FEV Mono Constructions Pty Ltd v Beattie

The proposed grounds of appeal

1. The six grounds of appeal contend that the primary judge erred "in law" in the following respects: 1 Failing to accept the concessions made by the Defendants' Legal Representatives of which they are bound by, that parts of the plaintiffs' Amended Statement of Claim did not fall foul of Advocate's Immunity. 2 Denying the Plaintiffs procedural fairness and natural justice by dismissing the 2nd to 4th Plaintiffs without a proper hearing as set out in Spencer v Commonwealth [as to] whether the [principles] of Hadley v Baxendale 1854 applied. 3 Not permitting the Plaintiffs to prosecute their claim in the normal way resulting in a denial of procedural fairness and natural justice. 4 Making prejudicial comments that go against the dictates of Justice and Fairness. 5 Entering the fray and not maintaining the impartial position a decision maker should always maintain. 6 Dismissing the Plaintiffs application for further and better particulars and the Client File without proper hearing of the matter.

Ground 1

1. In considering this ground it assists first to note that it does not challenge the correctness of his Honour's analysis at Judgment [15]-[18], which supports the following conclusion at Judgment [23]: In this case pars 16 and 17 of the amended statement of claim clearly plead that the defendants' allegedly negligent work on Mono Constructions' case in the Tribunal had "a functional connection" with the determination of the dispute by NCAT. Mono Constructions' claim in respect of this negligent work is therefore defeated by the advocate's immunity. There are some remnants of the sub-paragraphs of par 16 that allege failings to which the immunity would not attach. These appear to be limited to sub-par p concerning failure to advise that a cross-claim be filed against Mr Giovas and sub-pars r and s concerning advice with respect to withdrawal of the District Court appeal. As to each of these sub-paragraphs, see [50] of the majority judgment in Attwells v Jackson Lalic Lawyers Pty Limited.
2. That analysis applied the test for the application of the immunity stated in D'Orta and Giannarelli which, as explained by the majority in Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1; [2016] HCA 16 at [6], requires that "advice given out of court must affect the conduct of the case in court and the resolution of the case by that court." In other words, such advice must have a bearing on how the case is thereafter conducted in court and "shape the judicial determination of the case" (majority at [48]).
3. The argument made in support of this ground misstates the effect of the primary judge's orders. His Honour did not, by striking out the whole of the pleading, summarily or otherwise dismiss the first applicant's claim against the respondents for negligence or breach of contract on the basis that it was precluded by the advocate's immunity. Rather, he ruled that most of the pleaded allegations of negligence in the amended statement of claim were not sustainable because they were subject to the immunity from suit. At the same time he considered that the immunity could not attach to all of those allegations, referring, but not in terms exhaustively, to those in para 16 sub-paras (p), (r) and (s). His Honour also recognised that the allegations in sub-paras (b)(i), (u), (v) and (w) might be pursued if supported by the pleading of additional facts which disclose an arguable cause of action. In that context he did not address whether any statutory cause of action for misleading or deceptive conduct with respect to the same acts or omissions would also be precluded by the immunity from suit. That question was considered and decided in the affirmative by this Court in Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761 at [24]ff (Barrett JA, Beazley P and Ward JA agreeing) where the conduct alleged as misleading or deceptive also supported claims in negligence that would be covered by the immunity. That decision was applied in Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80 at [84] (Mansfield, Siopis and Rares JJ).
4. Thus, the first applicant's leave to file a further amended statement of claim may be exercised by pleading a claim for negligence against the solicitor respondents which is not precluded by the advocate's immunity. Ground 1 does not identify any error of the primary judge.

Ground 2

1. The UCPR permit the joinder of two or more persons as plaintiffs if they have separate causes of action giving rise to common questions of law or fact or which arise out of the same transaction or series of transactions (r 6.19). In circumstances where there were no separate causes of action pleaded on behalf of the second to fourth applicants, the primary judge was justified in ordering under r 6.29 that they be removed as parties, each having been "improperly or unnecessarily joined".
2. Their reliance on Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 is misconceived. In that case the power in question enabled the Federal Court to dismiss summarily a proceeding or part of a proceeding if satisfied that it had "no reasonable prospect" of succeeding.
3. There was no denial of procedural fairness here. The respondents' application filed on 26 February 2020 sought an order for removal of the second to fourth applicants as plaintiffs. The written submission in support of that application maintained that there was no contractual or other basis of liability pleaded by them. In argument the primary judge invited the third applicant to identify any pleaded cause of action of the remaining applicants, as well as any that they might replead if given the opportunity. None was suggested. The primary judge's order that those plaintiffs be removed as parties did not summarily dismiss any claim they made as hopeless or bound to fail, because no such claim was pleaded. As has already been observed, the opportunity for those applicants to bring forward any such claim remains.
4. Finally, the rule in Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145, which limits the damages that may be recovered for breach of contract, has no application to the position of the remaining applicants where it was not suggested that there was any relevant contract with the respondents other than their contract of retainer by Mono Constructions.

Ground 3

1. In oral argument it was said that the primary judge should have allowed the applicants' claims as pleaded to proceed to a final hearing, and that not to do so was unfair and involved a denial of procedural fairness. That argument cannot apply to the second to fourth applicants because, as the primary judge held, they had not pleaded any causes of action in their own right.
2. As to the position of the first applicant, the respondents were entitled to seek to have the immunity issue dealt with on the pleadings. They did so by means of a strike out application rather than seeking to have the issue decided as a preliminary question. In either case there is an initial question for the court as to whether the pleaded allegations are sufficiently expansive and clear as to enable the immunity question to be properly addressed. In Young v Homes [2014] NSWCA 337 at [5], Bathurst CJ emphasised that it would not be "appropriate in all cases for questions of advocate's immunity to be decided" as preliminary questions and by reference to the pleadings as they exist at that time. For, as Beazley JA explained in Donnellan v Woodland [2012] NSWCA 433 at [7], the pleadings may not sufficiently enable the negligent conduct to be identified. In such a case the court may decline to strike out the pleading or enter summary judgment, not being satisfied either that the pleaded allegations are not capable of supporting a cause of action to which the immunity would not apply or that those allegations might not be reformulated with the same outcome: as to which see Bott v Carter [2012] NSWCA 89 at [10]-[13] (Basten JA, McColl and Whealy JJA agreeing). There was no denial of procedural fairness. The primary judge struck out the whole of the pleading after hearing argument on the application of the immunity to the pleaded allegations. As has already been observed in the consideration of ground 1, his Honour did not summarily dismiss the first applicant's claim, which it has leave to replead.

Grounds 4 and 5

1. These grounds, generously understood, suggest that the primary judge did not approach his task impartially. That is a serious assertion and finds no support whatsoever in the passages of the transcript to which the applicants refer, or anywhere else in that transcript.
2. The first passage relied on relates to the fact that in accordance with public health orders the hearing on 28 April 2020 was conducted by audio-visual link with the third and fourth applicants and their brother Fotios using one iPad, which was said to require that the three of them be in the one room at the one time, notwithstanding that the sisters lived separately from their brother. There was no question as to each of them being able to hear and be heard by the judge, as the transcript records. The applicants sought to adjourn the hearing until such time as "in person" attendance was available. The primary judge rejected that application, pointing out, politely but firmly, that the courts were subject to the same regime with respect to social distancing as everybody else. His Honour also pointed out that the parties could have used separate devices to communicate with the court from separate locations, or maintained telephone communication whilst one of them used the iPad. None of this bespeaks a lack of impartiality.
3. Secondly, it was suggested that in maintaining that he was bound by the decisions in D'Orta and Giannarelli when disposing of the strike out application the primary judge was to be treated as not prepared to engage with an argument of the applicants that any immunity question as a "matter of public policy" "should be determined on its merits" and on the basis that the High Court "may change their view". Nothing more need be said than that the primary judge was correct.
4. Thirdly, it was said that the primary judge was not prepared to deal with the applicants' motion for further particulars of the respondents' defence and the production of documents. That complaint is the subject of ground 6 and is dealt with below.
5. Fourthly, it is said that notwithstanding that the respondents' application in relation to the pleading was only to strike out particular allegations in para 16, the primary judge ordered that the whole amended statement of claim be struck out. Whilst that correctly records the position, the primary judge's reasons at Judgment [25] justify the order made: Three of the plaintiffs are to be removed from the proceedings; most of the particulars of negligence are unsustainable; the remaining particulars could only be pursued if supported by the pleading of additional facts; any case for failure to make costs disclosure contrary to the Legal Profession Act 2004 (NSW)(rep) or for misleading or deceptive conduct would require extensive additional pleading. In those circumstances the whole of the amended statement of claim must be struck out, with liberty to Mono Constructions to re-plead.

Ground 6

1. In relation to the applicants' motion for further and better particulars and for production of the "Client File", the primary judge concluded at Judgment [26] and [27]: Because Mono Constructions is to re-plead, the defence that has been filed is redundant. There is no occasion to determine the plaintiffs' claim for further and better particulars of that defence. With respect to the plaintiffs' application for an order that their file be delivered up, I am satisfied from the affidavits filed on behalf of the defendants that the whole of the file so far as they had control of it, either in hard copy or electronic form, has been handed over to the plaintiffs or at least made available to them for access including copying or printing. On the hearing of the plaintiffs' motion I was invited to consider particular documents that have been provided, the content of which may suggest the existence of other documents that have not been delivered up. There is no warrant for descending into a factual examination of the possible existence of a small number of additional documents in circumstances where the scope of the allegations to be pursued by the plaintiffs has now been radically narrowed. The question of whether there may be missing documents can be revisited after Mono Constructions has filed a further amended statement of claim and after the defendants have joined issue by way of an amended defence. Such a further enquiry with respect to documents that are part of the file relating to the Tribunal proceedings will be limited to documents that may bear upon the issues that become defined by the amended pleadings.
2. It is not correct to say that the primary judge did not give the applicants the opportunity to be heard on this subject. In the course of argument, his Honour said: I am simply going to dismiss that notice of motion. It's at an end. If, when your company has filed another statement of claim, if it then appears from a defence that is filed that you would be entitled to some more particulars of that defence or if it then appears that there are some documents that you can properly agitate for production [of] that should have been on the file, you can file a separate notice of motion pursuing those claims at that time but for the moment that notice of motion is simply dismissed.
3. In response, the third applicant emphasised the significance of the difference between two costs disclosure agreements, one received and produced by the applicants and the other produced by the respondents as part of its electronic records. In concluding the exchange concerning that subject, the primary judge acknowledged that whilst there may be a need for the production of further documents in the future, as the matter stood, it "may or may not be pursued" depending on the terms of any further pleading. The applicants' arguments were heard and addressed.

Conclusion

1. None of these grounds identifies any even arguable error on the part of the primary judge in dealing with what is essentially a pleading dispute. For the reasons summarised earlier, the application for leave to appeal should be dismissed.
2. Accordingly, the following orders should be made:

In proceedings 2020/00269032: 1. Dispense with the requirement in Uniform Civil Procedure Rules, r 7.1(3) that the first and second applicants be represented by a solicitor with respect to the prosecution of the summons seeking leave to appeal. 2. Extend the time for the applicants to file and serve the summons seeking leave to appeal to 15 September 2020. 3. Dismiss the summons seeking leave to appeal. 4. Order the applicants pay the respondents' costs of that summons.

In proceedings 2020/00155297: 1. Dismiss the appeal commenced by notice of appeal filed on 30 July 2020 as incompetent. 2. Order the appellants pay the respondents' costs of their motion for dismissal of that appeal as incompetent.

1. GLEESON JA: I agree with Meagher JA.
2. EMMETT AJA: These proceedings arise out of the retainer of a firm of solicitors (the Solicitors) by FEV Mono Constructions Pty Ltd (Mono Constructions) in connection with proceedings brought against Mono Constructions in the Consumer, Trader and Tenancy Tribunal of New South Wales, as it was then in existence (the Tribunal). The Tribunal ordered Mono Constructions to pay the claimants the sum of $55,955.80 and ordered Mono Constructions to pay the claimants' costs, which were assessed at $137,656.92. An appeal to the District Court was resolved on the basis that Mono Constructions pay the claimants the sum of $2,500.
3. Proceedings were subsequently commenced in the Professional Negligence List of the Common Law Division of the Supreme Court in relation to the proceedings in the Tribunal. The plaintiffs in the Supreme Court (the Plaintiffs) were Mono Constructions, FEV Mono Pty Ltd (Mono), which is a related corporation of Mono Constructions, and Eleni Monovasios (Eleni) and Vicki Monovasios (Vicki), each of whom is and was a director of Mono Constructions and Mono. By their amended statement of claim filed on 6 February 2020, the Plaintiffs alleged that in breach of:

• tortious duties owed to Mono Constructions
• contractual duties owed to Mono Constructions
• a duty under the Civil Procedure Act 2005 (NSW) and
• duties under the Legal Profession Act 2004 (NSW) the Solicitors failed to exercise the due care, skill and diligence to be expected of reasonably competent legal practitioners in performing their duties pursuant to retainers of the Solicitors by Mono Constructions. The breaches were particularised in 25 paragraphs, many of which had subparagraphs.

1. By application filed on 26 February 2020, the Solicitors sought that a number of paragraphs of the particulars of the alleged breaches of duty be struck out (the impugned paragraphs) and that Mono, Eleni and Vicki be removed as plaintiffs. Notwithstanding the filing of that application, the Solicitors filed a defence on 3 March 2020. Relevantly for present purposes, the defence asserted that, in respect of the impugned paragraphs, the Solicitors are immune from suit by reason of the operation of advocate's immunity and that the impugned paragraphs are liable to be struck out as they disclose no reasonable cause of action. By application filed on 20 March 2020, the Plaintiffs sought an order that the Solicitors provide further and better particulars to their defence and provide their complete file to the plaintiffs.
2. Both motions were heard together by a judge of the Common Law Division (the primary judge). On 28 April 2020, for reasons published on 30 April 2020, the primary judge ordered, relevantly, that Mono, Eleni and Vicki be removed from the Supreme Court proceedings and that the amended statement of claim be struck out pursuant to Uniform Civil Procedure Rules (UCPR), r 14.28. However, his Honour granted leave to Mono Constructions to file a further amended statement of claim within 21 days after appointing a solicitor. His Honour also granted leave to the Solicitors to apply to have the proceedings dismissed if notice of appointment of a solicitor was not filed within 28 days or if a further amended statement of claim was not filed within that earlier period of 21 days. His Honour ordered the Plaintiffs to pay the Solicitors' costs of the two motions and ordered that the Plaintiffs' motion of 20 March 2020 be dismissed.
3. On 25 May 2020, the Plaintiffs filed a notice of intention to appeal and on 30 July 2020 filed a notice of appeal. On 25 August 2020, the Solicitors filed a notice of motion seeking summary dismissal of the notice of appeal as incompetent, on the basis that the orders made by the primary judge were interlocutory. That prompted the Plaintiffs to file a summons seeking leave to appeal on 15 September 2020. That application for leave to appeal was out of time and the Plaintiffs moved, ore tenus, at the hearing of the summons for an extension of time for filing the summons. With the Court's leave, the Plaintiffs were represented at the hearing by Eleni.
4. In their draft notice of appeal, filed with their summons, the Plaintiffs assert that the primary judge erred in law, relevantly, by: 1. failing to accept the concessions made by the Solicitors' legal representatives that parts of the amended statement of claim did not fall foul of advocate's immunity; 2. summarily dismissing Mono, Eleni and Vicki from the proceedings without a proper hearing; 3. not permitting the Plaintiffs to prosecute their claim in the normal way, resulting in a denial of procedural fairness and natural justice; 4. making prejudicial comments that go against the dictates of justice and fairness; 5. entering the fray and not maintaining the impartial position a decision-maker should always maintain; and 6. dismissing the Plaintiff's application for further and better particulars and the client file without a proper hearing of the matter.
5. I have had the advantage of reading in draft form the reasons of Meagher JA for concluding that the summons for leave to appeal should be dismissed, in that it concerns a matter of practice and procedure and raises no question of principle or issue of public importance. Further, none of the grounds of appeal identifies an error on the part of the primary judge.
6. The primary judge did not dismiss the claim by Mono Constructions against the Solicitors. Rather, his Honour concluded that much of the pleaded negligence claim was not sustainable because of the Solicitors' immunity from suit and Mono Constructions may exercise the leave to file a further amended statement of claim by pleading a claim for negligence that is not precluded by advocate's immunity. There was no denial of procedural fairness on the part of the primary judge. The application by the Solicitors for removal of Mono, Eleni and Vicki as parties was on the basis that there was no contractual or other basis of liability pleaded on their behalf. They had ample opportunity to bring forward such claims as they wished to make but failed to do so.
7. By means of their application to strike out the impugned particulars, the Solicitors sought to have the question of advocate's immunity dealt with on the pleadings. While it is not appropriate in all cases for questions of advocate's immunity to be decided on the pleadings or on a final basis as a preliminary question, there are circumstances where it is appropriate. It has not been suggested that this is not an appropriate case. There has been no denial of procedural fairness, in so far as the primary judge did not dismiss the claim by Mono Constructions against the Solicitors but left it open to Mono Constructions to mount such claim as it is advised against the Solicitors.
8. Grounds four and five have no substance, in so far as they suggest that the primary judge did not approach the task impartially. There was no lack of impartiality on his Honour's part in hearing the motions by audio-visual link, or in saying that he regards himself as bound by decisions of the High Court of Australia.
9. As it is not entirely clear why the Solicitors filed a defence in circumstances where they had applied for significant parts of the amended statement of claim to be struck out. However, once the amended statement of claim was struck out, with leave to replead, the defence filed by the Solicitors was otiose. Whether the defence filed to any further amended statement of claim is properly particularised must remain to be determined when the defence is filed.
10. I agree with the orders proposed by Meagher JA for the reasons given.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2021