Author: Melissa Tan
Judgement Date: 25th August, 2015
Citation: White v Forster  NSWCA 245
Jurisdiction: Supreme Court of New South Wales Court of Appeal 
In 1997, a joint venture agreement was entered into between Byron Thompson (Mr Thompson), Julian White and Romeo Libut (the applicants), and a company owned by the applicants, to develop and sell a property in Seaforth (Seaforth property). In March 2003, Mr Thompson’s wife (Mrs Thompson) contracted to purchase a property in Somersby (Somersby property). That contract was later novated to Mr and Mrs Thompson as joint purchasers. The sale of the Seaforth property and the Somersby property was completed on 15 May 2003. It appears that funds realised from the Seaforth property may have been used to partially pay for the Somersby property.
Disputes arose between the applicants and Mr Thompson concerning the nature of their relationship with respect to the development of the Seaforth property. Mr Thompson commenced proceedings against the applicants in the Supreme Court of New South Wales in 2003 (2003 proceedings).The applicants retained Reginald Forster (the solicitor) to advise them in relation to the recovery of funds from Mr Thompson in relation to the joint venture, to prepare a cross-claim in the proceedings brought by Mr Thompson and to advise generally. Gregory George (the barrister), represented Mr Libut of the applicants but also provided advice to Mr White.
In June 2003 the applicants filed cross-claims against Mr Thompson in the 2003 proceedings calling on him to account for moneys received by him in connection with the joint venture and seeking damages from him. The applicants’ claim treated Mr Thompson’s withdrawals as creating a debt. No relief was sought against Mrs Thompson and no claim of a proprietary interest in the Somersby property was made.
On 8 December 2005 Gzell J delivered his judgment and on 15 December 2005 orders were made to the effect that a joint venture agreement existed between the applicants and Mr Thompson. Gzell J ordered that an account should be taken to determine the relative entitlements of the parties to the profit of the joint venture.
On 8 February 2008 Mr Thompson was declared bankrupt. On 29 February 2008 Biscoe AJ made orders in relation to the distribution of profits and Mr Thompson was ordered to pay the applicants a substantial sum of money. However, as Mr Thompson was bankrupt, the applicants could not enforce the judgment against him.
In 2008 the applicants commenced fresh proceedings in the Supreme Court against Mr and Mrs Thompson seeking to have the Somersby property sold and the proceeds used to adjust the accounts between the joint venture parties (2008 proceedings). The solicitor and barrister did not act for the applicants in those proceedings.
The 2008 proceedings were subsequently dismissed on the basis that the applicants had implicitly elected to forego proceedings against the Somersby property in the 2003 proceedings (by proceeding against Mr Thompson personally). The Court held that the applicants could not now take proceedings against the Somersby property and Mrs Thompson, which could result in a conflicting judgment and be an abuse of process (Abuse of Process Appeal). An appeal to the Court of Appeal was unsuccessful and special leave to appeal to the High Court was refused.
Professional negligence proceedings
On 7 December 2011 the applicants commenced proceedings against the solicitor. On 12 March 2013 the applicants joined the barrister to the professional negligence proceedings. The breaches of duty pleaded included the failure of the solicitor and barrister to seek a remedy of tracing in the 2003 proceedings, a failure to plead in the cross-claims that the joint venture funds owed to the applicants should be traced into the Somersby property by way of a proprietary interest by trust or otherwise, and a failure to include Mrs Thompson as a party in the 2003 proceedings.
In late 2013 the solicitor and barrister made applications to dismiss the proceedings. On 11 December 2014 the primary judge ordered that the claim against the solicitor be struck out by reason of the application of the advocate’s immunity and ordered that the claim against the barrister be struck out on the basis that it is statute-barred.
On 6 January 2015 the applicants sought leave to appeal from the primary judge’s decision.
In relation to the claim against the solicitor, the applicants submitted that the alleged negligence was a failure to join Mrs Thompson and that such a failure to join a party was not the subject of advocate’s immunity pursuant to the decision in Saif Ali v Sydney Mitchell & Co (1980) AC 198 (Saif Ali).
In relation to the claim against the barrister, the issue on appeal was whether time began to run from 8 December 2005, the date of Gzell J’s decision, or from 29 February 2008, the date of the orders made by Biscoe AJ. The applicants accepted that the judgment of Handley AJA in the Abuse of Process Appeal explicitly stated that any attempt to bring fresh proceedings, or to amend the existing proceedings to bring a proprietary claim, after the judgment of Gzell J would have been doomed to fail. However, the applicants submitted that the judgment of Handley AJA did not create an issue estoppel. They submitted that the issue before Gzell J was whether there was any joint venture at all and the relief granted was “as to the nature and extent of the joint venture”. The applicants submitted that this did not amount to an election not to bring a proprietary claim against Mrs Thompson.
The Court of Appeal unanimously refused leave to appeal and affirmed the primary judge’s decision.
In relation to the claim against the solicitor, Bathurst CJ stated that the real complaint was a failure to pursue a proprietary remedy in respect of the Somersby property, for example, by pleading that Mr Thompson’s drawings from the joint venture funds were unauthorised and fraudulent (in the equitable sense), so as to give rise to a tracing claim over the Somersby property, to which it would be necessary to join Mrs Thompson. As such, the essence of the applicants√ï claims was that the solicitor and barrister were negligent in advising on the appropriate form of relief. In his Honour’s opinion, “in the circumstances of this case, any such failure was in respect of work done out of court affecting the conduct of the case in court, such that the immunity from suit applies.” The joinder of Mrs Thompson was ancillary to the claim for relief, rather than as a result of the applicants having a claim against her independent of the claim against Mr Thompson.
Bathurst CJ accepted that a negligent failure to join a party against whom a person had a cause of action may not be covered by the advocate’s immunity, as was the case in Saif Ali. However, his Honour distinguished the present case from Saif Ali (as did the primary judge). In Saif Ali, the solicitor’s alleged negligence in failing to join a party to the proceedings did not have any connection to the discontinuance of the proceedings on foot. This is distinct from the circumstances of the present case.
Bathurst CJ also stated that the application of the immunity in the present case would lead to finality of litigation. Bathurst CJ concluded that while not necessarily determinative of whether the immunity applies, “the fact that proceedings would have that effect [of finality] supports the conclusion that the decision to seek a remedy of an account, rather than a proprietary remedy, was one made as a result of work done out of court which directly affected the conduct of the case in court.”
In relation to the claim against the barrister, the Court held that the cause of action arose on 8 December 2005 when Gzell J delivered his judgment or at the latest on 15 December 2005 when Gzell J made the orders because from that day the opportunity to bring a proprietary claim ceased to exist. The claim against the barrister commenced on 12 March 2013, more than six years after the limitation expired.
Bathurst CJ opined that the applicants had elected to conduct their case before Gzell J on the basis that the withdrawals by Mr Thompson from the joint venture funds created a debt in respect of which an account should be ordered and they did not make an alternative claim on the basis that the drawings were unauthorised. The judgment of Gzell J on 8 December 2005 finally determined the applicant’s right to an account. Any alternative claim after the order made by Gzell J would be an abuse of process. As such, the primary judge was correct in striking out the claim against the barrister on the basis that it was statute-barred. The Court was also of the opinion that the primary judge was correct in his conclusion that had the claim against the barrister not been statute-barred, it would also have been struck out by reason of the advocate’s immunity.
This case, like the recent Court of Appeal decisions in Young & Hones  NSWCA 337 and Kendirjian v Lepore  NSWCA 132, confirms the application of the advocate’s immunity to work done out of court which is closely connected with work done in court and which affects the way the case in court is to be conducted.
Interestingly, theHigh Court has granted special leave to appeal the judgment of Jackson Lalic Lawyers Pty Limited v Attwells  NSWCA 335 for the purpose of considering whether the decisions in Giannarelli v Wraith (1988) 165 CLR 543 and D√ïOrta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 should be reconsidered.2 If the High Court follows the footsteps of the House of Lords in the UK and abolishes the advocate’s immunity, this will expose the legal profession to greater scrutiny. It may also result in an increase in professional indemnity insurance premiums.
Until the High Court makes a decision on whether the advocate’s immunity should be retained in Australia, this Court of Appeal decision leaves no doubt that both solicitors and barristers are protected by the advocate’s immunity where work done out of court is intimately connected to the conduct of the case in court.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.