Chamberlain v Ormsby t/as Ormsby Flower

Case [2005] NSWCA 454
CITATION:

Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
HEARING DATE(S):

15 September 2995
 
JUDGMENT DATE: 


21 December 2005

JUDGMENT OF:

Giles JA at 1; Tobias JA at 7; Basten JA at 124
DECISION:

(a) Appeal allowed; (b) Judgment and verdict for the respondent entered by his Honour Judge Finnane QC on 12 October 2004 be set aside; (c) The proceedings as between the appellant and the respondent be remitted to the District Court for a new trial with respect to both liability and damages; (d) The Cross-appeal of the respondent be dismissed with costs; (e) The costs of the first trial between the appellant and the respondent to abide the result of the new trial; (f) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if otherwise qualified
CATCHWORDS:

LEGAL PRACTITIONERS – Contractual and tortious duties to client – Retainer properly to advise client – Whether solicitor and/or barrister provided adequate and timely advice as to available claims – Whether failure to take reasonable steps to ensure client understood advice – Barristers’ immunity from suit – Whether barrister’s advice “connected with conduct of litigation” – Causation – Whether client suffered loss as a result of practitioner’s negligence – Assessment of damages – Workers Compensation Act 1987 s 151A

LEGISLATION CITED:

Workers' Compensation Act 1987
Workers’ Compensation Legislation Amendment Act 1998
Workers Compensation Legislation Further Amendment Act 2001
Suitors’ Fund Act 1951
CASES CITED:

Arthur J S Hall & Co v Simons [2002] 1 AC 615
Burt v Ware (Court of Appeal, 28 October 1998, unreported)
D'Orta Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755
Dunn v Firth [2003] NSWCA 280
Fox v Wood (1981) 148 CLR 438
Green v Berry [2001] 1 Qd R 605
Giannarelli v Wraith (1988) 165 CLR 543
Rosenberg v Percival (2001) 205 CLR 434
Scott v Echegaray (1991) Aust Torts Rep 81-120
Tipper v Williams (No 2) (Court of Appeal, 6 May 1994, unreported)
Valmas v Nyman (James J, 12 November 1996, unreported)
PARTIES:

Brett Raymond Barrd Chamberlain
Anthony Ormsby t/as Ormsby Flower
William Carney

FILE NUMBER(S):

CA 40047/05
COUNSEL:

A: K Andrews
1R: D Davies / D Priestley
2R: G P Craddock
SOLICITORS:

A: ENS Lawyers, Turramurra
1R: Thompson Playford, Sydney
2R: McCabe Terrill

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 692/02

LOWER COURT JUDICIAL OFFICER:

Finnane DCJ




                          CA 40047/05
                          DC 692/02

                          GILES JA
                          TOBIAS JA
                          BASTEN JA

                          Wednesday 21 December 2005
BRETT RAYMOND BARRD CHAMBERLAIN v ANTHONY ORMSBY t/as ORMSBY FLOWER & ANOR
Judgment

1 GILES JA: I have had the advantage of reading the reasons of Tobias JA in draft. I agree with his Honour’s reasons for concluding that the judge erred in the manner described.

2 There must be a new trial as between the appellant and the solicitor unless this Court is in a position to determine, and determines, that on the evidence below, the appellant would have given instructions to…

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Details
AGLC
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Case
[2005] NSWCA 454
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Chamberlain, brought proceedings against the respondent, Ms. Ormsby, a legal practitioner, alleging negligence in the conduct of his affairs. The dispute concerned whether Ms. Ormsby, as Mr. Chamberlain's solicitor, provided adequate and timely advice regarding potential claims, and whether she took reasonable steps to ensure he understood that advice. The matter came before the Court of Appeal of New South Wales, constituted by Giles, Tobias, and Basten JJA.

The primary legal issues before the Court of Appeal were whether Ms. Ormsby breached her contractual and tortious duties to Mr. Chamberlain by failing to provide adequate and timely advice, and whether she failed to take reasonable steps to ensure he understood the advice given. The court also considered the application of barristers' immunity from suit, specifically whether the advice provided by a barrister engaged by Ms. Ormsby was "connected with the conduct of litigation." Finally, the court had to determine the issue of causation, that is, whether Mr. Chamberlain suffered loss as a direct result of any negligence on the part of Ms. Ormsby, and the assessment of damages, including considerations under section 151A of the *Workers Compensation Act 1987*.

The Court of Appeal allowed the appeal, setting aside the judgment and verdict entered for the respondent by the trial judge. The court reasoned that the original trial had not adequately addressed the complex issues of liability and damages. Consequently, the proceedings were remitted to the District Court for a new trial on both liability and damages. The court dismissed the respondent's cross-appeal, and the costs of the first trial were ordered to abide the result of the new trial. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors’ Fund Act 1951* if the respondent qualified.

Orders

Orders of the court

(a) Appeal allowed; (b) Judgment and verdict for the respondent entered by his Honour Judge Finnane QC on 12 October 2004 be set aside; (c) The proceedings as between the appellant and the respondent be remitted to the District Court for a new trial with respect to both liability and damages; (d) The Cross-appeal of the respondent be dismissed with costs; (e) The costs of the first trial between the appellant and the respondent to abide the result of the new trial; (f) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if otherwise qualified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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