//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] ACTSC 239
Supreme Court of the ACT
2026-07-10
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Al-Baalawi v Brothers Constructions ACT Pty Ltd Citation: [2026] ACTSC 239 Hearing Date: 10 July 2026 Decision Date: 10 July 2026 Before: Muller J Decision: See [23] Catchwords: CIVIL LAW – PRACTICE AND PROCEDURE – Legal Practitioners – Client file – lien over client file – application for orders seeking file handover – client file ordered to be handed over Legislation Cited: Legal Profession Act 2004 (NSW), s 728 Legal Profession Act 2006 (ACT) Supreme Court Act 1933 (ACT), s 20 Cases Cited: Bechara v Atie [2005] NSWCA 268 Bolster v McCallum [1966] 2 NSWR 660 Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614 Gigi Entertainment Pty Limited v Macree [2011] NSWSC 856 In the Matter of a notice of motion filed on behalf of Colin George Dunstan [2000] ACTSC 33; 155 FLR 189 Major Projects Pty Limited v Sibmark Pty Limited [1992] ANZ Conv R 349 R v Storer (1993) 111 FLR 243; 65 A Crim R 130 Spence v Gerard Malouf & Partners Pty Ltd [2010] NSWSC 764 Parties: Mansour Al-Baalawi (Plaintiff) Brothers Constructions ACT Pty Ltd (First Defendant) IC Formwork Services Pty Ltd (Second Defendant) Chase Construction (Act) Pty Ltd (Third Defendant) Representation: Counsel S Andersen-Cooke (Plaintiff) W Gallagher (First Defendant) B Wynne (Second Defendant) M Safar (Third Defendant) Solicitors Norwest Lawyers (Plaintiff) Moray & Agnew (First Defendant) DWF (Australia) (Second Defendant) Barry Nilsson (Third Defendant) File Number: SC 248 of 2024 MULLER J: Ex Tempore Reasons (Revised)
Mr Al-Baalawi was employed by Brothers Construction as a formwork labourer. In that capacity he says he was working on a building site at Coombs, in the ACT, on 2 March 2022 when he suffered an injury to his back, hips and left knee. He also alleges a psychological injury.
In these proceedings Mr Al-Baalawi sues his employer and other entities responsible for the building site at the time. He alleges various breaches of duty of care and statutory breaches resulting in his injury.
In March 2026, Mr Al-Baalawi changed solicitors. He did not engage his new solicitors until about a month before the scheduled hearing of his case on 8 June 2026. On 15 May 2026, I made orders vacating the hearing listing given the late change in legal advisors. At the time the hearing was vacated, the new solicitors were yet to secure a copy of Mr Al-Baalawi’s file. Another two months have passed, and they still do not have the file.
The application before me seeks orders directing the former solicitors to provide their client file to the new solicitors. In support of his application, Mr Al-Baalawi reads affidavits of Michael Petricevic sworn on 19 June 2026 and 9 July 2026.
A proposed tripartite agreement has been sent to the new solicitors by the former solicitors, but its terms have not been agreed. The deed imposes various obligations upon the new solicitors and Mr Al-Baalawi in terms of retention of funds to cover any claim made by the former solicitors in relation to costs and disbursements, subject to resolution of any dispute over the quantum of those costs. In that context the new solicitors requested a bill of costs. After a delay of approximately two weeks, they received a bill disclosing a global figure for professional costs incurred to date of $170,000. The new solicitors requested an itemised bill so they could further advise their client on the issue of costs incurred. That request was made on 17 June 2026 and some three weeks later no response has been received. Mr Al-Baalawi and his advisers have become frustrated about their capacity to progress the litigation in the absence of the solicitors’ file.
As a consequence, Mr Al-Baalawi now seeks orders from this court, forcing the previous solicitors to release their file as its delayed release is hampering progression of the litigation.
Correspondence was handed up in court demonstrating the former solicitors are on notice of the listing before me today and were served with a copy of the application. There was no appearance by them or on their behalf at the hearing.
The former solicitors, by their correspondence, assert a right to retain the file pending payment of their costs and disbursements or the entry of a satisfactory agreement concerning those costs and disbursements. It is the contention of Mr Al-Baalawi the asserted possessory lien is misconceived. Mr Al-Baalawi’s argument proceeds as follows: (a) the retainer was terminated by the former lawyer and as a consequence no possessory lien should be recognised; (b) the retainer of the former lawyer was on a “no-win, no fee” basis and as a consequence, no entitlement to costs and disbursements has presently crystallised; and (c) interests of justice considerations warrant the release of the file so the litigation can progress.
Solicitors’ retainers and the right to a lien
As a matter of general principle, it is well-established that a solicitor may exercise a lien over their client’s file until the client has paid the solicitor’s reasonable costs: Bechara v Atie [2005] NSWCA 268 at [67]. However, the authorities have recognised the distinction between circumstances in which the client ends the retainer and those where it is the solicitor who ends the retainer: Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614.
In R v Storer (1993) 111 FLR 243; 65 A Crim R 130 at 248, Gallop J quoted with approval the following passage concerning the scope of the lien from the decision of Asprey JA in Bolster v McCallum [1966] 2 NSWR 660 at 665: …firstly, that, despite the existence of a lien, documents subject thereto, generally speaking, will be ordered to be produced to a court in the course of litigation whenever their production is necessary to do justice in the particular case; secondly, that the solicitor's claim of a lien will be protected by the court until it is shown that the claim is unfounded.
Again, in the context of criminal proceedings, and with reference to the decision in Storer, Miles CJ observed in, In the Matter of a notice of motion filed on behalf of Colin George Dunstan [2000] ACTSC 33; 155 FLR 189 at [10]: Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients' documents until they get paid. Storer's case is only one example of the principle that, at least when the interests of an accused person in criminal proceedings are concerned, the solicitor's right to rely on a lien might have to give way.
Mr Al-Baalawi referred me to the decision of Bergin CJ in Eq in Spence v Gerard Malouf & Partners Pty Ltd [2010] NSWSC 764. That case involved similar circumstances in that the solicitor purporting to exercise a lien had entered into a costs agreement with the client on a “no win, no fee basis”. Bergin CJ in Eq had cause to consider whether costs could properly be said to be owed to the solicitor. Mr Al-Baalawi noted the retainer in that case made no provision for the prospect of the solicitor ceasing to act if they or Counsel formed the view the plaintiff would not achieve a better outcome than a formal offer that had been made. Nor did it provide the solicitor would be entitled to cease acting and the client would be liable for fees where the client refused to take the solicitor’s reasonable advice. In short there was nothing in the retainer dealing with the solicitor’s entitlement to payment of costs if the solicitor terminated the retainer, accepting they may retain a “fruits of the action lien” in those circumstances. With reference to the terms of the retainer and the conduct of the parties in that case her Honour concluded there were no costs owing to the solicitor at the time of the application.
In Gigi Entertainment Pty Limited v Macree [2011] NSWSC 856, Slattery J, on the issue of who terminated the retainer, stated at [3]: The consequences of deciding this first issue are significant. The position at common law and the relevant considerations that apply when the Court is exercising its statutory discretion under Legal Profession Act , s 728 (to consider whether or not to order the solicitor's file to be given to the new solicitor and on what terms), differ depending upon whether it is the solicitor or the client who terminates the retainer.
His Honour went on in that case to quote with approval a passage from the decision of McLelland J in Major Projects Pty Limited v Sibmark Pty Limited [1992] ANZ Conv R 349 in the following terms: Where during the course of litigation, solicitors for a party terminate their retainer and the client retains new solicitors who for the purposes of the litigation require documents of the client in the possession of the former solicitors, who in turn claim a possessory lien over the documents to secure payment of outstanding costs, the normal practice of the Court is to order the former solicitors to deliver the documents to the new solicitors, subject to an undertaking being given by the new solicitors to preserve the former solicitors' lien and to return the documents to the original solicitors at the conclusion of the litigation. This practice is designed "to save the client's litigation from catastrophe", and the principle is that the former solicitors' security should be interfered with only so far as necessary for the progress of the litigation. Where the former solicitors have declined to continue to act for the client unless outstanding costs are paid, and the client, being unable or unwilling to pay those costs retains the new solicitors, the former solicitors are treated as having terminated the retainer for the purposes of the application of this practice. (citations omitted by this court)
Slattery J also observed the question of who is the terminating party is not to be decided in a technical way, but the court should address the question of substance. I note in passing the New South Wales authorities in a number of instances make reference to s 728 of the Legal Profession Act 2004 (NSW) which provides a specific power for the court to order the release of documents from the file of the previous solicitor to the newly retained one upon such conditions as the court sees fit. Accepting there is no equivalent power in the Legal Profession Act 2006 (ACT), I am satisfied the power to make an order of the kind sought is readily provided for in the inherent jurisdiction of the court reflected in s 20 of the Supreme Court Act 1933 (ACT).
The relevant provisions of the retainer in this case
As to the “no win, no fee” arrangement, the agreement relevantly provides: We will not charge you in the event your case is finally determined, you lost your compensation proceeding, otherwise you will be liable for your professional charges and our disbursements.
The agreement recognises the client’s right to dispute legal costs. It expressly provides for the solicitor’s retention of documents following termination by either party for a period of seven years. As to termination by the solicitor, it states at paragraph 9 of the ‘General terms of business’: We may cease to act for you or refuse to perform further work, including: (a) while any of our tax invoices remain unpaid; (b) if you do not within seven days comply with any request to pay an amount in respect of disbursements or future costs; (c) if you fail to provide us with clear and timely instructions to enable us to advance your matter - for example, compromising our ability to comply with court directions, orders or practice notes; (d) if you refuse to accept our advice; (e) if you indicate to us or we form the view that you have lost confidence in us; (f) if there are any ethical grounds which we consider require us to cease acting for you - for example, a conflict of interest; (g) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or (h) if in our sole discretion we consider it is no longer appropriate to act for you; or (l) for just cause. We will give you reasonable written notice of termination of our services. You will be required to pay our costs incurred up to the date of termination.
In correspondence that is in evidence before me, in the context of recommending the client seek alternative legal advice, the former solicitors state: Importantly, we are concerned that you may have lost confidence in us and do not trust our advice. This may affect our ability to continue acting for you in this matter, as it may be inappropriate in the circumstances. Accordingly, we give you notice of our intention to cease acting for you in 14 days
The wording of the letter suggests the solicitors had not at that stage reached a concluded view as to whether the client had lost confidence, nor as to whether it would be inappropriate for them to continue to act, but in any event they had determined to give notice of their intention to terminate the retainer. In subsequent correspondence, the solicitor confirmed their view there had been a loss of confidence in the advice the solicitor was giving. Reference is made to the client ignoring the solicitor’s advice on choosing to proceed to hearing with unrealistic expectations. It is a matter of relevance the communication to the client terminating the retainer was made at the end of February 2026, in circumstances where the proceedings had already been listed for hearing in the Supreme Court in the week commencing 8 June 2026.
Returning to the costs agreement, as to lien, it states at 11: Without affecting any lien to which we are otherwise entitled at law over funds, papers and other property of yours: (a) we shall be entitled to retain by way of lien any funds, property or papers of yours which are from time to time in our possession or control until all costs, disbursements, interest and other moneys due to the firm have been paid; and (b) our lien will continue notwithstanding that we cease to act for you. Does the former solicitor have a right to retain the client file?
It is relatively clear with reference to the communications in evidence before me the former solicitor and client had reached some form of impasse concerning the progression of the court proceedings. The client is described as ignoring the solicitor’s advice and proceeding to hearing with unrealistic expectations. Whether in rejecting whatever advice he had received and indicating a preference for continuing with his court case Mr Al-Baalawi was in fact acting unreasonably is not something I can determine on the material before me, nor is it necessary for me to determine. The critical question is who terminated the retainer, and it is quite clearly the solicitor who took that step. Indeed, Mr Al-Baalawi, after the termination had been communicated to him, expressed a keenness for the solicitor to continue to act for him in the matter. The fact of the solicitor’s termination of the retainer is a matter that bears significantly on interests of justice considerations as they impact the release of the file to enable the litigation to progress.
It is also the case, not unlike the situation in Spence, the lien is expressed in terms where it is exercisable until all monies “due to the firm have been paid”. At the present time no monies are due to the firm because of the “no win, no fee” nature of the retainer. As a consequence, it seems to me there is no present exercisable right to a lien over the file. That is not to undermine the former solicitor’s right to have the documents returned to them at a point in time where the litigation has concluded in a way where there are monies due to the firm. That is, in the event of a resolution by agreement or a judgment in favour of the plaintiff. The residual lien retained by the former solicitor is not such as to prevent the release of the file to the new solicitors under appropriate conditions.
Orders
Al-Baalawi
Brothers Constructions ACT Pty Ltd