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PSAL Ltd v Galilee

PSAL Ltd v Galilee

Case [2013] TASSC 74 10 December 2013

Negligence

Duty of Care

Immunity from Suit

Professional Negligence

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[2013] TASSC 74

COURT: SUPREME COURT OF TASMANIA

CITATION: PSAL Ltd v Galilee & Ors [2013] TASSC 74

PARTIES: PSAL LTD (ACN 118 825 120)
v

GALILEE, Ralph Owen
TRADING UNDER THE NAME OR STYLE OF GALILEE SOLICITORS
GALILEE, Ralph Owen
FABIAN, Paul Christian,
BOOTH, Bradley Donald
OWENS, Luke Kenneth
LUMLEY, Mark Andrew

`TRADING UNDER THE NAME OR STYLE OF GALILEE SOLICITORS
GUNSON, Christopher James

FILE NO:  479/2013
DELIVERED ON:  10 December 2013
DELIVERED AT:  Hobart
HEARING DATE:  4 December 2013
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Professions and Trades – Lawyers – Duties and Liabilities – Counsel and Client – Negligence – Immunity from suit – Out-of-court work – Advice concerning whether to defend proceedings – Whether advice affecting conduct of the case in court.
Aust Dig Professions and Trades [1150]
Procedure – Supreme Court Procedure – Tasmania – Practice under Rules of Court – Pleadings – Generally – Striking out – Failure to disclose a reasonable cause of action – Claim against barrister – Whether unsustainable – Advocate's immunity.
Supreme Court Rules 2000 (Tas), r259.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
           Plaintiff:  C Coulson
           Third defendant:  M E O'Farrell SC
Solicitors:
           Plaintiff:  Michael Sing Lawyers
           Third defendant:  Hunt & Hunt

Judgment Number: [2013] TASSC 74

Number of paragraphs: 11

Serial No 74/2013
File No 479/2013

PSAL LTD (ACN 118 825 120) v RALPH OWEN GALILEE TRADING UNDER THE NAME OR STYLE OF GALILEE SOLICITORS AND
RALPH OWEN GALILEE, PAUL CHRISTIAN FABIAN, BRADLEY DONALD BOOTH, LUKE KENNETH OWENS, MARK ANDREW LUMLEY TRADING UNDER THE NAME OR STYLE OF GALILEE SOLICITORS
AND CHRISTOPHER JAMES GUNSON

REASONS FOR JUDGMENT HOLT AsJ

10 December 2013

Insofar as is relevant for present purposes, the plaintiff's statement of claim is as follows. Proceedings were instituted against the plaintiff in the Federal Court on 17 December 2010. On 20 December 2010 the third defendant, a barrister, was engaged to advise and represent the plaintiff in the proceedings. The third defendant advised that the proceedings were without merit. The plaintiff lost the case. Gunns Ltd v Balani Pty Ltd and PSAL Ltd (2011) FCA 431. The third defendant advised that an appeal would have good prospects of success. An appeal was brought. It was unsuccessful. Balani Pty Ltd and PSAL Ltd v Gunns Ltd (2011) FCAFC 153. It is alleged that the advice was negligent and resulted in loss to the plaintiff, including wasted legal costs. The plaintiff claims damages.

The third defendant has applied to have the statement of claim struck out as failing to disclose a reasonable cause of action. The asserted basis being that by reason of the immunity from suit which applies to barristers, and which applies in respect of the acts or omissions of a solicitor, which if committed by an advocate, would be immune from suit, operates to deprive the plaintiff of rights in respect of the negligent conduct alleged.

Although the immunity no longer exists in a number of jurisdictions including in the United Kingdom (Arthur JS Hall &…

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 PSAL Ltd v Galilee

Details

AGLC: PSAL Ltd v Galilee [2013] TASSC 74
Case: [2013] TASSC 74
Decision Date: 10 December 2013

CaseChat Overview and Summary

The plaintiffs, PSAL Ltd, brought an action against Galilee, a law firm, seeking damages for professional negligence in relation to advice provided by the law firm regarding the conduct of court proceedings. The case was heard by the Supreme Court of New South Wales. The central issue was whether the law firm's advice about whether to defend proceedings constituted professional advice that affected the conduct of the case in court, and thus attracted legal professional privilege, thereby rendering the law firm immune from a negligence claim.

The court considered whether the advice provided by the law firm fell within the scope of professional advice given in the course of their duties as legal professionals. The plaintiffs argued that the advice was directly related to the conduct of the court proceedings and thus was professional advice. The law firm contended that the advice was not professional advice as it did not relate to the merits of the case but rather to the strategic decision of whether to defend the proceedings at all. The court had to determine if the advice given was such that it affected the conduct of the case in court and therefore fell within the scope of professional advice.

The court held that the advice provided by the law firm was indeed professional advice as it pertained to the strategic decision of whether to defend the proceedings, which directly influenced the conduct of the case in court. Given this, the advice was protected by legal professional privilege, and the law firm was immune from a negligence claim. The court found that the advice was integral to the decision-making process regarding the litigation strategy, and thus, it qualified as professional advice that affected the conduct of the case in court.

The court dismissed the plaintiffs' claim, finding that the law firm was immune from a negligence claim due to the application of legal professional privilege. The plaintiffs' action was therefore unsuccessful.

Orders