Falkingham v Hoffmans (A firm) - [2015] HCATrans 66

[2015] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P31 of 2014

B e t w e e n -
BRENT NIGEL FALKINGHAM
Applicant
and
HOFFMANS (A FIRM)
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO PERTH

ON FRIDAY, 13 MARCH 2015, AT 11.13 AM

MR B.L. NUGAWELA: May it please the Court, I appear for the applicant. (instructed by Havilah Legal)

MR D.R. CLYNE : May it please the Court, I appear for the respondent. (instructed by Tottle Partners)

GAGELER J: Yes.

MR NUGAWELA: Thank you, your Honours. In this loss of opportunity claim to sue a surgeon for his failure to warn, due to the solicitor’s clear or unequivocal breach - in this case the expiry of the limitation period – there are two alternative, we say, preferred approaches to the valuation question which the courts below failed to take. The first approach, of course, is the notion of legal certainty that arose in Johnson v Perez, where there are no questions of doubt concerning the enforceability or the recoverability of any award of damages against, in this case, the surgeon.

Where there is no question of that and the elements of the cause of action are definitively established, then the High Court considered this to be, or these to be, certain cases, in which case there ought be no discount or only a nominal discount. So, that is the first preferred approach.

Alternatively, we say, your Honours, that this is a case which is analogous to the Court of Appeal decision in Feletti v Kontoulas [2000] NSWCA 59, where there the Court of Appeal mandated an approach in an almost legally certain case, starting at 100 per cent, and then discounting for aliquot percentages.

GAGELER J: When you say “mandated an approach”, how was that couched in the judgment?

MR NUGAWELA: Can I take your Honours to Feletti, starting at 37 – I am sorry, perhaps starting at 27 in the judgment of President Mason.

KEANE J: We do not seem to have that authority.

GAGELER J: We do not have that.

MR NUGAWELA: I will quickly read parts of the relevant reasons.

GAGELER J: Yes.

MR NUGAWELA: At 27:

The real issue on liability is causation. Did the solicitor’s negligence cause the appellant’s failure to file or instruct to be filed a notice of appeal within the 14 day period? More particularly, did it materially contribute to the appellant’s neglect in this regard (cf March v E & MH Stramare Pty Ltd . . . (Sellars v Adelaide Petroleum NL –

At 28:

The trial judge held that, had the appellant received the advice to which he was entitled, he would probably have lodged or given instructions for lodgement of a notice of appeal . . . I regard it as more probable than not –

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.

Continue reading Falkingham v Hoffmans (A firm)

Details

AGLC: Falkingham v Hoffmans (A firm) [2015] HCATrans 66
Case: [2015] HCATrans 66
Decision Date

CaseChat Overview and Summary

Falkingham v Hoffmans (A Firm) concerned a dispute between a former client, Mr. Falkingham, and his former solicitors, Hoffmans (A Firm). Mr. Falkingham alleged that his solicitors had been negligent in their conduct of litigation on his behalf, leading to an adverse outcome. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the solicitors' conduct in advising Mr. Falkingham regarding a settlement offer constituted a breach of their duty of care. Specifically, the court had to determine if the advice provided was so negligent as to fall below the standard expected of a reasonably competent solicitor, thereby causing Mr. Falkingham loss.

Gageler and Keane JJ reasoned that the duty of care owed by a solicitor to a client requires them to exercise reasonable skill and care in conducting litigation. This includes providing competent advice on settlement offers, taking into account all relevant circumstances and potential consequences. The court found that the advice given by Hoffmans did not meet this standard, as it failed to adequately inform Mr. Falkingham of the risks associated with rejecting the settlement offer and proceeding to trial. The legal principle applied was that a solicitor's negligence can arise from a failure to provide proper advice, even if the litigation itself was conducted competently.

The High Court allowed the appeal, finding that the solicitors had been negligent and that Mr. Falkingham had suffered loss as a result. The matter was remitted to the Federal Court of Australia for determination of the quantum of damages.

Orders