Chaplin v Hicks 2 KB 786 is often cited as the first loss of a chance case. I thought it was more or less a case about a lottery in which the plaintiff missed out on a, say, 10% chance of winning a prize and recovered 10% of the prize monies. But by reading it I discovered it is actually a case in which the plaintiff missed out on competing by audition with 49 others for twelve three year jobs as an actress. So about one in four of the 50 would get a job the total average pay for which was £624. Miss Chaplin recovered £100 at first instance, but how that figure was arrived at was not explained, because this was an appeal from a jury decision in a case presided over by Pickford J. Evidently, £100 is not about a quarter of £624, though.
If anyone can point me to the first instance decision, original newspaper advertisement, or a photo of Miss Chaplin, I would be most grateful.Continue reading “Chaplin v Hicks”
Taylor v Hobson QSC 226 is a strange old case. Plaintiffs sued defendants for damages alleging they had been misled into purchasing a business. They sued the vendors and the vendors’ solicitors, alleging that each of the vendors and the solicitors had made misleading representations. The solicitors (through their insurer) settled with the plaintiffs. The solicitors promised to pay a settlement sum to the plaintiffs and the plaintiffs promised to let lawyers appointed by the solicitors’ insurer act for them and run the plaintiffs’ case for them, with a view to recovering damages from the vendors and giving those damages to the solicitor defendants. It was a creative form of litigation funding, if you will. But it was a bit too creative for the Supreme Court of Queensland.
The insurer was to appoint new solicitors, not the solicitors which had been representing the solicitor defendants in the proceeding. Nevertheless, the Court stayed the case as constituting an abuse of process for so long as the defendant-appointed solicitors were running the plaintiffs’ case. The parties to the settlement might now amend it so as to remove the element of control over the plaintiffs’ case, therefore. The case may continue, and that aspect of the settlement deed which required the plaintiffs to give to the solicitor defendants the proceeds of their claim against the vendors might still have its operation.
In De Armas v Peters NSWSC 1050, the Supreme Court of NSW declined to grant leave to appeal from a decision of the Local Court. The Local Court had allowed a man to sue for the cost of repairs to his car, even though he had previously sued her for car hire costs he incurred while those repairs were being undertaken. And even though, in that first case, the Local Court had found him to be the negligent driver, not the woman. Impossible? There was of course a twist. The first suit was brought with the involvement of a car hire company from whom the man had hired the car he used while his car was being repaired. No doubt they had told him that the car would be at no cost to him and the cost of the hire would be recovered by the car hire company’s solicitors from the negligent driver. The second suit was brought by his insurer, having stepped into his shoes through the law of subrogation. The man’s losses were partly insured and partly uninsured, hence his deal with the car hire company to which he was probably referred by his repairer. And the woman’s insurer had not taken any defence of abuse of process in either proceeding before she obtained judgment in the first. You can watch a discussion between AAMI’s solicitor and barrister about the decision on the excellent BenchTV here.Continue reading “Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?”
Here is a link to a presentation by Ross Macaw QC on proportionate liability. It is produced by benchTV, an enhancement to the long-excellent new case notification service, Benchmark, provided by AR Connoly & Co in Sydney. Mr Macaw considers Justice John Dixon’s beautifully written judgment in Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Limited VSC 99.
In that case, there was a fire in a warehouse and the plaintiffs’ goods and nearby land were damaged. They sued the occupier of the warehouse and others. The occupier said that if it was liable, then it was also the fire inspector’s, the builder’s, and others’ fault as well. The question was what a defendant needed to do in order to have alleged concurrent wrongdoers not sued as defendants by the plaintiffs joined. Was a mere pleading assertion sufficient, as in the case of a third party notice? Or was it necessary to produce some evidence sufficient to allow the Court to see a prima facie case against the alleged concurrent wrongdoers, and exercise a discretion to join? Even though those seeking to join are not usually forced to establish by evidence a prima facie case, is that just because it is often waived by the person resisting joinder?
An Appeal Tribunal within the ACT Administrative Tribunal has put out a neat little decision which makes clear that where solicitors do work and bill it, where the client does not seek taxation within the time for doing so, and the solicitors sue for fees, the tribunal hearing the suit for fees still has, in the ACT at least, jurisdiction to consider defences based on the quality of the work. In particular, work which may be said to have been wasted by virtue of negligence on the part of the solicitor will not be allowed by the Court. The lawyers in Williams Love & Nicol Lawyers Pty Ltd v Wearne  ACAT 18 essentially argued that they were entitled to sue on their bills as a debt once the time for taxation had passed.
In this case, the lawyers had negligently drawn a response to allegations of misconduct by an employee without obtaining the foundational document in which the allegations were actually made. When they belatedly obtained that document, the response had to be re-drawn. The Tribunal drew a distinction between a defence of waste as a result of incompetence and an argument that the fees were not ‘fair and reasonable’ in a more general sense, and confirmed essentially that the client had foregone the opportunity to mount ‘fair and reasonable’ arguments by not seeking taxation of the solicitors’ fees. Nevertheless, the Tribunal disallowed the suit for fees to the extent of the fees associated with the original drawing of the response. Continue reading “What quality of work defences are available in a suit for fees where client did not seek taxation?”
Some cases are just dead interesting. Dunnage v Randall  2 WLR 839,  WLR(D) 287,  EWCA Civ 673 is one of them. A man sued the estate of his late uncle for compensation for injuries he suffered when his uncle poured petrol on himself and set it alight. Despite the man’s efforts to prevent this tragedy, his uncle, a sufferer of schizophrenia, died. The man jumped off a balcony to escape, having suffered burns. Now you might think it heartless to sue to the disadvantage of the beneficiaries of the uncle’s estate in the circumstances. But of course there was an insurer to upset the analysis. The uncle was insured under a household policy against liability for accidentally causing bodily injury. It was the insurer arguing that the mad have a different duty of care. The trial judge agreed. The Court of Appeal reversed. Lady Justice Rafferty’s leading judgment is stylish.
In Cairncross v Anderson  NSWSC 258, Justice Button was asked to summarily dismiss a negligence claim against a solicitor on the basis that it was doomed to fail by virtue of the solicitors having taken the defence of advocates’ immunity. The negligence is said to have arisen in the course of the Great Southern proceedings in the Supreme Court of Victoria. In the course of the decision which the Court made yesterday to put the strike-out motion on ice, part-heard pending the High Court’s judgment, the judge had to assess the likelihood of the law changing. This is what he said:
First, a reading of the transcript of the special leave hearing establishes that (to use a phrase that I used in discussion with the parties at the hearing) there is a “reasonable circumstantial case” that the High Court will undertake a “root and branch” reconsideration of the immunity.
Secondly, the parties respectfully predicted that the hearing of the appeal in the High Court would take place in March 2016, and that one might expect a judgment some months after that. Indeed, as at today the hearing in that Court has concluded, and one may respectfully expect a judgment shortly.
In other words, I think it quite possible that the fundamental legal principles that underpinned the motion placed before me could be subject of significant revision by the ultimate court of this nation within three months or so, and within six months of the hearing of the motion.
I certainly hope that the immunity is abolished or greatly reduced in scope. I am sick of charging people with good cases against litigation lawyers money to tell them that they should not sue, or that if they choose to sue there is a risk that their claim will be struck out with costs.
Just the other day, the Supreme Court of Victoria ruled that a solicitor who failed to tell his client the trial date, failed to prepare any evidence or arguments, failed to brief counsel to appear, and failed to turn up, so that the case proceeded undefended, unbeknown to the client, and the client lost catastrophically, was protected by the immunity in respect of that conduct. The immunity has been held to extend to intentional torts, fraudulent conduct, and a failure to tell a client about a settlement offer which went unaccepted and turned out to be a lot better than the result obtained at trial.
Ok, so the High Court is still ruminating after the recent hearing of an appeal from Jackson Lalic Lawyers Pty Ltd v Attwells  NSWCA 335 in which the immunity was again challenged. And advocates’ immunity was probably already abolished in certain respects in Victoria by the Civil Procedure Act 2010, s. 29 of which gives anyone who suffers loss as a result of a lawyer’s breach of the overarching obligations in litigation a right to seek compensation from the court (but not VCAT) in which the case was conducted. But I just noticed something else not mentioned in any of the submissions, and about which I have heard not the faintest whisper of chatter more generally. Chapter 5 of the new uniform legislation in force in Victoria and NSW allows compensation orders to be made for professional negligence and appears to abrogate advocates’ immunity in relation to those kinds of claims. Section 263(1) of the Legal Profession Uniform Law, which has been in operation in Victoria and NSW since 1 July 2015,says:
A woman sued a Melbourne school for injuries and distress occasioned by its headmistress’s sexual abuse of her as a girl. Represented by Lennon Mazzeo solicitors’ Nick Mazzeo, Dyson Hore-Lacy QC and David Seeman, she obtained judgment from Justice Rush of the Supreme Court of Victoria for $1.25 million, a substantial proportion of which was for exemplary damages. The exemplary damages were awarded in part because as soon as persons at or associated with the highest levels of governance at the school decided there was substance to complaints of abuse by the headmistress, they arranged and paid for her to fly most hastily to Israel on a one-way ticket instead of reporting the claims to the police and allowing local justice to take its course.
It is not a new proposition, but it is often glossed over by defendants, just like the thoroughly orthodox proposition that legal causation does not require that a wrong be the sole, predominant, or proximate cause of the damage. The proposition is that where the court is satisfied that a wrong has caused actual loss of some sort, difficulties in working out what the value of the loss is in money terms cannot defeat the remedy of damages. The judge must do the best he or she can, even if the evidence is sparse and unsatisfactory.
In a rather wonderful case about the negligent destruction by an RSPCA officer of a herd of cattle which went for 12 years and 68 days of trial, the Court of Appeal has pithily restated the proposition in reasons for dismissing RSPCA’s application for leave to appeal. The judgment is RSPCA (Victoria) v Holdsworth VSCA 243. Subject to further appeal, it looks like the RSPCA or its insurer will have to cough up the judgment of more than one million dollars. Costs don’t bear thinking about.
The relevant part of the proposed appeal was from a finding of Judge Bowman that had the RSPCA not slaughtered the animals, their owners would have set up a business of selling the bulls’ semen and made a profit from it. The RSPCA said this was ‘pie in the sky’ and there was no credible evidence that this was in fact the plan or that it could have succeeded. Certainly, no attempt had been made to set up the business before the RSPA’s lethal destruction of the unarmed furry animals.
In King v Benecke  NSWSC 957, Mr King alleged that his solicitor was negligent. The solicitor denied everything and lost on all but one issue, namely causation, with the result that the solicitor got judgment and Mr King only Pyrrhic victories.
Mr King argued he should not have to pay all of the solicitor’s costs. Rather, he argued, he should have his costs of the issues on which he succeeded (duty, breach, the proportionate liability defence), which took up most of the case.
Harrison J only acceded to that argument in one respect. The solicitor had alleged that Mr King’s solicitors in the professional negligence suit were themselves concurrent wrongdoers against whom some of any liability which might be established against him ought to be apportioned under the proportionate liability regime. The consequence was that Mr King had to get new solicitors, the plea having put the old ones into a position of conflict between self-interest and duty to Mr King.
I once spent a long time writing an article called ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ which was published in the Torts Law Journal when it was edited by Professor Luntz ((2002) 10 TLJ 167), and I acted for the Victorian Bar in relation to D’Orta-Ekenaike v Victoria Legal Aid and instructed in the hearing of that case in the High Court. So a case like Stillman v Rushbourne NSWSC 730 is fairly well up my alley. Three key areas of uncertainty about the scope of and operation of the immunity post-D’Orta have been:
1. Whether advice to settle which results in settlement can be said to affect the conduct of the cause and so be within the immunity;
2. Whether the immunity extends to intentional wrongs; and
3. When it is appropriate to grant summary judgment by reference to the immunity.
Relatively recently, those issues have become relatively authoritatively resolved in favour of lawyers. In Stillman, Davies J summarily dismissed a claim against solicitors that they negligently advised settlement and intentionally and wrongfully coerced the plaintiff into settling. The various authorities on these questions are usefully rehearsed and consolidated by his Honour, making this judgment a useful one-stop shop on these issues.
In relation to allegations of intentional wrongdoing, see also Young v Hones (No.2) NSWSC 1429. As to the desirability of dealing with an advocates’ immunity defence at an early stage, including in a summary judgment application, see also Donnellan v Woodland  NSWCA 433, a decision of a bench of five.
I have been saying for a while now that Schapelle Corby’s saga is a case study in the importance of choosing your legal team wisely. Moss v Eagleston NSWSC 6 provides further analysis of the performance of a lawyer selected by another of the players in the saga. That selection was a selection made by a man without the resources to pay for orthodox representation and who obtained rather unorthodox representation.
The decision examines the scope of a duty of care, including by reference to an argument that pro bono work requires a lower duty of care, and the appropriate response to late assertions of the defence of advocates’ immunity, and demonstrates how the courts will deal with a claim of loss suffered as a result of a failure to provide promised legal representation at a trial.
William Moss, also known as William Miller, is a former criminal. You can see him and hear him in this video. He says that he was supposed to pick up a package in return for a substantial sum and that shortly after Schapelle Corby’s arrest, he was told not to bother because it had ended up in Bali. He believed that these facts strongly support Ms Corby’s protestations of innocence. The Daily Telegraph published the claims. He says they ratted on a promise to pay him $250,000, or at least that they conned him into divulging his claims to them in the expectation of receiving that sum. They then published articles which were defamatory of him with the imputations that he was a small time shyster lying to get cash. So he approached lawyers. Quite a few of them. Finally he found one who would act for him: the firm Reimer William Winterson of Penrith. They sent a letter of demand for damages for breach of an oral agreement. The publishers denied the agreement. The firm ceased to act. Continue reading “More Corby saga lawyer shenanigans”
In Carey v Freehills  FCA 954, the firm prevailed. Justice Kenny helpfully summarised the law in relation to the circumstances in which a solicitor will be found to have a duty of care to a person who has not retained him or her:
I bet the headline got your attention. But it’s true: I’ve been looking up the law of mitigation these last few days. And now the Queensland Court of Appeal’s Acting Justice of Appeal Margaret Wilson, with whom President Margaret McMurdo agreed, has concisely reiterated why in Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd & Ors  QCA 148, reproduced below. Justice of Appeal Muir dissented in the result, but said nothing about the mitigation point. (See also K.R. Handley, ‘Reduction of Damages Awards’ in P.D. Finn (ed.) Essays on Damages, Law Book, 1992, p.116 and Sural SpA v Downer EDI Rail Pty Ltd  NSWSC 1234.)
The thing is, you see, plaintiffs have no obligation to mitigate their losses; it is just that they are not entitled to damages for losses which, had they taken steps to mitigate, they would not have suffered. So if there are reasons which are good reasons to the plaintiff not to take a step (e.g. they do not want to take a step which is commercially objectively reasonable but might harm their personal relationship with someone whose friendship or custom they value, or they just want the whole dispute over with and want to get relief against the wrongdoer without delay) but which are not objectively reasonable as between plaintiff and defendant, the plaintiff is perfectly entitled to go ahead against the wrongdoer, and take what they can get, leaving it to the defendant to prove that they failed to mitigate, and how things would have been different had they mitigated.
This is what Wilson AJA said in Pialba Commercial Gardens:
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd Viscount Haldane LC referred to compensation as the basic principle of damages and continued:
“But this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”
 Supplementary appeal record volume 3, tab 5, pages 32-33.
  AC 673, 689.
Depending on the circumstances, what would be reasonable steps to mitigate loss caused by non-performance of a contractual obligation may include seeking substitute performance.
Although it is commonly said that an injured party has “a duty” to mitigate its loss, as Irvine CJ said in Driver v War Service Homes Commissioner:
“…This expression, I think, does not mean that he is under any duty in the ordinary sense, towards the party breaking the contract, but that he cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself; and the best test is, what would such a man do to avoid such a further loss to himself, supposing that, from insolvency of the other party, or from some other reason, he could not get any damages.”
The onus is on the defendant to show that the plaintiff has not fulfilled this duty, and the extent to which it has not. That onus was not satisfied in this case.
On the 6th of last month, Justice Hislop of the New South Wales Supreme Court found a professional negligence claim against a solicitor to be defeated by the defence of advocates’ immunity in Gattellaro v Spencer NSWSC 1122. Nothing particularly exciting about the decision, but I did learn a new word: ‘cerebration’. I looked at it and my ‘that’s not a word’ alarm began to sound. But it is a word, meaning reasoning, thinking. His Honour summarised the law relating to advocates’ immunity as follows:
Legal Services Commissioner v Dempsey QCA 197 is an unsuccessful appeal from a disciplinary prosecution in which findings of dishonesty were made.
Dye v Fisher Cartwright Berriman Pty Ltd NSWSC 895 is a case in which an application for a costs assessment (NSW version of taxation) outside the allotted 12 month period succeeded.
Young v Masselos & Co  NSWDC 169 is one of those cases where a solicitor negligently let a limitation period go by and damages had to be assessed based on the plaintiff’s prospects of winning the case foregone.
Council of the Law Society of New South Wales v Harrison NSWADT 201 is a decision about the Law Society’s successful application to amend a charge against the respondent solicitor. It reviews a lot of NSW law about the requirements for pleading disciplinary charges, and considers the application of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175;  HCA 27 to disciplinary hearings.
Many new decisions of interest are coming out and I will not have time to blog them any time soon as I have to go to University and concentrate on my latest and hopefully last field of study, Shareholders Rights and Remedies. Here are some pointers in case you want to read this slew of the new yourself.
Here is a landmark English case on illegally obtained evidence in civil proceedings: Imerman v Tchenguiz  EWCA Civ 908, and CMS Cameron McKenna’s case note. A husband in business with his wife’s brother separated from his wife. Worried that he would hide assets from the wife, the brother copied information from the husband’s computer. The English Court of Appeal refused to admit the evidence. One of the little changes wrought by the Victorian Evidence Act, 2008 is to make clear that illegally obtained evidence may be inadmissible in civil proceedings as much as in criminal proceedings.
Then there is a mega-solicitor’s negligence decision from NSW’s District Court’s Judge Levy: Mills v Bale NSWDC 162. It was a regretted settlement case of the kind I wrote about in ‘Compromise of litigation and lawyers’ liability’ (2002) 10 Torts Law Journal 267. The client accepted a fraction of his claim on the basis of advice that the other side had ‘damning video evidence’ and that he might get nothing if he went to trial. The solicitor had no file note of the relevant conversation and no recollection of the alleged events. The client won more than $700,000, a rare victory since such cases do not often succeed. The judgment is 807 paragraphs long. Analysis of the witnesses’ credit occupies 100 paragraphs.
Two from Victoria’s Court of Appeal:
First, Justice of Appeal Ashley with whom Acting Justice of Appeal Beach agreed, pronounced the latest chapter in the extraordinary saga of Shaw v Gadens Lawyers, another victory for professional negligence specialist Sam Tatarka. It has not been published on Austlii, but was delivered on 3 August 2010. The Court confirmed that when VCAT determines civil disputes involving compensation claims, they do not entertain a cause of action created by the Legal Profession Act, 2004. Rather, they are given a statutory grant to hear professional negligence cases according to common law principles. Let me know if you want a copy.
Secondly, the latest in the saga of Byrne v Marles (see this earlier post about the earlier decision which threw the Legal Services Commissioner’s office into chaos): Byrne v Legal Services Commissioner  VSCA 162. Mr Byrne successfully sought judicial review of the Commissioner’s decision to characterise a complainant’s complaint as a disciplinary complaint. The Appealohs held that there was a breach of natural justice in failing to provide an opportunity for the solicitor to be heard on that question. The Commissioner appears then to have written to every complainant and given them an opportunity to make submissions. Mr Byrne made submissions, and the Commissioner, unmoved, came to the same decision. He sought judicial review of that, and that is what this decision is about. He failed, but along the way, had the former Commissioner re-spanked. The former Commissioner’s reasons for reaffirming her original classification, absolutely typical of the reasons I have seen her give in a template-like manner, over and over, were described by Justice of Appeal Ashley at  as ‘too smart by half. They invited further proceedings’. In fact, his Honour found at  that they were not reasons at all; they were just a statement of the conclusion which the reasons should have supported.
Another decision of the utmost importance to this blog, which again passed me by, is the decision of New Zealand’s Supreme Court (equivalent to our High Court) in Z v Dental Complaints Assessment Committee  1 NZLR 1;  NZSC 55. More to come, needless to say. Meanwhile, You will appreciate my interest in the case when you consider that the Chief Justice opined that disciplinary proceedings making serious allegations should be proved on the criminal standard of proof (remember what Justice Finkelstein said about disciplinary proceedings?), as opposed to the civil burden as explained in Briginshaw v Briginshaw. Paragraph no. 1 of the Chief Justice’s reasons said: Continue reading “Can’t keep up”
A recent decision of a two member panel of VCAT reiterates what has been orthodox in the Legal Practice List, and before that in the Legal Profession Tribunal: that damages for distress may be awarded in a negligence claim without the need to establish a medical condition. Such damages may be awarded in tort notwithstanding the general rule that they are not awarded in contract unless it is a term of the contract to prevent the kind of distress which is in fact suffered. The recent decision is Eaton v Owens VCAT 1123 (Senior Member Howell and Member Shattock), the relevant parts of which are set out below, along with further comments by me.