Wakim v McNally [2002] FCAFC 208

FEDERAL COURT OF AUSTRALIA

Wakim v McNally [2002] FCAFC 208

LEGAL PRACTITIONER – solicitors - negligence – solicitor expert in particular branch of law - reliance by solicitor on advice of counsel – whether solicitor has a duty to turn own mind to advice and raise possible deficiencies with counsel – advice NEGLIGENCE – professional negligence – solicitors – duty of care – solicitor expert in particular branch of law – significance of advice provided by senior counsel – duty to raise apparent deficiency in advice – whether failure to do so causative of costs NEGLIGENCE – contributory negligence – distinction between contributory negligence and failure to mitigate loss – nature of loss suffered on wrongful dismissal of proceeding – distinction between possibility of mitigation of loss and absence of loss BANKRUPTCY – equitable remedies – whether equitable remedies available against former partner of the bankrupt – Official Trustee's ability to institute equitable proceedings to secure payment directly to a creditor

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1) Partnership Act 1892(NSW) ss 10, 12, 24 Re Richardson; Ex parte Governors of St Thomas's Hospital [1911] 2 KB 705 referred to Wren v Mahony (1972) 126 CLR 2 referred to Montague Mining Pty Ltd v Peter L Gore [1998] FCA 1334 referred to Yates Property Corporation v Boland (1998) 85 FCR 84 referred to Ascherson v Tredegar Dry Dock and Wharf Company Limited [1909] 2 Ch 401 referred to Abigroup v Abignano (1992) 39 FCR 74 referred to Bitumen and Oil Refineries (Australia) Limited v Commissioner for Government Transport (1954) 92 CLR 200 referred to Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 referred to GEORGE WAKIM v PETER J McNALLY and TERENCE J McNALLY t/as "LOBBAN McNALLY & HARNEY" N926 OF 2001 BRANSON, MANSFIELD & STONE JJ 3 JULY 2002 SYDNEY