A challenge to a solicitor's retainer cannot be raised by way of defence in an action; it must be brought by separate motion. However, in appropriate circumstances — particularly where the retainer issue is intertwined with issues at the final hearing, or where the basis for the challenge becomes known only immediately before or during the hearing — the challenge may be litigated concurrently with the final hearing as a matter of case management under s 56 of the Civil Procedure Act 2005 (NSW). The onus of proving lack of authority lies on the party asserting it. Separately, the Jones v Dunkel inference does not arise where a party's failure to give evidence is explained by severe cognitive and communication difficulties.
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