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Negligence claims against barristers dismissed but compensation still possible
A complaint by property owners against a firm of solicitors and two barristers was thrown out of an administrative tribunal, but it remains open for them to pursue damages for alleged negligence.
Naomi Neilson
Phillip and Lisa McBride were unsuccessful in complaints against Perth boutique Forbes Kirby and two barristers who were engaged to brief them on a Port Hedland property they came to regret purchasing.
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The Legal Profession Complaints Committee (LPCC) dismissed their complaints as both “misconceived” and “unreasonable”.
An attempt to review this decision in Western Australia’s State Administrative Tribunal failed, with deputy president Judge Kathleen Glancy and members John O’Sullivan and Ross Povey finding the tribunal does not have the jurisdiction to determine the application for review.
However, they did not rule out other legal avenues for the couple.
“We note that, to the extent that the applicants consider that the conduct of the practitioners may have been negligent, there may be a way of obtaining compensation for losses occasioned by that negligence that [does] not depend upon findings being made in this tribunal about the conduct,” the members found.
“The applicants may wish to take legal advice about that possibility.”
Via Mr McBride’s father, the couple complained to the LPCC in August 2021 that they felt the barristers’ alleged opinions “were inadequate”.
As they did not name any specific solicitors in the complaint, and because it does not have the power to determine a complaint against a law practice, the LPCC responded with a request for further information or the complaint would be deemed invalid.
On 28 June 2022, their complaint was dismissed.
In its reasons, the tribunal noted the complaint was entirely dismissed due to being misconceived and unreasonable within the meaning of the Legal Profession Act.
Mr and Mrs McBride then filed an application with the tribunal, which in turn invited the LPCC to reconsider its decisions. The LPCC arrived at the same conclusions, and the complaints were dismissed.
In the most recent proceedings, the tribunal had to first determine whether it had the jurisdiction to determine the matter.
The couple submitted that it did, but the LPCC argued the original decision was “invalid and of no force and effect” and the tribunal has no jurisdiction to review because the decision on review had been made after 1 July 2022, when the Legal Profession Act was repealed.
“It follows from our conclusion that we find the tribunal has no jurisdiction to determine the application,” the members concluded.
