Moleirinho v Talbot & Olivier Lawyers Pty Ltd

[2014] WASCA 65

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Costs agreements between solicitor and client
3. › Application to set aside costs agreement as unreasonable
4. › Statutory test of unreasonableness
5. › Whether equitable concepts of duress and undue influence should be imported into statutory test
6. › Legal Practice Act 2003 (WA), s 222
1. Practice and Procedure
2. › Procedural fairness
3. › Unrepresented litigants
4. › Obligation of court to assist litigant in person
5. › Defective affidavit
6. › Whether court obliged to give opportunity to rectify
7. › Whether determination on basis not raised by parties denied procedural fairness
1. Practice and Procedure
2. › Unrepresented litigants
3. › Non-English speaking litigants
4. › Extent of court's duty to assist
5. › Whether particular regard required where litigant's first language is not English
1. Evidence
2. › Affidavits
3. › Defective form
4. › Whether court should permit rectification where no objection taken by opposing party

Quick Take

Under s 222 of the Legal Practice Act 2003 (WA), the question is whether a costs agreement is 'unreasonable' — equitable concepts such as duress and undue influence should not be imported into the statutory test, as an agreement may be made voluntarily but still be unreasonable by reason of the circumstances in which it was made. Where an unrepresented litigant files a defective affidavit and no objection is taken, the court must not determine the application on the basis that there is no sworn evidence without first alerting the litigant and giving an opportunity to rectify the defect. Courts must have particular regard to their responsibility where a litigant in person does not have English as their first language.