Search
This area does not yet contain any content.
Justinian News

Movement at the station ... Judges messing with the priestly defendants ... Pell-mell ... Elaborate, if eye-glazing, events mark the arrival of the Apple Isle's new CJ ... Slow shuffle at the top of the Federales delayed ... Celebrity fee dispute goes feral ... Dogs allowed in chambers ... Barrister slapped for pro-Hamas Tweets ... India's no rush judgments regime ... Goings on with Theodora ... More >>

Politics Media Law Society


Pale, male and stale ... Trump’s George III revival … Change the channel … No news about George Pell is the preferred news … ACT corruption investigation into the Cossack and Planet Show gets closer to the finishing line … How to empty an old house with a chainsaw ... Read on ... 

Free Newsletter
Justinian Columnists

Rome is burning ... Giorgia Meloni's right-wing populist regime threatens judicial independence ... Moves to strip constitutional independence of La Magistratura ... Judges on the ramparts ... The Osama Almasri affair ... Silvana Olivetti reports ... Read more >> 

Blow the whistle

 

News snips ...


The Charities Commission provides details of the staggering amounts of loot in which the College of Knowledge is wallowing ... Little wonder Bell CJ and others are on the warpath ... More >> 

Justinian's Bloggers

Letter from London ... T.S Eliot gets it wrong ... Harry cleans up in a fresh round with Murdoch's hacking hacks ... All aboard Rebekah Brooks' "clean ship" ... Windy woman restrained from further flatulent abuse ... Trump claims "sovereign immunity" to skip paying legal costs of £300,000 ... Floyd Alexander-Hunt reports from Blighty ... Read more >> 

"Creative Australia is an advocate for freedom of artistic expression and is not an adjudicator on the interpretation of art. However, the Board believes a prolonged and divisive debate about the 2026 selection outcome poses an unacceptable risk to public support for Australia's artistic community and could undermine our goal of bringing Australians together through art and creativity."

Statement from Creative Australia following its decision to cancel Khaled Sabsabi and curator Michael Dagostino as the creative team to represent Australia at the Venice Biennale 2026, February 13, 2025 ... Read more flatulence ... 


Justinian Featurettes

Damien Carrick ... For 23 years Carrick has presented the Law Report on ABC Radio National ... An insight into the man behind the microphone ... Law and media ... Pursuit of the story ... Pressing topics ... Informative guests ... On The Couch ... Read more >> 


Justinian's archive

The Saints Go Marching In ... Cash cow has to claw its way back to the LCA's inner sanctum ... Stephen Estcourt cleans up in Mercury settlement ... Amex rides two horses in expiring guarantee cases ... Simmo bins the paperwork ... Attorneys General should not come from the solicitors' branch ... Goings On from February 9, 2009 ... Read more >>


 

 

« Queen Victoria Land | Main | Missing in action »
Monday
Mar042013

How wrong can you be? 

Punters' peril ... $400,000 damages for professional negligence confiscated from client because solicitor enjoyed immunity ... Five judge panel flexes its brain power to bolster the fortress 

HOW could we have missed Donnellan v Woodland - the NSW Court of Appeal's five-bench Christmas present to solicitors? 

Maybe it was because the facts were pretty dry: easements, s.88K of the Conveyancing Act, and wasted costs. 

The exciting bit was the advocates' immunity, where the immune person was not an advocate. 

It needed a real brains trust to cement this in place: Beazley, Basten, Barrett, Maj Gen Hoeben, and Sackville. 

Back in another decade (March 1998) Peter Woodland, and his then wife, were granted development approval by Manly Municipal Council to subdivide their Seaforth property - on condition they would provide a system of on-site storm-water detention. 

Woodland went to his solicitor, Patrick Donnellan of Gosford, about the possibility of instead obtaining an easement for drainage. 

Donnellan, the appellant, gave written advice to Woodland that an application for a drainage easement under s.88K of the Conveyancing Act would be likely to succeed: 

"We think that it is quite likely that the court would grant the easement for drainage ... in the sense that [the easement] provides a solution to drainage which is practical and beneficial."

Paddy also told his client that in his view the council would likely "throw in the towel" and agree to grant the easement to avoid the cost of court proceedings. 

According to Woodland - although this point was disputed - Donnellan also advised him that he had "good prospects of having [his] own legal costs recovered should the matter proceed to court".

So, when Manly Municipal Council denied his request for a grant of the easement, Woodland acted on his lawyer's advice and commenced proceedings against the council in the Supreme Court.

The council then made two offers of compromise in the course of the proceedings. 

Again, acting on Donnellan's advice, Woodland rejected the offers. 

John Hamilton, in the Mumblers Division of the court, rejected the s.88K application on the basis that the on-site pump system specified in the original development consent had not been shown to be an unviable alternative to the easement. 

He ordered Woodland to pay the council's costs of proceedings, including indemnity costs, and subsequently leave to appeal the costs order was not granted.

Initially Woodland was successful in professional negligence proceedings against Donnellan, recovering $414,053.69 in damages for the costs of the failed s.88K proceedings. 

But, the hefty five-panel appeal bench had other ideas and set aside Justice Robert Shallcross Hulme's findings and ordered Woodland to pay Donnellan's costs.

Beazley, for the court, held that the duty of a solicitor in respect of the settlement of claims is simply to assist a client to make an informed decision about whether or not to settle. 

That's reassuring. It's going to be hard to be negligent on the settle/fight equation. 

Donnellan's advice that Woodland had a strong case under s.88K was not clearly wrong as a matter of law. 

To illustrate the point Beazley said there were conflicting views in the equity division as to the proper application of the section. 

Again, different views are a nice escape hatch, because nobody can ever be wrong. 

Nor was there sufficient evidence to show that Woodland would have ever settled with Manly Municipal Council, but for Donnellan's advice with respect to the compromise offers. 

In any event, the solicitor was protected by the advocates' immunity. 

Applying D'Orta-Ekenaike v Victoria Legal Aid, the immunity stretched to a solicitor's negligent work done out of court if it leads to a decision affecting the conduct of the case in court. 

So, if he had been negligent Donnellan was home and hosed, swallowing a handfull of immunity pills. 

The fearless five wasted little time in reinforcing the idea that claims involving wasted costs are safely locked inside the immunity fortress. 

Home side: 500. Visitor: nil. 

Reporter: Pat Bateman 

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.