Weller v Phipps

[2011] HCATrans 282

[2011] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S319 of 2010

B e t w e e n -

HERBERT WELLER

Applicant

and

MARK PHIPPS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 11.14 AM

Copyright in the High Court of Australia

MR P.G. MAIDEN, SC:   May it please the Court, I appear with my learned friend, MR T.J. BOYD, for the applicant.  (instructed by Cameron Gillingham Boyd)

MR L. KING, SC:   May it please the Court, I appear for the respondent.  (instructed by CKB Partners)

GUMMOW J:   Yes, Mr Maiden.

MR MAIDEN:   Yes, thank you, your Honour.  Your Honours, there are two short matters that we submit are appropriate for leave.  The first one relates to the function of the trial judge in assessing the actions or inactions of a legal practitioner.  The second matter, your Honours, relates to the application of the Civil Liability Act 2002 (NSW) and specifically in relation to sections 5B and 5O. In respect of the facts of this matter, the facts are straightforward and not in any substantial disagreement. Significantly, a solicitor, having received instructions in respect of proceedings for possession, did not obtain counsel’s advice when others would have seen the issue of estoppel arising at that point of time.

The solicitor was supported by an expert who gave evidence which was, we submit, relevant to, firstly, the question of breach under section 5B of the Act and 5O as well.  Your Honours, the particular pages of the book, I think, can be summarised as pages 76 point 10, paragraph 61, 78 point 15, 67 and 80 point 20, 74.  We see those paragraphs as the critical matters from which the Court of Appeal came to their decision. 

HAYNE J:   Is included in those paragraph 75 at page 80?

GUMMOW J:   And 66?

MR MAIDEN:   Yes, your Honour, that is leading up to – well, they are the summaries, but those paragraphs – page 76 point 1, that is Mr Dempsey’s submissions – are set out there in the Court of Appeal and the earlier page is the summary of the points that came before, as the Court of Appeal saw it, as the matters for argument there.  Your Honours, if I could just quickly deal with those particular paragraphs that I have identified.  If I could go to 76 point 10 firstly.  That is Justice Hodgson indicates that:

There was no evidence that the application of that standard required Mr Weller to provide advice by 31 July 2003, or that a competent solicitor in Mr Weller’s position would have been alerted to the threshold estoppel issue.

If I could just stop there for the moment.  We say that Ms Suttor, who was the solicitor expert who gave evidence on behalf of Mr Weller, gave evidence not only on the defence provided by section 5O, but also in respect of the first question, that is, of breach, that is, what would a solicitor in the circumstances of the applicant have found him or herself at that point of time?  We all have our views as to what matters should or should not have alerted the solicitor.  However, we say that in respect of the practice that was set out by the expert that it then raised the question of how the trial judge and then the Court of Appeal assessed the position of the lawyer, being the judge, relying on his or her experience to judge the conduct of the solicitor?

Now, it follows that there are no cases that I am aware of since 2002 in respect of the solicitor expert, bearing in mind the various decisions that had been set out in the judgment of what is open to a judge to do or not do regarding the negligence of a solicitor.  However, we submit that in this case where there is clear evidence by an expert that the practice that the solicitor did, that was to delay briefing of counsel until he had obtained the instructions and the material that would be relevant to a defence or cross‑claim to proceedings in possession, was open and supported by the expert.  I repeat, that goes to breach and it goes to the defence. 

We submit that in respect of the conduct of the solicitor, set out at pages 78, 79 and 80, that this case is an appropriate vehicle for this honourable Court to consider in relation to the change of the common law position.  There do not appear to be any cases that Justice Hodgson in his judgment referred to that were post‑2002 relating to the circumstances and how a judge should approach, bringing his or her experience of solicitors’ practice or legal practice to assessing the negligence of a practitioner. 

In respect of the matter of section 5O, we respectfully submit that leave is required to assist trial judges in looking at the evidence afforded by way of defence by that particular section and we say that Ms Suttor’s report did go to the first question of the two areas of finding against the solicitor.  One is identifying the estoppel issue and, secondly, of the delay.  So in summary, it comes down, should the solicitor have acted straightaway to avoid costs being incurred by the client and presenting one brief to counsel at point of time or going possibly to an earlier time for the short advice on the estoppel issue?  Ms Suttor’s evidence was clear that, in her view, it was open to the solicitor to gather all the appropriate evidence before briefing counsel.  Your Honours, they are the two matters that we say are relevant to this application.  Thank you.

GUMMOW J:   Thank you.  We do not need to call on you, Mr King.

This case turned upon its particular facts.  We see no error in the conclusions reached by the New South Wales Court of Appeal, particularly in paragraph 75 of the reasons.  Special leave is refused with costs.

AT 11.22 AM THE MATTER WAS CONCLUDED