Fidgeon v William Abbott & Associates

6. In August 1996 Robert and Patrice Fidgeon (the appellants) sold a residential strata-titled unit, one of the five which the appellants had built at 45 Cairnes Crescent, East Malvern, for $199,000. The sale was conducted by a selling agent, Stockdale & Leggo Pty Ltd. After the sale the appellants claimed that the instructions given to the agent were to sell not for $199,000 but for $200,000 or better, and also that they had signed, on the instructions of a director of the selling agent, a contract which was in part blank.

9. On 23 November 1996 the appellants instructed Andrew Lord of William Abbott & Associates (the respondent) that they wished to avoid the contract. Mr Lord advised the appellants that in his view they had no legal basis to do so.

12. On Friday 13 December 1996 the respondent and Mr Lord were both served with an originating motion and summonses returnable on Tuesday 17 December, in which the purchaser sought specific performance of the contract for sale. On Sunday 15 December Mr Fidgeon was also served with copies of these documents. The next day Mr Lord advised Mrs Fidgeon that the hearing on 17 December was a directions hearing and that it was not necessary for her to attend. On the same day Mr Lord also engaged a solicitor-advocate, Michael McKinnon, to act as counsel at the Supreme Court hearing. Believing that he was not required to attend court that day, on the Tuesday Mr Fidgeon went to Sydney.

15. On Tuesday 17 December, at about 11 a.m., Mr Lord telephoned Mrs Fidgeon and asked her to come immediately to his office, saying that the case was proceeding and that a final order might be made in respect of the unit. Mrs Fidgeon immediately rushed to Mr Lord's office, having also telephoned Mr Fidgeon, who at once flew back to Melbourne. The hearing on 17 December was later adjourned to the next day so that answering material could be prepared.

18. On 18 December Hampel, J., who had adjourned the matter the previous day, indicated that he would make an order for specific performance. Discussions then took place between Mr Lord and Mr McKinnon and the purchasers' legal representatives as to damages and costs and, after negotiations, the purchasers' initial demand for $10,000 in damages was reduced to an agreed amount of $500. There was no agreement with respect to legal costs. Mrs Fidgeon, on 20 December, wrote to the respondent complaining about the manner in which the proceedings had been conducted. Settlement of the sale to the purchasers took place on 24 December. That day the respondent wrote to the appellants declining to act further on their behalf in light of the criticisms the appellants had made of the respondent's competence. The costs of the purchasers of the unit were subsequently taxed and there was a review of the taxation, but, well before taxation of the purchasers' costs took place, the respondent had ceased to act.

21. On 23 June 1997 the appellants made a complaint in relation to these proceedings to the Legal Ombudsman. This complaint was heard by the Legal Profession Tribunal ("the Tribunal") on 2, 3 and 4 August and 17 November 1999. On 25 February 2000 the Tribunal made orders dismissing the dispute. The appellants then appealed to the Full Tribunal of the Legal Profession Tribunal ("the Full Tribunal") and on 22 May 2000 the appeal was heard and orders were made dismissing the appeal.

24. The Tribunal considered two disputes, first a dispute concerning the sale by the appellants of the property and work performed by the respondent in relation to the conveyancing transaction. The appellants claimed that the respondent acted without instructions and had been negligent in the conveyancing work. However, the Tribunal found that the respondent did have instructions to act and had not been negligent. Before the Full Tribunal the claim made by the appellants in relation to the conveyancing matter was abandoned.

27. The second dispute arose out of the claim made by the appellants in relation to the Supreme Court proceedings brought by the purchasers of the unit against the appellants. In relation to this dispute the appellants alleged that the respondent had acted negligently and not in accordance with instructions. In relation to these allegations, the Tribunal made the following findings:

"I have found that Mr Lord should have informed Mr and Mrs Fidgeon more promptly about the commencement of the Supreme Court proceedings. I have found that Mr Lord was negligent in giving advice to Mrs Fidgeon that the hearing on Tuesday 17 December 1996 was a directions hearing. I have found that Mr Lord was negligent in failing to provide to Mr McKinnon sufficient information to enable Mr McKinnon to make an independent assessment of the defences put forward by Mrs Fidgeon. I have found that Mr Lord was aware of the two sets of circumstances put forward by Mrs Fidgeon as a basis for her defence, that Mr Lord formed an opinion that the circumstances did not provide a defence, and that he acted or refrained from acting in various ways because of that opinion. These findings might lead me to award compensation to Mr and Mrs Fidgeon but only if they suffered loss as a consequence of these acts and omissions on the part of Mr Lord. The Supreme Court proceedings have concluded, so loss must be assessed in terms of the loss of a chance to obtain a more favourable outcome: "

31. The Tribunal went on to find that none of the defences advanced on behalf of the appellants as vendors of the unit would have had any realistic chance of success in defeating the claim for specific performance, describing the chances of any of these defences succeeding as "minuscule", with the result that the chances of success should be disregarded. In concluding comments the Tribunal said:

"There was negligence on the part of Mr Lord of William Abbott & Associates in the conduct of the Supreme Court proceedings, but the negligence did not affect the outcome of the proceedings or cause any loss to Mr and Mrs Fidgeon. The costs incurred by Mr and Mrs Fidgeon in relation to a taxation of costs, and a review of the taxation, were incurred of their own volition and not caused by Mr Lord's omission to inform them on the day of the hearing that further costs would be incurred in respect of any taxation of costs."

35. The Full Tribunal dismissed the appeal in relation to the claim that the respondent was negligent in its handling of the Supreme Court proceedings for substantially similar reasons to those given by the Tribunal.

38. The main issue now raised by the appeal is whether the Full Tribunal erred in finding that the negligence of the respondent did not cause loss or damage to the appellants.

41. The right of the appellants to appeal to this Court from a decision of the Full Tribunal is contained in s.170 of the Legal Practice Act 1996 which provides by sub-s.(1) that "any party may appeal to the Court of Appeal on a question of law from an order of the Full Tribunal".

44. It is frequently no easy matter to decide whether a question of law is raised by a particular ground of an appeal. Section 52(1) of the Administrative Appeals Tribunal Act 1984 was in virtually identical terms to s.170(1) of the Legal Practice Act 1996. In Transport Accident Commission v. Hoffman [1], Young, C.J. and McGarvie, J. said of the expression "on a question of law" that it seems "clearly to show an intention to limit the right of appeal", and then [2] said of the section that:

"It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a tribunal on a question of law which is involved in the Tribunal's decision. ... This construction would exclude an appeal upon such questions as whether a particular decision was against the evidence and the weight of the evidence. ... It would, however, allow an appeal upon the question whether there was any evidence upon which the Tribunal could have reached the decision which it did reach. In Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (N.S.W.) (No. 2) [3] the Full Court of the Federal Court held that in order to succeed, an appellant would have to show that there was no basis on which the Tribunal could reach the conclusion which it came to ..."

48. This dictum was cited by Tadgell, J.A. in Frugtniet v. Secretary to Department of Justice (No. 2) [4], saying of it:

"Its purport, however, appears to be commonly misunderstood. An appeal from a decision of the Administrative Appeals Tribunal is not authorised under the provision unless it is brought on a question of law which is involved in the decision of the Tribunal which is the subject of appeal.

52. A decision of the Tribunal on a question of fact which is involved in the decision of the Tribunal which is the subject of appeal will not found an appeal."

55. I refer also to S v. Crimes Compensation Tribunal [5] where Phillips, J.A. made a valuable analysis of the distinction between a question of law and a question of fact including the comment [6] that:

"It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding tribunal arrived at a finding which was simply not open to it."

59. The first notice of appeal filed on behalf of the appellants in this Court in effect ignored the restriction imposed by s.170(1) of the Legal Practice Act and raised only questions of fact. The appeal was called on for hearing on 12 September 2002, and on that occasion the Court granted the appellants leave to make such amendments to the notice of appeal as were necessary to identify the points of law which they proposed to raise. The notice of appeal as amended now contains some nine grounds which in substance seek to put in issue that the Tribunal and Full Tribunal should have found that the costs incurred by the appellants in respect of the hearing on 18 December 1996 were caused by the negligence of the respondent and that the Tribunal and Full Tribunal erred in finding that the proven negligence of the respondent caused no harm to the appellants (grounds 1 and 3). Ground 2 claims that:

"The Full Tribunal erred in law in formulating the question for the appeal as 'whether, if the case had been properly prepared, there were any facts the proof of which might have persuaded Hampel, J. in the relevant proceedings to withhold the grant of an order for specific performance, or whether there were, on the proven facts, any legal grounds to cause his Honour to exercise his discretion against the grant of relief'."

63. In this Court, Mr Fary [7] for the appellants argued that the Full Tribunal erred in finding that the proven negligence of the respondent did not cause any loss or damage to the appellants. He referred to the various findings of fact made by the Tribunal, including the findings of negligence to which I have already referred [8] and to the costs order made against the appellants on 18 December 1996. The appellants submit that the costs incurred in respect of the hearing on 18 December were attributable to the negligence of Mr Lord and the respondent and that but for the respondent's negligence the result achieved on 18 December 1996 could have been achieved on 17 December. Accordingly the loss and damage suffered by the appellants as a result of the respondent's negligence include the costs claimed by the respondent for work performed on behalf of the appellants in relation to the Supreme Court proceedings on 18 December as well as the costs for which the appellants became liable to pay the plaintiff-purchasers in the proceedings in respect of the hearing on 18 December. In other words, it is submitted that one day's costs was thrown away by the negligence of the respondent. The appellants argue that the finding that they suffered no loss as a result of the respondent's negligence was both glaringly improbable and inconsistent with the evidence and that this Court is entitled to draw an inference from the facts set out above that the respondent's negligence did cause such loss to the appellants.

66. The difficulty immediately faced by the appellants is that the question whether the Full Tribunal erred in not finding that any costs incurred in respect of the hearing on 18 December were attributable to the negligence of Mr Lord and the respondent is at first glance a question of fact. Indeed, the Court is invited in the last paragraph of the appellants' submissions to "draw an inference from the facts set out above that the respondent's negligence did cause loss to the appellants". Not surprisingly, reliance is placed on Warren v. Coombes [9]. But this is only the first of the hurdles confronting the appellants. The question whether the Full Tribunal arrived at a finding which was "simply not open to it" [10] or for which there was no evidentiary basis at all cannot usually be answered in the absence of material showing what evidence was before the subordinate tribunal, and what submissions were made to it by the parties. It must be remembered that an appeal from the Tribunal to the Full Tribunal takes place by way of a rehearing. [11] The Full Tribunal may however have regard to the record of the hearing of the Tribunal at first instance, and also receive fresh evidence.[12]

69. In the present case the appeal books contain no affidavit material at all or any transcript or other indication, save in the two judgments, of the evidence given either before the Tribunal or the Full Tribunal. The appellants must have assumed that it would be sufficient for the purposes of this appeal to rely on the reasons of the Tribunal and the Full Tribunal and the large body of documentary evidence contained in the appeal books.

72. The conclusions reached by the Tribunal (such as that Mr Lord was negligent in giving advice that the hearing on 17 December was a directions hearing, that there was sufficient time to prepare an answering affidavit after Mr Lord became aware that the hearing on Tuesday 17 December was not a directions hearing, that Mr Lord was negligent in not providing sufficient information to Mr McKinnon to enable the latter to make an independent assessment of the defences put forward by the first appellant, and that the hearing on 17 December was adjourned to 18 December so that answering material could be prepared) all make it apparent that the appellants were given very poor service by the respondent and that they could well have thought it must follow as night the day that if the hearing on 17 December was adjourned to 18 December to enable answering material to be prepared, any additional cost must have been caused by the respondent's negligence. But this may not necessarily be the case. For example, the respondent might well have argued that, if the amount of work necessary for preparation of the hearing was such that the time spent on 17 December would have been used up in any event, or that the time required for a hearing had the matter been fought out in full must have exceeded one day, then the Tribunal should conclude that no damage would have resulted from the matter going into a second day. If, however, these issues were raised before either tribunal, it is difficult to see either tribunal coming to a conclusion other than that the second day's (or at least some) costs were wasted and that the appellants should be compensated.

75. In Doggett[13] Gleeson, C.J., dissenting, though not on this point, said:

"In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury."

79. The Chief Justice was of course speaking of a criminal trial, but the passage quoted applies just as much to quasi-criminal and civil proceedings.[14]

82. The appeal was very well argued by Mr Fary for the appellants. But on the material put forward by the appellants it is impossible to say what issues were raised by their counsel before the Tribunal and the Full Tribunal, or whether it was ever put to either tribunal that they had suffered loss in consequence of the necessity to adjourn the proceedings from 17 to 18 December. The reasons of the Full Tribunal make no reference to this question at all. Insofar as the Tribunal refers to the damage flowing from the respondent's negligence and the adjournment of the proceedings to Wednesday 18 December, there is no suggestion in the reasons that the question now sought to be raised was put to the Tribunal. That remained the position on the material before this Court until 17 February 2003, the day before the appeal came on for hearing, when two affidavits were filed on behalf of the respondent, one by a solicitor who instructed counsel before both tribunals. Both affidavits assert, in effect, that it was never submitted on behalf of the appellants to either tribunal that the negligence of the respondent caused the appellants to incur costs on 18 December 1996. A reading of the written outline of submissions provided to the Tribunal by the appellants' counsel, and which is exhibited to one of these affidavits, supports this assertion.

85. The principal contention now made that the Full Tribunal was wrong in finding that the proven negligence of the respondent did not cause any loss or damage to the appellants is therefore dependent solely upon an issue which has not been shown to have been raised by the appellants before that Tribunal. The appellants, of course, bore the onus of proving that the respondent's negligence caused them damage and that the issue was raised before the Full Tribunal. If the matter was never put in issue, the Full Tribunal has not been shown to have erred, either in fact or law, in the conclusions to which it came. It follows that each of the grounds related to this matter must fail.

92. I agree with Charles, J.A. that the appeal should be dismissed and for the

reasons which he gives. I would like, however, to associate myself with his comment that this appeal has been well presented by Mr Fary.

97. I am not persuaded that the sole argument on which the appellants rely was advanced below. The passages in the reasons of the Tribunal and the Full Tribunal and in counsel's submissions to which we were referred are at best equivocal on that issue. The argument is of a kind with which those bodies would have dealt if it had been raised. That being so, I agree that there is no relevant question of law and that, notwithstanding Mr Fary's attractively presented submissions, the appeal must be dismissed.

101. The formal order of the Court is that the appeal is dismissed.

107. The formal order is the appeal is dismissed with costs.

[1] [1989] VicRp 18; [1989] V.R. 197, at 198

[3] [1980] FCA 96; (1980) 3 ALD 38

[4] [1996] 10 V.A.R. 314 at 317

[7] Other counsel appeared for the appellants before the Tribunal and the Full Tribunal

[9] [1979] HCA 9; (1979) 142 C.L.R. 531

[10] S v. Crimes Compensation Tribunal [1998] 1 V.R. at 90

[14] See for example Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437, 466