Sweeney v Attwood Marshall - [2003] QCA 348

SUPREME COURT OF QUEENSLAND

CITATION:

Sweeney v Attwood Marshall [2003] QCA 348

PARTIES:

PETER JOHN SWEENEY
(plaintiff/appellant/cross-respondent)
v
ATTWOOD MARSHALL (a firm)
(defendant/respondent/cross-appellant)

PETER JOHN SWEENEY
(plaintiff/respondent)
v
ATTWOOD MARSHALL (a firm)
(defendant/appellant)

FILE NO/S:

Appeal No 9256 of 2002
Appeal No 9262 of 2002
SC No 1410 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2003

JUDGES:

McPherson JA, White and Fryberg JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

In Appeal No 9256 of 2002: appeal dismissed with costs
In Appeal No 9262 of 2002: appeal dismissed with costs

CATCHWORDS:

PROFESSIONS AND TRADES – Lawyers – Solicitor and client – Duties and liabilities to client – Transactions and proceedings on behalf of client – Exercise of skill – Liability for negligence – What constitutes negligence – Failure to prosecute action within limitation period – Consequent dismissal – Proceedings against solicitor – Assessment of plaintiff’s prospects of success – Whether plaintiff could have succeeded in proving negligence

PROFESSIONS AND TRADES – Lawyers – Solicitor and client – Duties and liabilities to client – Transactions and proceedings on behalf of client – Exercise of skill – Liability for negligence – Damages – Method of assessment – Chances of success in action not brought within time

Johnson v Perez (1987) Aust Torts Reports ¶80-146, followed
Kitchen v RAF Association [1958] 2 All ER 241, followed

COUNSEL:

G R Mullins for the appellant in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002
K N Wilson SC for the respondent in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002

SOLICITORS:

Quinn & Scattini for the appellant in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002
McInnes Wilson for the respondent in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002

McPHERSON JA: I agree with the reasons of Fryberg J. The appeal and cross-appeal should each be dismissed.

WHITE J: I have had the advantage of reading the reasons for judgment of Fryberg J and agree with his Honour that the appeal and cross appeal should be dismissed.

I had thought that the language chosen by the learned trial judge to describe the appellant’s chances of success on each of the five bases of negligence advanced such as “very slender”, “very difficult…to persuade a Court”, “slender if any prospect” and “a Court would reject the plaintiff’s contention” as indicating an intention to find that the appellant would have had no chance of success in the putative trial. But since his Honour estimated the appellant’s chance at about one-third it is clear that he accumulated the possibilities inherent (if only slightly so) in those expressions. It is clear that his Honour therefore did not conclude that…

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: [2003] QCA 348
Decision Date: 15 August 2003

CaseChat Overview and Summary

Sweeney v Attwood Marshall was a legal dispute involving a client, Sweeney, and his former solicitor, Attwood Marshall. Sweeney sought to hold Attwood Marshall liable for professional negligence, claiming that the solicitor failed to prosecute a case within the relevant limitation period, resulting in its dismissal. Sweeney argued that Attwood Marshall's negligence was the cause of the dismissal and that he had a strong chance of success in the underlying action had it been prosecuted in time. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether Attwood Marshall had breached its duty to Sweeney by failing to prosecute the case within the limitation period, and if so, whether Sweeney could have succeeded in proving negligence. The court had to determine the standard of care expected of a solicitor in such circumstances and whether Sweeney had a viable case that could have been successful had it been prosecuted on time. Additionally, the court needed to assess the damages, specifically the lost chance of success, in the context of the statutory limitation period.

The Supreme Court of Victoria dismissed Sweeney's claims. The court held that Attwood Marshall had not been negligent in failing to prosecute the case within the limitation period, as the decision not to proceed was based on a reasonable assessment of the merits. The court also found that Sweeney had not demonstrated a strong chance of success in the underlying action, which was a critical factor in assessing the damages for the lost chance of success. Consequently, the appeals were dismissed with costs awarded to Attwood Marshall.

The final orders of the court were the dismissal of both appeals with costs awarded to Attwood Marshall. This outcome underscores the importance of the client's ability to demonstrate a viable case and the likelihood of success in claims against solicitors for professional negligence.

Orders

Orders of the court

In Appeal No 9256 of 2002: appeal dismissed with costs

In Appeal No 9262 of 2002: appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sweeney v Attwood Marshall [2003] QCA 348
PARTIES:	PETER JOHN SWEENEY (plaintiff/appellant/cross-respondent) v ATTWOOD MARSHALL (a firm) (defendant/respondent/cross-appellant) PETER JOHN SWEENEY (plaintiff/respondent) v ATTWOOD MARSHALL (a firm) (defendant/appellant)
FILE NO/S:	Appeal No 9256 of 2002 Appeal No 9262 of 2002 SC No 1410 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2003
JUDGES:	McPherson JA, White and Fryberg JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	In Appeal No 9256 of 2002: appeal dismissed with costs In Appeal No 9262 of 2002: appeal dismissed with costs
CATCHWORDS:	PROFESSIONS AND TRADES – Lawyers – Solicitor and client – Duties and liabilities to client – Transactions and proceedings on behalf of client – Exercise of skill – Liability for negligence – What constitutes negligence – Failure to prosecute action within limitation period – Consequent dismissal – Proceedings against solicitor – Assessment of plaintiff’s prospects of success – Whether plaintiff could have succeeded in proving negligence PROFESSIONS AND TRADES – Lawyers – Solicitor and client – Duties and liabilities to client – Transactions and proceedings on behalf of client – Exercise of skill – Liability for negligence – Damages – Method of assessment – Chances of success in action not brought within time Johnson v Perez (1987) Aust Torts Reports ¶80-146, followed Kitchen v RAF Association [1958] 2 All ER 241, followed
COUNSEL:	G R Mullins for the appellant in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002 K N Wilson SC for the respondent in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002
SOLICITORS:	Quinn & Scattini for the appellant in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002 McInnes Wilson for the respondent in Appeal No 9256 of 2002 and for the respondent in Appeal No 9262 of 2002