BETWEEN: JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
Appellants (Plaintiffs)
AND
MALCOLM JAMES McCUSKER QC
First Respondent (First Defendant)
JOHN GILMOUR QC
Second Respondent (Second Defendant)

Catchwords:

Practice and procedure - Pleadings - Amendment - Appeal against refusal of leave to file amended writ and statement of claim - Appellants in person - Action against legal practitioners as instructing solicitor and senior counsel - Indication by Master that proposed substituted statement of claim should not be allowed to stand - Indication that matter could be disposed of by filing substituted statement of claim and entering judgment for respondents - Adjournment granted to allow appellants to file further material - Further material considered - Judgment entered for respondents dismissing action - Whether pleadings disclosed cause or causes of action

Appeal and new trial - Appeal - Appeal against refusal of leave to file amended writ and substituted statement of claim and entry of judgment dismissing action against respondent legal practitioners - Whether proposed substituted statement of claim disclosed a cause of action

Equity - Fiduciary obligations - Whether respondent legal practitioners constructive trustees of appellants' cause of action against bank - Whether first respondent trustee of information concerning appellants' affairs - Whether pleading disclosed any breach of such trust as to entitle appellants to relief

Torts - Negligence - Pleadings - Particulars - Whether statement of claim disclosed a cause of action in negligence against first respondent - Duties of legal practitioner - Assuming allegations to be true six of numerous particulars disclosed a cause of action

Torts - Negligence - Pleadings - Causation - Whether facts pleaded regarding alleged negligent opinion by first respondent caused loss by Legal Aid Commission terminating grant of legal aid so that appellants lost opportunity for a trial of action against bank

Torts - Negligence - Legal Practitioners - Pleading - Whether matters pleaded disclosed unreasonable delay by first respondent causing the appellants' loss

Limitation of actions - Torts - Negligence - Legal opinion - Writ issued 11 days prior to expiration of limitation period - Claim for damages for negligence in giving legal opinion in 1989 - Whether claim for fraud by way of amendment on 15 April 1997 based on conflict of interest inconsistent with claim for negligence and would delay fair trial - Alternative claim for fraudulent misrepresentation statute barred by Limitation Act 1935 s 38(1)(c)(vi)

Torts - Defamation - Cause of action pleaded by proposed amendment to statement of claim statute barred by Limitation Act 1935 s 38(1)(c)(vi)

Torts - Negligence - Pleading - Facts pleaded did not disclose a cause of action in negligence against the second respondent - Not material that any liability of respondents arose concurrently in contract and in…

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 Smith v McCusker QC

Details

AGLC: Smith v McCusker QC [2000] WASCA 320
Case: [2000] WASCA 320
Decision Date: 30 OCTOBER 2000

CaseChat Overview and Summary

The matter before the court was an appeal brought by the appellants against the refusal of leave to amend their writ and statement of claim. The appellants sought damages from the respondents, who were legal practitioners, for alleged negligence, breach of fiduciary duty, and fraudulent misrepresentation. The trial judge had indicated that the proposed amended statement of claim should not be allowed to stand, and the matter could be disposed of by filing the substituted statement of claim and entering judgment for the respondents. The trial judge granted an adjournment to allow the appellants to file further material, which was subsequently considered. Judgment was entered for the respondents, dismissing the action. The appellants appealed against the refusal of leave to file the amended writ and statement of claim, as well as the entry of judgment dismissing their action against the respondents.
The legal issues before the court included whether the proposed substituted statement of claim disclosed a cause of action, whether the respondents were constructive trustees of the appellants' cause of action against the bank, and whether the statement of claim disclosed a cause of action in negligence against the first respondent. The court also considered whether the appellants' proposed amendment to the statement of claim, alleging fraud by way of conflict of interest, would delay the fair trial and whether the alternative claim for fraudulent misrepresentation was statute-barred under the Limitation Act 1935. Furthermore, the court examined whether the facts pleaded in the statement of claim disclosed a cause of action in negligence against the second respondent.
The court held that the proposed substituted statement of claim did not disclose a cause of action, and the respondents were not constructive trustees of the appellants' cause of action against the bank. The court found that the appellants' proposed amendment to the statement of claim, alleging fraud by way of conflict of interest, would delay the fair trial and was inconsistent with the claim for negligence. Additionally, the alternative claim for fraudulent misrepresentation was deemed statute-barred under the Limitation Act 1935. The court concluded that the facts pleaded in the statement of claim did not disclose a cause of action in negligence against the second respondent. The appeal was dismissed, and the orders of the trial judge were upheld.
The court dismissed the appeal and affirmed the orders of the trial judge, which included the refusal of leave to file the amended writ and statement of claim, and the entry of judgment dismissing the action against the respondents. The appellants' claims for damages against the respondents for negligence, breach of fiduciary duty, and fraudulent misrepresentation were dismissed. The court found that the proposed substituted statement of claim did not disclose a cause of action, and the respondents were not constructive trustees of the appellants' cause of action against the bank. Furthermore, the court held that the appellants' proposed amendment to the statement of claim, alleging fraud by way of conflict of interest, was inconsistent with the claim for negligence and would delay the fair trial. Additionally, the alternative claim for fraudulent misrepresentation was deemed statute-barred under the Limitation Act 1935. Finally, the court concluded that the facts pleaded in the statement of claim did not disclose a cause of action in negligence against the second respondent.

Orders