State politics … Ambitious law and order barrister and MP making waves on the backbench … Frontbench beckons … The story of the missing fee agreement  

Alister Henskens SC has been making a name for himself since moving from the bar into the NSW parliament (Lib, Ku-ring-gai).  

In April he was on his hind legs attacking the bar for criticising the government’s splendid law n’ order regime, in particular the serious crime prevention orders legislation, which gives the wallopers shiny new powers to apply for orders to restrain people’s movements and activities, even those who have not been convicted of any crime, let alone a serious crime.  

Henskens was miffed that the NSW bar made a submission critical of the new legislation without consulting the rank and file. The new MP said that the legislation was modelled on similar UK legislation, so what’s to complain about?   

Bar prez Noel Hutley had to point out that there are significant differences and the NSW law goes much further than it’s UK counterpart – e.g. orders can be made in the absence of a serious conviction and hearsay evidence is admissible.  

Henskens contentious and erroneous support of a nasty piece of authoritian legislation suggests he is angling for a place on the front bench, maybe even attorney general in the next cabinet reshuffle.  

With so much at stake we’d better keep a close eye on Henskens MP SC. Let’s start in 2014 when in the NSW District Court Judge Judy Gibson brought to light a case where he appeared without a fee agreement.  

His client, Richard Ciszek, was successful in ligation with Enterprise Finance Solutions. However, Enterprise said it didn’t have to pay Ciszek’s costs because fees had not been properly disclosed, as the agreements with his solicitors and with Henskens were missing in action.  

“It appears to me that [Ciszek] cannot proceed to recover party and party costs until such time as either a liability arises for him to pay the solicitor and client costs or he has in fact paid those costs.”  

The assessor offered an adjournment so that the costs applicant could get his bill assessed. Enterprise Finance brought a summons saying it had been denied procedural fairness and that Ciszek was not entitled to recover legal costs on any basis outside a costs agreement.  

“The plaintiff’s submission that without relevant disclosures being made in a costs agreement, the client (and thus the opponent) ‘has no liability to pay costs until they have been assessed’ (written submissions) is incorrect … 

Liability and payment are separate concepts; liability continues to exist even though, for the period of time during which costs are challenged, the client need not pay (although the client is, importantly, not prohibited from actually paying, or acknowledging an obligation to pay).”  

In the original litigation three barristers were retained. Two provided costs agreements, but Henskens did not. Gibson DCJ said without a costs agreement a party’s costs could be reduced, even substantially. 

It is understood that Henskens’ fee was $32,000.  

It’s to be hoped that a strong law n’ order man might be able to get his professional obligations in order.