Boland v. Yates Property Corporation Pty Ltd
167 ALR 575(Judgment by: Gummow J.)
Boland v Yates Property Corporation Pty Ltd
Webster v Yates Property Corporation Pty Ltd
Judges:
Gleeson CJ
Gaudron J
Gummow JKirby J
Hayne J
Callinan J
Judgment date: 9 December 1999
Canberra
Judgment by:
Gummow J.
[109] These appeals should be allowed and orders made as proposed by the Chief Justice.
[110] I agree with the reasons of the Chief Justice for the conclusion that the findings by the Full Court of negligence were based upon an erroneous view of the merits of the "head start" doctrine, an unjustified departure from important findings of fact by Branson J [85] and a number of significant factual errors and misunderstandings. Thus, this litigation does not turn upon any reformulation of the principles of law with respect to professional negligence.
[111] However, with respect to the meaning and significance of the decisions of Hardie J in Kennedy Street Pty Ltd v Minister [86] and Baringa Enterprises Pty Ltd v Manly Municipal Council , [87] I would go somewhat further than the Chief Justice. On that aspect of these appeals, I agree with the analysis by Callinan J in his reasons under the heading, "Should Kennedy Street and Baringa be applied?". Further, while the observations by Dixon J in the two authorities to which Callinan J there refers are particularly significant for legislation governed by s 51(xxxi) of the Constitution, they also are of general importance in construing State resumption legislation such as that involved in these appeals.
[112] There remains the issues respecting the immunity of legal practitioners which emerge from or involve the reasoning in Giannarelli v Wraith . [88] Counsel for the respondents sought leave to reopen that decision. I would refuse leave. The allowing of the appeals so that the claims in negligence fail, and, as explained by the Chief Justice, the consequential failure of the other claims against the appellants, means that any reconsideration of Giannarelli would be moot. In disposing of this ground of the respondents' application, I should not be taken as indicating any enthusiasm for such a course had the question of reconsideration of Giannarelli squarely arisen.
[113] On the footing supplied by the decision in Giannarelli , various related and subsidiary issues respecting the common law immunity have arisen in intermediate courts of appeal. One [89] concerns the identification of "work done out of court which leads to a decision affecting the conduct of the case in court". These terms were used by Mason CJ in Giannarelli . [90]
[114] Another is the position, in a profession divided functionally, if not also legally, of solicitors, such as the appellant solicitors in the first appeal who conducted the litigation in the Land and Environment Court and in the New South Wales Court of Appeal which gave rise to the present actions, who brief counsel, such as the appellant in the second appeal. Upon these matters different views were expressed by Branson J and the Full Court. Those of Branson J were avowedly obiter, [91] given her Honour's other findings which, it transpires, are determinative of the appeals to this court. The views of the Full Court were perceived by it as essential to its orders, given its holdings, now to be reversed, on liability. [92] The outcome of these appeals involves the setting aside of those orders and the removal of their basis, the factually flawed findings of negligence, from which the Full Court considered the defences of immunity. The treatment of that subject by the Full Court will now lack authority as precedent [93] and, given the defective factual foundation, will lack persuasive force.
[115] Questions also arise as to the operation of the immunity with respect to legal practitioners in a profession which, as a matter of fact or law or both, is amalgamated or has never been divided. Further, Pt VIIIA of the Judiciary Act 1903 (Cth) (ss 55A-55G) deals with rights to practise as a barrister or solicitor, or both, in federal and certain Territory courts and State courts exercising federal jurisdiction. There may also be issues as to the impact, if any, upon the common law immunity of statutory norms. Examples include those imposed by the Trade Practices Act 1974 (Cth) and like legislation. [94] Statute also, in some jurisdictions, may have qualified or even attempted to displace the authority of courts following their English inheritance to control those who may appear as advocates before them. [95]
[116] Such matters, if they are to be agitated in this court, are for another day.