Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454

New South Wales Court of Appeal

CITATION: Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454

HEARING DATE(S): 15 September 2995

JUDGMENT DATE: 21 December 2005

JUDGMENT OF: Giles JA at 1; Tobias JA at 7; Basten JA at 124

DECISION: (a) Appeal allowed; (b) Judgment and verdict for the respondent entered by his Honour Judge Finnane QC on 12 October 2004 be set aside; (c) The proceedings as between the appellant and the respondent be remitted to the District Court for a new trial with respect to both liability and damages; (d) The Cross-appeal of the respondent be dismissed with costs; (e) The costs of the first trial between the appellant and the respondent to abide the result of the new trial; (f) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS: LEGAL PRACTITIONERS – Contractual and tortious duties to client – Retainer properly to advise client – Whether solicitor and/or barrister provided adequate and timely advice as to available claims – Whether failure to take reasonable steps to ensure client understood advice – Barristers' immunity from suit – Whether barrister's advice "connected with conduct of litigation" – Causation – Whether client suffered loss as a result of practitioner's negligence – Assessment of damages – Workers Compensation Act 1987 s 151A

Workers' Compensation Act 1987 Workers' Compensation Legislation Amendment Act 1998 LEGISLATION CITED: Workers Compensation Legislation Further Amendment Act 2001 Suitors' Fund Act 1951

Arthur J S Hall & Co v Simons [2002] 1 AC 615 Burt v Ware (Court of Appeal, 28 October 1998, unreported) D'Orta Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 Dunn v Firth [2003] NSWCA 280 Fox v Wood (1981) 148 CLR 438 CASES CITED: Green v Berry [2001] 1 Qd R 605 Giannarelli v Wraith (1988) 165 CLR 543 Rosenberg v Percival (2001) 205 CLR 434 Scott v Echegaray (1991) Aust Torts Rep 81-120 Tipper v Williams (No 2) (Court of Appeal, 6 May 1994, unreported) Valmas v Nyman (James J, 12 November 1996, unreported)