Moss v Eagleston [2014] NSWSC 6


[author: Emma Oberg]

In Moss v Eagleston [2014] Mr Moss supplied information to Nationwide News Pty Ltd about his criminal background and association with Shapelle Corby. Mr Moss then sued Nationwide News, alleging they had breached a contractual agreement to pay him $250,000 for the information.

A junior lawyer (Mr Eagleston) at the firm Reimer William Winterson of Penrith then acted outside the auspices of the firm and drafted a statement of claim exclusively for breach of contract. Mr Eagleston failed to include a defamation claim against Nationwide News for publishing Mr Moss’s criminal background in the action. Mr Moss then sued Mr Eagleston for professional negligence for failing to bring the additional defamation claim.  Although  Mr Eagleston was an employed solicitor at all relevant times, his employer was not sued.  The issue of whether his employer was vicariously liable for his actions was not relevant to the proceedings.  

At first instance, the Court had to determine the duty of care owed by Mr Eagelston when he agreed to draft a statement of claim after the firm had ceased to act. Mr Eagleston argued that there was no duty of care, or a lower standard of care, for legal services provided on a pro bono basis. This assertion was rejected by McCallum J who held the following:

“the degree of care and skill required in the performance of a professional task cannot logically be informed by the extent of remuneration which the lawyer agrees to accept for the task.’” [81]

Although the firm itself was not sued in these proceedings, the instructions given during the period when it was retained were relevant in determining the scope of the task assumed by Mr Eageleston. The Court held that Mr Eagleston, having taken on the task of preparing the pleading, did not assume any broader responsibility other than to plead the cause of action identified in the letter of instruction provided by Mr Moss.

 Mr Moss made a further complaint that Mr Eagleston had agreed to represent him at the hearing and had failed to deliver on that promise. As a self-represented litigant, Mr Moss contended that had he had legal representation his prospects of success would have been greatly increased.

McCallum J held that Mr Moss did not suffer disadvantage by being un-represented as the Court had taken all reasonable steps to ensure that he was not disadvantaged by this fact. In determining whether a chance was lost (and whether this lost chance caused loss) the Court acknowledged that Mr Eagleston was a solicitor of less than one year’s experience. Accordingly, it was held that if Mr Moss lost the chance to be legally represented at the hearing, that lost chance was not of any real value.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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