COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J(1)

CWDS
 Legal Practitioners - solicitor lien - solicitor neglected to get estimate of
counsel's fees until a week before trial - solicitor demanded immediate
payment of an additional $20,000.00 to meet counsel's fees two days before
trial due to commence - retainer terminated - trial would have to go off
unless new solicitors gain immediate access to file - delivery of file
ordered.
  CCOM Pty. Ltd. v Jiejing Pty. Ltd. (Cooper J, Federal Court, unreported, 24
June, 1992)
  Gamlen Chemical Co. (U.K.) Ltd. v Rochem Ltd. (1980) 1 WLR 614

HRNG
BRISBANE, 13 May 1993
#DATE 13:5:1993
  Counsel for the applicant:       Bryson
  Solicitor for the applicant:     Robinson and Robinson
  Solicitor for the respondent:    Primrose Couper Cronin
to notice of motion:               Rudkin

ORDER
  UPON the undertakings of Gregory Allan Downing, the solicitor for the
applicants:
    (1)     to hold all papers and documents delivered to his firm,
            Messrs Robinson and Robinson, under this order by Messrs
            Primrose Couper Cronin and Rudkin, solicitors, subject to the
            lien of the said Messrs Primrose Couper Cronin and Rudkin for
            costs and outlays; and
    (2)     to afford Messrs Primrose Couper Cronin and Rudkin or any
            person authorised by them reasonable access to the said
            papers and documents for the purpose of preparing their bill
            of costs
  THE COURT ORDERS THAT:
    1.      Messrs Primrose Couper Cronin and Rudkin forthwith deliver to
            Messrs Robinson and Robinson, solicitors, all papers in
            application QG 17 of 1992 and all other documents in the
            custody or power of the said Messrs Primrose Couper Cronin
            and Rudkin relating to the said proceedings and belonging to
            the applicants or any of them.
  THE COURT FURTHER ORDERS THAT:
    1.      All question of costs are to be reserved to Tuesday, 18 May,
            1993.
    2.      The matter is adjourned for hearing to commence at 10.15
            a.m. on Tuesday, 18 May, 1993.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
DRUMMOND J  The trial in this matter, which was set down for seven days, was
due to commence yesterday, on 12 May, 1993.  One of the major areas of relief
sought by the applicants is relief from liability on certain securities,
including guarantees, which were given to the respondent.
2.  The dispute that I am today concerned with between the applicants and
their former solicitors, Messrs. Primrose Couper Cronin and Rudkin, only arose
on 10 May, on the eve of the trial.  This dispute has led to the
Cross/Primrose Couper Cronin Rudkin retainer coming to an end.  I should say
at the outset that there is not a great deal of factual dispute between Mr.
Cross and Ms. Magee, the partner in Messrs. Primrose Couper Cronin Rudkin who
had the conduct of the matter, concerning the circumstances in which this
unfortunate event occurred.
3.  Mr. Cross has new solicitors and counsel retained.  I mention that the
respondent in the action has offered to make material available to the
applicants, but in my judgment that is unlikely to be sufficient, in itself,
to enable the applicants to get ready for a trial to proceed on Tuesday of
next week.  The matter can proceed to trial on Tuesday of next week, but it
can do so, I am satisfied, if, and only if, the new solicitors can get access
to the Primrose Couper Cronin Rudkin file.  The estimate is now four days; the
case will finish, so I am told, in the allotted time, notwithstanding the
initial estimate of seven days.  There does not appear to be a wide range of
issues and this may well be a reasonable estimate.
4.  Returning now to the circumstances in which dispute between the applicants
and their former solicitors arose, Messrs. Primrose Couper Cronin and Rudkin
wrote to Mr. Cross on 31 March to advise that the matter had been set for
trial to commence on 12 May and enclosed their memorandum of their fees.  In
that letter, they sought the payment of the balance of an outstanding account
of approximately $6,300.00 and asked, in addition, for $20,000.00, which they
described as the amount necessary to meet the costs of the trial, $10,000.00
of which was to be paid before the trial and the remainder at the end of the
trial.
5.  Mr. Cross's own evidence is that he was then and indeed remains in a
position to pay the $6,300.00 and $10,000.00.  According to his evidence, he
has set aside some $18,000.00 or so in an account to meet his legal expenses
in connection with the trial.  I have little doubt that, but for what happened
on 7 May, arrangements would have been able to have been agreed to enable the
matter to proceed with Messrs. Primrose Couper Cronin and Rudkin acting for
the Crosses.
6.  However, on 7 May, 1993, while up to that time the solicitors were
prepared to run the trial on the basis of needing $20,000.00 for that purpose,
both for their own and counsel's fees of the actual hearing, counsel was
apparently asked for an estimate of his fees.  In response to this request,
counsel estimated his fees at $27,000.00.  This was obviously very much more
than the solicitors had anticipated.  It was not until 10 May that Mr. Cross
was told of this significant change to the costs required for the running of
the trial from those that he had, by the letter of 31 March, been led to
expect would be the case.
7.  A meeting took place between Mr. Cross and Ms. Magee on 10 May.  She told
Mr. Cross that her firm needed the $6,300.00, plus the initial instalment of
the trial costs of $10,000.00, plus a further $20,000.00 in lieu of the
amounts requested on 31 March.  She said, and it is clearly so, that the
request for the additional funds was due to the estimate of counsel's fees
which Ms. Magee received the previous Friday.   Ms. Magee told Mr. Cross that
these fees of $36,300.00 would have to be paid or secured.  It was made clear
by her to Mr. Cross that, unless this occurred, the solicitors could not
continue to act in the imminent trial.  Mr. Cross says he was not given the
option of finding security for the $20,000.00, but on 10 May, on top of the
$16,300.00, was required to actually find the cash, in effect, to pay that.
Nothing of any significance turns on this particular dispute between Ms. Magee
and Mr. Cross' recollections.  I do not think it is at all necessary to
resolve it for present purposes.
8.  Despite what Ms. Magee had to say in this regard, I think the meeting of
10 May was probably a quite tense meeting at times.  I note that she says that
Mr. Cross was upset.  Mr. Cross, moreover, was confronted on that Monday, two
days before a trial of very great importance to him was due to commence, with
a demand to find a very large additional amount of funds before the solicitors
would continue to act for him.  He says:
     "I deny terminating the retainer of Primrose Couper Cronin
     and Rudkin.  On the contrary, I was most fearful of
     embarking upon the trial without the services of solicitors
     familiar with my action."
9.  Ms. Magee says that Mr. Cross, in the course of this meeting on 10 May,
determined to terminate the retainer because he was not prepared to meet the
terms on which Messrs. Primrose Couper Cronin and Rudkin were prepared to
continue to act.  She says that, in the course of this meeting, Mr. Cross said
to her, "You have just sacked yourself." and that he, in effect, had the money
to pay the fees now demanded but, because of the way Messrs. Primrose Couper
Cronin and Rudkin had gone about things, he would not pay them.  Mr. Cross
denied this was said and, in effect, his position was that he said nothing at
all to indicate that he was terminating the retainer.  I am not prepared to
accept the evidence from Ms. Magee that Mr. Cross, in circumstances where he
said that he would have no difficulty in meeting the additional fees demanded,
nevertheless said, two days before this important trial started, that the
retainer of the solicitors who had acted for him in the matter for such a long
period of time was at an end.
10.  The view I take of the evidence is that the solicitors gave the
$20,000.00 costs of trial estimate in their letter of 31 March without taking
the precaution of getting a fee estimate from counsel. It left this step until
practically the last minute and did not confront Mr. Cross with the
information until even later, 10 May.  If this matter had been clarified
earlier than 7 May, as I think it should have been, it is probable in my view
that Mr. Cross, then knowing exactly where he stood, would have had sufficient
time either to make arrangements likely to have been acceptable to Primrose
Couper Cronin and Rudkin or to have retained other solicitors who would then
have been in a position of having sufficient time to prepare for the trial on
12 May, even without access to the Primrose Couper Cronin and Rudkin file.
11.  I have said that I regard Messrs. Primrose Couper Cronin and Rudkin at
fault in one respect, limited to them not checking with counsel as to his fees
until very close to the start of the trial.  I do not think that this involves
professional culpability of any significant degree or conduct deserving of any
highly critical or emotive epithets; but it is, in my view, one of a
litigation solicitor's important functions to ensure so far as possible that a
matter set for hearing progresses to trial without unnecessary disruption.
There was a failure in the one respect I have referred to, but it has turned
out unfortunately to have a very significant impact on the hearing in that it
has put at risk the very hearing itself.
12.  In Gamlen Chemical Co. (U.K.) Ltd. v Rochem Ltd. (1980) 1 WLR 614,
Templeman LJ said at 624:
     "The solicitor himself may determine his retainer during an
     action for reasonable cause, such as the failure of the
     client to keep the solicitor in funds to meet his costs and
     disbursements; but in that case the solicitor's possessory
     lien, i.e. his right to retain the client's papers of any
     intrinsic value or not, is subject to the practice of the
     court which, in order to save the client's litigation from
     catastrophe, orders the solicitor to hand over the client's
     papers to the client's new solicitors, provided the new
     solicitors undertake to preserve the original solicitor's
     lien and to return the papers to the original solicitor, for
     what they are worth, after the end of the litigation."
13.  I do not think a solicitor, in making it clear only two days before a
trial is due to start, that the solicitor will not continue to act unless its
substantially increased demand to be put in funds is met, can avoid the
application of the principle enunciated in the Gamlen Chemical case to its
lien over its client's documents by being careful not to say in so many words
that the solicitor will regard the retainer is at an end if that demand is not
met by the start of the trial.  I think Mr. Cross was effectively confronted
with the situation on 10 May, 1993 that the solicitors' position was they
would regard the retainer at an end unless their demand for the additional
fees was met by the start of the trial.  As Cooper J said in the unreported
decision of CCOM Pty. Ltd. v Jiejing Pty. Ltd. (Federal Court, 24 June, 1992)
at page 10, the sort of matter I have to deal with here is not to be
determined by nice questions of who acted first or of who said precisely what
in what careful language.
14.  As is apparent from what I have had to say, I think an important factor
in this case is the lateness of the demand by the solicitors for the
additional funds.  I think that on the evidence, fault can be laid at the
solicitors' feet for this situation being allowed to develop.
15.  In determining what I will do, I must have regard not just to the
perfectly understandable and proper claim by the solicitors to be protected
for their costs.  I must also have regard to the respondent's position.  If
the matter goes off because Mr. Cross cannot obtain access to his former
solicitor's file, the respondent will have been denied a resolution of a
matter which it was otherwise entitled to have resolved in the next couple of
weeks.  The respondent may well also incur costs unlikely to be recoverable,
even if a costs order is made of the kind sought by senior counsel this
morning on behalf of the respondent. There will be costs, no doubt, in the way
of disruption to staff and the like, which will simply not be able to be
recovered by the respondent even if it does obtain an order for costs of a
kind foreshadowed.  I must also take into account the public interest, in
these days when there is much concern and pressure on courts at delays in
delivery of legal services, in trials not being allowed to go off unless
absolutely necessary.
16.  The fact that the solicitors left it until 10 May to tell Mr. Cross that
they would not continue to act unless Mr. Cross met the demand for payment of
the additional funds before trial would not have the significance I attach to
it if the evidence showed that Mr. Cross is in a position to secure, if not
pay, the $22,000.00 now demanded by Messrs. Primrose Couper Cronin and Rudkin
in return for release of the file.  I am not so satisfied.  Mr. Cross has
$18,000.00 or so in cash earmarked for his expenses but, so far as the
evidence reveals, he has the possibility only of raising additional funds on
security.
17.  One matter that I have considered is whether it would be in order for me
to direct the release of the file on condition that Mr. Cross arrange security
over his company's machines for Messrs. Primrose Couper Cronin and Rudkin's
fees, given that these fees are disputed by him.  He was prepared to look to
those machines for assistance in funding the action in the past.  He says, in
evidence, that his arrangements with the company are such as to enable him to
do that, but it seems to me that a decision has to be made on whether Mr.
Cross gets the file today if the trial is to proceed next week.  In the
absence of other evidence throwing light on the matter, I am not prepared to
infer that Mr. Cross' assessment of his rights to so use the company's
machines is accurate and may not lead to further complications if I were to
order such security.  Messrs. Primrose Couper Cronin and Rudkin's delay has
really prevented this being able to be explored as an option to protect them
for their fees.
18.  Alternatively, I could order payment of the $6,300.00 or so of the
account forwarded under cover of the letter of 31 March.  I note that Mr.
Cross has only disputed this account in what he says in his affidavit of 12
May, 1993.  He puts forward no grounds as to why he is not prepared to accept
that particular account but, again, I think the fact that Messrs. Primrose
Couper Cronin and Rudkin are at fault, in the sense I have mentioned, in
precipitating the situation that has arisen, leads me to the view that I
should not make any order with respect to the sum of $6,300.00 or so.