Witcombe v Talbot & Olivier (A Firm) - [2005] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WITCOMBE & ANOR -v- TALBOT & OLIVIER (A FIRM) [2005] WASC 26

CORAM: MASTER SANDERSON

HEARD: 21 FEBRUARY 2005

DELIVERED : 8 MARCH 2005

FILE NO/S: CIV 2485 of 2004

BETWEEN: GLENYS JUNE WITCOMBE
First Plaintiff
GLENYS JUNE WITCOMBE as Executrix of the Estate of KEITH MALCOLM WITCOMBE (DEC)
Second Plaintiff
AND
TALBOT & OLIVIER (A FIRM)
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out in part

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr R I Viner QC
Second Plaintiff             :     Mr R I Viner QC
Defendant:     Ms C H Thompson

Solicitors:

First Plaintiff                  :     Godfrey Virtue & Co
Second Plaintiff             :     Godfrey Virtue & Co
Defendant:     Phillips Fox

Case(s) referred to in judgment(s):

Esanda v KPMG Hungerfords (1997) 188 CLR 241
Graham Barclay Oysters Pty Ltd & Anor v Ryan & Ors (2002) 211 CLR 540
Hawkins v Clayton & Ors (1988) 164 CLR 539
Hill v Van Earp (1997) 188 CLR 159
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
Perre v Apand Pty Ltd [1999] HCA 36
Sullivan v Moody (2001) 207 CLR 562

Case(s) also cited:

Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424
Baker v Bolton (1808) 170 ER 1033
Brownie Wills v Shrimpton [1998] 2 NZLR 320
Caparo v Dickman [1990] 2 AC 605
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Crayden as Executor of the Estate of Sandra Irene Farnworth v Ottaviano & Anor [2003] WASCA 20
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Donoghue v Stevenson (1932) AC 562
Esanda v KPMG Hungerfords (1997) 188 CLR 241
Foppoli v Public Trustee [1970] WAR 73
Forsayth Gold NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Francourt v Mercantile Credits Ltd (1983) 154 CLR 87
Giford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33
Ilievska-Dierva v SGIO Insurance Ltd [2000] WASCA 161
Jaensch v Coffey (1984) 155 CLR 549
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; FCt SCt of WA; Library No 6414; 25 August 1986
Kirika v Zurich Australia Insurance Ltd & Anor [2002] WASCA 233
Perre v Apand Pty Ltd [1999] ALR 606
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93
Ross v Caunters (UK) (1981) Ch 297
Seymour v Seymour (1996) 40 NSWLR 358
Tame v New South Wales & Annetts v Australian Stations Pty Ltd [2002] 211 CLR 317
Voli v Inglewood Shire (1963) 110 CLR 74
Woodcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

MASTER SANDERSON: This is the defendant's application for summary judgment pursuant to O 16. Alternatively, the defendant seeks to strike out the claim pursuant to O 20 r 19(1) on…

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: [2005] WASC 26
Decision Date: 8 MARCH 2005

CaseChat Overview and Summary

The case before the court involved Witcombe as the plaintiff and Talbot & Olivier (a firm) and another party as the defendants. The plaintiff sought to challenge the defendants' conduct in relation to their professional services. The matter was heard in a court in Australia, and the primary focus was on an application to strike out the plaintiff's statement of claim. The plaintiff's case turned on its own specific facts, and the court had to determine whether the plaintiff's claim should proceed to a full hearing or be dismissed on the basis that it had no reasonable prospect of success.

The legal issues before the court were primarily concerned with the existence and scope of any duty of care that might be owed by the defendants to the plaintiff in their capacity as professional service providers. The plaintiff argued that the defendants had breached a duty of care by failing to take appropriate steps to locate the executor of a will in their possession. The defendants, on the other hand, contended that no such duty existed as a matter of law, and that the plaintiff's claim should therefore be struck out. The court had to consider the principles established in various High Court decisions regarding the circumstances in which a duty of care might be imposed on a solicitor in relation to a third party.

The court examined the relevant legal principles and precedents, including the cases of Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, Graham Barclay Oysters Pty Ltd & Anor v Ryan, and Sullivan v Moody, which established that no general common law duties are owed by a solicitor to a third party. The court also considered the case of Hawkins v Clayton, which held that a duty of disclosure could arise in certain circumstances, such as when a solicitor is in custody of a will and fails to take steps to locate the executor. The court found that the present case did not fall within the category of cases where a duty of care was owed to a third party. The court concluded that the plaintiff's claim had no reasonable prospect of success and granted the defendants' application to strike out the statement of claim.

The court's decision effectively dismissed the plaintiff's claim, and no further proceedings could be brought in relation to the matter. The court's ruling was based on the established legal principles that no general common law duties are owed by a solicitor to a third party, and that the specific circumstances of the case did not give rise to such a duty. The court's decision reinforced the importance of considering the specific facts of each case when determining the existence and scope of any duty of care that might be owed in the context of professional services.

Orders

Orders of the court

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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

As a statement of general principle, it is, I think, fair to say that no general common law duties are owed by a solicitor to a third party. This has emerged from a number of High Court decisions, including Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, Graham Barclay Oysters Pty Ltd & Anor v Ryan& Ors (2002) 211 CLR 540 and Sullivan v Moody (2001) 207 CLR 562. There are, of course, cases where a duty will arise. An example of such a case is Hawkins v Clayton & Ors (1988) 164 CLR 539. That case related to the failure by a firm of solicitors to attempt to locate the executor of a will in their possession. The Court held that the solicitors were under a duty to take steps to locate the executor and deliver the will to him. Brennan J put the position in this way (at 553):"In my opinion, a duty of disclosure arises from custody of the will after the death of the testator, the nature of the will and the purpose for which custody is accepted as well as from the foreseeable consequences of non‑disclosure." Deane J preferred to analyse the nature of the duty in terms of proximity, the then fashionable basis for determining whether or not a duty of care existed. His Honour said (at 578 ‑ 579):"The solicitor, as a specially qualified person possessing expert knowledge and skill, assumes responsibility for the performance of professional work requiring such knowledge or skill. The client relies upon the solicitor to apply his expert knowledge and skill in the performance of that work. In the ordinary case, the only kind of damage which is likely to result from the negligence of the solicitor in the performance of his professional work is pure economic loss. In that context, the elements of assumption of responsibility and of reliance combine with that of the foreseeability of a real risk of economic loss to give the ordinary relationship between a solicitor and his client the character of one of proximity with respect to foreseeable economic loss. The present case fell within that category. It was also a case in which economic loss caused by the negligence on the part of the solicitor might clearly be sustained either by the client or by her estate after her death. If the will was lost by the firm during the testatrix's life, she would personally sustain the economic loss comprising legal costs or other expenses involved in the preparation and execution of a new will. On the other hand, an obvious object of the arrangement under which the testatrix's will was entrusted to the custody of the firm was to ensure that it would be available on her death to the named executor to inform him of his nomination by the testatrix as the person appointed to protect and duly administer the assets comprising her estate. The risk of economic loss being sustained by the estate if the named executor remained unaware of his appointment was real and foreseeable. The risk would plainly be compounded if the person named as executor was also, for practical purposes, the sole beneficiary. In these circumstances, the relevant relationship of proximity which existed with respect to economic loss of the kind which was in fact sustained by the estate extended to include both the testatrix and her legal personal representative after her death."