EL-KALZA v THOMPSON [1995] NSWCA 140

EL-KALZA v THOMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and POWELL JJA 24 April 1995, 18 December 1995

[1995] NSWCA 140

APPEAL AND NEW TRIAL — Interference with Judge's findings of fact — Where based substantially on assessment of witnesses.

NEGLIGENCE — Duty of care — Particular relationships — Solicitor and client — Extent of duty when retained in relation to litigation — Whether breach established.

Gleeson CJ I have had the advantage of reading in draft form the judgment of Powell JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Handley JA I agree with Powell JA.

Powell JA Such problems as arose for determination on the hearing of these proceedings at first instance by Holland AJ, from whose Judgment delivered and the verdict entered by him, on 15th August 1990, this appeal has been brought, and the problems which call for determination on the hearing of this appeal, appear to have been caused substantially, if not entirely, by the fact that the Appellant - who conducted the proceedings at first instance, as he has done on this Appeal, in person - has an unshakeable belief in the correctness of his view of the facts which are said to have given rise to these proceedings, coupled with a total inability to understand, and still less to apply, the principles of law which are relevant to, and call for application to, the cause of action which, in these proceedings, he has sought to propound.

The Judgment - which was a reserved one - the correctness of which has been challenged on this appeal was, as one would have expected of Holland AJ, a lengthy one, in which his Honour recorded, and analysed, with great care the evidence which had been tendered on the hearing before him - which hearing continued over some 10 days - in which he recorded, in a manner which I regard as quite unexceptionable, the principles which he was called upon to apply to such facts as he found, and in which he explained the manner - in which I can find no error - he applied those principles to those facts so as to come to the conclusion that there ought to be a verdict in favour of the Respondent in the proceedings which had been brought by the Appellant against him. By way of elaboration on that short statement, I record that, in the course of his Judgment, insofar as they were questions of law, Holland AJ held, and insofar as they were questions of fact, he found: