson was not a party to that discussion. That is not disputed. He contends that this is unequivocal evidence that there was an agreement between Ms Poon and the client that the fees would be paid by the client. Therefore, he says, it seems, that if the retainer amounted to a contract and was enforceable, Ms Poon waived any reliance on the retainer to recover the fees. The difficulty with that argument is that Mr Richardson was not a party to the arrangement and there was no meeting of the minds to suggest that the retainer was to be varied to accommodate this new arrangement if that is what it was.
26. [26]
    Mr Richardson relies on the email from Ms Poon of 27 February 2015 in which she says they (Mr Arnett and Ms Cole) would pay “my fees as counsel” but they have not indicated how or when. The email, importantly, goes on to say that Ms Poon understands “your position as the instructing solicitor in this matter in relation to the payment of Counsel’s fees”. This is clearly a reference to the retainer and the obligations thereunder.
27. [27]
    Just to complete the picture, Mr Richardson sent the letter and invoice onto Mr Arnett noting that “your wife and yourself would pay her fees although you did not indicate how or when”. They are then asked to pay the invoice to Ms Poon directly. This is all consistent with Mr Richardson’s belief that he did not have an agreement with Ms Poon concerning the payment of counsel’s fee.
28. [28]
    Despite all of this, inevitably one must return to the written retainer. If Mr Richardson did not want to contract with Ms Poon it was up to him to reject the offer made in the retainer. Mr Richardson, as an experienced solicitor should have been mindful of the consequences of not responding to the offer. He had been in practice long before the introduction of the LPA. Furthermore, it does seem that he was conscious of a need to pay outlays, as he did get some money from Ms Cole or Mr Arnett by reference to the $400 in trust. In fact, he referred to that fund to be used for “counsels fees”. There was also the reference to $3,000 in the discussions with Mr Arnett, although he does not say whether this was for outlays or professional costs.
29. [29]
    When considering all of the evidence that was before the learned adjudicator her findings were not only consistent with that evidence, but it is also difficult to see how there could have been a different outcome. She made a finding of fact that the retainer was accepted by Mr Richardson’s conduct, a finding consistent with what was said in Empirnall Holdings and the other cases referred to above.
30. [30]
    Having said that, I observe that Ms Poon was obviously aware that Mr Richardson was only engaged to assist Ms Cole in defending the case for the purposes of briefing counsel. He never appreciated he would be personally liable for the barrister’s fees and there were no specific discussions with Mr Poon about this. Ms Cole had little or no financial resources and sought pro bono assistance. Ms Poon also knew this and knew, from her conversations with Ms Cole and Mr Arnet that they had not paid any money into trust to cover her fees. This could hardly have been unexpected and confirmed by her with the offer to have them pay the fees in instalments. Ms Poon has taken advantage of the retainer to recover her fees from Mr Richardson who had no interest in the outcome of the case, he was only trying to help.
31. [31]
    Given all the circumstances associated with Ms Cole’s representation, it is surprising that Ms Poon pursued Mr Richardson for payment knowing Ms Cole could not pay and that's why she sought pro bono assistance. This is further exemplified in that Ms Poon did not bring her claim against Mr Richardson until just before the 6-year limitation period expired, thus baring her claim. In considering all these matters, in the absence of the binding retainer Mr Richardson would likely have been relieved of the moral obligation to pay the fees under the old barrister/solicitor convention.
32. [32]
    Unfortunately for Mr Richardson, a ground for leave to appeal has not been established. There has been no error of law or finding of fact by the learned adjudicator. Although the outcome might seem unjust from his perspective, he has been caught by the retainer and Ms Poon’s decision to rely on it, in a case that was originally taken on as a pro bono matter.
33. [33]
    Leave to appeal must be refused.