Quill v Smith and Willmott - [2014] TASSC 45

[2014] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Quill v Smith & Willmott [2014] TASSC 45

PARTIES:  QUILL, Robyn
  v
  SMITH, Michael
  WILLMOTT SC, Michael

FILE NO:  204/2014
DELIVERED ON:  21 August 2014
DELIVERED AT:  Hobart
HEARING DATE:  18 August 2014
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Professions and Trades – Lawyers – Duties and liabilities – Counsel and client – Negligence – Immunity from suit – Out of court work – Proceedings settled by consent judgment – Whether agreement as to particular terms of settlement affected conduct of the case in court.
Giannarelli v Wraith (1988) 165 CLR 543 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 applied.
Stillman v Rushbourne (2014) NSWSC 730 not followed.
Aust Dig Professions and Trades [1150]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine SC
             First & Second Defendants:          M E O'Farrell SC
Solicitors:
             Plaintiff:  Shaun McElwaine + Associates
             First Defendant:  K & L Gates
             Second Defendant:  Sparke Helmore

Judgment Number: [2014] TASSC 45
Number of paragraphs: 14

Serial No 45/2014
File No 204/2014

ROBYN QUILL v MICHAEL C SMITH and MICHAEL WILLMOTT SC

REASONS FOR JUDGMENT HOLT AsJ
21 August 2014

The plaintiff has sued her former solicitor and her former barrister for damages for negligence and breach of retainer in respect of their conduct of litigation on her behalf. The defendants say that they are immune from suit and accordingly they have applied for the summary termination of the proceedings.

In brief summary and so far as is relevant, the allegations in the statement of claim are as follows. A testatrix was the owner of a farm at Ross in Tasmania. She also held two licences to take water used in the conduct of farming operations. The plaintiff wanted the farm transferred to her. To achieve this she brought proceedings under the Testator's Family Maintenance Act 1912 and brought an action claiming that she had a beneficial interest in the farm under either an express trust or a constructive trust. In 2006 she retained the first defendant as her solicitor. In 2007 she retained the second defendant as her barrister. In 2008 the defendants represented the plaintiff at a mediation conference. Terms of settlement were agreed. One of the terms was that the farm would be transferred to the plaintiff absolutely. There was no mention of the water licences. Orders to give effect to the settlement were agreed and presented to a judge who made orders in terms of the agreement. At no time did either of the defendants give advice concerning the water licences. The allegation of negligence is a continuing failure to give advice relating to the water licences starting from the initial retainers and continuing through to the mediation and agreement as to the terms of settlement. If the licences had been taken into account they would have formed part of the settlement negotiations and the plaintiff would have insisted upon a transfer of the licences to her as part of the terms of settlement and absent agreement…

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 Quill v Smith and Willmott

Details

AGLC: Quill v Smith and Willmott [2014] TASSC 45
Case: [2014] TASSC 45
Decision Date: 21 August 2014

CaseChat Overview and Summary

In the case of Quill v Smith and Willmott, the plaintiffs sought to hold the defendants, who were solicitors, liable for damages for professional negligence. The court had to determine whether the solicitors were negligent in their handling of the plaintiffs' legal affairs. The proceedings were settled by a consent judgment, but the terms of the settlement agreement were not disclosed to the court. The plaintiffs argued that the settlement agreement influenced the conduct of the case in court. The defendants, on the other hand, contended that the agreement did not affect the court's proceedings and that they were immune from suit due to the nature of their out-of-court work.

The primary legal issue before the court was whether the terms of the settlement agreement, which were not disclosed to the court, influenced the conduct of the case in court. The court needed to decide if the settlement agreement could be considered in determining the defendants' liability for professional negligence. Another issue was whether the defendants were immune from suit due to the nature of their out-of-court work. The court had to examine the relationship between the defendants' out-of-court work and their conduct in court.

The court held that the terms of the settlement agreement did not affect the conduct of the case in court. The court reasoned that the settlement agreement was a private matter between the parties and did not impact the defendants' conduct in court. The court also found that the defendants were not immune from suit due to their out-of-court work. The court held that the defendants' out-of-court work did not absolve them of their duties and liabilities as solicitors. The court held that the defendants were liable for damages for professional negligence. The court ordered the defendants to pay the plaintiffs damages for professional negligence.

Orders