Magjarraj v Firth

[2015] NSWCA 326

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Magjarraj v Firth [2015] NSWCA 326
Hearing dates:	13 October 2015
Decision date:	20 October 2015
Before:	Basten JA at [1]; Ward JA at [2]; Gleeson JA at [47]
Decision:	Appeal dismissed with costs.
Catchwords:	PROFESSIONAL NEGLIGENCE – legal practitioners – whether elements of negligence established – whether any loss suffered
Legislation Cited:	Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 Magjarraj v Asteron Life Limited [2010] NSWCA 207 Stillman v Rushbourne [2014] NSWSC 730 Young v Hones [2014] NSWCA 337
Category:	Principal judgment
Parties:	Alija Magjarraj (Appellant) Stephen Paul Firth t/as Firths – The Compensation Lawyers (Respondent)
Representation:	Counsel: Appellant in person R Goodridge (Respondent)   Solicitors: Firths – The Compensation Lawyers (Respondent)
File Number(s):	2014/00339589
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 24 October 2014 Before: Gibb DCJ File Number(s): 2013/126670

HEADNOTE

[This Headnote is not to be read as part of the judgment]

The respondent solicitor acted for the appellant in Supreme Court proceedings brought by the appellant against an insurer who had rejected his claim under a policy. After those proceedings were summarily dismissed the solicitor sued the appellant in the District Court to recover his fees. The appellant, by way of a cross-claim in the District Court proceedings, sought damages for alleged professional negligence. The appellant alleged that the solicitor had failed properly to advise him in the course of the unsuccessful Supreme Court proceedings and had failed to follow his instructions. The first complaint related to his rejection of an offer made by the insurer in the course of a mediation held prior to the Supreme Court hearing. A second complaint concerned events following the first day of the trial in the Supreme (at which stage he was under cross-examination) when he claimed to have fallen ill. On the evening he obtained medical certificate to the effect that he was unfit to attend court the next day due to a “medical condition”. The trial judge refused to adjourn the Supreme Court proceedings and, Mr Magjarraj failing to attend, summarily dismissed his claim.

The District Court dismissed the appellant’s cross-claim for professional negligence. The judge found that Mr Magjarraj had failed to prove the elements of his claim. The primary judge also found that the solicitor’s defence of advocate’s immunity would have defeated the claim.

Held, dismissing the appeal (by Ward JA, Basten JA and Gleeson JA agreeing): no error was established in the conclusion of the primary judge that the appellant did not establish professional negligence on the part of the respondent or its employees, or that he suffered loss as a result of the conduct on which he sought to rely: [45]. It was not necessary to consider the question of advocate’s immunity: [32], [40].

Judgment

1. BASTEN JA: I agree that the appeal must be dismissed…