Shaw v Gadens Lawyers - [2010] VSC 7

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 10051 of 2008

JOHN RASHLEIGH SHAW	Appellant
v
GADENS LAWYERS (ABN 29 991 935 627)	Respondent

GADENS LAWYERS (ABN 29 991 935 627)	Appellant
v
JOHN RASHLEIGH SHAW	Respondent

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	15, 16, 17 July 2009
DATE OF JUDGMENT:	27 January 2010
CASE MAY BE CITED AS:	Shaw v Gadens Lawyers
MEDIUM NEUTRAL CITATION:	[2010] VSC 7

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APPEAL – Cross appeals from grant and refusal of leave to appeal from VCAT decision– Application to VCAT for compensation from solicitor under Legal Profession Act2004 (Vic) – Whether ‘civil dispute’ under sub-s 4.2.2(2)(b) of Legal Profession Act2004 (Vic) includes claims unknown to common law - Whether tribunal erred in finding that solicitor was not negligent – Whether tribunal erred by failing to consider claim that solicitor acted unconscionably – Whether tribunal erred in assessment of loss - Legal Profession Act 2004 (Vic) sub-ss 4.2.2(2)(b), 4.3.17(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr S Tatarka	Gadens Lawyers

HER HONOUR:

Appeals

There are appeals before the Court by Mr Shaw and by Gadens Lawyers (‘Gadens’).

On 20 March 2009 an Associate Justice granted leave to Mr Shaw to appeal on three questions from a 6 November 2008 decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). Gadens appeals from that determination.

The three questions were formulated as follows:

(a)Whether the VCAT erred in applying the principles of the law of negligence in determining that [Mr Shaw] had failed to make out any act or omission by [Gadens] entitling him to compensation for pecuniary loss under the provisions of Part 4.2 of the Legal Profession Act 2004.
(b)Whether the VCAT erred in finding that [Gadens] had discharged its duty of care to [Mr Shaw] in circumstances where [Mr Shaw] alleges that he was not specifically advised about the option of seeking injunctive relief in the VCAT to address a rescission notice that had been served by the developer of an apartment that [Mr Shaw] had contracted to purchase and in respect of which [Mr Shaw] had sought [Gadens’] advice.
(c)Whether the VCAT erred in finding that [Gadens] had discharged its duty of care where [Mr Shaw] alleges he was not informed of all the potential consequences of lodging a caveat.

The Associate Justice refused leave to appeal on the following five additional questions (‘the additional questions’), set out in Mr Shaw’s ‘Draft Notice of Appeal’ dated 1 December 2008:

3.Whether [Gadens’] acts or omissions on the facts as found amounted to unconscionable, misleading conduct and/or a breach of an implied contractual requirement to exercise a reasonable standard of care and a breach of contract.
4.Whether the percentage reduction in amount of damages was in accordance with the principles of Malec v JC Hutton and was correct and appropriate on the facts as found.
5.Further and alternatively whether the Malec

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: [2010] VSC 7
Decision Date: 27 January 2010

CaseChat Overview and Summary

The appellant, Shaw, appealed a decision of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed an application for compensation from Gadens Lawyers, the respondent. Shaw sought compensation for alleged negligence and unconscionable conduct by Gadens Lawyers in the handling of a family law matter. Gadens Lawyers cross-appealed VCAT’s refusal of leave to appeal, challenging the tribunal’s findings on the applicability of the Legal Profession Act 2004 (Vic) and its assessment of loss.

The central legal issues before the court were whether the dispute between Shaw and Gadens Lawyers constituted a ‘civil dispute’ under section 4.2.2(2)(b) of the Legal Profession Act 2004 (Vic), the standard of care owed by Gadens Lawyers, and the correctness of VCAT's assessment of loss. Additionally, the court considered whether VCAT erred in failing to address the claim of unconscionable conduct by Gadens Lawyers.

In its judgment, the court found that the dispute did fall within the definition of a ‘civil dispute’ under the Act, clarifying that this includes claims unknown to common law. The court held that VCAT did not err in finding that Gadens Lawyers were not negligent, as the evidence did not support Shaw’s claims. However, the court found that VCAT erred by not considering the claim of unconscionable conduct, which required a fresh hearing. Regarding the assessment of loss, the court determined that VCAT did not err in its assessment. Consequently, the court allowed Shaw's appeal in part, set aside VCAT’s decision on unconscionable conduct, and remitted the matter to VCAT for further consideration.

The final orders of the court were that Shaw’s appeal was partly upheld, VCAT’s findings on unconscionable conduct were set aside, and the matter was remitted to VCAT for further hearing and determination of the unconscionable conduct claim. The cross-appeal by Gadens Lawyers was dismissed.

Orders