Appeal Outcome: Special leave dismissed with costs by the High Court, 11 December 2009 s186/2009
New South Wales
Court of Appeal
CITATION: Symonds v Vass [2009] NSWCA 139 HEARING DATE(S): 16 March 2009, 17 March 2009
JUDGMENT DATE:
10 July 2009JUDGMENT OF: Beazley JA at 1; Giles JA at 10; Ipp JA at 47 DECISION: 1. Appeal and cross-appeal allowed.
2. Set aside orders 1 to 8 made by Patten AJ on 13 December 2007.
3. Remit the proceedings to the Common Law Division for a new trial on all issues.
4. Costs of the trial before patten AJ to be in the disposal of the judge conducting the new trial.
5. Respondent pay 70 per cent of the appellants' costs on appeal.CATCHWORDS: CAUSATION - whether respondent’s breaches of duties caused the appellants to suffer damage by losing the opportunity of a better outcome - where appellant clients entered into compromise of their claim following breaches of duties by the respondent solicitor. - PROCEDURE - courts and judges generally - judges - adequacy of reasons for judgment - whether trial judge made express findings of primary fact that exposed a specific chain of reasoning - where trial judge recounted in detail large extracts from the evidence and the transcript. - LEGAL PRACTITIONERS - lawyers - duties and liabilities - whether respondent solicitors breached duties owed to the appellant clients in contract and in tort in preparing the appellants' case for trial. - LEGAL PRACTITIONERS - lawyers - other matters - advocate's immunity - application of the test in D’Orta-Ekenaike v Victoria Legal Aid - where appellant clients entered into compromise of their claim following breaches of duties by the respondent solicitor - finality of litigation principle. LEGISLATION CITED: Fair Trading Act 1987
Trade Practices Act 1974 (Cth)CATEGORY: Principal judgment CASES CITED: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Batard v Hawes (1853) 2 E & B 287
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209
Brittain v Lloyd (1845) 14 M & W 762
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Chamberlain v Ormsby [2005] NSWCA 454
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Coshott v Barry [2009] NSWCA 34
Customs and Excise Commissioners v A [2002] EWCA Civ 1039; [2003] 2 All ER 736
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58; (2004) 62 IPR 184
Donellan v Watson (1990) 21 NSWLR 335
Francis v Bunnett [2007] VSC 527; (2007) 18 VR 98
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Giannarelli v Wraith (1989) 156 CLR 543
Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215
In re…
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- AGLC
- Symonds v Vass [2009] NSWCA 139
- Case
- [2009] NSWCA 139
- Decision Date
CaseChat Overview and Summary
In *Symonds v Vass*, the appellants, former clients of the respondent solicitor, appealed to the Court of Appeal of New South Wales against a decision of Patten AJ. The dispute concerned allegations that the respondent had breached his contractual and tortious duties in preparing the appellants' case for trial, leading to the appellants entering into a compromise of their claim and suffering damage by losing the opportunity of a better outcome.
The Court of Appeal was required to determine whether the respondent's conduct constituted a breach of his professional duties, and crucially, whether any such breaches caused the appellants to suffer loss. A further issue concerned the adequacy of the trial judge's reasons for judgment, specifically whether they exposed a clear chain of reasoning based on express findings of primary fact, or whether they merely recounted extensive evidence. The application of advocate's immunity, as established in *D'Orta-Ekenaike v Victoria Legal Aid*, and the principle of finality of litigation were also relevant considerations.
The Court of Appeal found that the trial judge's reasons were inadequate, failing to provide a discernible basis for his conclusions. The judges were unable to identify a clear chain of reasoning from the findings of fact to the ultimate decision. Consequently, the Court allowed the appeal and cross-appeal, setting aside the orders of the trial judge and remitting the proceedings for a new trial on all issues. The costs of the original trial were to be determined by the judge conducting the new trial, while the respondent was ordered to pay 70 per cent of the appellants' costs on appeal.
The Court of Appeal was required to determine whether the respondent's conduct constituted a breach of his professional duties, and crucially, whether any such breaches caused the appellants to suffer loss. A further issue concerned the adequacy of the trial judge's reasons for judgment, specifically whether they exposed a clear chain of reasoning based on express findings of primary fact, or whether they merely recounted extensive evidence. The application of advocate's immunity, as established in *D'Orta-Ekenaike v Victoria Legal Aid*, and the principle of finality of litigation were also relevant considerations.
The Court of Appeal found that the trial judge's reasons were inadequate, failing to provide a discernible basis for his conclusions. The judges were unable to identify a clear chain of reasoning from the findings of fact to the ultimate decision. Consequently, the Court allowed the appeal and cross-appeal, setting aside the orders of the trial judge and remitting the proceedings for a new trial on all issues. The costs of the original trial were to be determined by the judge conducting the new trial, while the respondent was ordered to pay 70 per cent of the appellants' costs on appeal.
Orders
Orders of the court
1. Appeal and cross-appeal allowed. 2. Set aside orders 1 to 8 made by Patten AJ on 13 December 2007. 3. Remit the proceedings to the Common Law Division for a new trial on all issues. 4. Costs of the trial before patten AJ to be in the disposal of the judge conducting the new trial. 5. Respondent pay 70 per cent of the appellants' costs on appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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