Owens v Galvin - [2014] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0020
SUZANN JANET OWENS	Appellant
v
MICHAEL GALVIN	Respondent

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JUDGES:	BEACH JA and McMILLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2014
DATE OF JUDGMENT:	11 March 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 33
JUDGMENT APPEALED FROM:	Owens v Galvin [2013] VCC 22 (Judge Cohen)

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NEGLIGENCE – Legal practitioners – Barrister – Scope of retainer – Barrister’s duty to advise – Content of duty – Standard of care – Whether barrister negligent in failing to advise about additional ways of ending bankruptcy – Barrister not negligent – Causation – Hindsight – Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, 1945 [54] referred to – Wrongs Act 1958, ss 48, 49, 50, 51, 52 and 58.

BANKRUPTCY – Advice concerning options to terminate bankruptcy – Bankruptcy Act 1966, ss 73, 153A, 153B and 179.

COURTS AND JUDGES – Bias – Actual bias – Apprehended bias – No allegation of bias made at trial – Appellant’s allegations of bias without foundation.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr C G Juebner	Colin Biggers & Paisley

BEACH JA
McMILLAN AJA:

Introduction

Suzann Janet Owens, the appellant, was a practising solicitor when a sequestration order was made against her estate on 10 May 2005.[1] The appellant remained a bankrupt until her bankruptcy was annulled in October 2010 pursuant to s 153A of the Bankruptcy Act 1966 (‘the Act’). Michael Galvin, the respondent, is a barrister, who at all relevant times practised in the area of bankruptcy and insolvency.
[1]See s 43 of the Bankruptcy Act 1966.

On 16 May 2005, the respondent was engaged by the appellant’s then solicitors to prepare an application to set aside the sequestration order that had been made against the appellant on 10 May 2005. Subsequently, the respondent was engaged from time to time over the following months to provide advice, draft documents, and to appear for the appellant at certain court hearings. The last effective involvement of the respondent in the appellant’s affairs was in late October 2005.

In 2011, the appellant commenced a proceeding in the County Court against the respondent. In that proceeding, the appellant alleged that she had suffered loss as a result of the respondent’s negligence in failing to give adequate advice about options open to the appellant to end her bankruptcy.

The appellant’s proceeding came on for hearing in the County Court before Judge Cohen on 7 December 2012. The trial before Judge Cohen took six days. Not all of the pleaded allegations made against the respondent were pursued. After amendment, the appellant’s case against the respondent was confined to an allegation that he failed to advise, or ‘properly’ advise, the appellant, in particular in advice given on 27 September 2005, of two specific courses available to the appellant: first, that the appellant could make another post-bankruptcy composition proposal after one made in July/August 2005 was defeated; and secondly,…

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 Owens v Galvin

Details

AGLC: Owens v Galvin [2014] VSCA 33
Case: [2014] VSCA 33
Decision Date: 11 March 2014

CaseChat Overview and Summary

Owens brought an action against Galvin, a barrister, alleging professional negligence in the conduct of bankruptcy proceedings. The dispute was heard by the Court of Appeal of the Supreme Court of Victoria. The central issue was whether Galvin was negligent in failing to advise Owens of additional means to terminate his bankruptcy, and if so, whether that negligence caused loss to Owens. The court was also required to consider whether Galvin was biased in any way, an issue that arose during the appeal but was not raised at the trial.

The court found that Galvin was not negligent in his advice to Owens. The court emphasised that the duty of a barrister is to provide competent and diligent advice within the scope of their retainer, not to explore every possible avenue that might have been beneficial to the client. The court applied the standard of care expected of a reasonably competent legal practitioner and found that Galvin met that standard. Furthermore, the court considered that hindsight is not a reliable indicator of negligence and that the failure to advise on additional ways to end bankruptcy did not result in a loss to Owens, as the bankruptcy would have ended regardless of the additional advice. The court also dismissed any suggestion of bias on the part of the trial judge, noting that no such allegation was made during the trial and that the appellant's claims of bias lacked any factual basis.

In conclusion, the court held that Galvin was not negligent in his advice to Owens and that there was no basis for a finding of bias against the trial judge. The appeal was therefore dismissed, and the decision of the trial court was upheld. The final orders of the court reflected this outcome, confirming that Galvin was not liable for any negligence in his professional capacity and that the proceedings against him were without merit.

Orders