Plaintiff v Defendant

2 The second summons was dated 26 June 2012 and the orders pressed at the hearing sought judgment for the Defendant, or a stay of the Plaintiff's proceedings, under r 23 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and s 63 of the Civil Procedure Act 2010 (Vic),[2] with costs, on the grounds, essentially, that the Plaintiff's case could not be maintained against the Defendant. The Plaintiff did not appear at the hearing which was therefore heard as an unopposed matter. Counsel for the Defendant said that the Plaintiff had been given a copy of the lengthy written submissions which had been filed on behalf of the Defendant and the proceeding was heard upon the material and submissions which had been notified to the Plaintiff. Counsel for the Defendant also said that the Defendant had sought further particulars of the Plaintiff's statement of claim but that the hearing of that application had been adjourned by an Associate Justice until after the hearing and determination of the proceeding before me. At one point counsel for the Defendant sought to have that application determined by me but I declined to do so on the basis that the Plaintiff had not been on notice of that possibility and that the matter was proceeding without the Plaintiff's attendance.

3 The statement of claim was prepared by the Plaintiff personally and does not appear to have had the benefit of professional assistance. The statement of claim in some respects lacks the precision that would be expected from a pleading prepared by qualified practitioners and, in one respect, may fail to articulate a cause of action which the Defendant apprehended that the Plaintiff may have intended (namely, that r 63.23 gave him a cause of action). I will return to that issue later in these reasons, but, in any event, the Plaintiff's claim against the Defendant is clear enough for the purposes of dealing with the substance of the Defendant's summons.

4 The Plaintiff's claim is essentially of loss and damage caused to him as a result of the negligence alleged against the Defendant to have occurred when the Defendant acted for the Plaintiff in certain proceedings in which the Plaintiff had claimed compensation for injuries. The injuries which the Plaintiff had suffered resulted from exposure to toxic chemicals of benzene and aromatic hydrocarbons in glues, adhesives and solvents in the course of his employment at the Palmone Shoes factory. The Plaintiff pleads that he retained and employed the Defendant as his solicitor to act on his behalf in relation to two proceedings. One was in the County Court seeking common law damages in relation to a serious injury of industrial asthma and psychiatric condition. That proceeding had been commenced by writ in April 2008 and a trial had been listed for hearing on 14 August 2009. The second proceeding was in the Magistrate's Court and concerned a cancer disease about which the Plaintiff's complaint had been issued on 10 December 2008 seeking compensation by way of weekly payments and medical expenses. The asthma case and the cancer case were ultimately heard and determined in this Court with judgment given by T Forrest J on 18 January 2010.[3] His Honour awarded $244,296 in damages to the Plaintiff in the asthma case but gave judgment in favour of Palmone Shoes Pty Ltd in the cancer case. T Forrest J subsequently heard an application by the Plaintiff's two former solicitors (Lennon Mazzeo Lawyers and Aloe & Co) for liens over the judgment sum. In that proceeding his Honour ordered the Plaintiff to pay the costs of Palmone Shoes Pty Ltd in one proceeding, gave judgment for the Plaintiff in the sum of $196,315 in the other proceeding, but declared that the Plaintiff's solicitor had liens over the proceeds of the judgment.[4]

5 In this proceeding, commenced on 20 June 2011, the Plaintiff claimed damages against his solicitor. Paragraph 4 of the statement of claim alleges negligence on the part of the Defendant in the conduct of the proceedings undertaken on behalf of the Plaintiff. The particulars of negligence in that paragraph may not be restricted to the Defendant's conduct in acting for the Plaintiff in respect of the proceedings in the County Court and in the Magistrate's Court but are primarily directed to the proceedings in those courts rather than to the conduct of the proceeding in the Supreme Court. That is consistent with the structure of the statement of claim and the fact that in paragraph 8 the Plaintiff pleads specifically that the Defendant was negligent in the conduct of the Plaintiff's trial in the Supreme Court which had commenced on 30 November 2009.

6 The Defendant's summons seeking judgment, or a permanent stay, relied upon a number of grounds but were essentially that the Plaintiff's claim could not be maintained because of advocates immunity or Anshun estoppel. In Giannarelli v Wraith[5] the High Court held that an advocate could not be sued at common law by a client for negligence in the conduct of a case in court or for work out of court which leads to a decision affecting the conduct of a case in court. That decision was reaffirmed in D'Orta-Ekenaike v Victoria Legal Aid.[6] In that case the joint judgment of the majority explained the importance of finality to the resolution of disputes:

1. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
2. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so- called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial."
3. The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.[7]

The immunity, and its policy justification, applies to both barristers and solicitors and extends to work done in court and to work done out of court which leads to a decision affecting the conduct of the case at trial.

7 The Plaintiff's claims and particulars of negligence against the Defendant all fall within this immunity. The particulars of the negligence alleged in paragraph 4 in the conduct of the proceedings are:

1. Failing to conduct the Magistrate's Court cancer proceeding on 17 August 2009 in which the court had listed the matter for hearing after the Defendant filed a defence on 5 March 2009, and despite lawyer Aloe had conducted a Practice Court in the County Court by his Honour Judge Holt on 31 July 2009, the reason for the Court was to join the cancer claim with the asthma claim in one Statement of Claim, but the application had been disallowed on the basis that the cancer disease must be first determined to be a compensable injury before seeking damages for the cancer disease, as his Honour Judge Holt provided on Page 9 that:

It seems to me that in seeking to join the cancer injury to this proceeding, the Plaintiff is seeking damages in respect of an injury which has not satisfied any of the relevant requirements of Section 134AB, a result which is not permitted by that provision.

1. Failing to conduct the trial for common law damages in relation to the asthma injury in the County Court without a reasonable reason.

1. Failing to prepare and advise the Plaintiff of the hearing in the Magistrate's Court on 17 September 2009, in relation to the cancer disease's claim for compensation of weekly payments and medical expenses.

1. Failing to exercise standard of competency and diligence when lawyer Aloe intentionally adjourned and refused to conduct the Plaintiff's cancer claim's hearing in the Magistrate's Court for the purpose of changing the direction of my cancer proceeding.
2. Failing to prepare a proper pleadings document of affidavit of document when lawyer Aloe omitted all the beneficial documents that he possesses.
3. Failing to maintain the legal costs as low as possible when lawyer Aloe engaged three barristers to act in my matters, despite my advising him that there was no need for barristers Mr G Grabua and Mr S McCredie.
4. Failing to conduct a proper analytical test of the glues and solvents at Palmone Shoes factory when lawyer Aloe cheated the Halo Primer solvent's bin.
5. Failing to act for my best interest when lawyer Aloe introduced a toxicological report of Professor C Winder without consulting the Plaintiff and without giving a copy to the Plaintiff or give the Plaintiff a chance to have an interview with the toxicologist.
6. Failing to conduct my proceedings without an intention of prejudice when lawyer Aloe planned intentionally to produce a new report of Professor C Winder for the purpose of giving chance to the Defendant to produce a contrary report of Mr G Crank at the same day after lawyer Aloe adjourned the hearing in the Magistrate's Court on 17 September 2009.
7. Failing to issue the cancer claim in a proper way in the Supreme Court under Section 135BA of the terminally ill worker legislation, in which lawyer Aloe had planned to make application in an originating motion on his own without engaging a barrister to prepare the application.
8. Failing to act with honesty when lawyer Aloe committed a forgery and professional misconduct by changing the documents in which the Plaintiff had agreed on to be filed in the application under Section 135BA of the Act on 7 September 2009 in the Supreme Court.

1. Failing to maintain a professional standard when lawyer Aloe enforced the Plaintiff to sign on the application for serious injury in which he prepared previously without letting me read the content of the application.

1. Failing to issue Statement of Claim to accompany the application under Section 135BA of the Act at the time of filing the application on 7 September 2009, instead lawyer Aloe had filed the Statement of Claim on 18 September 2009 in the Supreme Court after the Plaintiff advised him on 18 September 2009 of his cheating and deceiving act by changing the documents in the originating motion application in relation to the cancer claim and as a result of his misconduct and his dishonesty, lawyer Aloe had been ceased to act on behalf of the Plaintiff on 22 September 2009.

The particulars of the negligence alleged in paragraph 8 in the conduct of the Plaintiff's trial in the Supreme Court commenced on 30 November 2009 are:

1. Failing to work for the best interest of the Plaintiff's matters and misrepresented the Plaintiff's matters at the trial in the Supreme Court.
2. Failing to produce in the trial the relevant documents and articles which considered beneficial for the Plaintiff's matters.

1. Failing to conduct the Plaintiff's cancer claim to be determined on the proper legislation, by refusing to determine the cancer claim for weekly payments compensation and medical expenses in the Magistrate's Court, and instead lawyer Aloe made an application under Section 135BA of the Act for Common Law damages.

1. Failing to conduct a proper solvents and glues analysis, when solicitor Aloe and Co. had witnessed the taking of samples at the Palmone Shoes factory, but he did not state that the Halo primer solvent which was taken for sampling was not the same solvent stated in the Material Safety Data sheets, despite his knowledge that the Halo primer is in fact manufactured by Barham Pty Ltd and the same used for testing is not by Barham Pty Ltd.
2. Failing to conduct a proper test of the Halo primer solvent during the trial by not allowing the Appellant to witness the sample taken at Mark Dormann's office on 1 December 2009, in addition to filling up the Halo Primer's bin with other material without my permission.
3. Failing to represent my industrial asthma claim at the trial properly by refusing to tender the serious injury certificate which had been granted to the appellant on 8 January 2008 by the WorkCover Authority in relation to the industrial asthma.
4. Failing to make any submission for the asthma injury at the trial as had been requested by his Honour Judge Forrest.
5. Failing to produce the beneficial analytical test certificate when the Plaintiff asked to be produced.
6. Failing intentionally to disgrace on the introduction of the Defendant's analytical report of 'Noel Arnold' at the fifth day of the trial, despite the report was not admissible under order 44 of the Supreme Court (General Procedures) rules 2005.
7. Failing to stop Dr H Sutcliffe to respond to the introduction of the Defendant's report of Noel Arnold, when the Plaintiff disagreed and requested lawyer Aloe to stop Dr Sutcliffe as she is not an industrial hygienist specialist to be able to respond, but Dr Sutcliffe is an occupational doctor.
8. Failing to allow the Plaintiff to object to the trial judge on the wrong facts and wrong tests of chemicals that lawyer Aloe had provided to the trial judge.

1. Failing to maintain a professional standard when lawyer Aloe substantially contributed to the loss of my cancer claim at the trial he conducted, and on the other hand, lawyer Aloe attributed the loss of my cancer in the Court of Appeal to that the judge of the Court of Appeal was Jewish, as lawyer Aloe told my Doctor A Wassouf.

All of these particulars are about conduct at trial or work done out of court leading to a decision affecting the conduct of the case in court.

8 The Plaintiff's allegations against the Defendant are that something was done which caused damage to him through the verdict at trial. His complaints are that the negligence in the conduct of the trial caused him the loss and damage he now seeks to recover. The specific particulars all link the conduct complained about with its impact upon the outcome at trial. Some allegations of negligence are expressed generally[8] but all are complaints about conduct either at trial or about conduct out of court leading to a decision affecting conduct in court, namely: failure to pursue and progress the Magistrate's Court proceedings;[9] failing to conduct the asthma case and to produce a serious injury certificate;[10] failure to provide affidavits of documents;[11] engaging three barristers to conduct the proceeding;[12] failing to deal appropriately with the evidence concerning the glue primer testing;[13] complaints concerning the use at trial of a toxicological report by Professor Winder;[14] failing to issue a cancer claim under s 135BA of the Accident Compensation Act 1985 (Vic);[15] changing the application under s 135BA;[16] and failing to produce or challenge evidence at trial.[17] Accordingly, all of the claims are met by the defence of advocates immunity and cannot be maintained.

9 The conclusion that advocates immunity applies to the Plaintiff's claim makes it unnecessary to consider the Defendant's alternative basis for supporting its summons on principles of Anshun estoppel.[18] In Solak v Registrar of Titles (No 2),[19] in a passage pressed by the Defendant, Davies J said:

8 An Anshun estoppel will arise in circumstances where a party to a subsequent proceeding seeks to litigate a claim or defence "which could and should have been litigated in the earlier proceedings" (underlining added). The estoppel is "analogical extension" of the doctrines of res judicata and issue estoppel and operates to preclude a litigant from bringing a particular claim where it was "unreasonable" for the litigant not to have brought that claim, or rely on that claim as a defence, in an earlier concluded proceeding. If the litigant was unable to raise the claim or defence in the earlier proceeding, no Anshun estoppel will arise. Equally so the fact that the litigant could have raised the claim or defence in the earlier proceeding does not mean that the estoppel will arise. The test is "based on the reasonableness ... of the conduct of a litigant in earlier proceedings". The mere fact that the matter could have been raised does not mean that it should have been raised for the operation of the estoppel. The "unreasonableness" criterion involves an evaluative element based upon what a litigant could reasonably have been expected to do in the earlier proceeding. In Port of Melbourne Authority v Anshun Pty Ltd, the majority Mason and Aickin JJ stated:

there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.

Although the estoppel was expressed in reference to the failure to raise a defence, the principle equally applies with respect to a claim. The question is whether the claim was "so relevant" to the earlier litigation that it was "unreasonable" not to have raised it.

9 Whether a claim was "so relevant" to the earlier litigation that it was "unreasonable" not to have raised it falls to be considered on a case by case basis.[20]

Counsel for the Defendant did not press the Anshun estoppel claim against all of the alleged particulars of negligence and, to that extent, the Defendant's reliance upon Anshun estoppel might not be sufficient to dispose of the Plaintiff's entire claim.

10 It is undesirable to decide this case on the grounds of the Anshun principle unless it were necessary to do so. I have already mentioned that it would not dispose of all of the negligence alleged against the Defendant. The application of the principle in this case otherwise would necessitate a finding of reasonableness about not raising matters in earlier proceedings.[21] In this case that requires forming a judgment about reasonableness by reference to the transcript and material before Justice T Forrest in proceedings numbered 9119 and 9226 of 2009 on 8 and 15 February 2010. A copy of the transcript was exhibited to the affidavit of James Creighton and some parts of the transcript were specifically referred to by counsel for the Defendant at the hearing before me, but counsel for the Defendant submitted that I should have regard to the transcript in its entirety without specific assistance from counsel about relevance or significance. The proceeding before his Honour had been conducted by the Plaintiff on his own behalf although he did have the assistance of Mr Grabau. Counsel for the Defendant submitted that the Plaintiff had revealed himself to be capable of dealing with sophisticated argument although I note that the transcript began with his Honour asking whether the Plaintiff felt well enough to participate in the proceedings: an indication that the Plaintiff was not, as he is expected still not to be, well. The transcript reveals that his Honour did much to conduct the proceeding on the basis of eliciting the information as fully as he was able by asking questions. The Plaintiff occasionally cross-examined Mr Aloe but did not do so always or consistently. It is difficult to form judgments about whether raising or not raising something might or might not be reasonable in circumstances where the Plaintiff might not have been making judgments himself or through practitioners with a duty to make forensic judgments on his behalf. That difficulty is increased by the absence of a controverter to the Defendant's submissions in circumstances where my reading of the transcript and of the available materials has occurred after the hearing and without being able to test with counsel for the Defendant any concerns or conclusions.

11 It is also strictly unnecessary to consider whether the Plaintiff intended, and if so whether he was permitted, to rely upon r 63.23 of the Supreme Court (General Procedure) Rules 2005 (Vic) against the Defendant. Rule 63.23 provides:

(1) Where a solicitor for a party, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition, the Court may make an order that-

(a) all or any of the costs between the solicitor and the client be disallowed or that the solicitor repay to the client the whole or part of any money paid on account of costs;

(b) the solicitor pay to the solicitor's client all or any of the costs which the client has been ordered to pay to any party;

(c) the solicitor pay all or any of the costs payable by any party other than the client.

(2) Without limiting paragraph (1), a solicitor fails to act with reasonable competence and expedition for the purpose of that paragraph where any application in or trial of a proceeding cannot conveniently be heard or proceed, or fails or is adjourned without any useful progress being made, by reason of the failure of the solicitor to-

(a) attend in person or by a proper representative;

(b) file any document which ought to have been filed;

(c) lodge or deliver any document for the use of the Court which ought to have been lodged or delivered;

(d) be prepared with any proper evidence or account; or

(3) The Court shall not make an order under paragraph (1) without giving the solicitor a reasonable opportunity to be heard.

(4) The Court may, before making an order under paragraph (1), refer the matter to a Costs Judge or another Associate Judge for inquiry and report.

(6) The Court may order that notice of any proceeding or order against a solicitor under this Rule be given to the client in such manner as the Court directs.

(7) This Rule shall, with any necessary modification, apply to a barrister as it applies to a solicitor.

This rule authorises the Court to order a solicitor to pay the costs of a party. Paragraph 5 of the Plaintiff's statement of claim alleges that he suffered loss and damage as a result of the Defendant's negligence and breach of duty of care and, under particulars of loss and damage, asserts that "lawyer Aloe is liable to pay...pursuant to order 63.23" the legal costs for conducting the Plaintiff's proceeding when he had been required to appoint a new solicitor to act on his matters.

12 Counsel for the Defendant construed those particulars in the pleading as an affirmative allegation by the Plaintiff of an entitlement under r 63.23 to have the Defendant pay the costs occasioned by the need to appoint a new solicitor. In that context, counsel for the Defendant submitted that the advocates immunity prevented reliance upon r 63.23. In other words that r 63.23 could not apply on its terms to challenge the costs, or their quantum, as between lawyer and client. I doubt the correctness of that submission[22] but, unless it were necessary to do so, I do not consider it desirable to form a concluded view about the submission in the absence of a controverter interested to test its correctness. Counsel for the Defendant submitted:

[T]hat rule 63.23 in the post D'Orta-Ekenaike world used to be read as limited to the incurring of costs in proceedings in circumstances which fall outside the ambit of the immunity. And in terms of barristers that class of circumstances might be quite limited, that it might be that barristers do work outside of a proceeding, not in advice work, and cause costs to be incurred within proceedings so that the sub-rule 7 of Order 63 rule 23 which has specific application to barristers could have some work to do.

The common law immunity endorsed D'Orta-Ekenaike, and its underlying policy, is applicable to prevent challenges to claims about legal fees.[23] However, it is not clear that the immunity precludes the Court from exercising the power under r 63.23 once invoked. In Knight v F P Special Assets Ltd[24] Dawson J explained that the jurisdiction of the Court to order a solicitor to pay costs, whether to the solicitor's own client or to the opposing party, is a summary jurisdiction "to punish for misconduct and would appear to rest upon the duty of the court to supervise the conduct of its solicitors."[25] The party applying for an order that the solicitor indemnify him of her for costs is seen not as seeking to exercise a right but as moving the Court to exercise a power over its own officers.[26]

13 In this proceeding it is sufficient to conclude, as I do, that the Plaintiff's pleading does not make the allegation as construed by Counsel for the Defendant. Rule 63.23 is relied upon as a particular of an allegation of negligence about work in court or leading to a decision affecting the conduct of the trial. The pleading does not seek to invoke the Court's jurisdiction under r 62.23 as a pleaded cause of action.

14 In my view the Defendant is entitled to judgment with costs.

[1] [2010] VSC 82.

[2] See Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222, [18] (Dixon J).

[3] Karam v Palmone Shoes Pty Ltd [2010] VSC 3.

[4] Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82.

[5] [1988] HCA 52; (1988) 165 CLR 543.

[6] [2005] HCA 12; (2005) 223 CLR 1.

[7] Ibid 17-18 [34]-[36] (Gleeson CJ, Gummow, Hayne and Heydon JJ) (citations omitted).

[8] Statement of Claim dated 4 April 2011, [8], particulars (a), (b) and (l).

[9] Statement of Claim dated 4 April 2011, [4], particulars (a), (c) and (d); [8], particular (c).

[10] Statement of Claim dated 4 April 2011, [4], particular (b); [8], particulars (f) and (g).

[11] Statement of Claim dated 4 April 2011, [4], particular (e).

[12] Statement of Claim dated 4 April 2011, [4], particular (f).

[13] Statement of Claim dated 4 April 2011, [4], particular (g); [8], particulars (d) and (e).

[14] Statement of Claim dated 4 April 2011, [4], particulars (h) and (i).

[15] Statement of Claim dated 4 April 2011, [4], particular (j).

[16] Statement of Claim dated 4 April 2011, [4], particulars (k), (l) and (m).

[17] Statement of Claim dated 4 April 2011, [8], particulars (i), (j) and (k).

[18] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[19] [2010] VSC 146.

[20] Ibid [8]-[9]. The decision was overturned by the Court of Appeal on the facts but did not disapprove of the statement of principle.

[21] Solak v Registrar of Titles (No 2) [2010] VSC 146, [8]-[9] (Davies J); Solak v Registrar of Titles [2011] VSCA 279, [67] (Warren CJ; Neave JA and Hargrave AJA agreeing).

[22] See UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105, [58] (Habersberger J).

[23] Attard v James Legal Pty Ltd [2010] 80 ASCR 585; Day v Rogers [2011] NSWCA 124; Maurice Blackburn v Burmingham [2009] VSC 20; Foster James Pty Ltd v Dalton [2010] VSC 327.

[24] [1992] HCA 28; (1992) 174 CLR 178.

[26] Michael v Freehill Hollingdale and Page (1990) 3 WAR 223, 233 (Seaman J). See also Davy-Chiesman v Davy-Chiesman [1984] 1 All ER 321, 328 (May LJ); Monitronix Ltd v Michael (1992) 7 WAR 195, 200 (Murray J); De Sousa v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 146; (1993) 41 FCR 544; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (No 1) [1993] FCA 471; (1993) 45 FCR 224; Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 43 ATR 621; Levick v DCT [2000] FCA 674; (2000) 44 ATR 315.