Jones v Howell & Associates No. Scciv-01-1020

JONES V HOWELL & ASSOCIATES
[2002] SASC 152
Full Court: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I agree with the orders proposed by Lander J, and with the reasons that he gives for those orders. There is nothing that I wish to add.
PERRY J. I agree with the reasons of Lander J and with the orders which he proposes.
LANDER J. This is an appeal by a plaintiff (appellant) whose claim for damages against a firm of solicitors was dismissed by a District Court Judge on the basis that there was no case to answer. The appellant was unrepresented both at trial and on appeal. It is the appellant’s contention that a case was made out and the defendants (respondents to this appeal) should have been called upon to elect and call evidence in answer to that case to answer.
The appellant has not identified in his notice of appeal the orders which are sought on appeal. I think it may be assumed from the submissions which have been made that the appellant seeks an order remitting the matter to the trial judge for further hearing on the basis that a case to answer was made out.
The plaintiff is the ex-husband of Linda Jones. In 1996 she complained to the police that on 27 September 1996 the appellant had committed an assault upon her. The appellant was arrested by the police and granted police bail to appear in the Adelaide Magistrates Court to answer the information against him.
His former wife complained that on 27 September 1996 the plaintiff had committed domestic violence upon her and sought a restraining order against him under the Domestic Violence Act1994 (SA).
On 30 September 1996 an order was made in the Adelaide Magistrates Court restraining the appellant.
The respondent is a firm of solicitors. In or about October 1996 the appellant retained the respondent to represent him in proceedings in the Adelaide Magistrates Court with respect to the criminal prosecution for assault and the restraining order.
The appellant pleaded that the implied terms of the retainer were:
“(a)The defendant would accept the instructions of the plaintiff and take no action in the said proceedings that was contrary to his expressed instructions;
(b)that the defendant and its legally qualified solicitors will provide proper and competent advice in or about the representation of the plaintiff;
(c)that the defendant would use all proper and appropriate care in the custody of the said shirt and note (sic) dispose of same prior to completion of the claims of the said Linda Jones or any claim that the plaintiff made against the said Linda Jones.”
When the appellant retained the respondent to act as his solicitors he deposited a shirt with them which he expected to be used as evidence in one or other of the proceedings for which the respondent had been retained to act. The reason for keeping the shirt was that he believed it was asserted by Mrs Linda Jones that the shirt was soaked with blood as a result of the assault. The appellant wished to establish that the shirt was covered in paint and not bloodstained. Thus by providing the shirt he thought he could prove his wife a liar.
Mr John Williams is a solicitor employed by the respondent. He was assigned to act for the appellant in respect of both matters.
On 6 March 1997 Mr Williams consented to a confirmation of the restraining order made on 30 September 1996. The consent was offered by Mr Williams on the understanding that the prosecution would withdraw the complaint alleging assault.
It was the appellant’s contention that at trial Mr Williams’ action in confirming the restraining order was in breach of the terms of the defendant’s retainer and of the duty of care owed by the respondent to the appellant.
The breaches pleaded in the appellant’s statement of claim are:
“12(a)John Williams advised the plaintiff to consent to the making of the restraining order and then commence alternate civil proceedings when he knew or should have known that such subsequent civil proceedings would be an abuse of process thereby preventing the plaintiff from having the truth of his claims established;
(b)John Williams notwithstanding the expressed instructions of the plaintiff reported on his behalf to consent to confirmation of the restraining order;
(c)it failed to look after and care for the said shirt placed in its custody and disposed of same prior to the conclusion of the claim thereby endangering the plaintiff’s ability to substantiate the malicious and false nature of the statements of the said Linda Jones as set out in paragraphs 3 and 5 hereof.”
The appellant confirmed before the trial judge, prior to giving evidence, that there were three, and only three, complaints of breach by Mr Williams and the respondent.
It was the appellant’s claim that breach of the retainer and the duty of care caused the appellant damage. The damages pleaded are:
“As a consequence of the breach of contract and/or negligence by the defendant by its servants or agents the plaintiff has been prevented from having his reputation restored and unstained by the allegations. The effect has been to cause the plaintiff psychiatric injury and to restrict his freedom of movement. The plaintiff suffered psychiatric injury by way of preoccupation with thoughts of the injustice done to him in relation to the confirming of the restraint order in March 1997. The plaintiff has suffered anxiety and frustration as a result of the actions of the defendant and the plaintiff has suffered disappointment and distress due to the breach of the contract. The plaintiff has also incurred significant legal costs since March 1997 which would not have been incurred but for the alleged breach of contract and negligence.”
The respondent admitted that it accepted a retainer to act on behalf of the appellant in respect to the two complaints made by the appellant’s wife. The respondent also admitted that it received the shirt but denied that the shirt had any material value as an item of evidence.
The respondent admitted that it was an implied term of the retainer that it would not consent on behalf of the plaintiff to an order of the Court without the plaintiff’s instructions and that it would provide proper and competent advice in or about the representation of the appellant.
The respondent admitted that on 6 March 1997 Mr Williams, on behalf of the appellant, consented to confirmation of the restraining order made on 30 September 1996 but denied that such consent was contrary to the appellant’s instructions. In particular the respondent asserted that on 6 March 1997 the appellant gave written instructions to the defendant and that Mr Williams consented to the confirmation of the order.
In those circumstances the respondent denied any breach of the retainer and/or breach of any duty of care owed by the respondent to the appellant.
At the close of the appellant’s case the respondent submitted that there was no case to answer. The respondent argued that in making that submission it should not be called upon to elect nor to call any evidence. The respondent relied upon the decision of Perry J in Residues Treatment & Trading CompanyLimited v Southern Resources Limited (1989) 52 SASR 54 at 68. In particular the respondent argued that in making the submission of no case to answer the respondent was intending to establish that there was an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.
The trial judge allowed the submission without calling upon the respondent to elect.
The trial judge gave ex tempore reasons for his ruling that upheld the respondent’s claim that the appellant’s action should be dismissed because there was no case to answer.
In particular the trial judge found that on 6 March 1997 the appellant appeared before Mr Gurry SM and the matter was adjourned for a short period to enable negotiations to take place between the prosecution and the appellant. The trial judge found that the appellant accepted a proposal that he would allow the restraining order to be confirmed without any admission of the allegations contained in his ex-wife’s affidavit. The plaintiff signed his instructions and Mr Williams consented to the confirmation of the order upon the understanding that the prosecution would withdraw the criminal charge of assault.
The trial judge found that in those circumstances there was no breach of the retainer or any duty of care.
The trial judge further found that the civil proceedings commenced by the appellant against his former wife did not amount to an abuse of process and were not discontinued by reason of any conduct on the part of the respondent. They were discontinued for financial reasons.
For those reasons the trial judge found that there was no breach of contract or breach of duty in respect of those two allegations.
Lastly the trial judge found that the respondent had lost the appellant’s shirt. He said:
“In that sense, it could be said that there has been a breach of contract in the sense that the defendant was required to retain the shirt in its custody for potential use at a trial of the assault matter or the restraining order matter. Even if that be so, no losses flowed to the plaintiff because, on the material before me, it became plain that the actual shirt, as distinct from what might have been said at some stages about what may or may not have been on it, was not in contest.”
He went on to say:
“But, so far as these proceedings are concerned, even if there had been a breach of contract by the defendant in failing to keep safe that shirt, certainly no consequence flowed from it and there was no damage to the plaintiff.”
For all those reasons the trial judge found that there was no case to answer.
It can be seen from his reasons that with respect to two of the allegations he found no breach of contract or breach of duty. In respect to the third matter he found, I think implicitly, a breach of contract but no damage.
Of course damages are not the gist of an action for breach of contract. If a party is able to prove a breach but no damages the party is entitled to nominal damages: Luna Park (NSW) v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 300; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 412; Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 per Brennan CJ at 359; Denny v Ashton (1993) 173 LSJS 110 per Debelle J at 112; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 375.
Because the appellant has complained of the whole of the trial judge’s decision it is necessary to consider the matter in more detail.
The appellant gave evidence in the trial. He also called a witness, Susan Lucas, a Sergeant of police. She was called to establish the police enquiries into his wife’s complaints. Her evidence was largely irrelevant.
He also tendered a number of documents. Further documents were tendered by the respondent’s counsel during the cross examination of the appellant.
The documents tendered by both parties, in a case such as this, may be the best evidence available to the Court. The documents were created when neither party had any thought of litigation between them.
The appellant’s evidence was that his wife made a false complaint to the police alleging that he assaulted her on 27 September 1996. He alleges that as part of that false complaint she asserted to the police that the appellant’s shirt was covered in blood. It was the appellant’s case that there was no blood on his shirt but that it was covered in red paint. That was the shirt that he handed to the respondent for the purpose of tender during his trial.
He said he was arrested and taken from the property, taken to the cells, charged and made subject to a restraining order. He was then released on bail to attend Court on 11 October 1996 and he returned to the matrimonial home.
Shortly after he arrived at his home the appellant alleges his wife made another false complaint about his conduct to the police. The police arrived again. They did not remove him from the property on this occasion but suggested that he keep away from his wife and remain in a machinery shed on the property.
The appellant said that shortly after that he borrowed $50 from his wife and left the property and has not returned since.
On 30 September 1996, the domestic violence matter came before a magistrate. The effect of the restraining order was explained to the appellant. The matter was adjourned to 8th October 1996 for the appellant to show cause why the order should not be confirmed.
Apparently the appellant did not attend court on 11 October 1996 as required by his bail agreement.
The matter was further adjourned to 22 October 1996 when orders were made requiring the defendant to keep the peace towards his wife, Linda Jones and restraining him from communicating or associating with her in any way and restraining him from attending at her residence.
The appellant retained the respondent on or about 22 October 1996. When the appellant attended court on 22 October 1996 he was taken into custody on a first instance warrant for breach of the terms and conditions of the bail agreement which had provided for him to attend court on 11 October 1996.
Mr Williams attended the Adelaide Magistrate Court on the morning of 22 October 1996 and bail was granted in relation to the assault charge. The domestic violence order was varied to allow the appellant to obtain access to his children.
On 12 November 1996, the respondent wrote to the Legal Services Commission enclosing an application by the appellant for legal aid. In that letter the solicitors wrote:
“On our instructions, not only was Mrs Jones the aggressor but she has, over a number of years, assaulted Mr Jones, complained to the police that he has assaulted her and on several occasions had him conveyed to Glenside Hospital, where, we are informed doctors were unable to establish a mental illness.”
On 20 November 1996 the appellant was provided with Mrs Jones’ affidavit which, I think, was executed sometime in October/November 1996. His wife’s complaints were of continuing and persisting drunkenness and violence over a long period of time. It made their marriage extraordinarily unhappy. She asserted that the appellant was a binge drinker and whilst drunk behaved irrationally and aggressively. She asserted that the appellant had broken the window of a shed and threatened to hit her with a hammer.
On 15 December 1996, the appellant provided written instructions to his solicitors in the following terms:
“I, Neil Trevor Jones of U71/2 Ayliffes Road, St Marys SA 5042 do hereby instruct my solicitors Janet E Howell and Associates of 12 Price Street, Melrose Park SA 5039 to confirm the restraining order sought by Ms Linda Jones against me without in any way admitting the contents of Ms Linda Jones’ affidavit provided that the police prosecutions (sic) withdraw the allegation of assault of a family member against me on the information numbered 97/C79827.”
Those instructions were withdrawn on 18 December 1996. On that day the appellant attended at the Magistrates Court with Mr Williams and instructed Mr Williams in the following terms:
“I, Neil Trevor Jones hereby revoke my above stated instructions and now instruct my said solicitors to adjourn the proceedings for a short period.”
On 6 January 1997, Mr Williams wrote to the appellant confirming that he had attended at the Adelaide Magistrates Court on the morning of 18 December 1996 and that the appellant was present.
He confirmed that his instructions were to adjourn the matter whilst the appellant considered the proposition put by the prosecution. He confirmed that the matter was adjourned to 22 January 1997.
Mr Williams’ letter was in accordance with the written instructions given to him on the morning of 18 December 1996. The letter indicates that the appellant was uncertain then as to whether or not he would accept the proposal which had been put forward by the prosecution.
On 10 January 1997, the respondent wrote to the appellant advising in the following terms:
“We confirm that the police have offered to withdraw the charge of assault family member provided that the restraining order is confirmed by consent. This may be done without you in any way admitting the contents of Miss Jones’ affidavit. The writer has advised you that this is a good result of negotiations and that you are unlikely to obtain a better result at trial. The writer has also advised you that a trial will cost in the range of $2000.”
On 16 January 1997, Mr Williams wrote to Police Prosecutions advising them that his instructions were to have the matter of the alleged assault and the issue of the restraining order set down for trial. The letter continued:
“Our client is adamant that it was the alleged victim, Ms Jones, who broke the window with the hammer and is firm in his instructions that he wants to prove this in Court.
However, our client has indicated that he would be willing to have the restraining order confirmed if the alleged victim makes an admission that it was she who broke the window with the hammer.”
On 4 February 1997, a partner in the respondent firm, Carol Bryson, wrote to the appellant in relation to the issue of the shirt. Apparently sometime prior to that date the shirt was lost. The letter advised the appellant that the firm could offer no explanation as to why the shirt had not been kept for safekeeping as he had instructed Ms Bryson and indeed she had instructed the staff. The terms of her letter suggest the cleaner had thrown the shirt away.
The letter continued:
“The writer confirms that Mr Williams spoke to you at some length about the wisdom and propriety about our continuing to act for you with respect to the criminal matters. Clearly, had the issue of your shirt in any way compromised your position, then we could no longer act notwithstanding your wishing us to do so. There are two issues of which we must be mindful, firstly, that we protect you, and secondly, that we conduct ourselves in a professional manner.
The writer believes that Mr Williams has pointed out to you that the shirt may have no relevance to the charge of assault if your wife raises it. If we continue to act for you we must have assurance, in writing, that the prosecution will not raise the issue of the shirt at trial. Would you please give us your instructions to put this to the police. The shirt may certainly have some relevance to the issue of whether you were falsely arrested and we therefore could not act for you if you wish to pursue the matter of false arrest with the police.”
A little later she wrote:
“The purpose of this letter is to ensure that you understand that we have advised you to instruct other solicitors with respect to the alleged assault because of our dealing with your shirt. We also confirm that notwithstanding that advice you wish us to continue to act.”
On 13 February 1997, the South Australian Police wrote to Mr Williams in the following terms:
“As already proposed, prosecution are prepared to withdraw the assault charge, provided the order is not contested. Mr Jones’ concern in relation to the window is irrelevant. Orders are frequently confirmed by consent with the endorsement “without admitting the allegations”. Perhaps if you speak with Mr Jones explaining the benefits of such a resolution he may be satisfied.
Please advise ASAP whether Mr Jones wishes to resolve on basis proposed or whether both have to be set for trial.”
Accompanying that letter was the affidavit of Ms Jones.
On 17 February 1997, Ms Lucas of the South Australian Police confirmed in writing that she had spoken to Linda Jones about the shirt. She reported:
“She says it was red paint on the shirt and she did not suggest otherwise. Therefore, if there is any evidence about the shirt, you (and your staff) are potential witnesses.”
On 6 March 1997, Mr Jones gave written instructions in the following form:
“I Neil Trevor Jones of 278 Payneham Road, Payneham instruct my solicitors to confirm the restraining order in its present form. I understand that your me doing so, the police will withdraw the charge of assault and bail will be lifted.”

The order was confirmed without in any way admitting the contents of the affidavit of Mrs Jones.
The appellant said that he did sign those instructions. He said the matter was called on and after some discussion between Mr Williams, the prosecutor and the magistrate the matter was adjourned. During the adjournment he was prevailed upon to sign the instructions. He returned to court with Mr Williams and was present when the order was made and the charge of assault withdrawn.
On the same day Mr Williams wrote to Mr Jones confirming his attendance at court in the following terms:
“We confirm that the writer attended at the Adelaide Magistrates Court on the 6^th of March 1997 on your behalf. You were present. At that time your matter was finalised.
At that time you consented to the confirming of the restraining order in its present form without in any way admitting the contents of the affidavit of Ms Jones. It was ordered that you be provided with a copy of that part of the Court file. We understand that this will be sent to our office.
The charge of common assault of a family member was withdrawn.
Please find enclosed our final account of this matter.
We advise you that we have achieved a good result for you and that this resolution has saved you the expense and risk of a trial.
We wish you all the best in the future.”
There is no evidence that the appellant complained about Mr Williams’ behaviour before the appellant commenced separate proceedings against his wife.
On 20 November 1997, Mr Jones instructed different solicitors to issue proceedings in the Magistrates Court against his wife.
In those proceedings he claimed that his wife had ‘maliciously and without reasonable and probable cause’ provided a statement to police officers that Mr Jones had committed assault against her. As a result he was arrested and charged. He also claimed that his wife had ‘maliciously and without reasonable and probable cause’ made a further statement to the police for the purposes of obtaining a domestic violence order. He recited the events of 6 March 1997 pointing out that the domestic violence order had been confirmed and the assault charge withdrawn. In those proceedings he pleaded:
“7On the 6^th day of March 1997 the plaintiff duly appeared before the said Magistrates Court and the prosecution withdrew the said charge of assault on a family member and the plaintiff consented to the confirmation of the said restraining order without admitting liability for the circumstances set out in the defendant’s said affidavit.”
Of course, that plea is contrary to the allegations now made against the respondent, but consistent with the signed instructions given to Mr Williams.
The appellant claimed, in those proceedings, loss and damage as the result of her complaints to the police.
He gave particulars of the loss and damage:
“8.1The plaintiff has suffered injury to his reputation, having been associated with domestic violence.
8.2The plaintiff was arrested and faced the possibility of imprisonment.
8.3The plaintiff was restrained from re-entering his home as from 30 September 1996 and thereby lost the use of his personal property, including his light electrical mechanical engineering workshop where he intended to establish an engineering business.
8.4The plaintiff was required to employ solicitors and was put to considerable trouble, inconvenience, anxiety and expense in defending the said proceedings.”
He pleaded in the alternative that his wife had made the two statements for an improper purpose namely the removal of the appellant from the matrimonial home.
I think it was intended to bring a claim against Mrs Jones for malicious prosecution but the pleadings are not clear about that.
On 15 December 1997, Mrs Jones entered a defence and on 19 December 1997 the plaintiff was given leave to amend the particulars of the claim to specify a cause of action.
Eventually, the appellant discontinued those proceedings against his wife. He wrote to Mr Gurry SM at the Adelaide Magistrates Court on 2 November 1998 in relation to the action against his wife in the following terms:
“I, the undersigned am writing to you begging your assistance in a legal matter I am presently involved in regarding a court hearing when I presented before yourself in courtroom 3, Adelaide Magistrates Court on the morning of 6/3/97 and was represented by my solicitor, Mr John Williams.
The only assistance I require is that you be kind enough to confirm you did indeed grant myself a trial hearing immediately before Mr John Williams interjected and asked for a temporary adjournment, and then, with the assistance of the SA Police prosecutor, Mr Robert Marsh, coerced me, against my wishes, to allow the SA Police to withdraw the charges against myself.
The enclosed documents (copies only) may be of some relevance to explain why I urgently need this information.
May you please be advised that I no longer intend to proceed with the civil action (enclosed) against my now ex-wife, primarily in the interests of the continued well being of my two sons.
Thank you, and hoping for your favourable reply at your earliest convenience.”
Clearly enough, the appellant contemplated discontinuing the proceedings for malicious prosecution (if that was the cause of action) in November 1998 and for the reasons given to Mr Gurry SM.
In cross examination he confirmed that he did discontinue the proceedings because the cost would have denied his children a college education.
He was asked: [TX 68]
“QSorry to interrupt. Is that the question I asked you. The question I asked you was as to whether that’s true; that you discontinued the proceedings because of the well being of your children.
AYes. Financial well being I should have put in. I left out one word. I am sorry.”
The letter to Mr Gurry was then tendered and the appellant asked to make a further comment in relation to it. The Trial Judge allowed him to do so and the appellant said:
AAs I said, I left out the words “financial interests” because of the time of September 27^th I had in excess of $20,000, over $10,000 per child, invested for their education at Cabra. She had already drawn some money from that because I had no access to it. If it had gone to the civil court and I won, she would have either, 1, have to sell the house to pay me out or, 2, access their money. So, in the primary interests of my well being of my two sons, I ceased to continue. Is it possible to include the word “financial” and I will initial it.”
In my opinion the appellant’s own evidence disproved the allegation that any action by Mr Williams disqualified the appellant from bringing further proceedings against his wife.
The appellant brought proceedings against his wife but then discontinued for what, in my opinion, were sensible reasons. However, in discontinuing those proceedings he cannot, in my opinion, blame Mr Williams’ advice given on 6 March 1997 for his failure to maintain those proceedings.
The first claim of breach of retainer or duty alleged against the respondent is that when Mr Williams gave his advice to the appellant to consent to the making of the restraining order he knew or should have known that any subsequent civil proceedings brought by the appellant against his wife would be an abuse of process.
It is clear on the evidence that the appellant commenced proceedings and discontinued those proceedings for the reasons to which I have already referred. There is no suggestion that those proceedings were dismissed because they were an abuse of process or indeed that they could have been dismissed for that reason.
It is not clear to me that in allowing the confirmation of the restraining order the appellant was thereby disqualified from suing his wife for malicious prosecution in relation to her complaint of assault. Section 4(4) of the Domestic Violence Act 1994 allows a Court to make a domestic violence restraining order where the defendant disputes some or all of the grounds on which the order is sought but consents to the order being made.
In any event, it was never established before the trial judge that Mr Williams ought to have known that his advice would preclude the appellant from bringing proceedings against his wife in relation to the events of 27 September 1996.
The second breach alleged against the respondent was in fact the real issue between the appellant and the respondent. The issue was whether the appellant had ever instructed the respondent to confirm the restraining order, without acknowledging the contents of Mrs Jones’ affidavit as the price for the withdrawal of the charge of assault.
On the face of the documents there seems to be no doubt that Mr Williams acted within his instructions. It may be inferred that Mr Jones signed those instructions on the morning of the hearing before the magistrate, knowing that by signing those instructions he would be submitting to a confirmation of the restraining order. At the same time the restraining order was made without Mr Jones in any way admitting the contents of the affidavit or the allegations contained in the affidavit of Mrs Jones.
The appellant was faced with what was almost incontrovertible evidence that he had instructed Mr Williams to do that which Mr Williams did on 6 March 1997. He acknowledged that he had signed the instructions written by Mr Williams. He was present when Mr Williams consented to the order being confirmed and when the charge of assault was withdrawn. He did not complain to Mr Williams or the respondent about the order or Mr Williams’ conduct on 6 March 1997 or at any time before bringing proceedings against his wife. When he brought the proceedings against his wife he pleaded that he had consented to the confirmation of the restraining order without admitting liability for the circumstances as deposed to in his wife’s affidavit.
Later, during the trial the appellant tried to claim that he was coerced into giving the instructions.
However, that was not his claim against the respondent. Nor, in my opinion, was it made out. His presence in Court when the orders were made, his failure to complain of Mr Williams’ actions on 6 March, after 6 March, and his plea in the proceedings brought against his wife is inconsistent with a claim that he was co-erced.
However, in the end result he resiled from the claim that he was co-erced.
His evidence in cross examination was: [TX78 -79]
“QThat is the other allegation you have against Mr Williams; that he purported to act on your behalf to consent to confirmation of the restraining order.
AAnother way to put that which I put in my documents is ‘coerced me against my best intentions’.
QThat is not what the pleading says. You have pleaded against my client that he purported to act on your behalf to consent to confirmation of restraining order notwithstanding your expressed instructions.
AMy expressed instructions right up to the last moment just before we entered the court on the second component was to get the lady in court. My instructions were still to get her into court. I just accepted his advice rather than take her to the Magistrates Court, take her to court in the civil court.
QOn 6 March when you went into court you had given Mr Williams, following his advice to you, you had given Mr Williams instructions to consent to confirmation of the restraining order on the basis that there is no admission of the truth of what your wife had said and on the condition that the police withdrew the serious charge of assault.
ABecause I was acting on his advice that it is the wrong court to do it, take action in the civil court.
QThe question was: did you give him instructions to do that. The answer is either ‘Yes’ or ‘No’.
AIf we are going to get technical about this, I agreed to his instructions to me. He instructed me this is what we should do, and I just agreed. I didn’t say to Mr John Williams ‘I want to confirm to this and see it in a civil court’. He said that to me.
QYou said ‘Okay’, you said ‘Yes, go in there and tell the magistrate that I’ll consent to the confirmation of the restraining order on the basis that the serious assault charge is withdrawn’.
AAgainst my best instincts but I did so purely because I accepted his advice as a professional person who I was paying for, technically an employee of mine, I am not a legal person, if that is his advice, if that is the easiest way out of it, let’s do it.
QSo is the answer that yes you did say to him to go into court and tell the magistrate that you consent to confirmation of the restraining order on the basis that the charge of assault is withdrawn.
AYes, but what I did say - I mean - as I have said in the, ‘I hereby deem it to be a falsehood of the first magnitude that I issued and handwritten instruction to Mr Williams at the very least for the obvious reason it would be extremely detrimental to all my previous efforts’ -
QWhat are you reading from.
AI am reading from a document that was presented in court and to the Legal Practitioners Conduct Board.
QWhat does a letter you have to write to the Legal Practitioners Complaint Board or whatever it is have anything to do with my question as to whether in fact you said to Mr Williams to ‘Go and tell the magistrate what I told you’.
AI am agreeing I consented to that but surely to goodness you can understand the reasons I did consent.
QThank you. I am asking you about your particulars in your statement of claim against my client.
AOkay.
QYou recall at the outset I asked you what the complaints were and you agreed that they were the three complaints. Do you understand that.
AYes.”
In my opinion the trial judge was bound to find that the appellant gave the instructions relied upon by Mr Williams.
The third breach relates to the lost shirt.
It is true, as the letter from Carol Bryson of 4 February 1997 establishes, that the respondent lost the shirt which was deposited by the appellant with the respondent. It is likely it was lost because proper care was not taken for its safety.
The loss of the shirt amounts to a breach of the retainer. Whether the respondent was the bailee of the shirt does not matter much. If there was a bailment it arose out of the contract of the retainer. Bailment was not an issue in the case.
However, in my opinion, the loss of the shirt has not led to any loss or damage.
There were a number of witnesses who could have testified to the shirt not being bloodstained. These witnesses included police officers and Ms Bryson and Mr Williams.
Moreover, it was acknowledged by the South Australian Police that Mrs Jones did not contend that the shirt had any blood on it and agreed that it was only covered in red paint.
However, the appellant contended that the absence of the shirt meant he could not establish that his wife had previously lied to the police about the shirt. It was his contention that he would establish in due course that she had originally told the police the shirt was covered in blood. I observe in passing that Mrs Jones’ affidavit does not refer to a shirt being covered in blood.
Moreover, the appellant’s contention must be rejected. He still could have established that she had lied, if it was material in any proceedings, by calling the police officers and solicitors to prove that the shirt was not covered in blood at all but was covered in red paint. In my opinion, the loss of the shirt has not led to any loss or damage.
In any event the appellant has discontinued his proceedings against his wife. There have been no proceedings in which it was relevant to establish that the appellant’s wife was a liar. The shirt would never be an exhibit in any proceedings.
It follows that I agree with the trial judge that the appellant did not establish the breaches particularised in sub-paragraphs 12(a) and 12(b) of the Statement of Claim. There was no case to answer in respect of those matters.
I also agree with the trial judge that the appellant did lead sufficient evidence to establish a prima facie breach of contract by the respondent for the respondent’s failure to retain the appellant’s shirt. I further agree that the appellant did not prove any damage arising from that breach.
However, because damages are not the gist of an action in breach of contract, the appellant’s claim for that particular breach could not be dismissed as disclosing no cause of action. The appellant had established a prima facie case to answer in that regard.
The trial judge should have called upon the respondent to elect. If the respondent had elected to call evidence in answer to the appellant’s claim for breach then the trial judge would have needed to decide whether there was a breach. If on the other hand, the respondent elected to call no evidence, then in my opinion, although this is really a matter for the trial judge, the appellant would be entitled to a judgment for nominal damages for that breach of contract.
The appellant did not limit his argument to an entitlement to nominal damages. He argued that all three breaches had been made out and that he was entitled to compensatory damages. However, notwithstanding the appellant’s failure to argue an entitlement to nominal damages I am of the opinion that the Court should not allow the decision in the Court below to stand, provided of course any necessary amendment is made to the Notice of Appeal.
I propose that the reasons of this Court should be published and the parties allowed to consider their position. The appellant will need to formulate an amendment to his Notice of Appeal. He will need to seek leave to add a ground of appeal to the effect that the trial judge erred in failing to find that the appellant had made out a case to answer with respect to the appellant’s claim that the respondent was in breach of contract in failing to look after and care for the appellant’s shirt.
If such an amendment is sought and allowed the respondent will have to decide whether it wishes to call any evidence in respect of the lost shirt. If an amendment is proposed and allowed and if the respondent advises the Court it would not call evidence if the matter was remitted to the trial judge, this Court should allow the appeal, set aside the order dismissing the appellant’s claim and in lieu therefore enter judgment for the appellant against the respondent for nominal damages, say $10. That would leave the question of costs of the trial if the judgment in the Court below were set aside.
This Court would need to consider whether it is in as good a position as the trial judge on the question of costs of the trial. The parties would need to be heard on that.
If the appellant succeeds in obtaining an award of nominal damages that does not necessarily mean that he would be entitled to costs: Anglo-Cyprian Trade Agencies Ltd v Papphos Wine Industries Ltd [1951] 1 All ER 873; Ashlock v Richmond River Council (1998) 193 CLR 72 at 97-98.
Moreover, a defendant may be entitled to costs where a plaintiff has obtained only a verdict for nominal damages: Anglo-Cyprian Trade Industries Ltd v Papphos Wine Industries Ltd (supra); Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394; Mannix v Loumbos Pty Ltd [2000] NSWCA 32; Nexus Minerals NL v Brutus Construction Pty Ltd and Another [1997] 926 FCA (10 September 1997).
The particular circumstance of the case will need to be examined to determine the appropriate order for costs.
The parties also need to be heard on the costs of the appeal.

[2002] SASC 152

23 May 2002