CourtRecord WA / Contract of retainer / Source-of-authority research
What gives a lawyer the right to charge a client for legal work?
The contract of retainer is the usual source of the client's contractual liability for authorised legal services. The courts distinguish the retainer (the engagement and its scope) from a separate costs agreement (financial charging terms). A firm's invoice or costs agreement does not, standing alone, answer whether disputed work was authorised.
Start here: Hancock Prospecting [2016] WASC 423 at [21]
Justice Pritchard, Supreme Court of Western Australia. Footnote 23 to this sentence directly cites Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [17]. The following sentences explain that the existence of a retainer may be inferred from the client's knowing assent to the solicitor's work, and that a presumption of retainer can arise in those circumstances.
Read Hancock judgment, [21] and notes 23–26 →
Where the Hancock principle comes from — judgments in order
- Beach Petroleum NL v Kennedy [1999] NSWCA 408 at [208]–[211]. The NSW Court of Appeal described a retainer as the contract for legal services in return for a fee; it must be proved like any other contract. Most importantly, once the contract is established, its scope must be examined to determine the services actually undertaken and authorised. At [209], the Court expected evidence of instructions given and accepted. Read the judgment →
- O'Connor Partners v Purvis [2005] WASC 248 at [18], [31], [36]–[44]. The WA Supreme Court described a retainer as a contractual exchange of the client's offer to employ a solicitor and the solicitor's undertaking to perform professional obligations. It recognised the distinction between whether there was any retainer and whether particular charged work fell within its terms. Read the judgment →
- Noye v Robbins [2010] WASCA 83 at [297]–[299], [313]–[332]. The WA Court of Appeal considered the indemnity principle and where the client's fee liability lies, including payment by another person. It is cited repeatedly in Hancock's discussion. Read the judgment →
- Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [17], [19], [20], [24]. The Victorian Court of Appeal sets out the contractual basis for the solicitor/client retainer and the presumption when the client knows of and assents to the solicitor's work. This is the exact footnote source identified by Justice Pritchard for Hancock [21]. Judgment listing →
- Hancock Prospecting Pty Ltd v Hancock [No 3] [2016] WASC 423 at [21]–[26]. The WA Supreme Court summarises and applies the earlier contract and indemnity authorities. Read the judgment →
High Court confirmation and the rules that actually bound solicitors in 2023
High Court, 2025: Gray v Lavan (A Firm) [2025] HCA 42 at [1], [6] and [50] treated the lawyer's contractual entitlement as flowing from the terms of established retainers. This judgment concerned much earlier professional-costs legislation and retainer terms accepted at trial; it did not decide whether omitting a later Law Society template attachment invalidates a signed 2023 engagement.
Binding WA conduct rules in June 2023: Australian Solicitors' Conduct Rules 2015, version operative from 1 July 2022 to 30 June 2026: rule 7.1 required clear and timely advice enabling informed legal choices; 7.2 required advice on reasonably available alternatives to contested adjudication (unless the client already understood them); 8.1 required following lawful, proper and competent client instructions. These enforceable professional rules address engagement performance and authority. Their breach would be assessed under the applicable law and facts; the rules do not themselves say that the signed retainer disappears.
The attachment instruction's actual legal status: The 19 July 2022 Law Society/Law Mutual guidelines say in VAR 12 to attach the applicable statutory determination, but their cover page expressly says the document and model are general guidance only. WA Application Act 2022 s 143 requires disclosure of whether a determination applies, but not physical enclosure of its full text. A variation from the model is established here, not automatic illegality or automatic extinction of the signed contract. The client can still ask which compliance controls and explanations were actually followed.
Five questions that test the lawyer's charging authority
| Question about the client engagement | What to look for |
|---|---|
| 1. Who was the actual client? | Names in the engagement, third-party payer status, accepted instructions and conflict checks |
| 2. What work was the law firm authorised to undertake? | Express scope clause; client emails; advice sought; retainer changes and instructions accepted by the firm |
| 3. Was the work being charged within that scope? | Itemised work compared to the express engagement and any agreed later variation; Beach Petroleum [208]–[209]; O'Connor Partners [36]–[44] |
| 4. What did the firm promise about accepting, explaining and supervising the engagement? | Client engagement clauses, contemporaneous documents, statutory duties, and firm procedure applicable at the date of appointment |
| 5. What is the legal consequence of the actual defect? | Distinguish no authority for particular work, breach of the engagement, inadequate disclosure, and the separately governed costs agreement. Do not assume a model-template departure automatically eliminates every contractual right. |
Applied to the signed June 2023 Hotchkin Hanly engagement
This example assumes the engagement was signed. The actual letter's clause 1 says it offers legal services and a costs agreement. Clause 5 says the firm is unable to act until satisfied the clients understand and consent to the engagement terms. Clause 6 identifies the initial authorised legal work and matter. Clauses 25–31 concern the proposed charging arrangement and disclosures. Clause 31 identifies the statutory determination but says it will be provided on request.
The July 2022 Law Society/Law Mutual litigation model's VAR 12 instead instructs the firm to attach the determination. That difference is verifiable. The guide explicitly describes itself as general guidance only, so the next step is to identify what enacted legal duty, contractual obligation or actual lack of authority results from the difference—not to assume the entire retainer never existed.
Insurer-facing evidence question: What authorised engagement did the firm accept and on which terms; why did it vary the attachment procedure; what explanation and opportunity to make an informed choice occurred; what contemporaneous instructions were accepted; and which later work was within the authority actually given?