Island Link Pty Ltd v Thynne and Macartney - [2004] QSC 460

SUPREME COURT OF QUEENSLAND

CITATION:

Island Link Pty Ltd v Thynne & Macartney [2004] QSC 460

PARTIES:

ISLAND LINK PTY LTD
(plaintiff)
v
THYNNE & MACARTNEY (A PARTNERSHIP)
(defendant)

FILE NO:

S9122 of 2001

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

24 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13, 14, 15, 16, 19, 20, 21 & 22 July 2004

JUDGE:

Douglas J

ORDER:

Action dismissed. Judgment for the defendant with costs including reserved costs if any.

CATCHWORDS:

TORTS – NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE ECONOMIC OR FINANCIAL LOSS - CARELESS ACTS OR OMISSIONS – Solicitor – Whether a failure to provide advice regarding remedies under the Judicial Review Act 1991 Qld) amounted to negligence

Judicial Review Act 1991 (Qld), ss 20(2)(h), 23, 24 & 30(1)

Abebe v Commonwealth (1999) 197 CLR 510, referred to
Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, referred to
Dickson v Creevey [2002] QCA 195 at [12]-[13], applied
Gore v Montague Mining Pty Ltd [2001] ANZ ConvR 8, [2000] FCA 1214, applied
Hawkins v Clayton (1988) 164 CLR 539, referred to
Heydon v NRMA Limited (2000) 51 NSWLR 1, referred to
K. C. Park-Safe (Brisbane) Pty Ltd v Cairns City Council [1997] 1 Qd R 497, referred to
Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384, referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, applied
State of Queensland v Litz [1993] 1 Qd R 343, considered
Sykes v Midland Bank Executor & Trustee Co. Ltd [1971] 1 QB 113, applied

COUNSEL:

C E K Hampson QC with him N J Thompson for the plaintiff
D J S Jackson QC with him R P S Jackson for the defendant

SOLICITORS:

Butts & Barkley for the plaintiff
Brian Bartley & Associates for the defendant

DOUGLAS J: Until 9 July 1997 Island Link Pty Ltd conducted a passenger ferry service between Victoria Point and Coochiemudlo Island in Moreton Bay. On that day the Redland Shire Council decided that it would not renew Island Link’s permit to operate a timetabled passenger ferry service from its jetties and landing places at Victoria Point and Coochiemudlo Island. In this action Island Link is suing Thynne & Macartney, a firm of solicitors, in negligence and for breach of their retainer for their failure to advise it of its rights to seek judicial review of the Council’s decision. As will become clear it is my view that the action cannot succeed.

Island Link had a permit from the Council to operate two passenger ferries named “Doug Morton” and “Matthew Flinders II” for the period from 1 July 1996 to 30 June 1997 and had applied for a further permit for the next financial year. A competitor, Coochiemudlo Island Ferry Service (“CIFS”),…

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: [2004] QSC 460
Decision Date: 24 December 2004

CaseChat Overview and Summary

Island Link Pty Ltd, a company involved in a development project, sued Thynne and Macartney, a law firm, over the alleged negligence of one of their solicitors. The plaintiff claimed that the solicitor failed to advise them about potential remedies under the Judicial Review Act 1991 (Qld), which would have allowed them to seek judicial review of certain decisions. The case was heard in the Supreme Court of Queensland.

The central legal issue was whether the solicitor's failure to provide advice about potential remedies under the Judicial Review Act amounted to a careless act or omission that could be considered negligence. The court needed to determine whether the advice was within the scope of the duty of care owed by the solicitor to the plaintiff. The court also considered the foreseeability of the loss and the proximity of the relationship between the solicitor and the plaintiff.

The court held that the solicitor did not owe a duty of care to the plaintiff regarding advice on remedies under the Judicial Review Act. The court reasoned that the advice was not within the scope of the solicitor's engagement, and the plaintiff did not rely on the solicitor's advice in making their decisions. The court further found that the loss was not foreseeable, and there was insufficient proximity between the parties to establish a duty of care. Consequently, the plaintiff's action for negligence was dismissed. The court also ordered that the plaintiff pay the defendant's costs, including any reserved costs.

Orders

Orders of the court

Action dismissed. Judgment for the defendant with costs including reserved costs if any.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Island Link Pty Ltd v Thynne & Macartney [2004] QSC 460
PARTIES:	ISLAND LINK PTY LTD (plaintiff) v THYNNE & MACARTNEY (A PARTNERSHIP) (defendant)
FILE NO:	S9122 of 2001
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	24 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	12, 13, 14, 15, 16, 19, 20, 21 & 22 July 2004
JUDGE:	Douglas J
ORDER:	Action dismissed. Judgment for the defendant with costs including reserved costs if any.
CATCHWORDS:	TORTS – NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE ECONOMIC OR FINANCIAL LOSS - CARELESS ACTS OR OMISSIONS – Solicitor – Whether a failure to provide advice regarding remedies under the Judicial Review Act 1991 Qld) amounted to negligence Judicial Review Act 1991 (Qld), ss 20(2)(h), 23, 24 & 30(1) Abebe v Commonwealth (1999) 197 CLR 510, referred to Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, referred to Dickson v Creevey [2002] QCA 195 at [12]-[13], applied Gore v Montague Mining Pty Ltd [2001] ANZ ConvR 8, [2000] FCA 1214, applied Hawkins v Clayton (1988) 164 CLR 539, referred to Heydon v NRMA Limited (2000) 51 NSWLR 1, referred to K. C. Park-Safe (Brisbane) Pty Ltd v Cairns City Council [1997] 1 Qd R 497, referred to Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384, referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, applied State of Queensland v Litz [1993] 1 Qd R 343, considered Sykes v Midland Bank Executor & Trustee Co. Ltd [1971] 1 QB 113, applied
COUNSEL:	C E K Hampson QC with him N J Thompson for the plaintiff D J S Jackson QC with him R P S Jackson for the defendant
SOLICITORS:	Butts & Barkley for the plaintiff Brian Bartley & Associates for the defendant