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[2023] QSC 194
General information, not legal advice.
Supreme Court of Queensland
2023-08-28
Sullivan J
Original judgment source is linked above.
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - DAMAGES FOR NON-ECONOMIC LOSS - LOSS OF EXPECTATION OF LIFE - where the plaintiff alleges that the second defendant owed a tortious duty of care - where the plaintiff alleges that the conduct of the second defendant in opposing his applications for urgent care caused a loss of life expectancy - whether the second defendant's alleged conduct supports a claim against the first defendant for personal injury
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - METHOD OF ASSESSMENT GENERALLY - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - PARTICULAR CASES - where the plaintiff alleges that the third defendant owed a tortious duty of care in respect of the conduct of a compulsory conference under the Personal Injuries Proceedings Act 2002 (Qld) - whether there has been a breach of the Model Litigant Principles (Qld) - whether there has been a breach of the Barristers' Conduct Rules (Qld) - whether there has been a breach of the third defendant's obligations under s 38(6) of the Personal Injuries Proceedings Act 2002 (Qld) - whether the third defendant's alleged conduct supports a claim against the first defendant for personal injury
Uniform Civil Procedure Rules 1999 (Qld) r 5, r 16, r 16(e),
AED Oil Limited v Back [2009] VSC 158, cited
Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665, considered
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, considered
Blackwell v Barroile Pty Ltd (1994) 51 FCR 347, cited
Bob Brown Foundation v Sustainable Timber Tasmania [2022] TASFC 3, cited
Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303, cited
Business Computers International Ltd v Registrar of Companies [1988] CH 229, cited
Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205, cited
Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445, cited
Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QSC 112, cited
Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors [2022] QCA 232, considered
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1, cited
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, considered
Donaldson v NSW (2019) NSWCA 109, cited
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, cited
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, cited
Geo. Cluthe Manufacturing Co. Ltd v ZTW Properties Inc (1995) 23 OR (3d) 370, considered
Giannarelli v Wraith (1988) 165 CLR 543, considered
Giffin v Telstra Corporation Ltd [2018] QSC 111, considered
Hill v Van Erp (1997) 188 CLR 159, cited
Islam v Mitry Lawyers Pty Ltd t/as Mitry Lawyers Pty Ltd [2023] NSWSC 700, cited
Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549, considered
Love v Robbins (1990) 2 WAR 510, cited
Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188, considered
Malone Obh of Western Kangoulu People v State of Queensland [2021] 287 FCR 240, considered
Mbuzi v Hall and Anor [2010] QSC 359, cited
Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91, cited
Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, cited
Robertson v Hollings (Imagination Television Ltd) [2009] QCA 303, considered
Sullivan v Moody (2001) 207 CLR 562, cited
Tame v New South Wales [2002] HCA 35; (2001) 211 CLR 317, cited
The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307, considered
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, considered
Willi & Anor v Banks & Ors [2018] QSC 284, cited
[1] This proceeding involves a claim where the pleaded relief is for damages arising from personal injuries. It, in part, relates to alleged medical services delivered by the first defendant to the plaintiff. The medical services allegations are irrelevant to the three interlocutory applications before the Court.
[2] There are then two separate pleaded allegation streams which are centred on the alleged conduct of two barristers, being the second defendant and the third defendant. It is only these separate allegation streams which the current three interlocutory applications before the Court are concerned with.
[3] The first barrister allegation stream is pleaded against the second defendant. He appeared for the State of Queensland in a different proceeding in the Supreme Court of Queensland. That different proceeding involved the plaintiff suing the State of Queensland in relation to the plaintiff's yacht which had grounded in the vicinity of South Stradbroke Island. The plaintiff's allegations in the different proceeding included that the Queensland Police Service ought to have taken certain steps in relation to navigational aids and the preservation of that yacht by salvage ("the Yacht Proceeding"). In the current proceeding, the cause of action against the second defendant is based on his alleged conduct as counsel for the State of Queensland during the hearing of two interlocutory applications brought by the plaintiff in the Yacht Proceeding. Those applications were heard on two separate dates about a month apart.
[4] Amongst other relief, each of the plaintiff's two applications sought an urgent date for mediation. The initial application for such relief was adjourned on the first occasion. A mediation date was subsequently set by order on the second occasion, together with an order for the determination of a separate question as had been sought by the State of Queensland in its own application.
[5] The plaintiff alleges that the second defendant owed a tortious duty of care to him in respect of how the second defendant conducted the two interlocutory applications on behalf of the State of Queensland in the Yacht Proceeding.
[6] The plaintiff alleges that the conduct in opposing his applications for an urgent mediation caused him a loss of life expectancy, and to suffer uncertainty, anxiety and depressive episodes. It would seem that this is alleged to be linked to the plaintiff not being able to engage in chemotherapy within a certain window of time.
[7] The second barrister allegation stream is pleaded against the third defendant. He was retained by and acted for the first defendant in the pre-commencement period relevant to the current proceeding. In particular, the causes of action relate to his alleged conduct in the compulsory conference which occurred prior to the commencement of this proceeding. That compulsory conference was mandated by s 38 of the Personal Injuries Proceedings Act 2002 (Qld) ("PIPA").
[8] The plaintiff alleges that the third defendant owed a tortious duty of care to him in respect of how the compulsory conference was conducted by the third defendant on behalf of the first defendant. Part of the pleaded case is the allegation that the third defendant and the first defendant knew at the time of the conference that the plaintiff had advanced cancer and mental health disabilities.
[9] The plaintiff contends that the conducting of the conference in the way alleged in the pleading has caused him psychiatric injury, which was described as a significant depressive injury at the conference, and further post-conference depressive injuries. Part of the plaintiff's case is said to include breaches of the Model Litigant Principles (Qld) ("MLP"), breaches of the Barristers' Conduct Rules (Qld) ("Bar Rules") and a breach of the obligation in s 38(6) of the PIPA to "actively participate" in the conference. The pleading in this respect is entirely unclear as to whether these are simply part of a tortious duty of care cause of action or are said to be free-standing causes of actions in themselves. Attempts to clarify the matter in oral submissions proved unproductive.[1]
[10] The next part of the plaintiff's pleaded case is that the alleged conduct of both the second and third defendants are also relied upon to support a claim against the first defendant for personal injury. This is done in two fashions.
[11] First, in relation to the two interlocutory applications heard in the Yacht Proceeding, it is said, using the language of the pleading, that the first defendant had a duty to intervene in the Yacht Proceeding for the plaintiff's health and immediacy of treatment, and to recommend to the State of Queensland that an order be granted in the Yacht Proceeding in urgency for the plaintiff's welfare. This confusing plea seems to contemplate a free-standing tortious duty of care said to be owed to the plaintiff. It should be immediately noted that the first defendant was not a party to the Yacht Proceeding, had no connection to it and, unsurprisingly, had not retained the second defendant to act for and on its behalf in the Yacht Proceeding.
[12] Secondly, in relation to the conduct of the third defendant in the compulsory conference, it is alleged by the plaintiff that the first defendant "condoned" the conduct of the third defendant. This opaque language might be indicating that the first defendant was said to be vicariously liable for the third defendant's conduct, but it might also be intending to articulate some omission where the first defendant was said to have had a positive duty to act. Another part of the pleading suggests the latter position may be what was intended. In any event, I will deal with the first defendant's application on the assumption that both bases are advanced.
[13] In order to understand the various pleas that are made I will set out the relevant paragraphs of the Amended Statement of Claim. However, I will do so under the discrete headings which deal with the individual strike out applications. I will not repeat all of the allegations which relate to the first defendant as well as each of the other defendants. Instead, I will take them as read and I will only highlight certain portions of them.
Legal Principles Applicable to Strike Out Applications
[14] The power to strike out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") or in the inherent jurisdiction of the Court is to be exercised only in clear cases.[2]
[15] Having made this observation, it is necessary to recognise that allegations must be articulated with care. Sufficient and relevant facts should be pleaded so that there is no confusion in the issues raised for trial or in the scope of the case which the defendants must meet; a plaintiff must also plead facts which meet the requirements of the alleged causes of action.[3] This includes the proper pleading of material facts necessary to understand the counter-factual case underlying the causation plea.
[16] While the power to strike out should only be used sparingly, the Court will not shrink from striking out a pleading (including a claim)[4] which is defective because it does not disclose a reasonable cause of action, has a tendency to prejudice or delay a fair trial, contains allegations which are unnecessary,[5] scandalous, vexatious or embarrassing,[6] or which is otherwise an abuse of the process of the Court.[7]
[17] As was observed by White J (as her Honour then was) in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd:[8]
"...the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed. Furthermore, the defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts and circumstances giving rise to the litigation. That would be a certain path to disaster."
"...litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties."
[19] A plaintiff's disinclination to have legal representation does not license it to proceed unconstrained by the rules to which adversarial litigation is conducted.
[20] Rule 16 of the UCPR and the inherent jurisdiction of the Court have also been relied upon by the second and third defendants to either strike out the claim or permanently stay the claim to the extent that it concerns those defendants.
[21] In dealing with an application to strike out a claim in reliance upon r 16 of the UCPR, her Honour Atkinson J in Giffin v Telstra Corporation Ltd [2018] QSC 111 at [26] observed as follows:
"Striking out a claim is the end of the proceeding. The defendant must therefore demonstrate a 'high degree of certainty' about the ultimate outcome of the proceeding."
[22] In Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd & Ors,[11] at first instance,[12] Flanagan J (as his Honour then was) struck out a claim and statement of claim which alleged that the plaintiffs were owed a duty of care by the solicitors acting for their opponents in litigation. His Honour made the following observations about how the powers conferred under r 16(e) and r 171 of the UCPR are to be exercised at [38]:
"The power under r 16(e) of the UCPR to set aside an originating process may be exercised by the Court on the same grounds that are applicable to the exercise of the inherent jurisdiction. The power to summarily dismiss a proceeding in the Court's inherent jurisdiction should be treated with caution. Similarly the power to strike out pursuant to r 171 of the UCPR or in the inherent jurisdiction of the Court is to be exercised only in clear cases. It is, however, appropriate to exercise the power in circumstances where the proceeding amounts to an abuse of process or is vexatious. The Court must, however, take "great care" if it exercises a discretion to terminate proceedings prior to trial, bearing in mind that the consequence is to deprive a party of the chance to prove his or her claim or defence at trial." (Footnotes omitted)
[23] I note also the principles and authorities referred to by Bond J (as his Honour then was) in Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549, particularly at paragraphs [40] and [41].
[24] I will determine each application bearing in mind these statements of principle applicable to rr 16 and 171 of the UCPR and the inherent jurisdiction of the Court.
[25] Significant evidence was filed in the applications. Rule 171 of the UCPR allows the Court to have regard to the affidavit material.
[26] However, these applications are not summary judgment applications, and on a strike out application the focus should primarily be on the pleaded case.
[27] Nonetheless, the affidavit material can assist in understanding what may be meant in a particular plea, or whether leave to re-plead ought to be ordered if a particular plea is struck out.
[28] The affidavit material as it concerned the second defendant included the following material.
[29] First, the applications and written submissions from the hearing of the first and second interlocutory applications in the Yacht Proceedings were exhibited.
[30] Secondly, the plaintiff's affidavit material from the first and second applications in the Yacht Proceeding were exhibited. That affidavit material included a hand-written note from a Dr Alison Hadley from the Royal Brisbane & Women's Hospital ('RBWH') as follows:
Mr Collins has recently been diagnosed with a significant & serious medical condition that requires intensive treatment in the near future. This treatment is quite intensive. It is medical [sic] recommended to begin as soon as possible.
[31] Thirdly, the transcripts from the hearings of the first and second applications in the Yacht Proceeding were exhibited.
[32] Fourthly, the orders made by Martin J on 16 July 2019 and Boddice J on 19 August 2019 in the Yacht Proceeding were exhibited.
[33] The affidavit material as it concerned the third defendant included the following material.
[34] First, a letter of 27 January 2023 from a Mr Pavel Sergeyev. He was a solicitor who attended the compulsory conference with the plaintiff in order to assist the plaintiff, although the plaintiff says he was self-represented at the conference.
[35] The plaintiff sought to adduce the letter in a way which suggested he was seeking to do so for the truth of its content.
[36] Counsel for the third defendant objected to certain portions of the letter. Ultimately, I upheld the objection to the final paragraph of the letter. It later became apparent that this letter was referred to in the particulars in the Amended Statement of Claim.
"With reference to the above matter, you have asked me to consider whether the State had contravened the Model Litigant Principles (MLP) during the settlement conference that took place last Friday, 20 January 2023. You have provided me with a copy of the MLP.
The State is not to seek to take advantage of an impecunious opponent. Mr Green, Counsel for the State, made a number of comments regarding cost consequences of the litigation, a large portion of those comments making a point that if the State were to obtain a costs order against you, they will enforce it. Reference was also made to the prior litigation, alluding to the fact that they had not enforced a costs order against you. There was a veiled threat that they could still pursue you for that costs order.
I am of the opinion that Mr Green's comments have contravened this principle.
There is a requirement not to contest matters which it knows to be true. There was a likely contravention of this principle. For example, you have provided the State with a requirement to provide patients with a Comprehensive Care Plan. The State should have known whether this requirement applies to the QLD Health Services. If that requirement does apply to the State and to the QLD Health Services, there should have been an admission of this. Instead, the Counsel for the State made comments to the effect that how it would apply would be up to various experts.
Principle 2: This principle also has a requirement about not taking advantage of an impecunious opponent. This matter was discussed above.
During the conference Mr Green also made references to the fact that the parties would not go to a trial until at least March 2024. The State knows that you suffer from a terminal condition, and is aware that you are approaching 80 years of age. Whilst it is understandable that some procedures and further gathering of evidence have to be completed, if the parties are willing to do so, trial could be held at a much earlier date.
Threatening a person with a terminal condition with a long period to a trial is unconscionable, and I imagine this would also have been taken as intimidatory by you." (Underlining added)
[38] It can be seen that a number of the parts to this letter are not statements of fact but merely comment, assertion or the expression of the opinion of Mr Sergeyev. I have underlined the portions which appear to identify potential factual matters that Mr Sergeyev may have allegedly witnessed at the conference, or in one case was the impression he may have formed from what he allegedly heard or saw.
[39] Secondly, a statutory declaration of the plaintiff dated 25 January 2023, dealing mostly with the compulsory conference.
[40] Thirdly, an exchange of correspondence between the plaintiff and the first defendant on 18 January 2023. On 18 January 2023 in a letter dealing with pre-compulsory conference matters, the plaintiff wrote, in part, to the solicitor acting for the first defendant as follows:
"Because the compulsory conference will not be mediated I have requested that both parties agree to comply with the Model Litigant Principles (Qld).
Attached is an undertaking by myself and my solicitor to comply with the rules.
Please acknowledge agreement by letter that officers of Crown Law, other officers of the State of Queensland and of counsel for the State of Queensland Mr Rick Green will comply with the Model Litigant Principles."
[41] On the same date the first defendant's solicitor replied on various matters to the plaintiff, including on this issue as follows:
"My client is an agency of the State and must comply with Model Litigant Principles in dealing with your claims made again[st] it. A declaration is not required."
[42] Fourthly, a copy of the MLP revised as at 4 October 2010. None of the parties disputed that this was the applicable version which existed at the time of the compulsory conference. Relevantly, the MLP provided in paragraphs 1 and 2 as follows:
"1. The State and all agencies must conduct themselves as model litigants in the conduct of all litigation by adhering to the following principles of fairness:
[43] Fifthly, I allowed Mr Collins to put on additional affidavit evidence filed after the hearing of the three applications. It consisted of various exhibits, many of which identified in a more specific way descriptions of the material he had delivered to the third defendant prior to the compulsory conference. The plaintiff's affidavit evidence identifies that it was at least two volumes in size. This material was produced by the plaintiff at the compulsory conference for the purpose of discussion.
[44] Sixthly, it is relevant to note that the evidence adduced by the plaintiff shows that, prior to the compulsory conference, the first defendant had communicated its position on the plaintiff's claim, namely it disputed the plaintiff's claim and offered to settle the matter by each party walking away. On the evidence adduced solely by the plaintiff, or on the pleading itself, it is apparent that even on the plaintiff's case the first defendant participated in the compulsory conference by its legal representative:
(a) re-stating the first defendant's settlement position, which remained unchanged from the pre-conference position;
(b) stating to the effect that the plaintiff was at risk of an adverse costs order which the first defendant could then enforce;
(c) stating to the effect that the plaintiff already had an adverse costs order against him which the State of Queensland could enforce;
(d) making statements to the effect that a requirement to provide a Comprehensive Care Plan was a matter for expert evidence; and
(e) stating to the effect that the parties could not go to trial until at least March 2024.
[45] I will deal with the second defendant's application first, and then the first defendant's application, to the extent that it relates to the second defendant's alleged conduct.
[47] Paragraph 1C pleaded, inter alia, that the second defendant is a natural person who was a barrister for the State of Queensland. Then, as part of a purported particular to paragraph 4, the following statement appeared:
"The Second Defendant is a barrister, a sole trader (ABN 942 359 392 39) in More Chambers Pty. Ltd. and is sued according to a scheme established from the Professional Standards Act 2004 (Qld), and subject to Part 3 (29) of the Limitation of Actions Act 1974 (Qld), the Plaintiff having a disability at 5 June 2019 defined by the Australian Human Rights Commission (AHRC) (cancer and mental-health impairment), a disability considered in the Disability Discrimination Act 1992 [Cth] Section 4); and pursuant to common law tort of negligence."
[48] The plaintiff later pleaded the following facts as relevant to the claim against the second defendant:
Duty of Defendants to intervene for the Plaintiff's health and welfare
i) Concealed from the Court the certificate of Dr. Hadley who described the Plaintiff's diagnosis as "a significant and serious medical condition that requires intensive treatment in the near future. This treatment is quite intensive. It is medical (sic) recommended to begin as soon as possible".
ii) Diminished the significance of the Plaintiff's advanced cancer, describing the Plaintiff only as "unwell".
iii) The Second Defendant said the Plaintiff's application was "misconceived, lacking in substance and without merit. It should be dismissed, with costs. The plaintiff suggests that mediation is urgently needed 'on medical grounds'. He produces a letter from a General Practitioner, Dr Ashraf, dated 26 June 2019 which discloses only that the plaintiff has a 'serious medical issue' that will require 'very special medical treatment'. There is no evidence as to the effect of the plaintiff's condition on his ability to conduct the proceeding or the relevance of that condition to the present application. Notwithstanding the prospect that the plaintiff is unwell."
[49] Clearly the reference in paragraphs 28 (iv) and (v) to the first defendant are erroneous and should be understood as references to the State of Queensland. It appears from the first iteration of the Statement of Claim that the State of Queensland had originally been named as the first defendant.
[50] The pleading then turned to the plea of a duty of care. It relevantly provided:
[51] The pleading then turned to matters which might be said to constitute a causation plea. They are as follows:
[52] Again, the references in paragraphs 28 (ix) and 28 (x) to the first defendant are erroneous and should be understood as references to the State of Queensland.
[53] The plaintiff then returned to the same subject matter pleaded previously. He did so by re-stating facts, articulating similar but not identical duties, and revisiting causation. All of this is pleaded against the second defendant as follows:
"96. In summary, and by reasons pleaded above, the Second Defendant:
(a) as counsel for the First Defendant in Collins v State of Queensland BS 8473/18 (2019-2021) concealed from Court a certificate of the Plaintiff's oncologist who stressed urgent treatment of the Plaintiff's advanced cancer.
(b) diminished the significance of the Plaintiff's disease in order to proceed the litigation for the First Defendant (2019).
(c) did not abstain from acting on instructions of the First Defendant and act instead in duty to the Plaintiff's health and welfare by advising the Court of the Plaintiff's serious medical condition.
(d) did not abstain from acting in the First Defendant's interest despite the Plaintiff's disease considered a disability by the Australian Human Rights Commission.
(e) did not intervene and warn the Plaintiff of an obvious risk in order to avoid the Plaintiff suffering an injury or death.
(f) failed duty to act in the Plaintiff's interest and caused the Plaintiff to lose a "3-month window" for effective chemotherapy, resulting in loss of opportunity to control the disease.
(g) in failure of duty of care caused the Plaintiff to lose statistically 15.6 months of life, having missed administration of chemotherapy at time of or soon after diagnosis."
[54] Again, the references to the first defendant are erroneous and should be understood as references to the State of Queensland.
[55] The plaintiff then pleaded against the second defendant the following breach allegation:
"97. At all material times, in the premises of the matters pleaded above, the Second Defendant was in breach of:
a) The Statutory and other Duties.
b) The Disability Discrimination Act 1995 (Cth).
c) The Criminal Code Act 1899 (Qld) Section 328 negligent act causing harm.
d) A Duty of Care to the Plaintiff.
e) The General Duty and Duty of Care."
[56] Finally, at the end of the pleading there is a prayer for relief which is generally applicable to all defendants in respect of all allegations as follows:
(i) The calculation of damages: Notice of Claim Part 2.
[57] Despite the content of paragraph 97 of the Amended Statement of Claim, the plaintiff only advanced submissions on the basis that the duty he was pleading and relying upon was a tortious duty of care said to be owed by the second defendant to the plaintiff.[13] That is how I have proceeded.
[58] The underlying facts pleaded against the second defendant concern his conduct in Court as an advocate for a retained client. The plaintiff's case as pleaded maintains that the second defendant owed a tortious duty of care to the plaintiff variously:
(a) to abstain from acting on instructions of the second defendant's client in the course of acting in the two interlocutory applications, due to the second defendant's knowledge that the plaintiff had a serious medical condition (cancer) which was in need of treatment in the future; and
(b) to intervene and warn the plaintiff of some undefined obvious risk in order to avoid the plaintiff suffering an injury or death.
[59] No matter how the duties are cast by the plaintiff, they all raise the issue of whether a barrister, appearing in Court for one party, owes a duty of care to the opposing party.
[60] Where there is contentious and hostile litigation, as a general proposition, no duty of care will be owed by a legal representative of one party to the opposing party. In Lee v Abedian & Ors [2017] 1 Qd R 549,[14] Bond J (as his Honour then was) considered the matter in the context of an alleged tortious duty of care cause of action. It was alleged that a legal firm, and the individual solicitor within the firm, acting for one party had negligently provided a report to a foreign prosecutor. The provision of the report was said to have led to a wrongful prosecution and to the plaintiff being placed into custody. The relief in that proceeding was for both pure economic loss damages, and for general damages for physical, mental and emotional harm.[15] It is relevant to note this personal injuries component to the relief sought in Lee. It is also relevant to note that the conduct complained of in Lee was not engaged in as part of the course of existing litigation between the plaintiff and the client of the legal representatives.[16]
'In my view, the suggested duty runs up against the stumbling block of the following statement by Brennan CJ in Hill v Van Erp (1997) 188 CLR 159, 167:
"Generally speaking, however, a solicitor's duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor's duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client's interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client_._'"
[62] His Honour then went on to acknowledge that there were exceptions to the general rule as follows:[17]
"(a) There are cases where although there is no formal solicitor/client relationship, a solicitor's conduct demonstrates an assumption of responsibility, with known reliance by the plaintiff, such that a duty of care may arise by reason of an implied professional retainer agreement: see the case cited in Carey v Freehills.[18]
(b) There are cases in which a duty of care owed by a professional to someone other than their client has been held to exist on the basis of normal principles relating to negligent misstatement, which include the requirements of assumption of responsibility and reasonable reliance: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465; Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241.
(c) There are also cases in which a duty of care has also been recognised as being owed by a solicitor to someone other than their client (e.g. beneficiaries in a will or the client's trustee in bankruptcy), but in those cases there is a coincidence of interest between the client and third party: see Hill v Van Erp (1997) 188 CLR 159; Blackwell v Barroile Pty Ltd (1994) 51 FCR 347."
In that case His Honour found that the facts did not fit within any of those exceptions.
[63] In respect of the pleading against the second defendant, I would similarly observe that the pleaded facts of this case do not fit within any of those exceptions.
[64] His Honour then considered whether a duty of care could arise as a novel circumstance or category. After having examined the principles relating to this proposition at paragraphs [53] to [56], his Honour, in rejecting that such a novel circumstance or category could arise, observed, inter alia, as follows:
"[57] To contend that the solicitors owed the third party a duty of care is to seek to do the very thing which Brennan CJ said could not be done, namely to temper the duty undoubtedly owed to the client by the existence of a duty to a third person whose interests in the transaction are not coincident with the interests of the client. I would apply his Honour's observations to conclude that a duty of care owed to the client in connection with the production of a report concerning potential legal proceedings against a third party cannot be tempered by the existence of a duty owed to the client's potential adversary in those legal proceedings.
[59] My conclusion is consistent with the reasoning in Al-Kandari v J R Brown & Co [1988] EWCA Civ 13; [1988] QB 665 (a case cited with approval by Dawson J in Hill v Van Erp at 187) that a solicitor acting for a party who is engaged in hostile litigation owes a duty to the client and to the Court, but the solicitor does not normally owe any duty to the client's opponent. I do not see that any relevant distinction is to be drawn between the position of an actual opponent, litigation having commenced, and that of a potential opponent, litigation being only contemplated."
[65] As Bond J recognised, the alleged duty in that case would have been inconsistent with the desirability of coherence with the law governing the duty of undivided loyalty a legal practitioner owes his or her client. He further observed that it had been long recognised that a consideration which spoke adversely to the recognition of a duty, was that the proposed duty of care may supplant or subvert the existence of other principles of law which had already struck a particular balance between rights and obligations, duties and freedoms.
[66] In support of this last proposition, Bond J cited Sullivan v Moody (2001) 207 CLR 562 at [42] per Gleeson CJ, Gaudron, McHugh and Callinan JJ. To this I would add the similar observations made in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 as per the obiter dictum statements of Gleeson CJ at [24]-[28], Gaudron J at [57], Gummow and Kirby JJ at [231] and Hayne J at [298].
[67] As referred to by Bond J, the general proposition had been expressed in the English Court of Appeal decision of Al-Kandari[19] by Donaldson MR (with whom Dillon LJ agreed) at p. 672 as follows:
"A solicitor acting for a party who is engaged in 'hostile' litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client's opponent: Business Computers International Ltd v Registrar of Companies [1987] 3 WLR 1134. This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v Elman [1940] AC 282..."
[68] Further, this general proposition is also supported by appellate authority in Queensland. In The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307, the lead judgment was given by McPherson JA, with whom both Jerrard JA and Chesterman J (as his Honour then was) expressly agreed. One of the issues in that decision was whether one party to litigation owed a tortious duty of care to the opposing party in respect of the commencement and conduct of the litigation. At paragraphs [17] to [19], McPherson JA identified and approved of a line of Australian, English and Canadian authorities that stood for the general proposition that no such duty was owed either by the litigant, or his or her legal representative, to the opposing party. Those authorities included Al-Kandari, but with particular reference to the judgment of Bingham LJ at page 675. Bingham LJ had articulated a statement of the general propositions which was broadly similar to that of the Master of Rolls set out above. Bingham LJ stated:
"In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client's adversary. The theory underlying such litigation is that justice is best done if each party, separately and independently advised, attempts within the limits of the law and propriety and good practice to achieve the best result for himself that he reasonably can without regard to the interests of the other party. The duty of the solicitor, within the same limits, is to assist his client in that endeavour, although the wise solicitor may often advise that the best result will involve an element of compromise or give and take or horse trading. Ordinarily, however, in contested civil litigation a solicitor's proper concern is to do what is best for his client without regard to the interests of his opponent."[20]
[69] Consistent with the reasons of Bond J, Bingham LJ contemplated that there nevertheless could be circumstances in contested civil litigation where a solicitor, for a limited purpose, had stepped aside from his role as solicitor and agent of one party and assumed a different role, either independent of both parties or as agent of both. That limited exception has no relevance to the pleaded case against the second defendant in this proceeding.
[70] In The Beach Club Port Douglas[21] the alleged tortious duty of care was inconsistent with the duty owed by the legal practitioner to his or her client. That part of the pleading was struck out. Whilst leave to re-plead was granted on appeal, it was clear that this was not for the purpose of an attempt to re-plead a tortious duty of care. His Honour McPherson JA concluded his reasons with the following comment:
"It may be added, however, that one would not expect the claim in negligence to be resurrected in future in such a pleading...".[22]
[71] Importantly for the case against the first defendant, McPherson JA approved of the principle that no such duty would arise in adverse litigation not only in respect of the legal representative, but also the litigant itself. After having discussed the Canadian authority of Geo. Cluthe Manufacturing Co. Ltd v ZTW Properties Inc (1995) 23 O.R (3d) 370, his Honour stated as follows:
"...But the decision in the Canadian case is additional authority for the proposition that, apart from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff. I consider we should apply these English, Australian and Canadian decisions in this case."[23]
[72] Other examples of where the general proposition has been applied to strike out tortious duty of care causes of action alleged against an opponent's legal representatives are Chapel of Angels Pty Ltd & Ors v Hennessey Building Pty Ltd & Ors [2022] QSC 112 at [45][24] and Islam v Mitry Lawyers Pty Ltd t/as Mitry Lawyers Pty Ltd [2023] NSWSC 700 at [80]. Both were pure economic loss cases. However, Lee is an example of a strike out application which involved a claim for damages for both pure economic loss, and physical and mental harm.
[73] The nature of litigation as adversarial necessarily sharpens the focus on a need for a litigant by itself, and through its legal representatives, to seek to act in the litigant's best interest. This may include acting in a robust way which causes offence or distress to an opposing party. Ultimately, if that conduct is sought to be called into question then it is not by the imposition of a common law duty of care. Safeguards against inappropriate conduct fall to be dealt with in other spheres of operation such as regulation by the Legal Services Commission, the Court's control of its own proceedings, the supervision of officers of the Court, or other causes of action as may be available in the circumstances of a particular case.[25]
[74] Accordingly, as a matter of law, the tortious duty of care pleaded against the second defendant cannot be supported.
[75] The entirety of the pleaded case to the extent that it concerns the second defendant ought to be struck out.
[76] It is not appropriate to grant leave to re-plead a tortious duty of care where the cause of action is not available at law.
[77] The second defendant submits that even if an alleged tortious duty could be found, the plaintiff's claim would be barred by operation of advocates' immunity.
[78] One classic articulation of that immunity was in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 by Gleeson CJ, Gummow, Hayne and Heydon JJ at [1] as follows:[26]
"...at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court..."
[79] In reviewing the immunity in D'Orta-Ekenaike, the High Court focussed chiefly on the consideration of finality. Gleeson CJ, Gummow, Hayne and Heydon JJ held that the central justification of the immunity was the principle "that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances..."[27]. Their Honours later observed that underpinning the system of justice was "the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need."[28]
[80] In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, the majority, being French CJ, Kiefel, Bell, Gageler and Keane JJ, made the following observation:[29]
"...The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. Because this incidental operation of the immunity comes at the expense of equality before the law, the inroad of the immunity upon this important aspect of the rule of law is not to be expanded simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby."
[81] While it may be accepted the precise scope of immunity is not yet settled,[30] a number of features of the immunity seem to be uncontroversial, namely:
(a) the principle applies both to barristers and solicitors;
(b) the principle also applies to both acts and omissions;[31]
(c) the principle can be applied both to the conduct of a case in Court and also to work out of Court which leads to a decision affecting the conduct of the case in Court or work intimately connected with work in a Court;[32] and
(d) the relevant conduct must "move litigation towards a determination by a Court."[33]
[82] Whilst the principle as articulated in D'Orta-Ekenaike was put in terms of an advocate not being sued by his or her client for negligence in the conduct of the case, authority supports that the immunity applies equally to an advocate being sued by an opposing party.
[83] In Love v Robbins (1990) 2 WAR 510, the Western Australian Court of Appeal was considering the immunity of prosecutors. An accused who had been convicted in a criminal trial later brought a writ against two Crown prosecutors in respect of both an initial trial, and also a second trial in which the conviction actually occurred. The causes of action raised against the prosecutors were for damages for breach of duty and conspiracy.
[84] Chief Justice Malcolm (with whom Seaman and Wallwork JJ agreed) made the following statement in respect of the immunity principle as articulated in Giannarelli v Wraith (1988) 165 CLR 543:[34]
"If the immunity principle extends to counsel actually briefed or retained by a client to protect him from suit by the client, there would be even greater justification for the application of the immunity principle to counsel briefed or retained by an opposing party or, as in the present case, counsel employed by the Crown. Mason CJ said in Giannarelli (at 555) that the justification for the immunity rested on public policy grounds."
[85] After referring to what Mason CJ stated as the conceptual basis for the immunity, Malcolm CJ continued:[35]
"The foundation of that principle is the perception that great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation. As McTiernan J noted in Cabassi with reference to the rule in its application to witness: '...it is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.'
The considerations dictate the need to protect freedom of speech in court, likewise dictate the need to protect the advocate's freedom of judgment with respect to what is said and done in court. Just as the principle protects the judge and the jury in relation to what they decide, so it protects the advocate. The advocate is as essential a participant in our system of justice as are the judge, jury and the witness and his freedom of judgment must be protected: see the discussion by Brett MR in Munster. The need for that protection arises from "the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty", to repeat the words of words of Fry LJ in Munster." (footnotes omitted)
[86] As recognised by Malcolm CJ, the immunity extends to any form of action. This would include a personal injuries claim arising from a breach of a tortious duty of care.
[87] Here, the impugned conduct of the second defendant was in respect of his appearance in Court where he made both written and oral submissions opposing the plaintiff's two applications. In the first hearing his submission included that the mediation was pre-emptory as disclosure had not yet taken place, and in the second hearing his submissions included that a separate question proposed by the State of Queensland should be determined prior to any mediation.
[88] In both circumstances, the second defendant's conduct was that of an advocate in Court which sought to move the litigation towards a determination by the Court.
[89] Accordingly, if I were incorrect on my conclusion that a duty of care is not owed by counsel to his client's opponent in adversarial litigation, then I would still strike out the pleading against the second defendant on the basis that the cause of action is unmaintainable due to advocates' immunity. Again, for the same reasons dealt with under the "Duty of Care" heading, it would be inappropriate to make an order which would facilitate a re-pleading where the immunity is in operation.
[90] There are other objections to the pleading made by the second defendant.
[91] First, it was contended that there was no proper pleading of the causal connection between the conduct of the second defendant and the loss alleged by the plaintiff in this proceeding.
[92] I would agree with this complaint in respect of the alleged loss of life expectancy plea. I have expressed above that the case appears to be that by reason of the opposition to the interlocutory applications, including by the second defendant at the first hearing omitting to refer to the hand-written note from the specialist,[36] this somehow caused the plaintiff to lose an opportunity to undergo early chemotherapy treatment. The material facts pleaded do not establish in any comprehensible and logical way how the alleged conduct, being the opposition to the interlocutory applications, led to the loss of the plaintiff's life expectancy referred to. The mere happening of the events in question, being the opposition to the applications, do not by themselves explain the causation of that particular loss claim.
[93] Accordingly, I would have separately struck out the causation pleas at paragraphs 28 (ix), 28 (x), 96 (f) and 96 (g) and granted leave to re-plead. This would have offered an opportunity to see if a proper causation plea could be fashioned for that part of the loss. However, given my conclusion on the duty and immunity issue, it would be inappropriate to order this issue to be repleaded.
[94] Secondly, the second defendant complains that the procedures under the PIPA have not been complied with in respect of the claim against the second defendant. On the evidential material, this is correct.
[95] The evidence before the Court included that certain requirements of the PIPA had not been complied with, including the giving of a s 9 notice to the second defendant. In the pre-application correspondence,[37] the plaintiff stated to the effect that the claim against the second defendant was not a claim under the PIPA, but rather was a common law breach of duty of care case.
[96] I cannot accept that statement by the plaintiff. The case raised against the second defendant is clearly in the nature of a personal injury within the meaning of the relevant Act.
[97] However, I note that no submission was made to me that this absence of compliance was fatal to the maintaining of the claim. In the absence of such a submission I will not strike out the pleading on that basis.
[98] Thirdly, I would have separately struck out paragraph 97 with leave to re-plead. The paragraph is embarrassing in circumstances where the only duty being advanced is a tortious duty of care. The indiscriminate reference to a variety of other pieces of legislation, and the vague descriptions of duties is embarrassing and likely to prejudice or delay the fair trial of the action. This would offer an opportunity to properly identify the tortious duty of care being asserted. However, given my conclusion on the duty and immunity issue, it would be inappropriate to order the paragraph to be repleaded.
First Defendant's Application to the extent that it concerns the pleaded conduct of the Second Defendant
[99] I have previously set out the pleading to the extent that it concerns the second defendant. That part of the pleading is also relevant to one of the causes of action pleaded against the first defendant.
[100] I set out below the matters pleaded which appear to constitute the duty of care said to be owed by the first defendant, a purported causation plea against the first defendant, and the claim for relief articulated against the first defendant. They are as follows:
94. In summary, and by reasons pleaded above, the First Defendant:
(h) did not intervene for the Plaintiff's welfare as advice in a civil litigation case involving the State of Queensland.
(i) The calculation of damages: Notice of Claim Part 2.
[101] As previously observed, the references in paragraphs 28 (vi) and 28 (ix) (and possibly 28 (x)) to the first defendant are erroneous and should be taken as references to the State of Queensland.
[102] It does not appear to me that there is a pleading of vicarious liability of the first defendant in respect of the second defendant's conduct. If I am incorrect on this conclusion, then such a vicarious liability plea would be untenable and should be struck out without leave to re-plead. The second defendant was at all times appearing on behalf of the State of Queensland, not the first defendant. In that respect, there could never be a basis for pleading a vicarious liability case against the first defendant for the second defendant's conduct.
[103] There seems to be a plea that is capable of being interpreted as the first defendant owing a tortious duty of care to the plaintiff to intervene in the Yacht Proceeding "for the Plaintiff's health and immediacy of treatment, to recommend to the [State of Queensland] that an order be granted in urgency for the Plaintiff's welfare." This plea can be seen in paragraph 28 (vi), with a related factual plea of conduct by omission pleaded at paragraph 94 (h).
[104] There is nothing in the factual matters which have been pleaded which could give rise to such a tortious duty of care.
[105] The Yacht Proceeding was a civil action brought by the plaintiff against the State of Queensland. The first defendant was not a party to the Yacht Proceeding. There was no pleaded material facts supporting some assumption of an obligation or responsibility by the first defendant, which would have imposed a duty of care on it to intervene on behalf of the plaintiff in a Court proceeding about which it had no standing or involvement, let alone intervening in two interlocutory applications within that proceeding where it is not alleged it had been served with, or otherwise knew of, the applications or their subject matter.
[106] The highest point that is pleaded is that on 5 July 2019 the plaintiff, at a meeting with Dr Hadley, provided further written questions to the first defendant about proposed therapies and advised the first defendant of the plaintiff's commitment to a complex project (verbally stated as litigation) that required high level cognitive and other sensory abilities.
[107] Those facts, if made out, do not give rise to a tortious duty of care in the form which was pleaded in paragraphs 28(vi) and 95.
[108] The cause of action as pleaded has no reasonable prospects of success and is untenable. It ought to be struck out in its entirety as against the first defendant on this issue. In terms of re-pleading, there was nothing pointed to in the associated evidentiary material which has been led which would indicate to me that there is any possible basis upon which a tortious duty of care could be re-pleaded against the first defendant in some tenable way in respect of the subject of the hearing of the two interlocutory applications in the Yacht Proceeding. I would refuse leave to re-plead on this issue.
[109] I will deal first with the third defendant's application to strike out. I will then separately deal with the first defendant's application to strike out to the extent that it relates to the third defendant's alleged conduct.
[111] Paragraph 1D pleads, inter alia, that the third defendant is a natural person who was a barrister for the first defendant. Then as part of a purported particular to paragraph 4 the following statement appears:
"The Third Defendant is a barrister, a sole trader (ABN 205 049 705 63) in 35 West Chambers Pty. Ltd. and is sued according to a scheme established from the Professional Standards Act 2004 (Qld) and pursuant to common law tort of negligence."
[112] The plaintiff then relevantly pleaded material facts as follows:
"75. On 20 January 2023 a Compulsory Conference was held under the Personal Injuries Proceedings Act 2002 to attempt settlement of the dispute.
(a) The Plaintiff (self-represented) assisted by solicitor Mr. Pavel Sergeyev.
(b) Senior lawyer Ms. Milyka McCutcheon, of the Office of Crown Law, a unit of the Department of Justice and Attorney-General, representing the First Defendant.
(c) A representative of the Independent Statutory Authority Metro North Hospital and Health Service.
(d) Mr. Ricki Green, Third Defendant, counsel for the First Defendant.
81. Among the Principles binding the First Defendant are:
[113] Next the plaintiff pleaded consecutive causation allegations as follows:
"92. In the Third Defendant's conduct and by reason of the matters pleaded above the Third Defendant caused damage and loss to the Plaintiff by:
93. As a result of the conduct of the First Defendant and Third Defendant collectively the Plaintiff suffered a significant depressive injury at the conference, and post-conference has suffered further depressive injuries.
[114] The plaintiff then returned to subject matters previously dealt with in the pleading. He did so by re-visiting facts, breaches and causation:
"98. In summary, and by reasons pleaded above, the Third Defendant:
(a) in conduct as counsel for the First Defendant at a Compulsory Conference held under the Personal Injuries Proceedings Act 2002 contravened the Personal Injuries Proceedings Act 2002, the Model Litigant Principles and the Disability Discrimination Act 1995 (Cth), interpretation 4 1 (disability a-k).
(b) breached the Barristers' Conduct Rules (Qld).
(c) ignored duty under the Personal Injuries Proceedings Act 2002 [section 36(6)] to discuss the complaint and attempt settlement.
(d) refused to present documents for the conference.
(e) knowing that the Plaintiff was self-represented in the claim against the First Defendant, and impecunious as an aged pensioner, exploited the Plaintiff's weaknesses to attempt to secure the Plaintiff's capitulation.
(f) knowing that the plaintiff was suffering a disability in advanced cancer, incurable and terminal, and knowing of the Plaintiff's mental health disability unconscionably exploited the Plaintiff's situation and uncertainty, with use of intimidation and a falsehood.
(g) the refusal to discuss and negotiate a settlement, but to intimidate the Plaintiff caused the Plaintiff to suffer a mental health injury at the conference and subsequently suffer further injury.
(h) rejected the Plaintiff's quantum in claim but refused to discuss the claim, causing the Plaintiff to forgo opportunity for a negotiated settlement."
[115] This is then followed by the general prayer for relief pleaded against all defendants for all causes of action as follows:
(i) The calculation of damages: Notice of Claim Part 2.
[117] The pleading set out above is very confusing as to what duty or duties were being referred to. It was clear via oral argument that at least a tortious duty of care to avoid injury to the plaintiff was being contended for in the pleading.
[118] In the context of that duty of care, the principles that I have discussed previously in these reasons under the heading 'Duty of Care' in respect of the second defendant, are equally applicable to the case formulated against the third defendant.
[119] The general proposition that a tortious duty of care will not be owed by a barrister to his or her client's opponent, is applicable to the third defendant's position. None of the established exceptions to the proposition are applicable in this case on the facts pleaded.
[120] The compulsory conference was part of a statutory scheme under the PIPA designed largely to encourage early settlement of personal injuries claims. Through ss 8A to 44 of the PIPA, provision is made for the delivery of a formal written claim, a response to the claim by a defendant, and then mutual disclosure of information concerning the claim as made. In the usual course of events, this then leads into a compulsory conference. The compulsory conference is then followed by a requirement to exchange offers if no settlement has been reached. The practical effect of an exchange of offers is to create early litigation cost risk. This cost risk mechanism itself operates to promote early resolution.
[121] Under the statutory scheme, these events are usually required to occur as conditions for the commencement of an actual Court proceeding. I use the qualification "usually" to reflect that there are within the scheme various exceptions to the performance of specific tasks as a condition to the commencement of Court proceedings.
[122] Even though the compulsory conference is prior to the institution of a Court proceeding, it is still properly part of a litigation process. The scheme requires a formal written claim about which the parties are potentially going to be in contentious dispute. The process is adversarial and is usually a necessary step in exercising a right to commence a Court proceeding for ultimate judicial determination.
[123] The principles discussed in the authorities above in respect of the second defendant under the heading of "Duty of Care" are equally applicable to an advocate undertaking legal activities on behalf of his or her client against an opponent within the operation of such a statutory scheme.
[124] Accordingly, as a matter of law, the tortious duty of care pleaded against the third defendant cannot be supported.
[125] The entirety of the pleaded case to the extent that it concerns a tortious duty of care owed by the third defendant ought to be struck out.
[126] It is inappropriate to grant leave to re-plead such a duty of care for the same reasons identified under the heading of "Duty of Care" for the second defendant.
[127] First, the third defendant also raises the issue that there had been non-compliance with the PIPA by the plaintiff.
[128] As with the second defendant, I reject the argument by the plaintiff that the PIPA does not apply to the pleading advanced against the third defendant for a breach of a tortious duty of care. The relief claimed is clearly for a personal injury.
[129] The material establishes that no notice under s 9 was issued to the third defendant in relation to the claims against the third defendant and there has been no compliance with the consequential further procedures identified within the Act as they would apply to the third defendant.
[130] However, no submission was specifically advanced to me that this was itself a basis to strike out the statement of claim. In those circumstances, I do not decide the application on the basis of this particular complaint.
[131] Secondly, given how the case is pleaded and the failure of the plaintiff to clarify the matter in oral argument, I will also deal with the possibility that the plaintiff's case is that there are separate legal duties said to arise from the MLP, the Bar Rules and
[132] I will commence first with a consideration of the MLP. The unilateral adopting of the MLP by the State of Queensland and other State agencies, such as the first defendant, does not create some form of freestanding legal duty enforceable by an opposing party in litigation. In Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 an application was brought to strike out a pleading of the State of Queensland which was inconsistent with what was said to be the contents of certain joint expert reports. Part of the submissions advanced on the strike out were that the content of the joint expert reports had effectively resolved the central issue in the proceeding. The submissions proceeded on the contention that the State, by adopting a position in the proceeding contrary to the conclusions expressed in the joint reports, was thereby in breach of various provisions in the MLP which bound the State.[38]
[133] This submission was rejected by O'Bryan J at par [74], where his Honour stated:
"Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory applications brought by the applicant cannot be resolved on the basis of those Principles."
His Honour also went on to note that this proposition, at the end of argument, was not truly disputed by the applicant. The statement by O'Bryan J was clearly correct.
[134] I also note that on the application for leave to appeal from his Honour's decision, the Full Federal Court in Malone Obh of Western Kangaulu People v State of Queensland [2021] 287 FCR 240, made the following observation at paragraph [217], "[t]he Judge was also plainly correct in holding that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. The applicants did not contend to the contrary."
[135] In the present case it was not pleaded that there was a contract between each of the third defendant and first defendant on the one part, and the plaintiff on the other part, to abide by the MLP. Having had the benefit of the actual communications of
18 January 2023 in the affidavit material before me, it is evident that no such pleading could be made. The legal representative of the Crown merely communicated the fact that the first defendant, as an agency of the State of Queensland, must comply with the MLP in dealing with the plaintiff's claim. This simply re-stated the effect of the introductory lines to each of paragraphs 1 and 2 of the MLP. The communication went on to state that a declaration was not required. There was objectively no offer or acceptance present between the plaintiff and the first defendant. There was, of course, no communication at all between the plaintiff and the third defendant about the MLP prior to the conference.
[136] Turning to the second point, which concerns the Bar Rules. There is no duty owed by a barrister to his or her client's opponent arising from breaches of the Bar Rules. The Bar Rules are promulgated pursuant to s 220 of the Legal Profession Act 2007 (Qld) ('LPA'). They form part of a regime established under the LPA for the professional regulation of barristers and the conduct of their work. That regime does not give rise to any duties owed to an opposing party in litigation which would support any action for damages.
[137] Turning then to the third point which concerns the PIPA. The pleading makes reference to non-compliance with s 38(6) of the PIPA. There is no statutory duty created by s 38(6) of the PIPA which provides a private right to compensation against an opponent or the opponent's legal representative in the event of a breach.
[138] The PIPA does not expressly state that a breach of s 38(6) provides a private right of action for compensation. Generally speaking, in the absence of such an express statement in a piece of legislation, it will rarely be inferred that Parliament intended such a private right to exist in consequence of a breach of a statutory obligation or duty.[39]
[139] There is nothing in the substance or structure of the statutory scheme contained in Chapter 2 of the PIPA which supports such an inference in respect of a breach of s 38(6) of the PIPA. The section forms part of a scheme to promote settlement. It is untenable to suggest that Parliament intended to create a proliferation of private statutory causes of action for compensation which would then be able to be litigated in parallel to the primary causes of action which the scheme sought to promote settlement in the first place.
[140] Thirdly, I note that other submissions were made on a number of the specific factual allegations made in the pleading. I have dealt with the case in the usual way for a strike out application, that is, I have generally looked to the pleaded case. Having said this, there is real force in a number of these submissions as to how certain pleaded allegations stand in comparison to the evidence put before the Court, and whether pleaded conduct can support the alleged breaches.
[141] As but one example, the plaintiff's evidence as advanced on these applications would seem to support "active participation" by the first defendant at the compulsory conference. The concept of "active participation" is a broad church. It will encompass litigants taking robust positions. Its ambit cannot be dictated by subjective views of an opposing party as to how the participation should or must be constituted. Ultimately, such a conference facilitates an opportunity for settlement to occur, but it is the post-conference settle offers which are likely to have the practical effect of promoting settlement by the spectre of an adverse costs order down the line if too robust a course has been taken.
[142] Whatever the position may be on such matters, I have not decided the application on this basis. They seem more appropriate for a summary judgment application than a strike out application.
[143] Fourthly, I note that no advocate's immunity was advanced as a ground for the third defendant. Accordingly, it forms no part of my reasoning for this particular application.
[144] Finally, given my conclusions on the duty issue and the possible further bases for the causes of the actions alleged, I conclude that the totality of the pleading as it concerns the third defendant ought to be struck out. Again, given my conclusions on the matters, it would be inappropriate to grant leave to re-plead.
First defendant's application based on the third defendant's conduct
[145] I have previously set out the pleading to the extent that it concerns the third defendant. Much of that pleading is also relevant to some of the causes of action pleaded against the first defendant. A number of paragraphs contained positive pleas focussed on the acts and omissions of both the first and third defendants.
[146] The particular parts of the pleading against the first defendant relevant to the third defendant's conduct that I wish to further emphasise are:
"91. The First Defendant condoned the conduct of the Third Defendant.
[147] This is of course followed by the prayer for relief common to claims against all of the defendants:
(i) The calculation of damages: Notice of Claim Part 2.
[148] To the extent that paragraph 91 above is a vicarious liability plea, it is unsustainable, given that I have found that the third defendant did not owe a duty of care. The application of the doctrine of vicarious liability requires that there be an underlying tortious liability that can be sheeted home to someone other than the tortfeasor.[40]
[149] To the extent that paragraphs 91 and 93 are meant to be some type of plea which is communicating a tortious duty of care, that plea is also unsustainable because of the general proposition discussed above that a litigant, and its legal representative, do not owe a duty of care to an opponent. Consistent with the conclusion reached on this issue in respect of the third defendant, that proposition is applicable to the pleaded case based on a tortious duty of care said to be owed by the first defendant in respect of the conduct of the compulsory conference. None of the relevant exceptions to that proposition are applicable on the pleaded facts.
[150] For the same reasons set out above under the "Duty of Care" heading for the third defendant, it is inappropriate to grant leave to re-plead.
[151] The conclusions I have reached under the heading "Other Defects in the Pleading" for the third defendant's application apply equally to the first defendant's application as it concerns the pleading dealing with the compulsory conference.
[152] In particular, any alleged breaches of the MLP, the Bar Rules or s 38(6) of the PIPA do not give rise to independent causes of action vested in the plaintiff entitling him to seek compensation for personal injury. As with the third defendant, it is inappropriate to grant leave to re-plead on those issues.
[153] Accordingly, the totality of the claim as it concerns the first defendant and the compulsory conference ought to be struck out without leave to re-plead.
[154] In light of my conclusions on the second defendant's application in terms the order will be:
(a) that pursuant to r 171 of the UCPR the following paragraphs of the Amended Statement of Claim be struck out: 1C, 1D, 4 (i) (being particulars), 22-27,
28 (i) to 28 (v), 28 (vii) to 28 (x), 96 and 97 without leave to re-plead.
(b) pursuant to r 16 of the UCPR, the name of the second defendant and the reference to a second defendant be struck out of the Amended Claim filed
8 May 2023.
As I have concluded that there should be no right to re-plead, it is appropriate to make an order under r 16 of the UCPR to strike out the claim against the second defendant.
[155] In light of my conclusions on the third defendant's application in terms the order will be:
(a) that pursuant to r 171 of the UCPR the following paragraphs of the Amended Statement of Claim be struck out: 1D, 4 (iii) (being particulars), 75 - 93 and 98 without leave to re-plead.
(b) pursuant to r 16 of the UCPR, the name of the third defendant and the reference to a third defendant be struck out of the Amended Claim filed 8 May 2023.
As I have concluded that there should be no right to re-plead, it is appropriate to make an order under r 16 of the UCPR to strike out the claim against the third defendant
[156] In light of my conclusions on the first defendant's application in terms the order will be:
(a) that pursuant to r 171 of the UCPR the following paragraphs of the Amended Statement of Claim be struck out: 1C, 1D, 4 (i), 4 (ii), 22 - 27, 28, 75 - 93,
94 (h), and 96 - 98 without leave to re-plead the causes of action contained in those paragraphs.
[1] Transcript of evidence 1-103, line 15 to 1-107, line 26.
[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129.
[3] AED Oil Limited v Back [2009] VSC 158 at [9] per Judd J.
[4] Willi & Anor v Banks & Ors [2018] QSC 284 at [152] per Ryan J.
[5] Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205 at [27] to [30] per Jackson J.
[6] Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16] per White JA (with whom McMurdo P and Fraser JA agreed).
[7] Lee v Abedian [2016] QSC 92 at [39] per Bond J (as his Honour then was).
[8] [2007] QSC 209 at [38].
[9] Mbuzi v Hall and Anor [2010] QSC 359 at [27] per Applegarth J.
[10] Robertson v Hollings (Imagination Television Ltd) [2009] QCA 303 at [11] per Keane JA.
[11] Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd [2022] QSC 112.
[12] The decision was upheld on appeal in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd [2022] QCA 232.
[13] See the plaintiff's written submissions at paragraphs [39] to [50] and Transcript 1-33, line 48 to 1-34, line 4; 1-120, line 13 to 14 and 1-121, line 44 to 48.
[14] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549.
[15] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [6], [34] and [35].
[16] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [43]- [45].
[17] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [51].
[18] Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445, 425 at [311] per Kenny J.
[19] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665.
[20] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665 at 675 per Bingham LJ.
[21] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307.
[22] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [24].
[23] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19].
[24] This decision was upheld on appeal in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd [2022] QCA 232.
[25] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19]- [20] and Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [62].
[26] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [1].
[27] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[28] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [84] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[29] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [52] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
[30] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [11] per Dalton J (as her Honour then was).
[31] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [13] per Dalton J (as her Honour then was); Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303 at [159] per White J.
[32] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [41] and [53].
[34] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.
[35] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.
[36] It should be noted that the handwritten note was before the Court at all times in the plaintiff's affidavit material, and the plaintiff drew the Court's attention to it twice in oral argument at the hearing of the first application in the Yacht Proceeding.
[37] Email dated 20 April 2023 from the plaintiff to a Mr Grimshaw.
[38] Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 at [54].
[39] Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1181] to [1182] per O'Loughlin J.
[40] Donaldson v NSW [2019] NSWCA 109 at [10], being a case dealing with judicial immunity.
Collins
Metro North Hospital and Health Service & Ors [2023] QSC 194
(2016) 259 CLR 1
(1994) 51 FCR 347
(2013) 303 ALR 445
(2000) 103 FCR 1
(2005) 223 CLR 1
(1997) 188 CLR 241
(1964) 112 CLR 125
(1988) 165 CLR 543
(1997) 188 CLR 159
(1990) 2 WAR 510
(2001) 207 CLR 562
(2001) 211 CLR 317
(2002) 211 CLR 317