Magjarraj v Firth

District Court proceedings

1. The allegations of professional negligence contained in Mr Magjarraj's cross-claim, described by the primary judge as somewhat discursive, were that: 1. The Supreme Court proceedings were dismissed with costs due to professional negligence on the part of Mr Firth, that negligence being particularised as a failure properly to advise: (a) as to how properly to adjourn his case in circumstances where Mr Magjarraj was ill and could not continue to attend at the hearing and (b) as to the necessary contents of a medical certificate to be obtained by Mr Magjarraj for tender to the Court to enable an application to be made to adjourn the hearing; as a result of which it is said that Mr Magjarraj requested a medical certificate which failed adequately to explain his illness and which as a result was not accepted by the Court and the case was dismissed with costs ([1]). 2. Mr Firth failed to follow Mr Magjarraj's wishes, instructions and directions when he requested Mr Firth to obtain more time to consider a monetary offer made by "the Defendant/Cross-Claimant in the proceedings so that he could continue negotiations with the Defendant/Cross-Claimant with a view to settling his claim out of Court" ([2]), as a result of which Mr Magjarraj "lost the opportunity of achieving a realistic and satisfactory settlement of his claim without incurring more costs or without having his claim dismissed with costs" ([3]). 3. Mr Firth failed properly to advise him of the "true and reasonable value or quantum of his damages" in the light of his past medical history and records, but instead persuaded Mr Magjarraj to continue with the proceedings in the expectation that he would achieve a final monetary outcome which was unrealistic and beyond reasonable expectation ([4]). 4. Mr Firth failed properly to advise Mr Magjarraj of the monetary risks "of pursuing an exceptionally high monetary amount" by way of a verdict for his claim in circumstances where such amount could not be realistically or reasonably achieved ([5]).
2. Mr Magjarraj further claimed that as a result of the alleged professional negligence in the conduct of the proceedings Mr Firth breached his retainer "as there was a total failure of consideration on his part".
3. Mr Magjarraj sought an order that Mr Firth indemnify him against the costs order that had been made and claimed damages in the "amount of damages which he was likely to have received by way an out of court settlement for the loss of opportunity which occurred".

Primary judgment

1. Her Honour identified three essential points of complaint in the cross-claim. Those appear to have been a complaint as to the advice given as to the medical certificate to be obtained in order to secure an adjournment of the proceedings; a complaint as to advice given as to the monetary value of the claim; and a complaint as to what had happened at the mediation. Her Honour noted that other issues, not pleaded, were raised by way of complaint in the course of cross-examination, such as a complaint as to a failure to obtain an interpreter.
2. Her Honour noted that there was no evidence as to the prospects of success of the claim against the insurer; no consideration of the merits of Mr Magjarraj's claim (commenting that the transcript of Mr Magjarraj's evidence indicated that 14 December 2009 "had not been a particularly good day for Mr Magjarraj's claim"); and no evidence as to any likely outcome if the claim against the insurer had been successful.
3. Her Honour concluded that Mr Magjarraj had failed to discharge the onus of proving his claim of professional negligence and said that the evidence established only that Mr Magjarraj was the architect of his own misfortune having sent the facsimile transmission that he did to the trial judge on the evening of 14 December 2009.
4. Her Honour then turned to the particular complaints made in the cross-claim (corresponding to the three essential issues her Honour considered had been raised in the cross-claim).
5. First, as to the complaint about the advice given as to the monetary value of the claim (see 13 and (iv) above), her Honour noted that there was "virtually no evidence" as to any advice having been given about the quantum of his possible damages, the only mention of a sum being a passing reference in a telephone conversation after the mediation; no evidence of advice offered at a time when the negotiations were open (as opposed to that passing reference - "$200,000 is small fry compared to the big buck, you're gonna win your case …"); and that there was no basis for any determination resting on the merits or value of the insurance based claim.
6. Second, as to the complaint made about what happened in the mediation (13 above), her Honour found that the best offer made by the insurer was $450,000 (comprised of $300,000 plus costs); that this was rejected by a counter offer (of $800,000 plus costs) made on behalf of Mr Magjarraj; and that the truth of the matter was that Mr Magjarraj hoped that the insurer would continue to raise its offers and believed that a time would come when a "highest and best offer" could come; and that he could then retire to consider his position over a few days.
7. Her Honour was prepared to accept that this may have been a "classic instance" of miscommunication but said that Mr Magjarraj had agreed to put the higher counter-offer and, whether he understood it or not, that had the effect of rejecting the insurer's offer that (with the benefit of hindsight) Mr Magjarraj now wishes he had accepted.
8. Her Honour then went on to say that there was no evidence that the insurer's position would have been held open for 7 days or indeed any time (for Mr Magjarraj to consider his position) and that Mr Magjarraj did not say that he would have accepted the highest offer from the insurer. Her Honour said it was speculative whether further discussions after the mediation would have revivified that offer; and equally speculative whether it would have been accepted.
9. Her Honour concluded that Mr Magjarraj had failed to prove that he sustained any loss at all "quite apart from his failure at the time to accept the offer or to instruct his legal representative to accept the offer on his behalf".
10. It is apparent from the above that her Honour found that the claims of professional negligence relating to the advice given as to the monetary value of Mr Magjarraj's claim and as to what happened at the mediation were not made out, quite apart from the applicability or otherwise of a defence based on advocate's immunity.
11. On that issue, her Honour considered that there was a strong analogy between the facts of this case and those considered by Davies J in Stillman v Rushbourne [2014] NSWSC 730 and concluded that advice (that in the present case led to a decision to reject an offer) which affected the conduct of a case in court by the continuation of the matter to a hearing was within the scope of advocate's immunity. Her Honour, having referred to the decisions of this Court in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 and Young v Hones [2014] NSWCA 337, said that Mr Magjarraj's claim was defeated by law.
12. As to the remaining of the three essential complaints (13 above), namely, the complaint relating to the circumstances in which the medical certificate was obtained, her Honour considered that there were unfortunate aspects in what had occurred: namely, that no-one contacted or thought to contact the general practitioner and noted that the view Mr Mickels and counsel came to that morning as to the medical certificate being ineffective unless it specified the nature of the medical condition was not the view that had been conveyed to Mr Magjarraj by Mr Mickels the previous night.
13. Her Honour expressed the opinion that clear instructions to Mr Magjarraj (as to what was required to be obtained from the doctor), or contacting the doctor direct, might have averted Mr Magjarraj's sabotage of his own case but went on to note that Mr Magjarraj had lost confidence in his solicitor, no longer complied with his advice; and had made his own decision (to send the fax to the judge's associate). Her Honour concluded that it was a matter of speculation "whether any contact made with the doctor or Mr Magjarraj in the interim [i.e., between the time Mr Magjarraj sent his facsimile transmission to his Honour and 10am the next morning] would have averted the train wreck that followed Mr Magjarraj's misconceived facsimile".
14. Her Honour considered that the solicitor's role in the misadventure and giving of advice (in relation to the medical certificate) was work intimately connected with work in court and that there was a total defence in law to this claim but said that even without that defence, Mr Magjarraj's complaint "would not go far", noting that all of the requisite elements were speculative and that any possible causal link (between the advice as to the medical certificate and the dismissal of the proceedings) was severed by Mr Magjarraj's own communication with his Honour.

Appeal

1. The grounds of appeal that Mr Magjarraj raises are as follows: (1) The learned trial judge erred (judgment pp 11-19) in finding the Respondent was protected by advocates' immunity. Particulars 1.1 The Respondent failed to follow the Appellant's instructions; 1.2 The Respondent ignored and carried out proceedings and mediations contrary to the Appellant's instructions; 1.3 Failure to follow express instructions is not protected by advocates' immunity. (2) The learned trial judge misapprehended the Appellant's claims (judgment pp 11-19) in finding the Respondent was protected by advocates' immunity. Particulars 2.1 The Respondent failed to follow the Appellant's instructions; 2.2 The Respondent ignored and carried out proceedings and mediations contrary to the Appellant's instructions; 2.1[sic] Failure to follow express instructions is not protected by advocates' immunity. (3) The learned trial judge fell into error (judgment pp 7-8) in finding the Respondent was not negligent. Particulars 3.1 The Respondent failed to properly and adequately advise the Appellant as to requirement of adjournment. 3.2 The Respondent ignored and failed to follow up that the Appellant obtained correct documents; carried out proceedings and mediations contrary to the Appellant's instructions; 3.3 The Respondent was reckless as to whether the Appellant's [sic] obtained the correct documents to secure adjournment.
2. At the outset of the hearing of the appeal, Mr Magjarraj (who did not have the benefit of legal representation but did have the assistance of an interpreter when addressing the Court) made an application for an adjournment of the hearing. This was put on the basis that the outcome of an appeal to the High Court (for which special leave has been granted) in the Jackson Lalic matter might have an impact on the present appeal.
3. Counsel appearing for Mr Firth opposed the adjournment on the basis that the correctness or otherwise of the decision of this Court in Jackson Lalic was not in issue. He pointed out that there had been no appeal from various of the findings made by the primary judge and submitted that Mr Magjarraj still labours under the misunderstanding as to the highest offer that the insurer made in the mediation and assumes that his solicitor had power to compel the insurer to keep an offer open notwithstanding instructions to make a counter offer. Reliance on advocate's immunity is in that sense a fall-back.
4. In those circumstances, and for the reasons briefly stated by the presiding judge at the time, the application for an adjournment was refused.

Determination of grounds of appeal

1. Grounds 1 and 2 of the grounds of appeal raise the applicability of advocate's immunity. The page references there given suggest that these grounds relate to the complaints made as to what happened in the mediation and as to what happened in relation to the medical certificate.
2. In relation to both grounds, the particulars assert that Mr Firth failed to follow, or ignored and carried on the proceedings and the mediation contrary to Mr Magjarraj's instructions; and that a failure to follow express instructions is not protected by advocate's immunity.
3. In relation to the mediation, the relevant instruction seems to be that particularised at 2 of the cross-claim, namely that "he wished to have more time to consider a particular monetary offer". (There is some confusion insofar as the pleading seems to suggest that what Mr Magjarraj wished to have more time to consider was an offer that had been made by himself, not an offer that had been made by the insurer, but nothing ultimately turns on this curiosity of the pleading.)
4. What Mr Magjarraj refers to in his written submissions in this Court (2) is not having his instructions carried out with respect to: "Negotiating with the Solicitors for the Defendant [the insurer] during the course of the mediation to put their last and best offer on hold (without having that offer withdrawn or rejected) thereby giving him time to consider it as it was a most attractive offer which fact was made known to the Appellant's said Solicitor."
5. The "most attractive offer" could be the final offer made by the insurer (of $300,000 plus costs - i.e., an offer of around $450,000 inclusive of costs). His evidence, as extracted by the primary judge, was that "What I said was to my people that when they get me the final offer from the insurer then I will consider and see if it's okay or not with me". He seems to have assumed that there would come a point when he would be told that a particular offer was the insurer's "final" offer, at a time when that offer was still open for acceptance, and that until then the process of offer and counter-offer was some form of horse-trading to get the insurer up to whatever might have been its "final" offer (and to have based that on what other people who had similar cases to his had told him).
6. However, there was no finding (and it would seem no evidence) that Mr Magjarraj had given instructions to his legal representatives to the effect that they were to ascertain, before rejecting any particular offer made by the insurer, whether that offer was "the final offer" from the insurer and, if it was, to negotiate with the insurer for that offer to be left on the table for a few days for Mr Magjarraj to consider it.
7. The absence of evidence of having given the instructions that Mr Magjarraj now says his solicitors should have followed is fatal to his claim that they ignored or failed to follow his instructions. Therefore, whether or not advocate's immunity would apply in that context does not arise.
8. No error was revealed in her Honour's dismissal of the claim that the solicitor was guilty of professional negligence in the advice given or steps taken in the course of the mediation. Even if there was a failure properly to explain to Mr Magjarraj the significance of the making of a counter-offer (i.e., that it operates as a rejection of the preceding offer which is then no longer open for acceptance), Mr Magjarraj failed to establish that he sustained any loss as a result. There was no evidence to suggest that the insurer would have agreed (contrary to common practice at mediations) to "leave on the table" for consideration an open offer at the conclusion of the mediation. There was no evidence that at any time prior to the dismissal of his claim he would have changed his mind and accepted the offer of $300,000 plus costs that he rejected at the mediation.
9. As to the complaint in relation to the circumstances in which the medical certificate was obtained, the argument appears to be that Mr Mickels should have advised Mr Magjarraj that the medical certificate should have specified the particular medical condition that Mr Magjarraj claimed rendered him unfit to attend the Court to continue with his cross-examination. (Her Honour suggested that there were other steps that the solicitor could have taken - such as contacting the doctor direct - but that was not the basis on which Mr Magjarraj alleged that the solicitor had been negligent.) The outcome of such advice is unknown because the doctor did not give evidence in the District Court, nor was there any other evidence as to his medical condition on 15 December 2009. There is no evidence that the doctor would have been in a position to give a medical certificate of a kind that would have been capable of persuading a trial judge that Mr Magjarraj was incapable of attending court to give evidence.
10. Moreover, any assessment of what was likely to have happened had Mr Mickels given more detailed advice on this issue must also take into account that Mr Mickels did tell Mr Magjarraj that he did not know if the provision of a medical certificate would work and that Mr Magjarraj took matters into his own hands by writing directly to his Honour. The problem in so doing was that it was open to his Honour to infer from that communication, as his Honour clearly did, that Mr Magjarraj was seeking the adjournment in order to take further steps in the preparation of the proceedings (i.e., to obtain evidence from a witness in Western Australia; to obtain evidence from the mediator; and to review material in the subpoenaed documents) - the very kind of thing that had been the basis of the unsuccessful adjournment application the day before.
11. Her Honour concluded that the elements of Mr Magjarraj's negligence claim in this regard were all a matter of speculation and that any possible causal link was severed by his own conduct.
12. That leaves ground 3. This seems to relate to her Honour's conclusions at pp 7-8 of the reasons (in which her Honour in effect summarised the cross-claim and her conclusion that Mr Magjarraj had failed to discharge the onus of proof) but the particulars go to a failure properly and adequately to advise Mr Magjarraj as to the requirements of an adjournment and to obtain the correct documents for that purpose. To the extent that this reiterates the complaint as to the medical certificate, I have already dealt with it. If ground 3 goes beyond the complaint as to a failure to give sufficient advice to enable him to obtain an adjournment of the proceedings to some kind of loss of opportunity to obtain the benefit of an out of court settlement (which is the flavour of some of the submissions - see [3]-[4]) then it fails for the reason that Mr Magjarraj did not establish that he had sustained any loss as a result of the manner in which the mediation was concluded. I am of the opinion that no error has been established in her Honour's conclusion that Mr Magjarraj did not establish (a) professional negligence on the part of Mr Firth or his employees, and (b) that he suffered loss as a result of the conduct on which he sought to rely.
13. I would dismiss the appeal with costs.
14. GLEESON JA: I agree with Ward JA.

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