The retainer referred to in this earler post on Equuscorp Pty Ltd v Wilmoth Field Warne [No. 3], which contained a whole agreement clause, was found to contain an implied term that the solicitors “will follow the instructions given by [the client] in relation to the files. Justice Byrne said:
“16 Term (q) is said to be implied by operation of law and to give business efficacy to the deed of costs. Putting to one side the exceptional position where the client’s instruction contravenes a solicitor’s supervening duty to the court or the solicitor’s ethical responsibilities, neither of which arise in this case, I have no doubt that the retainer of [the solicitors] includes a term such as that pleaded. But, even so, the instruction must be one which is proper for the client to give and, absent some express term to the contrary, is limited to instructions as to the steps which are to be taken in pursuing the litigation in question. … That it is omitted from the deed of costs is probably explicable from the fact that it goes without saying. I find that the deed of costs included an implied term as alleged in paragraph 6(q).”
Clause 12(a) of the Deed provided “Nick Russo of Equus may, from time to time, meet with the solicitor handling each file and Equus Partner responsible for supervising each file to confer on progress and provide instructions to progress the file.”
Justice Byrne continued:
“123 As pleaded, the failure to hold the meetings is put as a breach of cl. 12a which I have set out above and a breach of the implied term to comply with the client’s instructions. It is not every instruction which falls within the scope of such an implied term. For example, an instruction to attend a meeting or to return a telephone call may in many circumstances be more properly characterised as a discourtesy rather than a breach of contract or other duty owed by a solicitor to the client. To my mind, even if the meetings in question were not held without the concurrence of Mr Russo, which I do not accept, this is not a failure to follow an instruction of the latter kind attracting legal consequences.
124 I do not, therefore, characterise the failure to hold the meetings of 18 February as a breach of any term of the deed of costs.”
