A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence

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 [2016] 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?

The answer is: you need a pleading which is not hopeless; you generally don’t need to put on evidence; the power to join is in s. 24AL of the Wrongs Act 1958 and the Rules of the Supreme Court are not really to the point; the power is discretionary and evidence might be necessary if some point which goes to the discretion (e.g. prejudice by virtue of delay, or abuse of process) is enlivened, but that evidence would not generally be as to the merits of the claim sought to be brought). Continue reading “A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence”

What is the duty of care in tort of a man with florid paranoid schizophrenia?

Some cases are just dead interesting.  Dunnage v Randall [2016] 2 WLR 839, [2015] WLR(D) 287, [2015] 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.

Judge puts solicitors’ negligence case on ice pending outcome of High Court challenge to advocates’ immunity

In Cairncross v Anderson [2016] 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:

  1. 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.
  2. 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.
  3. 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.

Advocates’ immunity summarily defeats claim alleging negligent advice to settle

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 [2014] 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) [2013] 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 [2012] NSWCA 433, a decision of a bench of five.

Plaintiffs have no duty to mitigate their losses

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 [2011] 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 [2007] 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:

    1. In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd[41] 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.”

      [40]        Supplementary appeal record volume 3, tab 5, pages 32-33.

      [41]        [1912] AC 673, 689.

    2. 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.
    3. 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:[42]

      “…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.”

    4. The onus is on the defendant to show that the plaintiff has not fulfilled this duty, and the extent to which it has not.[43]  That onus was not satisfied in this case.

[42]        (1923) 44 ALT 130, 134.

[43]        TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, 158.

A new advocates’ immunity 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 [2010] 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:

Continue reading “A new advocates’ immunity case”

Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process

Update, 16 August 2010: Justice Emerton’s decision dismissing the appeal is at [2010] VSC 351.

Original post: In Walsh v Croucher [2010] VSC 296, a convicted fraudster who was, at least in about the year 2000, a bald-faced, opportunistic, calculating and manipulative liar (see R v Walsh [2002] VSCA 98 and R v Walsh [2000] VSC 114), sued his appeal counsel for negligence, breach of fiduciary duties, and misleading and deceptive conduct.  But for the negligence, the claim contended, his appeal would have succeeded.  The Supreme Court let the proceedings roll along for two and a half years before Associate Justice Mukhtar permanently stayed them as an abuse of process.  Mr Walsh’s attempts, in the very last days in Victoria of the grand jury, to convene one, were not enough to avoid the termination of his negligence claim.

The proceedings were an abuse of process in that they sought impermissibly to attack collaterally the decisions of the jury and of the Court of Appeal that he was guilty of the frauds he was convicted of.  It was impermissible for him now to contend, as a foundation of his cause of action against the barrister, and not having appealed the decision of the Court of Appeal, that he was not guilty, because to do so is against public policy.  I considered the law of collateral attack abuse of process in its applications to solicitor’s negligence claims in ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’, (2002) 10 Torts Law Journal, 167.  Let me know if you would like a copy by email.  Associate Justice Mukhtar’s explanation is concise and worth setting out in full: Continue reading “Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process”

The construction of the full common law release

Litigation was settled for several million dollars. The release said

‘5. The plaintiffs hereby release the defendants from all claims, actions, suits, demands arising from or in any way connected with the Proceedings, the allegations contained in the Statement of Claim and of the liquidation of the third plaintiff.’

That’s the kind of release you can get when you’re willing to pay several mil for it. But what does it mean? ‘Don’t even think of bugging me ever again, in relation to anything that happened in the past, whether you’re aware of it or not’ or something more confined?  It is a question which crops up relatively often in practice, but the law on the subject has always seemed pretty obscure.  When several mil’s on the table people jump into these kinds of releases. Sometimes, they come to regret it. Justice Einstein explained the principles, in Shepherds Producers Co-operative Limited v Lamont [2009] NSWSC 294, commencing with the handy summary of the principles applicable to the construction of releases reproduced below. Continue reading “The construction of the full common law release”

Negligence claim against solicitor is a relevant factor in a limitation period extension application, part II

Update: See now Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2021] VCC 1081.

Original post: I posted about this issue, as it arose in a 2007 decision of Justice Forrest, here. Since May 2003, certain Victorian actions for personal injury must be brought within 3 years after the injury was discovered to be attributable to the defendant’s negligence, or 12 years after the allegedly negligence conduct, whichever comes first.  Previously the limitation period was six years.  The period may be extended by the Court. In Delai v Western District Health Service [2009] VSC 151, Justice Beach explained why he granted the medical negligence claimant’s application.  The defendants argued that she had good prospects of suing her solicitor for negligently allowing the limitation period to go by, but that was not a sufficiently cogent consideration to get in the way of the success of the application. I reproduce the whole of the relevant discussion from the judgment:

Continue reading “Negligence claim against solicitor is a relevant factor in a limitation period extension application, part II”

More on the solicitor’s ‘penumbral’ duty of care (or lack of it)

Ever since Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, the solicitor’s penumbral duty of care, orthodoxy since Hawkins v Clayton (1988) 164 CLR 539, has been looking shaky. The reference to the penumbral duty of care is a reference to the proposition that lawyers may owe duties in tort to take care to avoid foreseeable loss accruing to their clients, even if their retainer (i.e. their contractual obligations to the client) does not require them to do so. The classic example is the solicitor retained to document a transaction which to the solicitor seems improvident.  Can the solicitor document the transaction and stay mum about his concerns?  More to the point, can the stupid solicitor who does not notice what a competent solicitor would notice — that the transaction is manifestly improvident, get away with it by saying ‘Not my problem. Go sue someone you asked to advise on whether you struck a good deal or not.’? The whole question got a thorough going over in Kowalczuk v Accom Finance [2008] NSWCA 343. The decision of Justice of Appeal Campbell, with which Justices of Appeal Hodgson and McColl agreed, said: Continue reading “More on the solicitor’s ‘penumbral’ duty of care (or lack of it)”

Latest on whether solicitors engage in trade or commerce: part I

Leong v J P Sesto & Co [2009] VCAT 99 is the latest in the on-again off-again saga of whether solicitors engage in trade or commerce, and, whether, if not, it means that VCAT does not have jurisdiction over claims involving them, and if so, which claims. Senior Member Vassie considered the question in the context of an application to set aside a costs agreement. It was heard in October 2008 and decided on 30 January 2009. The NSW Court of Appeal’s decision in Kowalczuk v Accom Finance [2008] NSWCA 343, decided on 10 December 2008 was not referred to (see Part II).

The application was made on the orthodox basis (under the predecessor of the Legal Profession Act, 2004) and supplemented by somewhat half-hearted arguments under the Fair Trading Act, 1999, the state equivalent of the Trade Practices Act, 1974. The law is quite clear that regardless of whether lawyers engaged in their core professional roles of representation and advising are engaged in in trade or commerce (the traditional view is that they are not), some aspects of their businesses are. What this decision says is that in negotiating fees, lawyers are engaging in trade or commerce, and so causes of action which seek relief in relation to costs agreements under the Fair Trading Act, 1999 and which are dependent on conduct in trade or commerce are available to clients. (It might be worth tucking away for future thought whether a lawyer who does not negotiate and seeks to recover fees only on scale or practitioners remuneration order, could be said to be engaging in trade or commerce, but it is unlikely such a costs agreement would be the subject of an application to set it aside.)

The decision also asserts that the Fair Trading Act, 1999‘s definition of ‘services’ requires that the services be in trade or commerce, contrary to an earlier considered decision of the Legal Practice List, which it seems may not have been cited to Senior Member Vassie. No argument on this point is recorded in the decision. Ironically, if this decision is followed, the result may be a narrowing of VCAT’s jurisdiction, because in those causes of action which do not specifically require conduct in trade or commerce, but require ‘services’, VCAT’s previous position was that the services did not have to be in trade or commerce to come within the definition, because though the words ‘trade or commerce’ appeared in the definition, the definition was inclusory, and only ‘included’ certain conduct in trade or commerce, rather than mandating ‘trade or commerce’ as an essential characteristic of activity falling within the meaning of ‘services’. An example of such a jurisdiction is the one to resolve ‘consumer-trader disputes’, a jurisdiction which essentially grants to VCAT common law jurisdiction enhanced by special legislative powers over all disputes arising directly out of the provision of services, regardless of their value. In those instances of lawyers’ conduct which are not engaged in in trade or commerce, Senior Member Vassie’s construction of the Act would deny VCAT jurisdiction where it would otherwise have had jurisdiction by virtue of the expansive construction of the definition of ‘services’. (Note that J P Sesto & Co v Jadewealth Pty Ltd [2009] VCAT 80 is essentially the same judgment in the same case.)

What Senior Member Vassie said was: Continue reading “Latest on whether solicitors engage in trade or commerce: part I”

Negligent misstatement limitation period lecture

Update, 20 November 2008: The latest decision is Pegasus Management Holdings S.C.A. v Ernst & Young (a firm) [2008] EWHC 2720 (Ch).  A CMS Cameron McKenna Law Now note may be read here.

Original post: The Law Institute is putting on a lecture at lunchtime on 24 June 2008 by an ex-megafirms lawyer who has gone boutique, Margot Clarkson. It will be about the very specific topic of limitation periods for negligent misstatement cases (though somewhat oddly, the case featured in the flyer, Wardley v Western Australia (1992) 175 CLR 514 is a pure misleading and deceptive conduct case).  I treated that topic at some length in an article imaginatively titled ‘Legal Professional Liability Part II’ at (2001) 9 Torts Law Journal 1 (I have reproduced the relevant bit below), and have blogged about it from time to time since (see these posts).  It’s a difficult topic, and such a seminar is welcome. It costs $80 for LIV members and $160 for non-members.

This is what I said in the article: Continue reading “Negligent misstatement limitation period lecture”

NSW Court of Appeal on advocates’ immunity for out of court work

The NSW Court of Appeal dismissed an appeal from a decision finding that a solicitor was not immune from a negligence suit based on a failure to prepare evidence promptly, though its comments in relation to immunity were obiter dicta [102]. Although the evidence did get adduced after a change of solicitors and before the end of the trial, so that the solicitor’s client succeeded, the client was penalised when it came to costs for adducing the critical evidence at the last moment, contrary to case management pre-trial directions. Not only did the succeesful client not get an order that the other side repay its costs, but it was ordered to pay the other side’s costs. The decision is Walton v Efato Pty Ltd [2008] NSWCA 86. Another aspect of the decision is noted at this sister post. Justices of Appeal Beazley and Giles agreed with the lead judgment of Justice of Appeal Tobias.

What happened was that a creditor of a company served a statutory demand on a company. The company’s solicitor did not file and serve within the necessary 21 days the application to set it aside on the basis of a genuine dispute as to the existence of the debt. He did so out of time. So by operation of the Corporations Law, 2001, the company was presumed to be insolvent, and the courts had no power to extend the time retrospectively. Continue reading “NSW Court of Appeal on advocates’ immunity for out of court work”

Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers

The Ohio State Medical Association’s Frivolous Lawsuit Committee defended 3 frivolous medical negligence suits against members and funded counterclaims by the defendant doctors against the plaintiff’s solicitors for bringing hopeless claims. The doctors succeeded. Continue reading “Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers”

Judge says finality has overtaken intimate connection as immunity touchstone

A New South Wales District Court judge has handed down an important decision on advocates’ immunity, which is under appeal. The case is Fowler v La Fontaine [2007] NSWDC 207. It is a case which explores what the test for the immunity really is now that the High Court has said ‘it’s all about finality’. The decision on appeal will be important especially in those cases where there is no adjudicated outcome after a contested hearing, such as where there is a discontinuance, or a default judgment, or a striking out consequent upon terms of settlement. The facts, and the relevant bit of the judgment, are set out below. Continue reading “Judge says finality has overtaken intimate connection as immunity touchstone”

Auditors’ liability for failure to ‘blow whistle’ on fraud

English firm CMS Cameron McKenna has published a case note on Case Stone & Rolls Limited (in liquidation) v. Moore Stephens (a firm) [2007] EWHC 1826 (Comm). It is a decision which considers the rule ex turpi causa non oritur actio in the context of a professional liability claim, in this case to a claim of liability in a professional whose task was to prevent fraud. The rule says no cause of action can be founded on illegality or immorality in the plaintiff.  The case note begins:

‘In an important decision, the [English] Commercial Court considered whether or not a company which had perpetrated a fraud could claim against its auditors for failing to detect and report that fraud.  Even though this involved the company relying on its own fraud, the Court nevertheless held that it could continue with its claim against the auditors.  This was, according to the Court, because the fraud was “the very thing” that the auditors were under a duty to identify, and the “ordinary citizen” would not find anything repugnant in allowing the company to make a recovery in such circumstances.’

2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

Accord and satisfaction as a defence to a professional negligence claim

In Anfuso’s Case [2007] VCAT 1690, Member Butcher of VCAT’s Legal Practice List gave summary judgment for a solicitor by reference to the principles of accord and satisfaction. The solicitor had sued for her fees in the Magistrates’ Court. She got default judgment against her former client, and got an order that his employer pay some of his wages directly to her in satisfaction of the judgment debt. He applied to set it aside. They settled the whole thing. He promised to pay the balance owing and in return, she agreed to the setting aside of the judgment and of the attachment of earnings order. Then he decided to sue the former solicitor in VCAT, and it was this suit which was thrown summarily out of court. Member Butcher described the claim:

‘Mr Anfuso engaged [the solicitor] to act on his behalf in relation to the purchase of a property. The legal services were quoted at a certain price with a proviso that additional work would be charged in the event of any difficulties. Some difficulties did arise and additional charges were made. It is not a matter that I need dwell upon, the propriety of the charges, however this application made by Mr Anfuso is seeking re-payment of moneys paid by him in relation to that work and subsequent legal costs incurred when [the solicitor] sued him for those fees but also his own legal expenses. The particulars of the claim also make allowance for an amount of professional fees which were originally quoted.’

Whatever cause of action Mr Anfuso might have had seems to have merged, in Member Butcher’s view, in the settlement agreement.

I once tried to sort out the differences between res judicata, issue estoppel, Anshun estoppel, and accord and satisfaction by way of introduction to the rule against collateral attack in ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ (2002) 10 Torts Law Journal 167. This is what I said, though the formatting is a bit impoverished by the transition to the blog: Continue reading “Accord and satisfaction as a defence to a professional negligence claim”

NSW Supreme Court says solicitor immune from suit for out of court omissions

Update, 12 March 2009: The advocates’ immunity part of the trial judge’s reasons did not really survive on appeal: Coshott v Barry [2009] NSWCA 34. Quite where that leaves the authority of Keefe v Marks (1989) 16 NSWLR 713, a decision of Chief Justice Gleeson, remains to be worked out. Justice of Appeal Ipp with whom and Justices of Appeal Beazley and Campbell said, remarkably pithily:

Advocate’s immunity
61 James J also rejected the Citibank Claim “by reason of advocate’s immunity”. His Honour said, “[d]etermining what claims for relief should be included in the pleading was work done out of court which led to a decision effecting the conduct of the case in court.”

62 In my opinion, this finding by his Honour went too far. Mr Coshott’s case was that Mr Barry breached his duty to advise virtually from the inception of the retainer. Such an alleged failure would be too far removed from the actual conduct of the trial to be covered by the doctrine of advocate’s immunity. I do not think that, when the retainer commenced, a failure to advise as alleged could be regarded, properly, as leading to a decision affecting the conduct of the case in court (Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560 per Mason CJ). The period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established.’


’76 Having regard to the degree of control exercised by Mr Coshott over the proceedings, and to the fact that senior counsel did not query the admissibility of Mr Davis’s report, I consider that James J was correct in finding that, had Mr Barry advised that Mr Davis’s evidence was not admissible, Mr Coshott would have not accepted that advice. For the reasons given in connection with the Citibank Claim I do not consider that his Honour ignored s 5D of the Civil Liability Act when making this finding.

77 The question whether the defence of advocate’s immunity applies to the PSO claim is open to question. Mr Coshott contended that Mr Barry breached his duty in regard to the admissibility of Mr Davis’s evidence as from the time Mr Davis provided his report; hence, the breach occurred too long before the trial to be regarded as involving a decision affecting the conduct of the case in court. There are difficulties in determining this question, as it is not clear when Mr Barry was first duty-bound to consider the admissibility of the report. It may well be that James J correctly decided that Mr Barry’s conduct in regard to Mr Davis’s report involved “[w]ork done in deciding what witnesses should be called and what evidence should be sought to be adduced from them” (as his Honour put it). In view of the other conclusions to which I have come in regard to the PSO Claim, it is not necessary to decide this issue.’

Original post: The New South Wales Supreme Court yesterday gave judgment for a solicitor on an advocates’ immunity defence to a claim of professional negligence in respect of out of court work by the solicitor. The decision of Justice James was in the matter of Coshott v Barry [2007] NSWSC 1094. This disciplinary decision seems to be related in some way: Law Society of New South Wales v Vardas [2006] NSWADT 118. Anyone want to contribute a case note to this blog? Could be a while until I get around to it. What the Court said about immunity in the first case is reproduced below: Continue reading “NSW Supreme Court says solicitor immune from suit for out of court omissions”

Federal Court Dishes Out Some Serious Proportionate Liability Interpretation

Melbourne’s Justice Middleton has dished out some serious interpretation of the Victorian and federal proportionate liability regimes and, what’s even more useful, their interrelationship, in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216, a decision at an early stage of the proceedings. It is a classy judgment in a matter right up Justice Middleton’s alley; before going to the bench, his Honour led a team of lawyers in Victoria’s biggest pure economic loss case.

The only relevant ratio decidendi is that Part IVAA of the Wrongs Act, 1958 (Victoria’s proportionate liability regime) cannot apply to causes of action under federal statutes which evince an intention not to allow apportionment. It is not that the Commonwealth statute prevails by operation of s. 109 of the Constitution over the state statute, the Commonwealth statute covering the field. Rather, the reason is that state Acts do not apply in courts exercising federal jurisdiction (such as the Federal Court in this case) unless s. 79 of the Judiciary Act, 1903 (Cth.) applies, and it only applies unless a Commonwealth Act otherwise provides. Drawing on the High Court case which said there can be no defence of contributory negligence against a claim for misleading or deceptive conduct under s. 52 of the Trade Practices Act, 1974, his Honour concluded that the relevant parts of the ASIC Act, 2001 and the Corporations Act, 2001 did ‘otherwise provide’.

Interesting dicta about the Victorian proportionate liability regime (relevant provisions here) includes:

  • there is a question whether only state statutes are intended to be referred to in the definition of apportionable claim in the Wrongs Act, 1958, which says ‘a claim for economic loss … in an action for damages (whether in tort, in contract, under statute or otherwise) arising out of a failure to take reasonable care’ (at [27]);
  • ‘The provisions do not require that the claim itself be a claim in negligence or for a breach of duty — it [sic.] only requires that the claim arise from a failure to take reasonable care’ (at [29]);
  • a defendant seeking to apportion blame against a concurrent wrongdoer must plead out the basis for asserting that the concurrent wrongdoer is liable to the plaintiff (at [31]);
  • each concurrent wrongdoer must have a legal liability to the plaintiff (at [40]);
  • preliminary discovery might be had under the Federal Court correlate of Order 32.05 of the Supreme Court Rules against a person to ascertain whether they are a concurrent wrongdoer against whom apportionment might be claimed (at [42]). Continue reading “Federal Court Dishes Out Some Serious Proportionate Liability Interpretation”