(8) Consideration
799 Mr White was retained by Harris & Company in June 2001 to advise both ABC and Artistic.
800 In the period between 21 June 2001 and March 2007, his advice was sought on a number of occasions in relation to specific aspects of the proceedings by Artistic. In his capacity as counsel, Mr White owed a duty of care to both ABC and Artistic.
801 In circumstances in which, as I have determined, Mr White was in breach of his duty to advise Mr O'Brien and ABC prior to 12 November 2005 that ABC should be joined as a plaintiff to the proceedings, Mr White, in my opinion, may be considered to be concurrently or jointly liable. On that basis, the claim by ABC against Harris & Company is an apportionable claim for the purposes of the Civil Liability Act, the breach having occurred between 26 July 2004 and 12 November 2005.
802 In the event of Mr O'Brien providing new information or instructions concerning the transactions capable of providing a basis for a reconsideration of the existing proceedings, the duty of care as counsel in the matter, in my opinion, would extend to requiring him to consider the possible legal significance of the information/instructions and advise accordingly.
803 In such circumstances and having regard to his engagement in 2001 and subsequently in the proceedings, it would, in my opinion, be incumbent on counsel to provide necessary and appropriate advice in relation to new material of legal significance sent to him/her. Failure to do so, as in this case, is a consideration in determining the extent of any apportionment and whether or not he or she had been specifically requested to advise upon it.
804 In making the evaluation envisaged and required under s.35 of the Act and in forming a discretionary conclusion as to where justice of the case lies in terms of apportionment, it is necessary to bring to account all pertinent factual circumstances.
805 If it had been the case that, following instructions from Mr Chahine in November/December 2002, Mr O'Brien had sought advice from Mr White as to the legal significance of the "no case" material in Mr Chahine's 2002 affidavit, but that Mr White either failed to give appropriate advice within time or gave wrong advice, then it could be said in those circumstances that a major part of the responsibility would fall upon counsel.
806 However, the circumstances referred to in the preceding paragraph did not occur in this case. Mr Chahine's sworn affidavit on the "no case transaction" aspect was not provided to Mr White with a request that he consider the content of Mr Chahine's affidavit, insofar as it went to a possible issue of "no transaction" and advise. It was a matter which Mr O'Brien, quite frankly, conceded was overlooked.
807 Whilst it is the case, as was submitted by Harris & Company (at [111]), that analysis of how loss has been caused in a particular case, which party has sustained loss and what results would flow from a hypothetical "but for" situation, are matters for counsel in a case such as the present, it remains the fact, as I have earlier stated, that advice on the matter was not specifically sought from Mr White. That does not, of course, mean that Mr White therefore had no duty of care in relation to the matter. He clearly did, as I have stated earlier. The circumstances to which I have referred, in which he was not requested to review his earlier advice or consider the "no transaction" material, however, is, I consider, a relevant circumstance in assessing overall the issue of "responsibility" in context of the way events unfolded in this case.
808 As solicitor to Mr Chahine, Mr O'Brien was primarily responsible for conferring and obtaining instructions from him on all relevant aspects of the transaction. However, he did not obtain instructions relevant to a "no transaction" case from Mr Chahine by until September/October 2002. It is clear that those instructions, considered in context, ought to have alerted Mr O'Brien to the fact that, if the "no transaction" account provided by Mr Chahine were to be accepted by a court, that indicated that there existed an arguable cause of action in ABC on that basis.
809 Mr O'Brien failed in late 2002 to identify the significance of the instructions given by Mr Chahine in that respect and, accordingly, failed to specifically seek advice from counsel on behalf of ABC specifically on that issue. There were no specific circumstances established in evidence (other than the fact that the focus was on the pursuit of Artistic's proceedings) which provide any particular explanation or justification for the oversight in that respect.
810 That is but one factor to take into account in relation to the considerations of blameworthiness, causative potency and the degree of departure from the standard of care as well as the relative importance of the acts of the parties in causing the damage.
811 As to the position before 2002, it is apparent from the evidence that, at the time Mr O'Brien briefed Mr White on 21 June 2001, he had not taken, in conference or otherwise with Mr Chahine, a detailed account of all relevant matters concerning the transaction. Had he done so, as I have earlier stated, I consider it is reasonably possible and even likely that Mr Chahine would have provided sufficient information relevant to a "no transaction" case by ABC in light of his many statements to MR Nash on the issue of satisfactory security.
812 Had Mr O'Brien taken full instructions on all such relevant facts and circumstances prior to briefing Mr White, counsel would then I consider that there was a realistic chance that there would have been material available to Mr White when he was initially briefed in the matter.
813 Accordingly, had detailed instructions been obtained from Mr Chahine at a relatively early stage and before the focus of advice and the proceedings subsequently commenced fell upon Artistic's rights and interests, there was, I consider, a reasonable prospect that Mr Chahine's instructions on the "no case" position disclosed in his draft and then his final affidavit in December 2002 would have emerged.
814 I have, in this respect, characterised this last-mentioned matter as a reasonable prospect because it would not, in my opinion, be appropriate to regard it as certain that, had full instructions been taken from Mr Chahine in 2001, he would have thought to disclose material relevant to the "no case" cause of action. Accordingly, in taking the matter into account for the purposes of determining the extent of apportionment, I do so on that basis.
815 I turn to the point raised in the plaintiffs' submissions, namely, on 17 October 2001, Mr Chahine, in effect, gave instructions to Mr O'Brien to review his file and to advise him further in relation to any claims against NOT Lawyers.
816 In this respect, Mr O'Brien's attention was drawn to his file note of 17 October 2001 recording a conversation with Mr Chahine on that date. The note, in part, records:-
"Look at my file & tell me whether we have any further claims against Nash."
817 On the same date, Mr Chahine wrote to Mr O'Brien (Exhibit M, p.55). In that letter, entitled "Re: Artistic Builders Pty Limited v Nash, Elliot & Tuthill & Ors", Mr Chahine recorded in paragraph 2:-
"2. From the beginning I gave you all almost of the documents related to the claims against Nash to assess. Please check and to see what else can join with the existing claims. The claim against Nash not only failure to register the mortgage South Tce. and Blackheath properties, but his professional works and the other securities on this deal."
818 A little later in the letter, he recorded:-
"4. I am asking you to consider joining previous claims with this one against Elliot."
819 Mr O'Brien was cross-examined about these instructions (transcript, 16 April 2010, p.640 to 647). He considered Mr Chahine's instructions given on 17 October 2001 related to a review of the file in relation to the case against Artistic. It was put to him:-
"Q. But, part of making sure that all possible claims. Part of making sure whether we have any further claims against Mr Nash surely involves whether anyone - any other entity or person - has any claim available to them other than Artistic?
A. With hindsight, one would accept that that may well involve ABC but at the time I repeat that I believed that the focus of that inquiry was being made on behalf of Artistic Builders."
820 The narrower view of Mr Chahine's instructions on 17 October 2001 to which Mr O'Brien referred is, to an extent, understandable. However, on the other hand, the instructions were given in broad terms. The significance of any omission by Mr O'Brien to undertake a review of the matter in terms of possible causes of action in ABC, is, I consider, likely to have been, at least in part, due to the fact that full instructions on all relevant facts and circumstances had not been obtained at an early stage, a matter to which I referred earlier.
821 I do not consider, as was submitted on behalf of the plaintiffs, that the fact that Mr O'Brien did not, following instructions on 17 October 2001, review the matter for the purposes of determining whether any other entity such as ABC should be added to the proceedings constituted a break in the chain of causation. It is nonetheless a circumstance to be taken into account as one of the circumstances relevant to Mr O'Brien's role. That said, however, I do not see this is a matter, of itself, which could be said to constitute a separate breach of duty by Mr O'Brien.
822 Having taken into account the facts and circumstances of the present case, I have concluded, in terms of s.35(1) of the Civil Liability Act, that in relation to the claim by ABC, the apportionment of responsibility between Harris & Company and Mr White should be made on the basis of Mr White's responsibility for the damage and loss of ABC at 40% and Harris & Company at 60%
PART N - DAMAGES