Week 4

Question 1

What is the essential quality of a fiduciary duty?

Answer 1

Loyalty - identifying fiduciary is to identify loyalty within a relo.

Question 2

What is a fiduciary relationship?

Answer 2

An individual who is entrusted by others to act in their interests

Question 3

How did Breen v Williams (1996) determine the essence of a fiduciary duty?

Answer 3

‘Fiduciaries give undivided loyalty to the person whom they serve’ and it is proscriptive only.

Question 4

What are the general duties of fiduciaries?

Answer 4

1. Not to place themselves in a position of conflict of duties b/w their interests v the client’s interests.
2. Not to make a profit out of the trust.
3. Not to act on own behalf or benefit of third parties without the client’s consent.

Question 5

Does an equitable interest need a loss to be activated?

Answer 5

No.

Question 6

What is the standard of conduct required of fiduciaries?

Answer 6

A demanding level of propriety of conduct - which exceeds torts standard of care and the standards imposed by contracts.

Question 7

In Maguire and Tansey v Makronis, what was the central issue?

Answer 7

There was a mortgage in favour of Maguire and Tansey, which Makaronis had believed was in favour of Cth.

Question 8

What was held in Maguire and Tansey v Makronis?

Answer 8

Loyalty to the clients was not undivided. Any interests that may conflict with the clients’ must be disclosed.

Question 9

What was held in Clark Boyce v Mouat (1994)?

Answer 9

That the solicitors’ interests have bee fully disclosed and if they are likely to accrue significant benefits, to encourage clients to get independent legal advice.

Clark Boyce did precisely that with relation to Ms Mouat’s mortgage and were found not in breach of negligence.

Question 10

What do the professional rules suggest about the duty of care for lawyers?

Answer 10

4.1.3 of Uniform Solicitors Rules: must deliver legal services competently, diligently and as promptly as possible.

35 Barristers’ Rules - client’s best interests must be protected to the best of the barrister’s skill and diligence.

Question 11

What is the standard of care in tort?

Answer 11

Care, diligence and skill expected of a reasonably competent solicitor. - Midlank bank Trust

Question 12

What constitutes a tort of negligence?

Answer 12

1. Existence of a duty of care.
2. An act or omission which could cause foreseeable harm.
3. The act or omission was the cause of the loss.

Question 13

What is the statute of limitations for negligence claims?

Answer 13

3 years

Question 14

How does the duty of care apply in instances of inexperienced clients?

Answer 14

According to Carradine Properties v DJ Freeman and Co (1999), inexperienced clients = broader application of the duty as opposed to experienced clients.

Question 15

How is it determined whether conduct is within the standard of a reasonably competent solicitor’s?

Answer 15

s 5O of Ciivl Liability Act - whether it is widely accepted by peer professional opinion as competent professional practice.

Question 16

Can peer professional opinion always be relied on?

Answer 16

Not if the court deems the opinion to be irrational.

e.g. all lawyers must charge their clients exorbitant rates for services.

Question 17

What was Roberts v Cashman all about?

Answer 17

Class actions suit against the drug Depo Medrol but no real interview conducted to grasp P’s claims: the P was unaware of the statute of limitations to do with BBC Hardware, no inspection of med reports.

Question 18

What constituted a violation of the duty of care in Roberts v Cashman (2000)?

Answer 18

The D did not take reasonable care in discharging the retainer - they should have identified potential causes of actions and clarified further.

1. D was v experienced in personal injury.
2. Detailed med history of her was required.
3. A reasonably competent lawyer would have arranged an interview.

Question 19

Is the standard of care higher for legal specialists?

Answer 19

Yes, to a stricter standard.

Question 20

Do solicitors have a duty to a third party (which is not their client)?

Answer 20

Yes, if the proximity test has been satisfied.

Question 21

What does the proximity test entail?

Answer 21

1. Reasonably foreseeability of harm
2. Reliance on the solicitors by the 3rd party.
3. Assumption of responsibility - for the performance of professional work requiring skill.

Question 22

Which case explores the proximity test to establish a duty for a third party?

Answer 22

Hawkins v Clayton (1988).

Question 23

What were the facts in Goddard Elliott v Fritsch [2012]?

Answer 23

Fristch was a mentally ill man, with complex commercial and tax legal issues, and the case reached settlement in favour of wife. He argued he lacked requisite mental capacity.

Question 24

What was the decision in Goddard Elliot v Fristch?

Answer 24

There had been a breach of fiduciary duty bc Fritsch had no capacity to instruct Elliot and Elliot was reasonable aware/or should have been reasonably aware, of Fritsch’s lack of mental capacity.

Question 25

Which is the only profession is Australia that is immune from suit?

Answer 25

Lawyers. Fucking Lawyers.

Question 26

What is the rationale behind lawyers’ immunity?

Answer 26

1. Floodgates argument
2. Cab-rank rule.
3. Finality of proceedings
4. Varying styles in advocacy.
5. If not, may lead to preferencing clients’ interests over the court’s.

Question 27

How does Ridealgh v Horsefield describe advocacy to be?

Answer 27

‘Advocacy is more an art than a science. It cannot be conducted according to formulae’

Question 28

Which famous case was barristers’ immunity endorsed?

Answer 28

Giannarelli v Wraith - perjury case, HC upheld that immunity extends to barristers/sol advocates’ conduct in court or out of court that affects a case in court.

Question 29

What did Mason J note in Giannarelli v Wraith?

Answer 29

That the absence of immunity can lead to barristers acting as mere vehicles of their clients without respect to the court’s interests.

Question 30

What did the HC case of D’orta v Vic Legal AId (2005) do in relation to lawyers’ immunity from suit?

Answer 30

It extended immunity to solicitors/barristers working on out of court proceedings if intimately connected to court proceedings.

Question 31

What general observations can be from the abolition of lawyers’ immunity in the UK?

Answer 31

• No floodgates.
• Courts can differentiate b/w errors of judgment and actual negligence.
• It has the capacity to strengthen faith in the legal process.
• Not self-protectionist.

Question 32

How does lawyers’ immunity apply in relation to settlement advice?

Answer 32

The test to determine whether it will apply is whether there is a ‘functional connection’ to the work/advice to court-related proceedings - to trigger the immunity.

However, in Atwells v Jackson Lalic Lawyers (2016), HCA stated that immunity does not protect solicitors where there is no court-related proceedings.

Question 33

What actions can be sought even if immunity does apply?

Answer 33

1. Cost orders can be lodged for financial loss.

2. Disciplinary action still possible.