The Solicitors' Trust v Oxenbould - [2013] TASFC 2

[2013] TASFC 2

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: The Solicitors' Trust v Oxenbould [2013] TASFC 2

PARTIES: THE SOLICITORS' TRUST
v

OXENBOULD, Michelle Kay (as trustee of the Trust No 1)
BURLEY, Victoria Rose (as trustee of the Trust No 2)

FILE NO/S: 1046/2011
JUDGMENTS

APPEALED FROM: Oxenbould v The Solicitors' Trust [2011] TASSC 57
Oxenbould v The Solicitors' Trust (No 2) [2011] TASSC 63

DELIVERED ON:                1 February 2013
DELIVERED AT:                Hobart
HEARING DATE:              23 August 2012
JUDGMENT OF:                 Crawford CJ, Tennent and Wood JJ

CATCHWORDS:

Professions and Trades – Lawyers – Fidelity and guarantee funds – Claims against fund – Tasmania – Claims made under Legal Profession Act 1993 – Act repealed by Legal Profession Act 2007 – Claims rejected after the repeal – Which Act applied – Effect of transitional provisions – Whether Solicitors' Trust had a discretion to accept or reject claims – Entitlement to interest and costs.
Legal Profession Act 1993 (Tas), s114(3).
Legal Profession Act 2007 (Tas), ss381, 382, 388(6); Sch9, cls 23(2), 38(3).
Aust Dig Professions and Trades [1192]
Statutes – Acts of Parliament – Interpretation – Interpretation Acts and provisions – Preservation of rights, liabilities and legal proceedings on amendment, repeal, lapsing etcetera of Act or provision – Accrued right, privileges and liabilities – Right to claim compensation from Solicitors' Guarantee Fund – Claims made under Legal Profession Act 1993 – Act repealed – Claims rejected under the repealing Legal Profession Act 2007 – Which Act applied – Effect of transitional provisions.
Acts Interpretation Act 1931 (Tas), s16(1).
Legal Profession Act 2007 (Tas), Sch9, cls 23(2), 38(3).

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, referred to.

Aust Dig Statutes [1053]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell SC
             Respondents:  J Elliott SC, S Stuckey
Solicitors:
             Appellant:  Blissenden Lawyers
             Respondents:  Wallace Wilkinson & Webster

Judgment Number: [2013] TASFC 2
Number of paragraphs: 126

Serial No 2/2013
File No 1046/2011

THE SOLICITORS' TRUST v MICHELLE KAY OXENBOULD (as Trustee of the Trust No 1) and VICTORIA ROSE BURLEY (as trustee of the Trust No 2)

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  TENNENT J
  WOOD J
  1 February 2013

Orders of the Court

Both the appeal and cross-appeal are allowed in part.

The further hearing of the appeal and the cross-appeal is adjourned for submissions as to what directions, if any, should be given to the appellant concerning the terms and conditions it should impose on the acceptance of the claims and as to the terms of the Court's orders.

Serial No 2/2013
File No 1046/2011

THE SOLICITORS' TRUST v MICHELLE KAY OXENBOULD (as Trustee of the Trust No 1) and VICTORIA ROSE BURLEY (as trustee of the Trust No 2)

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  1 February 2013

There is an appeal and a…

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.

Keep reading for free

Create a free CaseChat account to read The Solicitors' Trust v Oxenbould and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] TASFC 2
Decision Date: 1 February 2013

CaseChat Overview and Summary

The Solicitors' Trust (the appellant) appealed to the Full Court of the Supreme Court of Tasmania against a decision of a single judge, and Mr Oxenbould (the respondent) cross-appealed. The dispute concerned the respondent's entitlement to payment from the Solicitors' Fidelity Fund, established under the *Legal Profession Act 1993* (Tas), for losses allegedly suffered due to the dishonest conduct of a solicitor. The *Legal Profession Act 1993* was repealed and replaced by the *Legal Profession Act 2007* (Tas) before the respondent's claims were finally determined.

The central legal issues before the Full Court were: (1) which of the two Acts governed the respondent's claims; (2) whether the Solicitors' Trust had a discretion to reject claims that were validly made under the repealed Act but processed after the commencement of the new Act; and (3) the entitlement of the respondent to interest and costs.

The Court reasoned that the transitional provisions of the *Legal Profession Act 2007* were critical. It held that the repeal of the 1993 Act did not extinguish existing rights to make claims against the Fidelity Fund, and that the 2007 Act preserved these rights, albeit subject to its own provisions. The Court found that the Solicitors' Trust did not have an unfettered discretion to reject claims that had been validly lodged under the repealed Act. However, the Court also determined that the Trust retained a discretion regarding the terms and conditions upon which it might accept such claims.

Consequently, both the appeal and the cross-appeal were allowed in part. The Court adjourned the further hearing of the appeal and cross-appeal to allow for submissions on the specific directions to be given to the appellant concerning the terms and conditions for accepting the claims, and on the precise terms of the Court's orders.

Orders

Orders of the court

1. Both the appeal and cross-appeal are allowed in part.

2. The further hearing of the appeal and the cross-appeal is adjourned for submissions as to what directions, if any, should be given to the appellant concerning the terms and conditions it should impose on the acceptance of the claims and as to the terms of the Court's orders.

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.