KALENJUK & GOODMAN LAW PTY LTD T/as GOODMAN LAW (Civil Dispute)

[2012] ACAT 52

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KALENJUK & GOODMAN LAW PTY LTD t/as GOODMAN LAW (Civil Dispute) [2012] ACAT 52

XD 11/1788

Catchwords:             CIVIL DISPUTE – damages application against law firm – instructions to lawyers to negotiate a settlement in relation to motor vehicle accident claim – whether the lawyer was in breach of duty to the client – whether an offer of settlement was properly intimated to the applicant – whether the instructed lawyer failed to provide legal services in a competent and diligent manner: advice on seeking a change of venue of trial, negotiations for settlement, advice on evidence, and bringing final offer to the attention of the applicant – applicability of advocate’s immunity

List of legislation:     ACT Civil and Administrative Tribunal Act 2008, s.16

Civil Law (Wrongs) Act 2002, ss.42, 45, 46

List of cases:             Calderbank v Calderbank [1975] 3 All ER 333;

[1975] 3 WLR 586

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755
Hall and Ors (T/A Bonnins) v Karen Foong (1995) 65 SASR 281 [1995] SASC 5594
Heydon v NRMA Ltd & Ors; Bateman & v NRMA Ltd & Ors; Morgan & Ors v NRMA Ltd & Ors [2000] NSWCA 374

Tribunal:                  Ms J. Lennard, Senior Member

Date of Orders:  15 August 2012

Date of Reasons for Decision:         15 August 2012

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 11/1788

VASELJ KALENJUK

Applicant

GOODMAN LAW PTY LTD t/as
GOODMAN LAW SOLICITORS

Respondent

TRIBUNAL:            Ms J. Lennard, Senior Member

DATE:  15 August 2012

ORDER

1.The application is dismissed.

………………………………..

Ms J. Lennard, Senior Member

REASONS FOR DECISION

DECISION:

1.This matter was heard by the tribunal on 10 April 2012. The applicant appeared and was represented by Ms Jaleh Johannessen of Johannessen Legal and Migration. The respondent was represented by Mr Graham Blank of Counsel. The applicant and Mr Harry Kay of Goodman Law (also referred to as “the respondent”) gave oral evidence. The Tribunal also received written submissions and supporting documentation from each party. The matter was adjourned for written final submissions and a decision.

Chronology of facts:

2.In October 2008 the applicant was involved in a motor vehicle collision.

3.In September 2009 the applicant received a letter from the NRMA, the insurer of the other driver, claiming that the applicant was liable to pay the costs of the repairs to the other car.

4.On 7 September 2009, the applicant retained Goodman Law to respond to the NRMA letter. Mr Harry Kay was the solicitor with carriage of the matter. The Client Agreement  between the applicant and Goodman Law states, under the heading Scope of  Work: “Goodman Law has been asked to act for you in drafting a letter to NRMA Insurance disputing liability for the accident and detailing a description and diagram of the accident along with a statement of reasons.”

5.On 21 September 2009 Mr Kay wrote to the NRMA, disputing that the applicant had any liability to the other driver.

6.On or about 17 September 2010 the owners of the other vehicle involved in the accident filed a claim in the small claims division of the local court in NSW for a total of $12,227.42.

7.On or about 9 December 2010, Goodman Law filed a defence in the motor vehicle accident matter on behalf of the applicant.

8.On or about 15 February 2011, the plaintiff in the motor vehicle accident matter [the plaintiff] made an offer of settlement to the applicant in the amount of $9781.94. This offer remained open until 23 February 2011 and was made in accordance with the principles of Calderbank v Calderbank.

9.On or about 23 February 2011, the offer of settlement was rejected and a counter offer of $5000.00 made. This was also made in accordance with the principles of Calderbank v Calderbank. Goodman Law provided a copy of Mr Kay’s file note (dated 23 February 2011) of a phone conversation with the applicant which set out his instructions in relation to the offer made on 15 February, above.

10.On or about 25 February 2011 the plaintiff rejected the offer of $5000 and made an offer of settlement to the applicant in the amount of $7500.00 This offer was said to be open until 1 March 2011 and was made in accordance with the principles of Calderbank v Calderbank.

11.On 1 March this offer was conveyed by letter from Goodman Law to the applicant.

12.On or about 10 March 2011, Mr Kay, on behalf of the applicant rejected the offer of settlement and counter offered $6000.00. Goodman Law provided copies of the following file notes made by Mr Kay:

a.10 March 2011 – conversation with client. This notes the consideration of minimising costs and notes that preparation for the trial will increase costs. The plaintiff was prepared to settle for $7500, the applicant wanted further negotiations and would start with an offer of $6000 but move to $6500.

b.10 March 2011 – conversation with the solicitor for the plaintiff. The offer to pay $6000 is made

c.22 March 2011  - conversation with client. The plaintiff has rejected the offer of $6000 the offer to accept payment of $7500 is still open. The applicant’s instructions are to settle for $7500 but to offer $7000 first.

13.On or about 29 March 2011, Goodman Law wrote to the plaintiff making an offer of settlement in the amount of $7500.00. There is no evidence before the tribunal as to whether any reply was received in relation to this offer. Mr Kay gave evidence that he called the solicitor for the plaintiff on 29 March 2011 to follow up his letter and that the plaintiff solicitor did not get back to him.

14.On or about 1 April 2011, the applicant met with Mr Kay to prepare his defence to the case, and, inter alia, deposed an affidavit in support of that defence. The motor vehicle matter had been set for hearing in the Local Court in Sydney on Monday 18 April 2011.

15.On or about 8 April 2011, Mr Kay and the client had a conference in which it was decided that the applicant would represent himself in the Local Court. A file note made by Mr Kay of that conference notes that this was to keep costs down; that the other side was likely to be successful.

16.On 11 April, Mr Kay wrote to the applicant enclosing documents needed for the trial, advising the applicant to obtain and present to the court valuation materials and providing Mr Kay’s mobile phone number for assistance if required on the 18 April.

17.On 13 April 2011, Goodman Law received by facsimile a letter from the plaintiff’s solicitors containing an offer to accept $8500 plus costs in full and final settlement of the dispute. The offer was said to be open until 09:00 on 18 April 2011 and was made in accordance with the principles of Calderbank v Calderbank.

18.At 10:32 on 14 April 2011, Mr Kay called the mobile phone of the applicant and left a message detailing the offer. No reply was received from the applicant.

19.A copy of the letter containing the offer was sent by express post to the applicant’s home address on 14 April 2011. The letter asked the applicant to call Mr Kay.

20.On 18 April 2011 the NSW Local Court found for the plaintiff in the total amount of $13297.56 – including costs and interest.

The Application

21.The applicant has made a claim based in negligence for a refund of $4,202.44 of the legal fees paid by him to the Respondent. The application states that this claim is based on the inaccurate advice of the Respondent in that the Applicant’s total payments for their fees of $4,500.00 have been received unjustly and unreasonably as the legal advice of the Respondent was inaccurate from the outset.

22.The applicant also claims an amount of $5,797.56. The application states As a consequence of the breach of duty of care the Respondent owed the Applicant and negligence in conveying the last settlement offer to the Applicant, he has suffered financial loss in the amount of $5,797.56 being the difference between the last offer of settlement for $7,500 by the Plaintiff and the Applicant and the judgment.

The Law

23.Section 16 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) defines civil dispute to include a damages application; and a damages application means an application for damages for negligence or for any other tort except nuisance or trespass.

24.The applicable law is the Civil Law (Wrongs) Act 2002 (the Wrongs Act). That Act defines negligence as the failure to exercise reasonable care and skill (s49). The standard of care which a respondent must meet is the standard of care of a reasonable person in the respondent's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose (s42).

25.The Wrongs Act sets out the following general principles in relation to causation:

a.the negligence was a necessary condition or factual cause of the harm;

b.that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused;

c.in deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party (s45); and,

d.the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation (s46)

26.Under the relevant law the applicant is required to, by his evidence, establish that the respondent owed him a duty to take reasonable care; that the respondent failed to take reasonable care or to exercise reasonable skill in the circumstances; and, that that failure, as a matter of fact, caused the harm or loss the applicant now complains of. In considering this, the Tribunal must examine the scope of the duty owed and whether liability, or responsibility, for the loss should be imposed on the respondent.

27.It is clear that a law firm owes a duty of care to its clients. In this case it is not disputed that Mr Kay owed to the applicant a duty to take reasonable care.

28.In legal terms the issues for the tribunal are:

a.did Goodman Law fail to take reasonable care or exercise reasonable skill in the circumstances; and, if so,

b.did that failure by the respondent as a matter of fact cause the harm or loss the applicant now complains of?

29.The applicant submits that the questions for the tribunal are:

a.whether the respondent, in breach of the duty of care or duty to exercise reasonable skill, failed to promptly notify the applicant of the offer for settlement in the amount of $7500 that was received by the respondent from the plaintiff on 25 February 2011; and, if so,

b.did that failure cause the applicant financial loss in the amount of $5,797.56?

c.Whether the respondent, in breach of the duty of care or duty to exercise reasonable skill, failed to provide the applicant legal services in a competent and diligent manner; and, if so,

d.whether that failure means the applicant should be reimbursed all or some of the fees he paid to the respondent?

The offer of 25 February 2011

30.The applicant submits that the respondent was negligent in failing to promptly notify the applicant of the offer of settlement in the amount of $7500 that was received from the plaintiff on 25 February 2011.

31.On 25 February 2011 Goodman Law received by facsimile a letter containing an offer to accept payment of $7500 in full and final settlement of the dispute between the plaintiff and the applicant. This offer was open until 9 am on 1 March 2011. A copy of the facsimile was before the tribunal. The facsimile is date and time marked as 25-FEB-2011 10:43.

32.Mr Kay gave evidence that on 28 February 2011 he had called the applicant on the applicant’s mobile phone and left a message. Mr Kay provided a copy of Goodman Law’s tax invoice dated 28 February 2011: which contained, under the heading Professional Fees Details, the following entry: 28/02/2011 Telephone client – left message to call (Not Charged $39.60). Mr Kay gave evidence that his usual habit was to enter each item of work into the firm’s accounting system as it was completed; the entry is contained in an invoice dated 28 February 2011.  There was no evidence before the tribunal that the applicant had objected to or disputed the entry. The applicant asserted generally that he had paid the invoices received from Goodman Law.

33.The applicant agreed that he had provided to Mr Kay his mobile phone number and his postal address and that these were the only contact methods available to the respondent.  The applicant in his evidence conceded that Mr Kay ‘might have’ called and left a message; the applicant had no clear memory of whether he had received the message or returned the call.

34.On 1 March this offer was conveyed by letter from Goodman Law to the applicant. In his written statement the applicant says he received the letter on 1 March, in his oral evidence he asserted that he received it on or about 3 March 2011.

35. 

In that letter Mr Kay stated, inter alia:

                 [t]he plaintiff’s solicitors have rejected your counter offer of $5,000.00
                 and placed a further counteroffer in the amount of $7,500.00. We do
                 not think that the latest offer should be accepted, but we must also
                 consider the strength of the evidence that will be provided by the
                 witness to the accident.

Given that there is a period of 6 weeks between now and the trial date,
                 we should consider every avenue in trying to resolve the matter without
                 the need to actually have it before the Court.

Please call me to discuss the above as soon as you have the
                 opportunity.

36.The letter does not reveal to the client that the offer has lapsed.

37.In his written final submission, the applicant submits that the respondent had an obligation to take immediate action to notify the applicant of the offer on the same day as it was received. There is no evidence as to why more immediate action was required to meet the duty of care. The evidence of Mr Kay, which is accepted by the tribunal, is that he called and left a message for the applicant on 28 February. This was the next working day after receipt of the offer. Had that call been returned before 1 March 2011, the details of the offer could have been considered by the applicant.

38.Mr Kay gave evidence that given the short period of time between the receipt of the offer and its lapsing that a telephone call was the most efficient way or quickest way to seek instructions.

39.

The applicant had provided two methods of contact and the respondent had determined that in the circumstances a phone call was most appropriate.

Ms Johannessen put to Mr Kay the proposition that he ought to have made more phone calls, Mr Kay replied ... he already had the message I left in the morning and calling him again on a phone number to which he hadn’t responded to a first message would have been redundant.

40.The applicant has not provided any evidence as to what a reasonable person in the position of the respondent ought to have done to ensure that the applicant received notice of the offer before its expiry. The ground of negligence is said by the applicant to be that Goodman Law did not promptly notify the applicant of the offer. Mr Kay has made reasonable steps to communicate with the applicant;  he has used one of the two methods provided by the respondent to contact him; and he has judged that in the circumstances this was the best approach. He contacted the applicant on the next working day after the offer was received.

41.Tribunals must be careful of judging decisions made in the giving of professional advice and service from the standpoint of hindsight. Of course, we can all see that the applicant would have been better off if he had accepted any one of the offers made by the plaintiff and in particular the lowest offer of $7,500. In Hall and Ors (T/A Bonnins) v Karen Foong (1995) 65 SASR 281 [1995] SASC 5594 (14 December 1995) the court stated [at 50 & 51]. It is important that the Court does not allow hindsight to insinuate itself into its reasoning. Hindsight is no doubt useful in other contexts but, as a general rule, it must be avoided when determining liability. As Megarry J observed in Duchess of Argyll v Beuselink (1972) 2 Lloyds LR 172 at 185:

"In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are
important and which are unimportant. But hindsight is no touchstone of negligence. The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect."

In addition, it is not possible to identify one course only as being the proper advice to be given by the defendant to his client. Opinions will differ as to what was the most appropriate advice. ... Advice of this kind involved an exercise of judgment. A solicitor is not guilty of negligence merely because he has committed an error of judgment unless that error is grossly made: Faithfull v Kesteven (1910) 103 LT 56; Fletcher v Jubb (1920) 1 KB 275; Duchess of Argyll v Beuselink (supra).

42.The tribunal finds that the respondent did not breach his duty of care in relation to the applicant. Mr Kay took reasonable steps to promptly notify the applicant of the offer, using the method of communication provided by the applicant.

43.It could have been argued that the respondent could have done more to preserve the offer, given that he had not been able to contact his client. This was not argued by the applicant. The tribunal has not taken this argument into consideration.

44.The applicant, if he had been able to establish negligence, would have to establish on the balance of probabilities that the loss claimed was caused by the negligence of the respondent.

45.The applicant asserts in his written final submissions, but not in his evidence before the tribunal, that he would have immediately returned a call as a matter of course if he had received a missed call or a message to call back the respondent. Ms Johannessen asserts in written final submissions that the applicant called the respondent after he received the letter of 1 March 2011. This is evidence of the applicant’s keen interest to respond to the offer of settlement as soon as he is made aware of it. The evidence before the tribunal was that at the latest the applicant received the letter of 1 March on 3 March, but did not call the respondent until 10 March.

46.The applicant further asserts in final written submissions that had the respondent written to the applicant on 25 February the applicant would have received it before the expiry and would have been saved all the subsequent financial loss. This implies that the applicant would have accepted the offer.

47.On or about 10 March 2011 the applicant phoned Mr Kay in response to the letter. The tribunal had before it a copy of Mr Kay’s file note of the conversation with the applicant. This notes the consideration of minimising costs and notes that preparation for the trial will increase costs. The offer from the plaintiff was $7500, but the applicant wanted further negotiations and would start with an offer of $6000 but move to $6500.

48.A second file note dated 10 March 2011 is of a conversation with the solicitor for the plaintiff in which the offer to pay $6000 was made.

49.A third file note dated 22 March 2011 shows that Mr Kay called the applicant and told him that the plaintiff has rejected the offer of $6000. The applicant’s instructions were to settle for $7500, but to offer $7000 first. In this conversation the likely best and worst outcomes if the matter went to court were discussed.

50.On or about 29 March 2011, an offer of settlement in the amount of $7500.00 was made in writing by Goodman Law. There is no evidence before the tribunal as to whether any reply was received in relation to this offer. Mr Kay gave evidence that he called the solicitor for the plaintiff on 29 March 2011 to follow up his letter and that the plaintiff’s solicitor did not get back to him.

51.The evidence before the tribunal is that when the applicant was made aware of the offer to settle for $7500.00, he did not accept the offer. On 10 March, he instructed his solicitor to continue to negotiate with a view of trying for a settlement of $6,000.00 or $6,500.00. This is reflected in the files notes of Mr Kay and confirmed on 2 occasions by the applicant in evidence given before the tribunal.

52.On 22 March the applicant was instructing Mr Kay to settle for $7500, but to still offer $7000 first.

53.The applicant asserted that Mr Kay had told him that once an offer was made it could not be withdrawn. There is evidence before the tribunal that in a letter dated 17 February 2011 in relation to the offer to settle for $9781.94, Mr Kay stated the offer is open for acceptance until 9.00am on Wednesday 23 February 2011. Attached to this letter was a copy of the letter from the plaintiff and that also clearly stated that the offer was open until 9.00am on 23 February 2011. The tribunal does not accept the applicant’s evidence in this regard.

54.The applicant has not established on the balance of probabilities that he would have accepted the offer of $7,500 in full and final settlement if he had known of it before 1 March. Indeed, it could be argued that had he instructed Mr Kay to offer to settle for $7,500 on 10 March, it may have been accepted. As the trial date came closer and closer, the applicant continued to instruct Mr Kay to negotiate for a lower amount.

The provision of legal services

55.The applicant submits that the respondent failed to provide legal services in a competent and diligent manner. The applicant addresses this under the following headings:

a.The right to seek a change of venue

b.      Inefficient and ineffective negotiations for

a settlement

c.A failure to properly advise on evidence

d.The failure to bring the final offer of settlement to the attention of the applicant.

56.This appears to be based in either negligence or breach of contract, the applicant’s submissions make no definite legal argument apart from asserting that the respondent is bound by the Legal Profession (Solicitors) Rules to provide legal advice and services in a competent and diligent manner. The applicant provides no argument as to why a complete refund of fees paid is the appropriate measure of damages, except to say that they were unjustly received.

The right to seek a change of venue

57.The tribunal received written submissions and oral evidence from the applicant, which  are not clear but seem to point to two key areas:

a.   the applicant was not aware of the possibility of moving the trial to Queanbeyan; and

b.   that if the trial was moved to Queanbeyan, Mr Kay would have represented the applicant and the outcome would have been more favourable to the applicant.

58.On the evidence before it, the tribunal finds that the applicant discussed with Mr Kay the location of the trial. The tribunal does not accept the evidence of the applicant that Mr Kay told him that the plaintiff could set the trial anywhere they wanted, ‘even Perth’.

59.The applicant consistently gave evidence that he had always intended that a negotiated settlement should be reached with the plaintiff and so the possibility of applying to change the venue was not seriously considered by him. This would have incurred further costs which would be thrown away in the event of a settlement.

60.It is neither appropriate nor proper for the tribunal to conclude that the Court made its decision other than correctly and on the facts. There is no evidence to suggest that the outcome would have been different if the applicant had been represented. The tribunal cannot make decisions based on mere speculation, or the opinion of the applicant informed primarily by hindsight.

Inefficient and ineffective negotiations for a settlement

61.The evidence before the tribunal is that the applicant expressed a desire to settle the matter; that each party made offers and counter offers; that the applicant was difficult to contact and consistently gave instructions to settle but at the same time rejected offers and instructed the respondent to continue to negotiate.

62.The fact that no settlement was reached is not, by itself, proof that the negotiations were inefficient or ineffective. The evidence of the applicant and the evidence of the file notes recording the conferences and conversations between Mr Kay and the applicant and the instructions given by the applicant reveal that the applicant was not diligent in obtaining the statements of witnesses or valuations he needed for the trial.

63.It appears that the claim for contributory negligence on the part of the plaintiff was abandoned when the applicant could not produce any details of the witness who claimed the plaintiff was on the phone at the time of the collision. The only evidence available to reduce the damages amount was in relation to the value of the car which the applicant said he had and which Mr Kay reminded him to present at the trial.

64.There is no further evidence or argument made by the applicant as to how the tribunal should measure effective negotiation. A solicitor can only act on instructions and on the evidence provided the negotiations were conducted in accordance with the applicant's instructions.

A failure to properly advise on evidence

65.In final written submissions the applicant contends that the respondent had not properly considered the evidence in the case and that a proper consideration would have revealed that the applicant had no evidence to support his original claim of contributory negligence on the part of the plaintiff and further that the respondent ought to have advised the applicant that he had little or no chance of success. The tribunal draws from the applicant’s submission an implicit assertion that the respondent’s advice to the applicant ought to have been strongly in favour of settlement. The tribunal refers to its comments above in relation to hindsight, and also notes:

a.   There is no direct evidence as to what had transpired between the applicant and the respondent in relation to the preparation of witness statements;

b.   The only reference in the applicant’s statement as to the evidence before the court was that

“…..the judge said the evidence of the plaintiff showed that my car was about half to ¾ meter on the road in the way of the traffic and that the plaintiff had the right of way and so I was at fault. The judge said because I did not have any evidence to contradict the plaintiff’s claimed amount of damages, he accepted the plaintiff’s claim…..;”

c.   In cross examination the applicant agreed that he had undertaken to get evidence in relation to the valuation of the plaintiff’s car. There is evidence before the tribunal that Mr Kay discussed the importance of this with the applicant and on 8 April 2011 advised the applicant that the other side was likely to be successful and on 11 April 2011 reminded the applicant of the importance of the evidence as to valuation. The applicant submits that the respondent did not prepare the evidence for the defence or properly assess it in a timely fashion. These discussions were within 2 weeks of the trial date;

d.   The tribunal notes that it does not have the full file, nor a complete record of all conversations. The file notes and invoices provided by the respondent, however, do reveal that from November 2009 until April 2011 the respondent was undertaking work and providing advice on defences, witness statements and negotiations; and

e.   In cross examination, the applicant stated that he had at all times instructed Mr Kay to avoid going to court. Mr Kay had conducted negotiations in relation to the offers and counteroffers and only when it became obvious that the applicant would not settle was there a need to prepare in depth for a trial of the matter.

The failure to bring the final offer of settlement to the attention of the applicant

66.On 13 April 2011, Goodman Law received by facsimile a letter from the plaintiff’s solicitors, a letter containing an offer to accept $8500 plus costs in full and final settlement of the dispute. At 10:32 on 14 April 2011, Mr Kay called the mobile phone of the applicant and left a message detailing the offer. No reply was received from the applicant. On 14 April 2011, he sent a copy of the letter containing the offer by express post to the applicant’s home address. The letter asked the applicant to call Mr Kay. The applicant gave evidence that he had left his home address to drive to Sydney on Thursday 14 April, that he did not check his phone for messages and that he did not receive the letter until his return. He conceded that there was nothing more Mr Kay could have done and also stated that he was not sure that he would have accepted the offer. The applicant, in the knowledge that the plaintiff had made offers to settle during the course of the matter, chose to make himself un-contactable. If at any time he had listened to his phone messages he would have been aware of the final offer.

67.It is possible to argue that the respondent could have done some things in a better way, there may have been more to be done to preserve the final offer and ensure it was put to the applicant. Again, this was not argued before the tribunal.

68.The Tribunal finds that the respondent has not failed to deliver legal services and legal advice in a diligent and competent manner. Whether this is argued as a breach of contract or negligence, the test is whether the respondent has conducted itself to the standard of an ordinary, competent legal practice. There is no evidence that work included in the scope of the retainer was not done. The work done involved:

·     obtaining instructions from the applicant;

·     negotiating with the plaintiff’s solicitors;

·     reviewing court documents and witness statement from the plaintiff;

·     preparing witness statements for the applicant;

·     discussions with the other side; and

·     preparation of the applicant’s case and advice in relation to the trial.

69.Success or failure in any particular matter is not a proper or appropriate measure of the level of diligence and competence of the legal practitioner with carriage of the matter.  A solicitor is bound to exercise the standard of care and skill that may be reasonably expected of an ordinary practitioner. In Heydon v NRMA Ltd & Ors; Bateman & v NRMA Ltd & Ors; Morgan & Ors v NRMA Ltd & Ors [2000] NSWCA 374 (21 December 2000) The court stated:

In each case the duty is to apply the relevant degree of skill and exercise reasonable care to carrying out the task. There is no implied undertaking that the advice is correct, but only that the requisite degree of professional skill and care has been exercised in the giving of the advice. (at 147)

70.The respondent made submissions about the protection of advocates in relation to work intimately connected to the preparation for, and conduct of, a hearing. Out of court work done in preparation for litigation, such as advising about a settlement, interviewing the client and witnesses, giving advice and making decisions about what witnesses to call and not to call and working up any necessary legal arguments is work intimately connected with the preparation for, and the conduct of, a hearing. If a legal practitioner is found to be negligent in this type of work the legal practitioner is protected by advocates’ immunity. The advocates’ immunity prevents action against the legal practitioner for advice in relation to negotiations, preparation for, and conduct of, hearings. D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755 (10 March 2005). The Tribunal accepts the respondent’s submissions in that the work carried out by Mr Kay would be, in the event that negligence existed, directly connected to the preparation for and conduct of the trial, or was advice in relation to negotiation for settlement.

………………………………..

Ms J Lennard

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	XD 11/1788
PARTIES, APPLICANT:	K
PARTIES, RESPONDENT:
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT
TRIBUNAL MEMBERS:
DATES OF HEARING:
PLACE OF HEARING:

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: