Waller Family Lawyers Pty Ltd v McAuley

The appellant provided legal services to the respondent pursuant to a client services agreement and costs disclosure notice. The agreement was in the nature of a “do and charge” agreement, where the agreement would continue indefinitely until terminated and the scope of the work performed by the appellant was determined by instructions given by the respondent from time to time. The Queensland Civil and Administrative Tribunal held that the agreement was void for contravention of Pt 3.4, Div 5 Legal Profession Act 2007 as it failed to state with sufficient particularity the scope of work to be undertaken. The Court of Appeal disagreed. Martin SJA (Mullins P and Flanagan JA agreeing) held that parties do not need to enter into a new agreement every time a client gives instructions to perform more work, nor does a “do and charge” retainer need to be varied or a costs disclosure notice need to be reissued in such circumstances. Leave to appeal was granted and the appeal was allowed.

Mullins P, Flanagan JA and Martin SJA

11 March 2025

Background

The respondent engaged the appellant, a law firm, to represent him in proceedings in the Family Court of Australia. He executed a client services agreement and was given two costs disclosure notices. The agreement was a “do and charge” agreement, that is, an agreement which identified the hourly rates of various practitioners and provided that the work to be performed shall be the work that the client instructed the appellant to perform from time to time, rather than specifying particular work to be performed. [26]–[28]. He paid all but a portion of the legal fees that the appellant charged to him, and the appellant commenced proceedings in the Queensland Civil and Administrative Tribunal (“QCAT”) to recover those fees. [3]–[6].

The adjudicator at first instance rejected the appellant’s claim on the basis that, relevantly, the costs disclosure was void for contravening the Legal Profession Act 2007 (“LPA”). [6]. The adjudicator concluded that although the LPA is silent on whether a “do and charge” retainer is permissible, the LPA requires a costs disclosure notice and costs agreement to state with particularity the scope of work to be undertaken such that a “do and charge” agreement is not permissible under the LPA. [30]–[31].

Those findings were upheld on appeal to the QCAT appeal division. [7], [33]–[34], [38]. The appellant subsequently sought leave to appeal those findings in the present proceedings.

Was the client services agreement void?

Martin SJA (Mullins P and Flanagan JA agreeing) held the agreement was not void. [47]. First, as the LPA does not require that a costs agreement contains a costs disclosure (and they therefore could be provided separately), the absence of a costs disclosure in a costs agreement is not a contravention of the LPA. [23], [25]. Particularly, there is no requirement in s 308 or s 310A LPA that a costs disclosure be incorporated into a costs agreement, although a solicitor may choose to provide a disclosure in that manner. [45].

Martin SJA went on to hold that the structure of the LPA provided for what occurred in the present circumstances, that is, the creation of an agreement, the provision of a costs disclosure notice, and the revision of that costs disclosure notice when further work was required. His Honour rejected the conclusions reached by the Member in the QCAT appeal division that parties must enter into a new agreement every time the client gives instructions to perform more work. Instead, his Honour held that the LPA does not require a “do and charge” retainer to be varied each time a client instructs more work to be undertaken, nor that the information in a costs disclosure notice be reissued every time a new set of instructions is provided. [44], [46].

Disposition

Leave to appeal was granted and the appeal was allowed, with the proceedings remitted to the appeal division of QCAT for redetermination according to law. [1]–[2], [54].

A Lukacs