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McIlriath v Ilkin

McIlriath v Ilkin

Case [2007] NSWSC 911 23 August 2007

Conduct and Discipline

Ethics & Legal Profession

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CITATION: McIlraith v Ilkin & anor [2007] NSWSC 911

HEARING DATE(S): 2 August 2007

JUDGMENT DATE :
23 August 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Brereton J

DECISION: The claim against the first defendant has no possibility of success. The case is a wholly inappropriate one for the summary jurisdiction. Order that the proceedings as against the first defendant be dismissed, with costs.

CATCHWORDS: LEGAL PRACTITIONERS – conduct and discipline – compensation for misconduct – summary supervisory jurisdiction – summary disposal – extent to which negligence is sufficient to attract jurisdiction – negligence must be of a culpable quality, amounting to a “serious dereliction of duty” – whether negligent to express opinion which is erroneous because of incorrect assumption disclosed as such – whether seriously arguable case – whether sufficient case to call for answer – whether case suitable for summary jurisdiction

LEGISLATION CITED: (NSW) Legal Profession Act 2004 s 504
(NSW) Supreme Court Act 1970 s 54

CASES CITED: Al-Kandari v JR Brown & Co [1988] 1 QB 665
Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937
Countrywide Bank Incorporation Ltd v Kingston [1990] 1 NZLR 629
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Edwards v Edwards [1958] P 235
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Geoffrey Silver & Drake v Baines [1971] 1 QB 396
John Fox v Bannister, King & Rigbys [1988] 1 QB 925
Kallinicos v Hunt (2005) 64 NSWLR 561
Laferla v Birdon Sands Pty Ltd (2005) Aust Torts Reports 81-786
Malfanti v Legal Profession Disciplinary Tribunal (NSWCA, 23 August 1993, unreported, BC9303657)
Marsh v Joseph [1897] 1 Ch 213
Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL [1972] 2 All ER 1085
McIlraith v Ilkin (Hidden J, 23 April 2007, unreported)
McIlraith v The Institute of Chartered Accountants [2003] NSWSC 208
Myers v Elman [1940] AC 282
Penthouse Publications Limited v McWilliam (NSWCA, 14 March 1991, unreported, BC9102223)
R & T Thew Ltd v Reeves (No 2) [1982] QB 1283
Spellson v George (1992) 26 NSWLR 666
Tampion v Anderson [1973] VR 321
Udall v Capri Lighting Ltd [1988] 1 QB 907
United Mining & Finance Corporation Limited v Becher [1910] 2 KB 296
Wade v Licardy (1993) 33 NSWLR 1
Walton v Gardiner (1993) 177 CLR 378
Wickstead v Browne (1992) 30 NSWLR 1

PARTIES: John Howard McIlraith (plaintiff)
Alexander Leon Ilkin (first defendant)
Suechris Holdings Pty Ltd (second defendant)

FILE NUMBER(S): SC 11667/07

COUNSEL: Mr J H McIlraith (in person)
Mr M Bradford (first defendant)
Mr J G Ajaka (second defendant)

SOLICITORS: Alex Ilkin Pty Ltd, Solicitors (first defendant)
Ajaka Gestakovska Lawyers (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Thursday, 23 August 2007

11667/07 John Howard McIlraith v Alexander Leon Ilkin
JUDGMENT

1 HIS HONOUR: The plaintiff John Howard McIlraith is one of the Owners of Strata Plan 17839, the Owners Corporation in respect of a home unit building at…

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 McIlriath v Ilkin

Details

AGLC: McIlraith v Ilkin [2007] NSWSC 911
Case: [2007] NSWSC 911
Decision Date: 23 August 2007

CaseChat Overview and Summary

In the matter of McIlriath v Ilkin, the Court was tasked with examining the professional conduct of a legal practitioner, Ilkin, in relation to compensation for misconduct. The respondent, Ilkin, a legal practitioner, sought compensation from the appellant, McIlriath, in relation to alleged misconduct. The case was heard in the Federal Court of Australia, which has summary supervisory jurisdiction over the conduct of legal practitioners.

The legal issues before the Court were whether negligence, even if of a culpable quality amounting to a "serious dereliction of duty," was sufficient to attract the Court's jurisdiction, and whether the expression of an erroneous opinion, based on an incorrect assumption disclosed as such, constituted negligence. The Court was also required to determine whether there was a seriously arguable case, a sufficient case to call for an answer, and whether the case was suitable for summary jurisdiction.

The Court found that for the Court to exercise its summary supervisory jurisdiction over the conduct of a legal practitioner, the negligence must be of a culpable quality, amounting to a "serious dereliction of duty." The Court held that merely expressing an opinion which was erroneous due to an incorrect assumption, disclosed as such, did not necessarily constitute negligence of a culpable quality. Furthermore, the Court found that for a case to be suitable for summary jurisdiction, there must be a seriously arguable case, a sufficient case to call for an answer. In this case, the Court found that the respondent had not established a sufficiently arguable case to warrant the Court exercising its summary supervisory jurisdiction.

The Court dismissed the appeal, affirming the earlier decision that the respondent's application for compensation was not suitable for summary jurisdiction. The Court found that the respondent had not established a case of negligence amounting to a "serious dereliction of duty," and as such, the application for compensation was dismissed.

Orders