Weller v Phipps - [2010] NSWCA 323

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Weller v Phipps [2010] NSWCA 323

FILE NUMBER(S):
2009/298420

HEARING DATE(S):
26 August 2010

JUDGMENT DATE:
30 November 2010

PARTIES:
Herbert WELLER (appellant)
Mark Edwin PHIPPS (respondent)

JUDGMENT OF:
Beazley JA Hodgson JA Young JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1648/2007

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

LOWER COURT DATE OF DECISION:
26 June 2009

COUNSEL:
M DEMPSEY SC/ T J BOYD (appellant)
S M BARRY (sol.) (respondent)

SOLICITORS:
David Hooper (appellant)
CKB Partners (respondent)

CATCHWORDS:
LEGAL PRACTITIONERS – Solicitors – Plaintiff obtains order under Family Provision Act 1982 for provision from estate consisting of a house – Plaintiff subsequently seeks advice from solicitor on a claim to the house on the basis of a promise by the deceased and/or estoppel – Costs and liability for estate’s costs incurred over ensuing eight months – Whether solicitor negligent in not previously advising plaintiff, or obtaining counsel’s advice, to the effect that any such claim was hopeless by reason of issue estoppel and/or Anshun estoppel – Whether expert evidence required for court to reach such a view.

LEGISLATION CITED:
Civil Liability Act 2002 s 5O
Family Provision Act 1982

CATEGORY:
Principal judgment

CASES CITED:
Amadio Pty Ltd v Henderson (1998) 81 FCR 149
Attard v James Legal Pty Ltd [2010] NSWCA 311
Fox v Everingham (1983) 76 FLR 170
Hawkins v Clayton (1988) 164 CLR 539
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Jennings v Zilahi-Kiss (1972) 2 SASR 493
Moy v Pettman Smith (a firm) [2005] UKHL 7; [2005] 1 WLR 581
Neagle v Power [1967] SASR 373
Permanent Trustee Australia Limited v Boulton (1994) 33 NSWLR 735
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Rabelais Pty Limited v Cameron [1993] ANZ Conv Rep 457
Waimond v Byrne (1989) 18 NSWLR 642
Yates Property Corporation v Boland (1998) 85 FCR 84

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

- 32 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298420
DC 1648/2007
BEAZLEY JA
HODGSON JA
YOUNG JA
30 NOVEMBER 2010

Herbert WELLER v Mark Edwin PHIPPS

Judgment

BEAZLEY JA: I agree with Hodgson JA.
HODGSON JA: On 26 June 2009, Charteris DCJ gave his decision in proceedings in which the respondent Mr Phipps had sued the appellant Mr Weller for damages for breaches of his duties as Mr Phipps’ solicitor. In that decision, the primary judge gave a verdict and judgment for Mr Phipps for $40,489.00 and made costs orders in his favour.
Mr Weller sought leave to appeal from that decision, and on 4 February 2010 leave to appeal was granted.
Outline of facts
I will begin with an outline of facts not in dispute or clearly proved.
From about 1983, Mr Phipps had lived in his grandmother’s house at Richmond; and prior to her death on 20 February 2000 at the age of 100, he had been caring for her for a number of years.
Apart from money on deposit in a bank, the house at Richmond was the only significant asset in the grandmother’s estate. The grandmother’s will gave her whole estate to her two daughters; one being Mr Phipps’ mother, and it appointed them her executors. However, after the grandmother’s death Mr Phipps continued to reside in the house; and on 8 September 2000, he commenced proceedings under the Family Provision Act 1982 (since repealed) against the executors.
Mr Weller represented Mr Phipps in those proceedings. In his affidavit sworn on 3 April 2002 and used in those proceedings, Mr Phipps deposed to a conversation with his grandmother in 1993 to the effect that she was going to give her house to him.
The Family Provision Act proceedings were heard on 24 February 2003, and on 30 May 2003, Master McLaughlin gave his decision in them. He determined that the estate consisted of one substantial asset, being the house, which was valued at $800,000.00 in December 2002. He noted that, by reason of the costs of the proceedings, the house would have to be sold. He ordered that there be a legacy of $150,000.00 to Mr Phipps from the estate, and that his costs be paid out of the estate.
On 6 June 2003, the executors’ solicitors wrote to Mr Weller requesting that Mr Phipps vacate the property by 20 June 2003, pointing out that the property had to be sold.
On 20 June 2003 there was a conference between Mr Phipps and Mr Weller. Mr Phipps said that he wanted to bring a claim in quantum meruit and/or express or implied agreement, claiming an interest in the house; and he was requested to make a detailed statement concerning the express agreement. The possibility of appeal from the Family Provision Act decision was discussed.
On 23 June 2003, a six-page letter from Mr Phipps to Mr Weller noted that an appeal in the Family Provision Act proceedings had no prospects, and gave details of Mr Phipps’ dealings with the grandmother. A further such letter, now seven pages, giving expanded details, was sent on 21 July 2003.
On 22 July 2003, there was a telephone conversation between Mr Phipps and Mr Weller. Mr Phipps referred to a letter passing between solicitors acting for the individual executors concerning obtaining possession from him, and he said he was drafting his statement.
On 30 July 2003, there was a conference between Mr Phipps and Mr Weller in which Mr Phipps brought his statement as prepared that far; and a fee disclosure letter was produced from Mr Weller to Mr Phipps. Mr Weller estimated his fees up to and including the first hearing date of new proceedings at $25,240.00.
On 29 August 2003, there was a letter from the executors’ solicitors to Mr Weller advising that they were about to brief counsel regarding a proposed application for possession of the house, and advising that this would result in further costs which they would seek against Mr Phipps. On 2 September 2003, Mr Weller sent Mr Phipps a copy of this letter, and asked for instructions as to whether he wished to commence proceedings claiming an interest in the property. On the same day there was also a conference between Mr Weller and Mr Phipps.
Between 12 and 16 September 2003, Mr Weller was working on drafting an affidavit for Mr Phipps.
On 3 October 2003, a statement of claim seeking possession was issued by the executors. In phone conversations on 16 and 17 October, Mr Phipps advised Mr Weller that he had received this statement of claim.
On 17 October 2003 Mr Weller had a conference with a barrister Dominic Williams. He gave Mr Williams a copy of Mr Phipps’ draft statement, but not of Master McLaughlin’s judgment.
On 21 October 2003, Mr Williams provided a memorandum of advice, which included the following:
1.I have read the Statement of Claim and Statement by Mr. Mark Phipps. Mr. Phipps has a possible defence based on the doctrine of promissory estoppel. More detailed instructions will be needed in this respect as the two elements to succeed in a defence based on promissory estoppel is firstly that there must be an unequivocal promise and secondly the person must have relied on such promise and acted to his detriment so as to put himself at a disadvantage as a result of the representation.
2.Based on the Statement by Mr. Phipps there has been a promise made by the late Mrs. Edith Knott on at least three or four occasions that because Mr. Phipps was caring for her she would change her Will to leave him the house. It is not entirely clear to me that Mr. Phipps as a result of such promise altered his behaviour or continued to care for her thus acting to his detriment in reliance on the promise as he had already commenced caring for her in any event.
…..
4.As Mr. Phipps did take proceedings under the Family Provisions Act and was awarded the sum of $150,000.00 it would be relevant in considering the remedies to which he may be entitled to consider the decision in those proceedings. Would you please let me have a copy of the Judgment of the Court as soon as possible. My instructions are that he received $150,000.00 after a hearing in which the Richmond house was valued at $800,000.00. You might also advise what were the assets of the Estate.
…..
6.A Notice of Appearance must be filed within fourteen (14) days after service. A Defence should be filed within twenty-eight (28) days. Under Part 15.15 in proceedings for possession of land a Defendant must specifically plead every ground of Defence on which he relies and not simply state that he is in possession of the land. Equitable estoppel must be specifically pleaded: Laws Holdings Pty. Limited v. Short [1972] 46 ALJR 563 at 571. Generally in recent authorities a person will be only estopped if there is some unconscionable component, i.e. the person will be only estopped if it would be unconscionable to depart from the assumption relied upon by him. This now seems to be the touchstone for all relevant forms of estoppel: Commonwealth of Australia v. Verwayen [1990] 170 CLR 394 at page 409 ff, 431 ff, 453-500.
7.Would you please take instructions from your client on exactly in what manner he says he altered his position or for that matter continued to act in a way which was detrimental or a disadvantage to himself as a result of representations by his grandmother. You should let me have that Statement for my Brief as soon as possible. I will then draft the necessary Defence.
On 24 October 2003 Mr Weller sent Mr Williams a copy of Master McLaughlin’s judgment, a list of the assets of the estate and an additional statement from Mr Phipps; and on 28 October 2003, Mr Weller filed an appearance in the possession proceedings.
On 6 November 2003 there was a further memorandum of advice from Mr Williams given to Mr Weller. That advice included the following:
1.Further to my Advice dated 21 October 2003 I have given further consideration to the matter in the light of the Judgment.
2.What concerns me is that the Mr. Phipps has made an Application under the Family Provisions Act which is one cause of action when he also had a second cause of action for either promissory estoppel and/or straight out contract whereby he was promised the home in return for his services as a carer for his grandmother.
3.The Plaintiffs in the present action in the possession list will no doubt say that Mr. Phipps has made an election to pursue one cause of action and thereby abandoned his possible cause of action based on promissory estoppel and/or contract. The Court in those circumstances may hold that he has waived his rights.
4.The other problem for Mr. Phipps is a credit issue. Why didn't he raise this previously in his Statements when pursuing a claim under the Family Provisions Act. I endeavoured to contact you yesterday to request that the Statements made by him in those proceedings be sent to me.
5.Mr. Phipps is in a serious predicament as he ought to have raised these matters in the proceedings under the Family Provisions Act. To raise these matters at this stage brings the risk that he will not be believed with the consequent very real risk that he would lose his Defence and Cross Claim in the Possession proceedings at great expense to himself.
6.On the other hand if he did raise these promises and on legal advice chose to proceed under the Family Provision Act, the Court will treat such election as a waiver of his rights. The Court is unlikely to allow him to now have "a second bite of the cherry" by claiming the home. In that regard I draw your attention to paragraph 6 of the Judgment by Master McLaughlin in the Family Provision Act proceedings where he stated:-
It is inevitable that the Windsor Street property must be sold, if only to meet the costs of the proceedings."
7.Obviously Mr. Phipps will not be able to be paid his $150,000.00 plus costs awarded in these earlier proceedings if the house is not sold.
8.In my view it was encumbent [sic incumbent] upon him to raise his contractual and/or promissory estoppel claims in these earlier proceedings. If he did raise the subject with his legal advisers I can only assume that he instructed them to not raise those matters in the Family Provision Act claim, thereby in my opinion waiving his rights to pursue such claims as a Defence to the present claim for possession.
9.In accordance with my instructions I have drafted the following documentation:-
(i) Defence;
(ii) Cross-Claim.
10.Both the Defence and Cross-Claim are arguable. However, in the light of my above Advice I believe that Mr. Phipps would have great difficulty in convincing a Court that he can now proceed on a claim based on promissory estoppel and/or contract given that he has elected to proceed under the provisions of the Family Provision Act.
11.I would be happy for Mr. Phipps to get a second opinion should he choose to proceed with the Defence and Cross-Claim. I note that Mr. Julian Trebeck represented him in the earlier proceedings and I would suggest that it may be appropriate to refer my opinion to him. If he agrees with my views I suggest that Mr. Phipps negotiate a Time Table to vacate the property and co-operate in the sale of the home rather than defending the proceedings at the risk of losing a substantial portion of the compensation he has gained in the earlier proceedings.
There were in evidence notes made by Mr Weller evidencing phone conversations with Mr Williams on 7 November 2003, and with Mr Phipps on 7, 8 and 10 November 2003.
On 10 November 2003, there was a conference between Mr Weller and Mr Phipps dealing with the defence and cross-claim in the possession proceedings and an application to postpone fees to the Supreme Court; and it was noted that Mr Phipps “will now ask the witnesses to write out their draft statements”.
A defence to the possession proceedings was filed on 11 November 2003. The cross-claim was not then accepted for filing because there was no affidavit verifying; but it was ultimately filed on 19 December 2003.
On 5 December 2003, the executors filed a notice of motion seeking to strike out the defence and cross-claim, and seeking judgment for possession of the house.
On 19 December 2003, the Registrar fixed a timetable for dealing with the notice of motion, ordering inter alia that affidavits on behalf of Mr Phipps be filed and served by 15 January 2004.
On 6 January 2004 there was a conference between Mr Williams and Mr Phipps. Mr Williams sent Mr Weller a memorandum of advice concerning the conference, which did not deal with the problems raised in his advice of 6 November 2003, but did recommend the obtaining of an opinion from senior counsel.
On 27 January 2004, Mr Weller wrote to Mr Phipps concerning a possible statement from Mr Phipps’ mother.
On 28 January 2004, the executors’ solicitors wrote a letter to Mr Weller pointing out that Mr Phipps was in breach of the orders of 19 December 2003 in that no affidavit had been served by 15 January 2004.
On 6 February 2004 there was a conference between Mr Weller and Mr Phipps concerning evidence.
On 13 February 2004 a brief was sent to Mr Hallen SC to advise.
On 23 February 2004, there was a conference between Mr Hallen SC and Mr Williams and Mr Phipps, at which Mr Weller did not attend. Mr Hallen advised that the proceedings were doomed to fail. This was confirmed by a written memorandum dated 26 February 2004, referring to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, and also to issue estoppel arising from the determination in the Family Provision Act proceedings that the house was part of the estate. The advice recommended that efforts be made to settle the case, if possible, on the basis that the defence and cross-claim be dismissed, Mr Phipps vacate the property by 30 April 2004 (or some other negotiated date), and that each party pay its own costs.
On 1 March 2004 Mr Williams wrote to Mr Weller advising that Mr Phipps accepted the advice and would give instructions to settle along the lines outlined.
On 2 March 2004 Mr Weller sent Mr Phipps a copy of the joint advice and asked Mr Phipps to contact him.
On 4 March 2004, Mr Phipps wrote to Mr Weller seeking consideration of whether there could be some other cause of action, and of the possibility of briefing other counsel to advise.
At a meeting between Mr Phipps and Mr Weller on 11 March 2004, Mr Weller asked Mr Phipps to draft an amended defence giving effect to matters raised by Mr Phipps. On the same day, Mr Phipps sent a letter to Mr Weller saying he was willing to accept the proposed short minutes of order (prepared with a view to giving effect to the proposed settlement terms), and on 16 March 2004 he faxed his draft amended defence to Mr Williams.
On 17 March 2004, Mr Williams wrote to Mr Weller advising that if Mr Phipps insisted on filing the amended draft defence he would have no option but to return the brief, and recommended settlement on the terms of the short minutes of order.
On 25 March 2004, the executors’ solicitors wrote indicating that the offer to settle on the terms of the short minutes of order was rejected, but offering to settle on the basis that Mr Phipps pay the costs of the proceedings, that the executors make Mr Phipps an ex gratia payment of $5,000.00, and that Mr Phipps leave on the property items of furniture and effects listed in schedule provided.
That offer was not accepted by Mr Phipps. There were further attempts to settle. Ultimately, Mr Phipps vacated the property on 26 July 2004. He became liable to pay the costs of the executors of the proceedings.
Ultimately, Mr Phipps was paid the legacy of $150,000, in two instalments with the final payment being made in March 2005.
On 4 October 2005, Mr Weller rendered an invoice for acting in the possession proceedings for $28,866.30. Subsequently, Mr Weller sued Mr Phipps for those costs in the Local Court, and obtained judgment for $22,180.30.
On 4 April 2007, there was an invoice from the executors’ solicitors for costs in the proceedings in an amount of $29,367.95.
The statement of claim
The amended statement of claim in the proceedings included the following allegation:
11.In the period from May 2003 until 23 February 2004 Weller advised the plaintiff that:-
a.The plaintiff should remain in possession of the Richmond property;
b.That the plaintiff was entitled to bring and had reasonable prospects of success in proceedings to claim ownership of the Richmond property or a declaration that the Executors held the property on trust for the plaintiff;
c.Following the commencement of the Possession Proceedings, that the plaintiff could defend the Possession Proceedings with reasonable prospects of success;
d.That the plaintiff had reasonable prospects of success in a Cross Claim to be filed in the Possession Proceedings claiming relief by way of a transfer to the plaintiff of ownership of the Richmond property together with costs of the Cross Claim;
It went on to allege the following breaches of contract, duty of care and fiduciary duties:
Particulars of Breach:
d.Advising the plaintiff of the matters set out in paragraph 11 of this Statement of Claim.
e.Failing to advise the plaintiff that any claim by the plaintiff to ownership of the Richmond property had to be brought prior to determination of the FPA Proceedings.
f.Failing to advise the plaintiff that the findings by Master McLaughlin in the FPA proceedings that the Richmond property was an asset of the Estate of the Deceased gave rise to an estoppel precluding the plaintiff from claiming the Richmond property as his own pursuant to the principles in Port of Melbourne Authority -v- Anshun (1981) 147 CLR 589;
g.Failing to advise the plaintiff that following the decision of Master McLaughlin in the FPA Proceedings that the plaintiff had no entitlement to remain in the property following notice to vacate by the Executors;
h.Failing to advise the plaintiff that the proposed Defence and Cross Claim in the Possession Proceedings had no prospect of success as a matter of law;
i.Failing to advise the plaintiff that the Defence and Cross Claim in the Possession Proceedings were an abuse of process.
j.Failing to advise the plaintiff that remaining in possession of the Richmond property without any legal right to do so rendered the plaintiff liable to pay mesne profits to the Executors as the owners of the Richmond property;
k.Failing to warn the plaintiff that failing to yield possession of the Richmond property to the Executors of the Estate rendered the plaintiff liable to pay costs of the Executors in any Possession Proceedings.
l.Failing to warn the plaintiff prior to the filing of the Defence and Cross Claim of the advice of Mr Williams of counsel dated 6 November 2003 that:
i.the Defence and Cross Claim had poor prospects of success; and
ii.the plaintiff would have great difficulty in convincing a court that he could proceed on a claim based on promissory estoppel and/or contract given that he had 'elected to proceed under the provisions of the Family Provisions Act'; and
iii.Mr Williams view that the plaintiff ought negotiate time to vacate the premises rather than defend:
iv.Mr Williams' views expressed in paragraphs 2 – 8. 10 and 11 of his advice dated 6 November 2003.
m.Failing to warn the plaintiff prior to the filing of the Defence and Cross Claim of the advice of Mr Williams of counsel dated 6 November 2003 that a second opinion should be obtained by the plaintiff should he wish to proceed with the Defence and Cross Claim.

It alleged consequential loss and damage consisting of the costs liability to the executors, loss of interest on the legacy, fees payable to Mr Weller, and fees payable to other solicitors in relation to the resolution of the possession proceedings.
The defence to that amended statement of claim relied inter alia on s 5O of the Civil Liability Act 2002, which is in the following terms:
5O Standard of care for professionals
(1)A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3)The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Evidence before the primary judge
One important dispute in the evidence before the primary judge arose from evidence of Mr Phipps that at no stage was he shown the advice of Mr Williams of 6 November 2003, nor was this advice discussed; whereas Mr Weller asserted that he showed Mr Phipps this evidence, and also in a telephone conversation told Mr Phipps that there were doubts expressed by Mr Williams and that there was a discussion concerning waiver.
In cross-examination of Mr Weller, it was put to him that, having had the advice of Mr Williams of 6 November 2003, he did not follow that advice; and Mr Weller conceded he did not follow it until 23 February 2004. The following cross-examination also occurred:
Q.Would you please answer this question, you did not seek any advice from any counsel in July 2003 did you?
A.I did not seek advice in July 2003, because--
Q.I didn't ask you a reason--
HIS HONOUR: The witness can answer the question. Yes.
WITNESS: Because his instructions were that he wanted to avoid eviction, we were concerned about the eviction. We were concerned about, not so much his mother, but his aunt taking proceedings to evict him to get him out of the house, and he wanted to avoid that. We were not--
TURNER
Q.Mr Weller--
A.Please let me finish, we were not intending to commence proceedings.
Q.Mr Weller would you agree I did not ask you as to your -about your reasoning process as to why you didn't seek counsel's advice, and that I only sought to have you answer the question whether you sought advice from counsel in July 2003?
A.Well thought my answer was appropriate, if it wasn't appropriate I apologise.
Q.In August 2003 you didn't seek counsel's advice regarding any alternative causes of action did you, that's right, isn't it?
A.I didn't seek counsel's advice, I think by that stage I'd rung a solicitor in Windsor who used to be my partner on a number of occasions to try and discuss these issues with him.
Q.In--
HIS HONOUR: Well have you finished?
TURNER: Your Honour could I deal with that by way of an objection. This is commentary not answering my questions.
HIS HONOUR: I don't agree with you. I allow it. You continue.
WITNESS: I'd rung a solicitor who used to be my partner in the 1980s, and he was a specialist in probate, estate matters, wills matters, I'd rung him on a number of occasions, we'd made arrangements to talk about the matter, but we hadn't actually discussed it.
HIS HONOUR
Q.You said a Windsor solicitor did you sir?
A.Yes. John Mann was his name.
Q.M-A-N-N?
A.Yes. And I think, I can't be precise about it, I can't be certain about this, but I think I rang Julian Trebeck about the possibility of re-opening the case because I think Mark had seen me the day before the judgment, the 29th, I think the judgment was 30 May, I think Mark had seen me on 29 May and he'd raised – he wanted to change his evidence, there were alterations that he wanted to make, I think he raised the issue about his grandmother the promise, which he hadn't raised before. And there was some other things he'd raised in that conference of 29 May. I think, and I range [sic] Julian Trebeck about that.
TURNER
Q.Mr Weller, can I interrupt you there, and just deal with this point. Mr Trebeck advised that there was no prospects of re-opening the evidence, didn't he?
A.He did.
Q.He put that in writing didn't he?
A.He did.
Q.And in the context of this further potential claim you didn't consult him about it did you?
A.No I didn't.
Q.Now going back to the alternative causes of action that you say that Mr Phipps was seeking your advice on, I think I had asked you about July and August, I want to go now to the month of September. You didn't seek advice from any counsel during that period that did you, regarding alternative causes of action, indeed any cause of action?
A.We weren't contemplating a cause of action, we were contemplating avoiding eviction.
Q.You didn't seek advice from counsel about that, did you, during that period?
A.No. There was no need. We hadn't had a summons or a statement of claim.
Other important evidence in the case was given by Pamela Suttor, a solicitor and accredited specialist in wills and estates. Her written advice was based on a statement of assumptions. In relation to the period between 30 May 2003 and 6 January 2004, those assumptions were:
4.By letters dated 12 June 2003 (Exhibit 1), 23 June 2003 (Exhibit 2) and 26 July 2003 (Exhibit 3) Mr Phipps sought further advice from Mr Weller.
5.The Executors of the Estate took proceedings against Mr Phipps for possession of the Richmond property which formed part of the Estate of the deceased. A copy of the Statement of Claim is attached.
6.Mr Weller briefed Dominic Williams of Counsel to advise. A copy of Mr Williams' advice dated 21 October 2003 is attached.
7.Following the advice from Mr Williams, Mr Phipps provided a memorandum dated 23 October 2003 (Exhibit 6), a copy of which is attached.
8.Mr Williams provided a further memorandum of advice dated 6 November 2003 a copy of which is attached.
9.Arrangements were made for Mr Williams to see Mr Phipps in Mr Weller's offices on Tuesday 6 January 2004. At that conference Mr Weller was not available and Mr Williams also saw Mr Phipps' sister Roslyn Faithfull.
The statement set out the questions for opinion as follows:
Whether Mr Weller in the provision of professional services to Mr Phipps acted in a manner that was widely accepted by peer professional practice (Section 5O Civil Liability Act) particularly in the following aspects:
1.Briefing counsel to advise upon receipt of the letters of Mr Phipps dated 4 June 2003, 23 June 2003 and 26 July 2003;
2.Upon instruction from Mr Phipps filing a Defence Cross-Claim and relying upon the advice of Mr Williams;
3.Arranging a conference between Mr Phipps and Mr Williams upon receipt of Mr Williams' advice;
4.Seeking and obtaining a second opinion from Mr Hallen of Senior Counsel bearing in mind Mr Williams' advice; and
5.Continuing to act for Mr Phipps and attempting to settle the proceedings following the receipt of Mr Hallen's advice.
After some discussion, the following opinion was expressed:
Based on the assumed facts, the questions I have been asked and the above discussion I have formed the following opinions as to whether the solicitor acted in a manner that was widely accepted by peer professional opinion as competent professional practice within the terms of Section 5O of the Civil Liability Act to the following extent:
1.It was competent practice to brief counsel to advise on receipt of the letters of Mr Phipps dated 4 June 2003, 23 June 2003 and 26 July 2003.
2.It was competent practice for the solicitor to file a defence and cross-claim upon instruction from Mr Phipps and relying upon the advice of Mr Williams.
3.It was competent practice for the solicitor to arrange a conference between Mr Phipps and Mr Williams upon receipt of Mr Williams' advice.
4.It was competent practice for the solicitor to seek a second opinion from Mr Hallen of Senior Counsel bearing in mind Mr Williams' advice and the instructions of Mr Phipps.
5.It was competent practice for the solicitor to continue to act for Mr Phipps and to attempt to settle the proceedings following the receipt of Mr Hallen's advice.
In cross-examination, Ms Suttor gave the following evidence:
Q.Do you understand Ms Suttor what you are being asked, whether you have had experience of a solicitor, any solicitor over the years being confronted with like circumstances that applied in the subject case?
A.Yes I have had plaintiffs of my own wanting to bring up additional matters after hearing.
TURNER
Q.And no doubt in that case you advised that it was not possible, having regard to the fact there had been a determination on the merits?
A.My recall was I went back to counsel.
Q.In relation to the behaviour of other solicitors you have had no experience of other solicitors confronted with similar problems to this sort of situation have you?
A.I can't recall any particular instance, but on general principles counsel is there to advise on complex matters, counsel is there as the specialist lawyer, dealing with legal principles.
…
Q.I want to suggest to you that what he did instead was went about a process of obtaining detailed statements, that is drafting statements along the lines with a view to preparing affidavits, rather than going to counsel urgently and seeking a short advice on the proposition that the client said he had an agreement with the grandmother, she would leave him the house, but hadn't, can we run another case, that would have been a far simpler and cheaper way of going about this problem?
A. There were certain difficulties with the allegation of the promise. And I think it was appropriate for the solicitor to get to that by getting detailed statement. I have read the documents and it would seem that at the time the alleged promises were made there were problems with the cognitive impairment and the capacity of the deceased, she was about 95 when those promises were made. She had two other adult daughters to whom she owed a moral obligation, there was nothing in writing, and there seemed to be no corroboration. They were all fairly difficult evidentiary issues, and it was appropriate for the solicitor to get proper statements so that the counsel instructed could assess those issues as well, as to the probability of success. Even if he were able to bring some other action.
…..
Q.You are probably right. Mr Phipps was at risk of an urgent eviction application, once the judgment was delivered?
A.All plaintiffs who have been given an amount of money in a Family Provision Act order and who are still in possession of one of the assets are in that situation.
Q.So--
A.That is not sort of novel.
Q.And once a threat was made by the estate solicitors that that was what was going to happen, was it not incumbent upon the solicitor to urgently approach counsel with a view to getting a preliminary view about the prospect of running a further case?
A.I don't think there was the urgency involved, having regard to what we know about the procedure in the Supreme Court, and the times taken, the statements of claim for possession and the possibility of a stay. In other words he does it properly in an appropriate time. If he delayed for a long period of time, well that’s a different question. Here there is nothing to suggest that there was an undue delay.
…..
Q.There was also an exposure to legal costs in relation to a potential eviction suite [sic, suit]?
A.But it was for him to make that choice whether he left or not.
Q.Was it not a matter for the solicitor to advise on, the counsel?
A.Whether he should leave or not?
Q.Well on these issues that I'm speaking about at the moment, mean [sic, mesne] profits, leaving, interest, issues, costs?
A.Well the solicitor gave, would have given him the judgment and the solicitor normally would indicate that it's up to him then to make some other arrangements for his living.
Q.But you would have expected, would you not, that the solicitor would have counselled him about the exposure to mean [sic, mesne] profits if he remained in the premises?
A.All of these things are matters of judgment. It may well have been, and I don't know the answer to this, that the executors were content to have him there while the property was sold. A lot of these things are negotiated subsequently to judgment.
…..
Q.In fact the proceedings were commenced in October 2003?
A. Then it'd become urgent hadn't it?
Q.But bearing in mind that the plaintiff was remaining in possession to the knowledge of the solicitor and bearing in mind that the client was consulting the solicitor about a number of matters including discussions about an agreement with the grandmother, and bearing in mind that the solicitor had correspondence from the executors indicating that there was going to be an application for eviction, even before the judgment was handed down, that is the day before, wouldn't a competent solicitor say knowing the attitude of the executor's solicitors, "you're at risk here if you continue to remain"?
A.He may have said that, if he'd said that it was up to the plaintiff what he did with that advice.
Decision of primary judge
The primary judge did not accept Mr Weller’s evidence that he allowed Mr Phipps to read the advice of 6 November 2003, and the primary judge was not satisfied that Mr Weller conveyed to Mr Phipps the thrust of that advice. He did not find that Mr Weller discharged his duty to Mr Phipps to inform him of the very substantial risks he was running in prolonging the litigation.
On Ms Suttor’s evidence, the primary judge said this:
The defendant called Pamela Suttor, a witness of great experience. Her evidence was going to the issue of the S 5O Civil Liability Act defence. Much of her evidence, however, on occasions crossed the line into giving opinions about the merits of the subject case, in my view. It was her advice that it was appropriate to have briefed counsel. She was assessing the conduct of the defendant, having regard to his being a sole practitioner on the outskirts of Sydney. She herself acknowledged an understanding of the Anshun principle but she differentiated that she was an experienced solicitor with accredited specialist qualifications in that area, and she acknowledged the defendant was to be judged as a competent solicitor practising in Windsor. In her opinion it was not necessary to go to Mr Trebeck. I accept that. But there’s no reason why Mr Trebeck was not asked at a very early stage to express a view. She was excusing of the delay in the matter in my view. That was not strictly a matter for her opinion as I have observed. I am not excusing of that delay. I do not accept that it was timely delivery of professional services to the plaintiff to have no counsel opinion on estoppel issues until early November 2003 five months after the matter was first raised by the plaintiff let alone do I accept that it was timely discharge of the duties of the defendant to have the second opinion of Mr Hallen SC obtained late in February 2004, nine months after that first conference raising the grandmother's promises.
I thought that Miss Suttor was a very experienced witness. I thought she was seeking to give her evidence in an honest and accurate fashion. I accept her conclusions as regards the merits of briefing counsel and the merits of seeking a second opinion. As I have already stated however, I do not accept that the defendant undertook those tasks in a timely manner.
The primary judge made the following findings concerning breach of duty:
I find that when the plaintiff first approached the defendant on 29 May 2003 a competent solicitor in the defendant’s situation would have immediately been alerted to a fundamental or threshold issue, namely, whether the plaintiff's conduct of the FPA proceedings disentitled him from raising his allegations of his grandmother's promises to leave the property to him or her promise to pay from her estate the reasonable cost of his services. Had the plaintiff acted in a prudent and competent fashion he ought, as a matter of urgency, to have addressed that threshold issue. Plainly he failed to do so in a timely fashion. Although eventually he obtained senior counsel's advice that the proposed actions were not maintainable he did not do so in a timely fashion.
…..
As regards the expert evidence called before me I have made observations in relation to that. I have referred to my acceptance of portions of the evidence of that witness Miss Suttor, but accepting that it was prudent to seek an advice from someone more specialised in the field and accepting that it was prudent to obtain a second opinion, in my view, it was not in accordance with the defendant's duties to delay receipt of that opinion. In my view, the defendant must have been aware that he was placing the plaintiff in a position of peril concerning the proposed causes of action. Although not necessarily having a command of legal principles referred to in Anshun and other cases, a solicitor in the position of the defendant would have urgently sought experienced counsel's advice. Although the defendant did so, as I have stressed he did not remotely do so in a timely fashion. I accept, as I have said, Mrs Suttor's opinion as regards acceptable practice in obtaining opinion but I reject her opinion that the competent solicitor would have briefed counsel on the first occasion in October 2003 and obtained a second opinion in February 2004. I reject her suggestion that such behaviour could have been considered timely.
For the reasons I have given I conclude that had the defendant acted with reasonable timeliness in accordance with his duty to the plaintiff, both in contract and tort, I consider that by 31 July 2003, that is two months after the plaintiff first raised the issues of other actions, the necessary advice should have been obtained. I conclude that had that course been followed the plaintiff would have been aware at that time of the hopelessness of his position and eventually would have vacated the premises. I conclude that there would have been no need for the issue of the executor's Statement of Claim. There would have been no need for a defence or cross-claim.
The primary judge awarded damages for loss of interest on the legacy (for nine months, less a set-off for the value of accommodation in the house) of $5,250.00 plus interest of $2,490.00, costs of the executors of the proceedings (discounted to reflect the contribution to these costs by unreasonable conduct of Mr Phipps) of $12,512.00, sixty-five per cent of the costs recovered by Mr Weller of $14,417.00 plus interest $5,820.00; giving a total of $40,489.00.
Issues on appeal
Mr Weller relies on the following grounds of appeal:
1The trial judge erred in finding there was an obligation to give, or arrange for counsel to give, definitive advice by 31 July 2003. There was no basis to imply a term to this effect or to conclude that the duty of care which the appellant owed to the respondent included such an obligation.
2The trial judge erred in finding that the timely delivery of professional services by the appellant to the respondent required those services to be delivered by 31 July 2003 In doing so the trial judge impermissibly took into account his own opinion and did not base his findings on the evidence. The only expert evidence was the evidence of Pamela Suttor and it was not even put to her that the solicitor should have given or arranged for counsel to give advice by 31 July 2003. Indeed in circumstances where there is no issue that there was merit in briefing junior counsel and then senior counsel for a second opinion, such a finding does not accord with the evidence of what is to be expected of a reasonably competent suburban solicitor.
3The trial judge erred in finding breach of contract and negligence in circumstances where:
the respondent had not concluded his statement of instructions to the solicitor until 23 October 2003 (Exhibit Q);
the uncontested evidence that it was proper professional practice of a suburban solicitor such as the appellant to brief counsel;
the solicitor relied on the advice of Mr Williams of counsel who believed the action was justified although difficult (it was not suggested in cross-examination that the advice of Mr Williams could not be reasonably justified);
the uncontested expert evidence of Pamela Suttor that it was competent professional practice for a suburban solicitor such as the appellant to investigate the claims being made by the client, including obtaining corroborative evidence, and to brief counsel to advise (including senior counsel).
4The trial judge erred in finding that any conduct on the part of the appellant was causative of any loss of the respondent, particularly having regard to the following findings of the trial judge:
the respondent was unwilling to take competent advice delivered to him by the appellant and Mr Hallen Sc and Mr Williams;
it suited the respondent to remain in his grandmother's residence;
by refusing to give written instructions to settle the respondent "just prolonged his agony whilst exploring other causes of action";
the fact that final resolution of the litigation was not obtained until 2005 was the fault of the respondent;
the respondent "was very anxious to explore any possibility of his remaining in his grandmother's residence";
the respondent was "dilatory in leaving the residence even after he received Mr Hallen's advice and after Mr Barry's advice";
"... as a result of his contact with Mr Barry [the respondent] was reluctant to settle the litigation by giving instructions to [the appellant] and he was not prepared to sign any undertakings regarding costs which were being pressed on him by [the appellant] and by Mr Williams".
5The trial judge erred in finding that the defence pleaded by the appellant relying on Section 5O of the Civil Liability Act had not been established. The only expert evidence was that of Pamela Suttor who was called by the appellant. Her evidence was to the effect that the appellant acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. There was no expert called by the respondent to the effect that the conduct of the appellant fell short of competent professional practice. There was no suggestion in cross-examination or in submissions that the opinion of the expert Pamela Suttor was irrational. There was no finding that the trial judge considered the opinion of the expert Pamela Suttor irrational.
6The trial judge erred in finding there was any quantifiable loss in circumstances where:
any losses were the result of the respondent's own actions – he would not leave his grandmother's residence and he would not give instructions to settle the litigation;
there is no evidence to demonstrate that the respondent would have taken a different course assuming non-negligent conduct;
the respondent received offsetting benefits in any event by remaining in possession of the grandmother's residence until July 2004;
no loss should be shot home to the solicitor in circumstances where another solicitor provided contrary advice to the client, i.e. not to instruct the solicitor regarding settlement of the litigation.

There is a notice of contention, the substance of which is set out in grounds 12 – 14 as follows:
12.Further or in the alternative the Respondent contends that:
a.The Appellant failed to warn the Respondent that there was a fundamental threshold issue namely whether the Respondent could pursue his claim.
b.The court would accept that the Trial Judge did not make specific findings of the dispute concerning the failure to warn however such a finding in the Respondent's favour implicitly arises from:
i.His Honour's finding at page 21 that the Appellant believes that the causes of action did have good prospects of success;
ii.The objective evidence of the Appellant's activities during that time including preparing draft summonses and affidavits to pursue the Respondent's claim and writing to the Respondent and asking whether the Respondent wished to be the Plaintiff or Defendant concerning the claims;
iii.The Plaintiff's direct evidence on these issues from which he was not shaken by lengthy cross-examination;
iv.The Trial Judge' s general acceptance of the evidence of the Plaintiff, with the exception of the Plaintiff’s evidence on one collateral issue upon which the Trial Judge found the Respondent was mistaken. In particular, the Trial Judge preferred the Respondent's evidence against that of the Appellant on the issue of whether the Appellant had provided the Respondent with a copy of Mr Williams' advice 6 November 2003 or conveyed the thrust of it to the Respondent;
v.To the extent that it could be argued that the Appellant's diary notes supported his version of events, the Respondent submits that the Appellant's diary notes should not be accepted if they support the Appellant's position unless corroborated due to the falsity of at least some of the diary notes.
13.The Respondent contends that in either giving the advice that the causes of action had good prospects of success or in failing to address the threshold issue of whether the Respondent could pursue his claim, that the Appellant failed to exercise reasonable care and skill in the provision of professional advice.
14.The Respondent contends that the Appellant in exercising reasonable care and skill in the provision of professional advice in the period from 29 May 2003 was required to promptly address the threshold issue of whether the Respondent could maintain his claim by either procuring advice from competent counsel or alternatively providing that advice himself. That advice was provided by Mr Hallen SC and Mr Williams in conference on 23 February 2004, nearly nine months after the discussion on 29 May 2003.
As I understand the grounds and submissions, it is convenient to address the following issues:
(1)Did the primary judge err in concluding that Mr Weller breached his duty in failing to address the threshold issue (Anshun estoppel and issue estoppel) in a timely fashion, in particular by failing to obtain counsel’s advice by 31 July 2003, having regard particularly to the pleadings, the circumstance that it was not put to Mr Weller or to Ms Suttor that he should have obtained advice by 31 July 2003, the original advice of Mr Williams, and the evidence of Ms Suttor? (Grounds of appeal 1-3.)
(2)If so, should the primary judge have found that Mr Weller breached his duty in failing himself to warn Mr Phipps that there was such a threshold issue? (Notice of contention.)
(3)In either case, did Mr Weller make out a s 5O defence? (Ground of appeal 5.)
(4)Did the primary judge err in finding that the breach of duty by Mr Weller caused loss to Mr Phipps, having regard to Mr Phipps’ own unreasonable conduct? (Grounds of appeal 4 and 6.)
I note that no point was taken at the trial and no point is taken on appeal as to whether any issue estoppel was raised by the decision in the Local Court to give judgment to Mr Weller for costs of $22,180.30; and accordingly I will not consider that matter in this judgment.
Delay
Mr Dempsey SC for Mr Weller submitted that the relevant standard of care was that of a suburban solicitor, and that the onus was on Mr Phipps to establish what that standard required. 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. The primary judge impermissibly applied his own opinion, uninformed by the evidence.
Mr Dempsey submitted that the issue of delay, on which the primary judge found for Mr Phipps, was not raised by the pleadings, and that it was never put to Mr Weller or to Ms Suttor that Mr Weller should have obtained counsel’s advice by 31 July 2003. He submitted that Mr Williams advised that the proposed defence and cross-claim had reasonable prospects of success, and no criticism was made of his advice. He submitted that the evidence of Ms Suttor was to the effect that the course taken by Mr Weller was reasonable, and the primary judge should not have dismissed that evidence, and he gave no adequate reasons for doing so.
In my opinion, the plaintiff’s statement of claim alleged to the effect that Mr Weller did not (at least prior to 23 February 2004) advise Mr Phipps that he had no claim with any prospect of success that could support his continued occupation of the Richmond house, and that on the contrary at all times (up to that date) had represented to him that he had reasonable prospects of succeeding on such a claim; and that this amounted to a breach of duty that caused the losses particularised. It is true that the statement of claim did not specify any particular time prior to 23 February 2004 when Mr Weller should have advised Mr Phipps that he had no claim (or procured that such advice be given to Mr Phipps), or should have withdrawn his representation to him that he had reasonable prospects of succeeding in such a claim; but in my opinion the question of when these things should have happened was sufficiently raised by the statement of claim.
It is true that initially Mr Williams advised that Mr Phipps had a possible defence to the executors’ claim for possession, and that no criticism was made of Mr Williams. But once Mr Williams had been provided with the Family Provision Act judgment, he promptly advised that those proceedings and that judgment raised serious difficulties for Mr Phipps. It is true that Mr Williams did not identify the core problem of issue estoppel, or even Anshun estoppel, but he did recognise that the proceedings and judgment made it unlikely that Mr Phipps’ claim could succeed.
Although it was not in terms put to Mr Weller or Ms Suttor that Mr Weller should have obtained counsel’s advice by 31 July 2003, or otherwise himself given correct advice by that time, the thrust of the cross-examination of both of them was that Mr Weller should have quickly recognised the threshold problem raised by the Family Provision Act proceedings and judgment, and should have taken action to resolve that problem within a reasonable time, rather than spending several months in seeking to obtain a full statement from Mr Phipps and to obtain statements from other witnesses.
The question then is whether there was evidence supporting the primary judge’s conclusion that there was a breach of duty by Mr Weller, and whether the primary judge was justified in not accepting contrary evidence from Ms Suttor.
In my opinion, there is one matter about which there can be no doubt. Mr Weller had, by his conduct at least, represented to Mr Phipps that it was a worthwhile exercise to incur substantial legal costs in preparing evidence to support a claim for the house, and to incur the risk of loss of interest on the legacy and of liability for legal costs of possession proceedings, while doing so. The advice of Mr Williams given on 6 November 2003 to the effect that it was unlikely that such a claim should succeed should have been promptly conveyed to Mr Phipps; and in my opinion, in circumstances where there was a continuing representation by Mr Weller that the costs and risks were worthwhile, there was an evidentiary onus on Mr Weller to show that he did convey the effect of that advice to Mr Phipps. The primary judge found that this evidentiary onus was not discharged, and no challenge is made on appeal to that finding. It was in my opinion clearly a breach of Mr Weller’s duty to continue, after 6 November 2003, to represent to Mr Phipps that the costs and risks of the continued preparation of his case were worthwhile, without conveying to him the effect of Mr Williams’ advice. Such a finding however would give rise to different questions of causation of damage from those raised by the finding actually made by the primary judge.
There is some force in Mr Dempsey’s submission that there was a lack of evidence as to what was required by the standard of skill and care of a suburban solicitor. However, the case was not being decided by a jury. It is accepted that a specialist tribunal, such as the Workers Compensation Commission that previously existed in New South Wales, can bring specialist knowledge (in the case of the Workers Compensation Commission, knowledge concerning workplace safety) to bear in deciding cases, so long as natural justice is afforded. In my opinion, much the same applies in the case of determination by a judge of what is required by a standard of reasonable skill and care of a legal practitioner.
In Neagle v Power [1967] SASR 373 at 376, Bray CJ considered the necessity of adducing expert evidence to ascertain the standard of care normally exercised by land brokers, and explained:
Such evidence has not been thought necessary in the case of actions against solicitors. The Court presumably knows for itself what the ordinary reasonably prudent and careful solicitor ought to know and to do.
Subsequently, in Jennings v Zilahi-Kiss (1972) 2 SASR 493 at 513, Bray CJ endorsed this statement, saying:
That is true as a general proposition, but expert evidence from solicitors has occasionally been called…There are obviously some mistakes or neglects of which a court can say no reasonably careful solicitor would have been guilty.
Bray CJ’s statement in Neagle v Power has been quoted with approval by the Full Court of the Federal Court of Australia in Fox v Everingham (1983) 76 FLR 170 at 179 (Woodward, Muirhead and Sheppard JJ) and Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 217 (Northrop, Ryan and Merkel JJ); and see also Attard v James Legal Pty Ltd [2010] NSWCA 311 at [131] – [132] (Tobias JA, Beazley and Giles JJA agreeing).
In Waimond v Byrne (1989) 18 NSWLR 642 at 654, Kirby P said:
In default of any evidence as to professional standards or common practice in a situation such as the present, it falls to the court itself to provide its definition of the scope of the duty of care owed by reference to general principles.
This was quoted with approval in Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 at [155] (Malcolm AJA).
In Yates Property Corporation v Boland (1998) 85 FCR 84 at 111, the Full Federal Court (Drummond, Sundberg and Finkelstein JJ) said:
We think that a court is well placed to determine the liability in negligence of a legal practitioner without the aid of such evidence where questions of particular practice do not arise.
The correctness of this approach appears to have been assumed by the High Court of Australia in Hawkins v Clayton (1988) 164 CLR 539.
However, there is authority cautioning against a court coming to its own view without the benefit of expert evidence. In Moy v Pettman Smith (a firm) [2005] UKHL 7; [2005] 1 WLR 581 at [19], Lord Hope said:
Where a claim is brought for professional negligence the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from. No such evidence was adduced in this case. Judges, recalling how things were when they were in practice, no doubt feel confident that they can do this for themselves without evidence. But judges need to be careful lest the decision in the case depends on the standard they would set for themselves. If this were to happen, it would vary from judge to judge and become arbitrary. Considerable weight should therefore be given to the decision of the judge at first instance who heard all the evidence.
Baroness Hale agreed with Lord Hope and added (at [26]):
In claims against members of other professions, the court will have expert evidence on whether their conduct has fallen short of this standard. In cases against advocates, however, the court assumes that it can rely upon its own knowledge and experience of advocacy to make that judgment. This brings, as Lord Hope has pointed out, an obvious risk that a judge will ask himself what he would have done in the particular circumstances of the case. But that is not the test. The doctor giving expert evidence in a medical negligence claim is not asked what he himself would have done, but what a reasonable doctor might have done.
In the present case, the breach as found by the primary judge did not relate to a specialised area of practice. Rather, it related to a solicitor’s failure to identify and communicate a significant obstacle to his client, and a failure to obtain counsel’s opinion to verify the existence of the obstacle. It is something that can reasonably be regarded as a matter of common sense, or, to adopt the phrase of Bray CJ in Jennings v Zilahi-Kiss, a mistake of which a court can say no reasonably careful solicitor would have been guilty.
In my opinion, it was open to the primary judge to consider that a legal practitioner of any degree of expertise, who undertakes litigation work, should have recognised that the existence of a court decision, to the effect that $150,000.00 should be paid to a person out of an estate consisting primarily of a house, could raise a substantial difficulty to a subsequent claim to the house by that person against the estate; and that before substantial costs and risks were incurred in pursuing such a claim, the question of this difficulty should be resolved with reasonable expedition. This issue was raised squarely and openly in the conduct of the case, and in my opinion there was no denial of natural justice in the primary judge taking that view. It is a view with which I agree.
There was evidence from Ms Suttor that could be considered as having a contrary effect. She said in effect that it was appropriate, or at least within reasonable judgment, to complete the process of obtaining statements before obtaining counsel’s advice as to the prospects of success. There is a question whether or not expert witnesses can give evidence in that form: Permanent Trustee Australia Limited v Boulton (1994) 33 NSWLR 735. My own view is that, if the facts about which the opinion is given are sufficiently identified and if the expert is sufficiently qualified, an expert can express an opinion as to what a reasonably competent and careful solicitor would do in those specified circumstances: Rabelais Pty Limited v Cameron [1993] ANZ Conv Rep 457, referred to in Boulton at 739.
However, such evidence is not as such evidence as to the practice of competent and careful solicitors; and it is not conclusive. In my opinion, it was open to the primary judge not to accept evidence to that effect.
In my opinion, no error is shown in the primary judge’s conclusion to the effect that a reasonably competent and careful solicitor, if not himself or herself in a position to give the advice that Mr Phipps’ claim could not succeed, should have obtained counsel’s opinion by 31 July 2003 or thereabouts.
For those reasons, in my opinion grounds 1 to 3 of the appeal fail.
Failure to warn
Having regard to what I have said, it is not necessary to consider the notice of contention. I am inclined to the view that a finding that it was a breach of duty for Mr Weller not himself to have recognised the fatal difficulty in Mr Phipps’ claim would not have been justified. I think the correct analysis is that he should have recognised a potential severe problem, and taken reasonably prompt steps to resolve that problem before substantial risks and costs were incurred, as discussed previously.
Section 5O
The onus of establishing a defence under s 5O was on Mr Weller.
In my opinion, the evidence from Ms Suttor did not support a view that delaying as discussed above can be characterised as acting “in a manner that … was widely accepted in Australia by peer professional opinion as competent professional practice”. Ms Suttor’s written opinion supported the view that each of the steps taken by Mr Weller was widely accepted as competent professional practice; but did not address the question of whether doing them in the order in which they were done or at the time at which they were done was acting in a manner that was so accepted. And it did not address the question whether failure to identify the potential problem and failure to resolve that problem any earlier than 23 February 2004 was acting in a manner that was widely accepted as competent professional practice. Her oral evidence did not relevantly take the matter further: her opinion that the order in which things were done was appropriate was not an opinion as to whether what was actually done was acting in a manner that was so accepted.
Causation of damage
It is clear that Mr Phipps did act unreasonably in various respects, and that some of his losses were due to his own unreasonable conduct.
However, in my opinion this was properly taken into account by the primary judge; and the primary judge did properly address the question of what loss was caused by Mr Weller’s breaches of duty. In my opinion, no error has been identified in the way in which the primary judge dealt with that question.
Conclusion
For those reasons, in my opinion the appeal should be dismissed with costs.
YOUNG JA: I agree with Hodgson JA.
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LAST UPDATED:
2 December 2010