S v FCB [2009] NSWSC 665

New South Wales Supreme Court

CITATION : S v FCB [2009] NSWSC 665

HEARING DATE(S) : 20 - 23 October 2008, 5 February 2009

JUDGMENT DATE : 16 July 2009

JUDGMENT OF : Smart AJ

DECISION : Verdict for plaintiff

CATCHWORDS : Solicitor retained to act for employee arising out of termination of contract of employment by constructive dismissal - solicitor does not pass on substantial offer of settlement to client within time open for acceptance - damages to be assessed on basis of loss of opportunity - solicitor not responsible for past loss of earnings of plaintiff when root cause of his inability to obtain employment due to his conduct and misconduct

Anti-Discrimination Act 1977 (NSW) Fair Trading Act 1987 LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Legal Profession Act 1987 Sex Discrimination Act 1984 (Cth)

CATEGORY : Principal judgment

PARTIES : S (Plaintiff) FCB (Defendant)

FILE NUMBER(S) : SC 20058/06

COUNSEL : G Laughton SC / D Christofis (Plaintiff) G Curtin (Defendant)

SOLICITORS : Employment Lawyers - Barwick Legal (Plaintiff) Middletons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

Smart AJ

Thursday 16 July 2009

20058/06 S v FCB

JUDGMENT 1 S sues two companies who carried on in partnership a law practice as a "multi-disciplinary partnership" as provided by section 48G, Legal Profession Act 1987 under a firm name which I have abbreviated to FCB. 2 It is primarily an action for damages for professional negligence pleaded in both contract and tort. There is also a count that FCB engaged in conduct that was misleading or deceptive, or likely to mislead or deceive the plaintiff, contravening s 42 of the Fair Trading Act 1987 and/or made false representations contravening s 44(j) and (k) of the Act and an allegation that, by reason of FCB's contraventions of ss 42 and 44 of the Act, the plaintiff has suffered loss and damage. There was a further count that the defendants breached their fiduciary duty to the plaintiff. Equitable compensation was claimed. In essence, the action centred upon the events of Friday 24 September 2004, although the background was important. The plaintiff complained that FCB failed to disclose/ communicate to him a counter offer of settlement received from Corrs, his previous employer's solicitors, during the period the counter offer of settlement remained open for acceptance or at any other time during the retainer between the plaintiff and the defendant. The plaintiff asserted that, had FCB disclosed/ communicated the counter offer to the plaintiff, properly advised the plaintiff and sought his instructions during the period the counter offer remained open for acceptance, he would have instructed FCB to accept the counter offer and that this would have resolved all disputation between the plaintiff and the previous employer. There was no dispute that the defendants owed a duty of care to the plaintiff, nor that the content of that duty included communicating to S any offers of settlement. The parties appeared to agree that the case turned on the resolution of factual questions. It was FCB's case that Corrs' offer had been communicated orally by C of FCB to the plaintiff about 12.35 pm on 24 September 2004.