BETWEEN: KENNETH GEORGE MAY
Plaintiff
AND
TOMAS MIJATOVIC
Defendant
AND
THE RURAL ACTION MOVEMENT OF WA INC
First Third Party
GREGORY OCTAVIUS COLE
Second Third Party

Catchwords:

Professional negligence - Duty of care - Concurrent liability in contract and tort - Nature of retainer in determining scope of duty of care - Solicitor instructed to apply for injunction at short notice - Client eventually held liable pursuant to undertaking as to damages - Standard of care expected of competent and careful solicitor in such circumstance - Causation - Whether failure to warn of risks of litigation occasioned loss

Advocate's immunity - Application of rule where solicitor acts as advocate - Immunity held not to apply to advice by solicitor as to merits of proposed claim

Legislation:

Corporations Law, s 436A, s 437A, s439A, s 439B(2), s 449A, s 449B, s 449E

Result:

Judgment for the plaintiff

Category: A

Representation:

Counsel:

Plaintiff:     Mr A Metaxas
Defendant:     Mr A N Siopis & Mr P V Lansell
First Third Party           :     No appearance
Second Third Party       :     No appearance

Solicitors:

Plaintiff:     Metaxas & Vernon
Defendant:     Jackson McDonald
First Third Party           :     No appearance
Second Third Party       :     No appearance

Case(s) referred to in judgment(s):

Arthur J S Hall & Co (a firm) v Simons [2000] 3 WLR 543
Astley v Austrust Ltd (1999) 197 CLR 1
Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575
Chappel v Hart (1998) 195 CLR 232
Dalleagles Pty Ltd & Ors v Australian Securities Commission & Ors (1991) 4 WAR 325
Del Borrello v Friedman & Lurie (a firm) [2001] WASCA 348
Duchess of Argyll v Beuselinck (1972) 2 Lloyd's Rep 172
Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241
Feldman v A Practitioner (1977) 18 SASR 238
Giannarelli & Shulkes v Wraith (1988) 165 CLR 543
Hawkins v Clayton (1988) 164 CLR 539
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Keefe v Marks (1989) 16 NSWLR 713
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384
Perre v Apand Pty Ltd (1999) 198 CLR 180
Rees v Sinclair [1974] 1 NZLR 180
Rogers v Whitaker (1992) 175 CLR 479
Saif Ali v Sydney Mitchell & Co (a firm) [1980] AC 198
Voli v Inglewood Shire Council (1963) 110 CLR 74
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642
Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169

Case(s) also cited:

Mortgage Express Ltd v Bowerman & Partners (a firm) [1996] 2 All ER 836
Pegrum v Fatharly (1996) 14 WAR 92

HASLUCK J: The plaintiff in these proceedings, Kenneth George May, was at the material time an office‑bearer of an incorporated association known as the Rural Action Movement or RAM. This body supports farming…

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 May v Mijatovic

Details

AGLC: May v Mijatovic [2002] WASC 151
Case: [2002] WASC 151
Decision Date

CaseChat Overview and Summary

The plaintiff, Kenneth George May, was a member of the Rural Action Movement of WA Inc, a body that supported farming interests and companies in Western Australia. He had been engaged as the Bank Watch Officer and was tasked with representing members of the association who were experiencing financial difficulties. The defendant, Tomas Mijatovic, is a legal practitioner admitted as a solicitor and barrister of the Supreme Court of Western Australia. May engaged the defendant to act on his behalf in legal proceedings against Cole Engineering Pty Ltd, a company facing financial difficulties and placed into administration. The plaintiff alleged that the defendant failed to exercise reasonable skill, care, and diligence in the course of acting for him.

The court found that the defendant was under a duty to advise the plaintiff of the risks associated with the proposed legal action, including the risk of being held liable under the undertaking as to damages if the injunction was dissolved. The court held that the defendant failed to provide such advice and was therefore in breach of his duty of care. The breaches of duty occurred before the injunction was obtained and had a causative consequence in relation to the plaintiff's liability under the undertaking as to damages and the order for costs made against him. The plaintiff was entitled to recover damages in an amount to be assessed.

Orders