CSR Limited v Eddy

(2008) 70 NSWLR 725; [2008] NSWCA 83

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Party and party costs
3. › Costs assessment
4. › Procedural fairness
5. › Failure to disclose costs agreement to paying party
6. › Whether practical injustice established
7. › Legal Profession Act 1987 (NSW), ss 207, 208, 208H
1. Costs
2. › Indemnity principle
3. › Scope and operation
4. › Conditional costs agreement
5. › Whether delivery of bill of costs a precondition to liability
6. › Whether indemnity principle requires immediately enforceable obligation
7. › Legal Profession Act 1987 (NSW), ss 186, 192
1. Evidence
2. › Client legal privilege
3. › Costs agreements
4. › Whether costs agreement creating lawyer-client relationship is privileged
5. › Distinction between retainer and privileged communications
6. › Evidence Act 1995 (NSW), ss 118, 119
1. Administrative Law
2. › Procedural fairness
3. › Practical injustice
4. › Distinction between unfairness not established and unfairness established but relief futile
5. › Whether question of law only removes need for allowance for different result

Quick Take

The existence of a retainer or costs agreement between client and lawyer is not protected by client legal privilege; privilege protects communications made within the relationship, not the document creating it. The indemnity principle does not require delivery of a bill of costs as a precondition to the client's liability to the solicitor; liability is incurred upon provision of services. Where a complaint of procedural unfairness is based on failure to disclose a document, the complaining party must demonstrate practical injustice — that they lost an opportunity to make a submission material to the question in issue — not merely that they were entitled to see the document.