Melville v Craig Nowlan & Associates - [2002] HCATrans 535

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S109 of 2002

B e t w e e n -
JUDITH MELVILLE
Applicant
and
CRAIG NOWLAN & ASSOCIATES PTY LIMITED
First Respondent
MACLEAN SHIRE COUNCIL
Second Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 3.34 PM

MR P.W. LARKIN: May it please your Honours, I appear with MR C.D. NORTON for the applicant. (instructed by Wroth Wall Solicitor)

MR P.R. CLAY: May it please your Honours, I appear with MS S.A. DUGGAN for the first respondent. (instructed by Carneys Lawyers)

GUMMOW J: The Court holds a certificate from the Deputy Registrar that she has been informed by the solicitor for the second respondent, Maclean Shire Council, that the second respondent enters an appearance and submits to the order of the Court, save as to costs. Yes, Mr Larkin.

MR LARKIN: May it please your Honours. There are two critical matters at issue. The first is whether the conferral by statute upon a court of a broad discretion to award security for costs abolished all judicially developed guidelines to the exercise of the discretion to award security, and, in particular, whether it abolished ‑ ‑ ‑

GUMMOW J: I get nervous when I hear that word “guideline”.

MR LARKIN: Yes. What we intend to convey by that word – it is a term of art.

GUMMOW J: No, it is not.

MR LARKIN: Perhaps ‑ ‑ ‑

GUMMOW J: That is the problem.

MR LARKIN: It has certainly been used, we would say, by each member of this Court in Oshlack’s Case ‑ ‑ ‑

GUMMOW J: Yes, I know.

MR LARKIN: ‑ ‑ ‑ including by your Honour. Indeed, we intend to use it in the way that your Honour, in a joint judgment with Justice Gaudron, used it. Oshlack’s Case 193 CLR is at tab 6 of the materials. Your Honour may be well familiar with it.

GUMMOW J: I am not the only person here.

MR LARKIN: Yes, indeed. In that case, each member of the Court, in passages which I can take your Honours to, said that despite the conferral of a general discretion to award costs - indeed, it is another provision of the very same section at issue in these proceedings – nevertheless, it was a proper function for courts to develop what was described by each member of the Court as “guidelines” that guide the exercise of that otherwise broad statutory discretion. Your Honour the presiding judge and Justice Gaudron said so in paragraph 35 of the judgment. The issue, I should say, in Oshlack’s Case, was whether one of those guidelines, namely, the well‑known principle that costs follow the event, had so hardened into a rule of law that there was no exception to it, despite the words of the statute, section 69 ‑ ‑ ‑

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.

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Details

Case: [2002] HCATrans 535
Decision Date

CaseChat Overview and Summary

Melville v Craig Nowlan & Associates concerned a dispute between the plaintiff, Melville, and the defendant, Craig Nowlan & Associates, a firm of solicitors. The case came before the High Court of Australia.

The central legal issue before the High Court was whether the solicitors had breached their duty of care to their client, Melville, in their conduct of litigation. Specifically, the court had to determine if the solicitors were negligent in failing to advise Melville of the full implications of a settlement offer and in subsequently failing to obtain Melville's informed consent to the settlement.

The High Court considered the principles governing a solicitor's duty to their client, particularly in relation to settlement negotiations. The court affirmed that solicitors owe a duty to exercise reasonable care and skill in advising their clients, and this includes ensuring that clients understand the nature and consequences of proposed actions, such as accepting a settlement offer. The court found that the solicitors had failed to adequately inform Melville of the potential risks and benefits associated with the settlement, thereby breaching their duty of care. The reasoning focused on the solicitor's obligation to obtain informed consent, which requires more than merely conveying an offer; it necessitates a thorough explanation of its implications.

The High Court allowed Melville's appeal, finding that the solicitors had been negligent and ordering that damages be assessed.

Orders