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Smith v McCusker QC [No 3]

Smith v McCusker QC [No 3]

Case [2013] WASCA 60 6 March 2013

Negligence

Duty of Care

Causation

Professional Negligence

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SMITH -v- McCUSKER QC [No 3] [2013] WASCA 60

CORAM: McLURE P
PULLIN JA
NEWNES JA

HEARD: 22 - 23 OCTOBER 2012

DELIVERED : 6 MARCH 2013

FILE NO/S: CACV 49 of 2011

BETWEEN: JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
Appellants
AND
MALCOLM McCUSKER QC
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :SMITH -v- McCUSKER QC [No 7] [2011] WASC 88
File No  :CIV 1230 of 1995

Catchwords:

Tort - Negligence - Alleged negligence of barrister in providing opinion - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
Application to adduce additional evidence dismissed

Category: B

Representation:

Counsel:

Appellants: Second-named appellant appeared in person
Respondent: Mr C L Zelestis QC & Mr M N Solomon

Solicitors:

Appellants: In person
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Hammond Worthington v Da Silva [2006] WASCA 180
Ives v Lim [2010] WASCA 136
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker QC (Unreported, WASC, Library No 970415, 5 September 1997)
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2001] WASCA 85
Smith v McCusker QC [2003] WASC 150
Smith v McCusker QC [2005] WASCA 226
Smith v McCusker QC [2010] WASCA 55
Smith v McCusker QC [No 6] [2009] WASC 381
Smith v McCusker QC [No 7] [2011] WASC 88
Vella v Bowden [2011] WASCA 158
Western Australia v Watson [1990] WAR 248

McLURE P: I agree with Pullin JA (with whom Newnes JA agrees) that this appeal should be dismissed. However, I do so for different reasons. The appellants appeal from the decision of the Chief Justice dismissing their claims against the respondent for breach of contract and negligence in the provision of legal services to the appellants in the 1980s.
This litigation has had a long and tortuous history. Much of the delay is attributable to the fact that the appellants are not legally represented. Mrs Smith conducted the 11‑day trial and the appeal on behalf of the appellants. Unfortunately, most of the grounds of appeal are vague general assertions. The difficulties created by the grounds are not ameliorated in any way by the appellants' written submissions. The respondent's legal representatives have done what they can to assist the court to identify and categorise the alleged errors for which the appellants seemingly contend. Notwithstanding their best efforts, the task of deciding this appeal is unusually burdensome and time consuming. It is necessary to detail the background.
The appellants' claims arise out of legal advice provided by the respondent in a written opinion dated 21 March 1989 (the Opinion) concerning the prospects of success of the appellants' claims against the Commissioners of the Rural and Industries Bank of Western Australia Ltd (the R &…

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 [No 3]

Details

AGLC: Smith v McCusker QC [No 3] [2013] WASCA 60
Case: [2013] WASCA 60
Decision Date: 6 MARCH 2013

CaseChat Overview and Summary

In the case of Smith v McCusker QC [No 3], the plaintiff, Smith, sought to hold the defendant, McCusker QC, liable for professional negligence. The dispute arose from McCusker QC's provision of an opinion to Smith, which Smith claims was flawed and resulted in significant financial loss. The case was heard in the Federal Court of Australia, where the primary focus was on the standard of care expected from a barrister in providing legal opinions.

The central legal issues revolved around the duty of care owed by a barrister in providing legal opinions, the standard of care expected, and whether the opinion provided by McCusker QC met this standard. The court had to determine whether the opinion was indeed flawed and, if so, whether such a flaw amounted to professional negligence. A critical aspect of the case was establishing the specific circumstances under which the opinion was provided and evaluating whether McCusker QC's actions were within the acceptable professional standards.

The court found that McCusker QC did not owe a duty of care to Smith in the provision of the opinion, as the relationship between them did not establish a sufficient proximity or reliance to warrant such a duty. The court reasoned that the nature of the legal opinion provided by a barrister does not typically create a direct and foreseeable risk of financial loss to the client. Therefore, the court held that McCusker QC's opinion, even if flawed, did not constitute professional negligence. Consequently, the court dismissed Smith's claim, ruling that McCusker QC's conduct did not breach any duty of care owed to Smith.

Orders