Dobson v The Solicitors' Trust - [2001] TASSC 99

[2001] TASSC 99

CITATION: Dobson v The Solicitors' Trust [2001] TASSC 99

PARTIES:  DOBSON, Peter Henry
  v
  THE SOLICITORS' TRUST

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 24/2000
DELIVERED ON:  22 August 2001
DELIVERED AT:  Hobart
HEARING DATE/S:  29 May 2001
JUDGMENT OF:  Crawford, Evans and Blow JJ

CATCHWORDS:

Professions and Trades - Lawyers - Legal Practitioners' Guarantee Funds - Other States or Territories - Tasmania - Who may claim - Default orders made with respect to nominated clients - Court fund established with trust account funds of those clients - Right of others to access fund.
Legal Profession Act 1993 (Tas), ss111, 112, 113 and 114.
Aust Dig Professions and Trades [103]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree
             Respondent:  D J Porter QC
Solicitors:
             Appellant:  Toomey Maning & Co
             Respondent:  Tony Davis

Judgment ID Number: [2001] TASSC 99
Number of paragraphs: 63

Serial No 99/2001
File No FCA 24/2000

PETER HENRY DOBSON v THE SOLICITORS' TRUST

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
EVANS J
BLOW J
22 August 2001

Order of the Court

Appeal dismissed

Serial No 99/2001
File No FCA 24/2000

PETER HENRY DOBSON v THE SOLICITORS' TRUST

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
22 August 2001

The facts and circumstances leading to the appeal coming to this Court are set out in the reasons of the other members of the Court, as are the relevant provisions of the Legal Profession Act 1993. I agree that there are considerable deficiencies in those provisions. The task of the Court is to interpret them notwithstanding those deficiencies.

It is a significant aspect of the legislation that under s111(1) an application for an order declaring a legal practitioner or firm to be in default (a "default order") may be made by a person who claims to have suffered loss as a result of a fiduciary default of the practitioner. It may be expected that such an applicant will normally be interested only in securing recovery of his or her particular loss. The circumstances may include that the applicant is the only person who has suffered loss through the default of the practitioner in question. For example, the practitioner may have stolen money which was held in trust for the applicant. That money may never have been paid into a trust financial institution account required to be established and maintained by the practitioner by s101. In such an isolated case it would usually be an inappropriate course for the Court to take to also order, under s111(5), that all of the monies standing to the credit of other clients of the practitioner in the practitioner's trust financial institution account, those monies being intact and no default having been committed with respect to them, be paid into a Court fund. The Court fund would appropriately be established for the benefit of the applicant alone and there would be no need for the other clients to have recourse to it.

On the other hand, if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] TASSC 99
Decision Date: 22 August 2001

CaseChat Overview and Summary

The appeal in Dobson v The Solicitors' Trust was heard by the Supreme Court of Tasmania's Full Court. The appellant, Peter Henry Dobson, sought to claim from the Court fund established pursuant to a default order made under the Legal Profession Act 1993. The Trust rejected his claim, and the appellant appealed the primary judge's dismissal of his application to have the Trust's decision quashed and to have his claim accepted. The Full Court dismissed the appeal, finding that Dobson's claim did not arise from a loss incurred in respect of which the default order was made, and that he was not entitled to claim against the Court fund without further court process. The court held that the basis for a default order should be identified sufficiently to enable the Court to confine any order it makes for the payment of money into the Court fund to money due to those who have a claim on the fund, and to make it possible to establish whose and what rights and interests arising from the loss incurred in respect of which the default order was made are assigned to the Trust. The court also held that only those who have suffered a loss incurred in respect of which the default order was made have a claim on the Court fund, and that where a Court fund in respect of a firm is in existence, upon the hearing of an application as to a further default, the Court, if satisfied that a further default order is warranted, may establish a new Court fund or make an order including the subject of the further default order in an existing Court fund. The appeal was dismissed, and Dobson's claim against the Court fund was rejected.

Orders