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Evidence, legal professional negligence

Blazai Pty Limited v Maley & Ors (trading as Maclarens Solicitors) [2012] NSWSC 1444. Adams J.

[In 97] The authorities establish that while expert evidence as to the duties of solicitors is admissible, it is not necessary either to establish negligence or refute it: Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 at 654, per Kirby P.

Chen v Gu; Chen v Nguyen [2011] NSWSC 1622. Rein J.

92 Expert evidence was called on behalf of both the plaintiff and Mr Nguyen.

Mr Peter Carkagis was called to give evidence on behalf of Mr Chen. He is a property solicitor of many years standing and he expressed the view that a solicitor, who receives instructions from clients who are unknown to him and not referred to him by anyone, should require photographic identification so that the solicitor can be satisfied that the clients are who they say they are.

Mr Carkagis accepted that there was no rule of practice, legislative enactment or service which indicated in 2003 (or even now) that such a step is required, except in relation to mortgagors, which is not this case.

Mr Carkagis conceded that the requirement to obtain photo identification is not referred to in any checklist in use in his office, however he held firm to his view that a prudent solicitor would take such a step.

He admitted that his experience was principally in acting for lenders but he has done work for vendors and purchasers as well. Mr Carkagis also said that it is standard and usual practice for a prudent solicitor in the position of Mr Nguyen, where one of his clients has limited proficiency in English, to arrange for a translator to be present during a meeting where the solicitor is giving advice on the contract of sale.

Mr Carkagis also said that a prudent solicitor acting for two vendors would have sought unequivocal instructions from the vendor who was not receiving the funds and satisfy himself or herself of those instructions: see pages 250-251 of Exhibit A1.

93 Mr Peter Rosier was called to give evidence on behalf of Mr Nguyen.

Mr Rosier is a solicitor with extensive conveyancing experience and he has been involved in various roles on the Property Law Committee of the Law Society.

Objection was taken by the plaintiff to (various parts).  I will not set all of these out but give two examples. The last sentence of paragraph 21 says:

"In circumstances such as the Events, based on my experience, a competent solicitor of good repute would not have verified the identity of the client as a matter of course, but would have taken reasonable steps to check that the certificate of title was genuine."

The third sentence of paragraph 24 says:

"In my opinion, based upon my experience, any change in practice in relation to client identity verification, which was not the subject of the Warnings, would have been more gradual."

94 Mr Smallbone submits that all of the passages objected to do not meet the criteria for admission.

He relies on what was said in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No.6) (1996) 64 FCR 79 at 85 per Lindgren J, Midland Bank Trust Co Ltd. v Hett Stubbs & Kemp [1979] 1 Ch 384 at 402, Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735 at 738, Australian Cement Holdings Pty Ltd v Adelaide Brighton Ltd [2001] NSWSC 645, ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 204-205 per Priestley JA, Dean-Willcocks v Commonwealth Bank of Australia [2003] NSWSC 466; (2003) 45 ACSR 564 especially at 568-571, R v Hally [1962] Qd R 214 at 228-230 and HG v R [1999] HCA 2; (1999) 197 CLR 414.

Mr Dicker relies on Australian Securities and Investments Commission v Vines [2003] NSWSC 1095 and Edwards v Anderson [2009] NSWSC 373.

95 The issue was comprehensively discussed in ASIC v Vines by Austin J.

I note that his Honour set out a series of propositions of which the following are relevant:

(1) that s 79 of the Evidence Act 1995 (NSW) permits a professional expert to give evidence about what professionals generally do in stated circumstances; (2) a professional can express an opinion about the practice of competent and careful professionals in specified circumstances which are recurring or typical;
(3) a professional can give evidence of what, in stated circumstances which are out of the ordinary and not amenable to observations about a developed practice, a competent and careful professional "would be expected to do " and "would do";
(4) expert evidence directed to answering a question of fact or law that is directly before the Court for decision is inadmissible; and
(5) evidence by the expert as to what he or she would do in the stated circumstances is inadmissible.

96 Mr Rosier's evidence is formulated as what he would have done had new clients come to him.

When he described what was or was not considered prudent practice, I take him to be endeavouring to state an opinion about what a prudent solicitor would have done in 2003 (or later) or be expected to have done.

I do not think in substance what he is doing is any different from what the plaintiff's expert, Mr Carkagis, was doing in his report and to which no objection was taken. I have therefore determined to admit the evidence of Mr Rosier.


Keesing v Adams [2010] NSWSC 336. Brereton J. 

 35 On questions of professional legal practicea court does not need to have evidence, but can resort to its own knowledge of professional practices and standards.

This is frequently seen in legal professional negligence cases, where in – distinction from, for example, medical negligence or architectural negligence cases – there is no need for a plaintiff, except perhaps in specialist areas of the law, to adduce expert evidence of a departure from appropriate standards: see, for example, Dickson v Creevy [2002] QCA 195.





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