Plaintiff v First Defendant

1 The defendants, Mr Henry Carus, and his firm, Henry Carus & Associates ('Carus') have renewed their application for summary judgment in respect of certain claims brought by the plaintiff, Ms Silvana Taseska, against them in this proceeding. Ms Taseska is Carus' former client, and has brought claims in negligence against Carus. Prior to September 2013, Carus acted for Ms Taseska in relation to two proceedings brought by her against her former employer, MSS Security Pty Ltd ('MSS Security') seeking compensation for physical and psychiatric injury ('personal injury proceedings'). The claims originally brought by Ms Taseska in this proceeding, and the procedural history of the proceeding, are set out in my previous rulings concerning whether Ms Taseska was able to pursue certain claims, and the adequacy of the pleading of those claims.[1] Essentially, these rulings have led to a narrowing and reshaping of Ms Taseska's claims against Carus. Two substantial claims remain: a claim that Carus was negligent in failing to apply for a significant injury certificate allowing Ms Taseska to claim damages for pecuniary loss in respect of her knee injury ('knee claim'), and a claim that Carus was negligent in its conduct of her claim for psychiatric injury ('stress claim'). It is the latter which is the subject of this application.

2 On 24 November 2017, I made the following orders ('24 November orders'):

1. The plaintiff have leave to file the proposed statement of claim filed with the Court on 1 June 2017, subject to the provision of further and better particulars in accordance with the ruling delivered this day, insofar as the proposed amended statement of claim makes allegations concerning Carus' failure to apply for a significant injury certificate for pecuniary loss said to have arisen out of the knee claim, such leave to be effective from 1 June 2017.
2. By 4.00pm on 12 February 2018, the plaintiff file and serve an affidavit which:

(a) lists all documents from the Carus file

(i) she did not have in her possession prior to December 2016; and

(ii) would have been tendered into evidence at the trial of the stress claim component of the personal injuries proceeding, or would have been of assistance to her in preparing for trial;

(b) identifies any witness who could have been called or subpoenaed to give evidence at trial who did not give evidence at trial in relation to the stress claim, and summarise the evidence she expected that witness or witnesses would have given; and

(c) by reference to the findings of J Forrest J in his judgment in [2016] VSC 252, explain how the additional documents and/or witnesses would have led to a different result in the stress claim.

1. There be judgment for the defendants on the remaining claims in the proposed amended statement of claim dated 1 June 2017.
2. The further hearing of the applications in the plaintiff's summons filed 19 July 2017, and the defendants' summons filed 21 September 2017, be adjourned to 26 February 2018 at 10.30am, in a court room to be advised.

3 The effect of the 24 November orders was to grant leave to Ms Taseska to pursue a claim alleging that Mr Carus was negligent by failing to apply for a significant injury certificate with respect to a knee injury suffered by her in the course of her employment with MSS Security, which would permit her to pursue a claim for pecuniary loss against MSS Security. The question of whether Ms Taseska would be entitled to pursue a claim against Carus with respect to his conduct in, among other things, refusing to hand over his file to Ms Taseska after the termination of the retainer between them, such that she was disadvantaged in her conduct of the stress claim, was left in abeyance until after Ms Taseska had provided a better articulation of her claims in that regard, in particular, how she said that Carus' conduct caused her loss. After the filing and service of an affidavit by Ms Taseska on 12 February 2018, which complied with paragraph 2 of the orders made on 24 November 2017, Carus continued to press the application for summary judgment in respect of the stress claim.

4 Stepping back to put Ms Taseska's claims in relation to the stress claim in context, in or about June 2011 Ms Taseska retained Carus to represent her with respect to two claims against MSS Security: the knee claim and the stress claim. Shortly prior to the trial of the proceedings concerning those claims, which was originally listed to commenced (and did commence) in September 2013, the relationship between Ms Taseska and Carus broke down, and Carus (and counsel briefed for the trial) ceased to act for Ms Taseska. The trial of the personal injury proceedings was adjourned after a few days owing to Ms Taseska's poor health. The trial resumed before J Forrest J in February 2016, some five months after the commencement of this proceeding. On 20 May 2016, J Forrest J gave judgment in favour of Ms Taseska in respect of the knee claim, and awarded her the sum of $250,000 for damages for pain and suffering. His Honour gave judgment for MSS Security in respect of the stress claim.[2] An appeal to the Court of Appeal was dismissed on 12 August 2016.[3]

5 In the current proceeding, Ms Taseska claims that, by refusing to provide her with the file concerning the stress claim ('file'), Ms Taseska was hampered in her ability to prepare for trial.[4] She was unable to review all of the relevant documents prior to trial, and was dependent upon the court books compiled by MSS Security. She did not know which witnesses would be called by MSS Security, such that she was unable to properly prepare to crossexamine those witnesses. She was unable to identify witnesses she would have wished to call to give evidence on her behalf in respect of the stress claim, so that they could be subpoenaed prior to trial. In her affidavit of 12 February 2018, Ms Taseska identified the following matters derived from her review of the file after it was provided to her in December 2016:[5]

(a) a list of documents from the file which she did not have in her possession prior to December 2016;

(b) a list of the documents from the file which she would have sought to tender into evidence at trial; and

(c) a list of eleven witnesses that she would have called to give evidence on her behalf.

6 In her affidavit, Ms Taseska also provided an outline of the evidence she expected the witnesses referred to in (c) above would give, and deposed as to how she considered the result before J Forrest J would be different had she been able to tender these documents and call these witnesses. She deposed that, had she had the documents in the file, and called the additional witnesses, his Honour would have made the following findings:

1. After September 11, 2001 that there was not any change's done by Chubb, there was not significant management present overseen the operation the security staff increased at the domestic screening point but the senior staff member on duty was left one per shift.
2. There was not any training given before or after 9/11 to the security staff members or to the senior guards how to deal or what to do if a passenger abused or assaulted a security staff.
3. The incident with the passengers in June 2002 occurred, Silvana was sprayed with a spray can in the face. Mr Poskus was alerted to the incident in according to an email send to David MacLeod and Ms Suares dated 14/06/02 at 11:43 AM, he has seen the report of the incident, he know how serious the incident was between the passenger and Silvana. In the email states that he will arrange a counsellor for Silvana but according to the evidence he failed to organise the counsellor after that incident.
4. As well the incident on the 18 August 2002 occurred, the passenger that abused and assaulted Silvana was female, she did not get any help by the senior guard or any off the security staff member and no one interfere to calm the situation down.
5. Mr Poskus failed to read the reports of Bruce Lawe and Jerome L Beling dated 18 August 2002, of the incident before watching the video, which lead to watching the wrong video.
6. According to the report dated 20 August 2002, Mr Poskus watched the video 2 days after the incident, the passenger that abused/assault Silvana was long go on. Nothing was done to the passenger, Proper investigation was not done by the managers.
7. As a manager's of the security staff, Mr Poskus and Mr Richardson were responsible for doing full investigation of the incident's that occurred in June 2002 and 18 August 2002, as well the bullying and harassment that was occurring on the return to work program. They should tried to make changes to prevent from incident like this occurring to the security staff, but nothing was done.
8. The evidence shows that the duress button was for emergency of a bomb or a gun not a conflict with the passengers or abuse by passengers to security staff.
9. The AFP was never called for incidence occurring between the security staff and the passengers.
10. Chubb (MSS Security) failed to provide appropriate training for the security officers before or after September 11, 2001.
11. Accordance to the letter of questions and answers send to Karen Hunt by Dr Wahr Silvana should not have been returned to work at all. She should not have been send to the airport at all.
12. The employer knew that the airport is not suitable position for Silvana to be return to work.
13. On a number of occasions Silvana told Karen Hunt that she is scared going back to the airport and she consider to be relocated to different sites/duty's.
14. Silvana started the return to work program on the 2 December 2002, on the 4 December 2002, IRS send letters and questions to Dr Wahr regarding the return to work program, on the 10 December 2002 Dr Wahr faxed the answers back to Karen Hunt stating that Silvana is not capable to be returning to work.
15. In despite of Dr Wahr opinion Silvana was sent to work, even after the latter Silvana was still left working, she should off been taken off the program immediately.
16. Silvana had made number of complaints to Karen Hunt regarding her duty in QF93 also that she had problems with her co-workers, meeting was done with Karen Hunt and the managers at the airport regarding the duty, but she still was left in the same duty.
17. Due to the nature of her work and the tormenting from the co-workers Silvana had taken number of days off work, but the employer failed to investigate the situation properly replace her to a different position away from the airport.
18. In accordance to the letter send by Dr Wahr to Karen Hunt on the 10 December 2002, Silvana should not have been send to the work at all.
19. The employer did not take into consideration Dr Leon Fail report dated 25 October 2002, as well her treating psychiatrist Dr Wahr opinion 10 December 2002.
20. Despite of Dr Leon Fail and Dr Wahr opinion and the complains Silvana made to the return to work organizers, she was send back to a duty which the employer knew is not suitable as a return to work program.
21. There was bullying/harassment at work, it was reported to the people that were organizing the return to work program. The employer was aware of the incidence as well of the bullying/harassment, but the employer failed to make any changes or withdraw Silvana from the program.
22. The employer failed to find appropriate position for the return to work program.
23. The employer knew that the airport site is not suitable for the return to work but because they were not capable of finding another possession without any consideration they returned her at the same environment.
24. The employer MSS Security (Chubb) breach they duty and were negligent in cause her psychiatric injury that were sustained during 2002/03.
25. Ms Taseska psychiatric injury on or above 2002/03, was caused by the negligence of Chubb (MSS Security).
26. There was no contributory negligence on the part of Ms Taseska. In proceeding no: 03100 or 2011,

• Damages
• Loss of pass and future earnings
• Loss of superannuation

7 The above extract highlights the vice complained of by Carus, being that Ms Taseska is seeking to re-litigate the proceeding heard and determined by J Forrest J in a manner which offends the principle that there should be finality in litigation.

8 As can be seen from the above extract of her affidavit sworn on 12 February 2018, English is not Ms Taseska's first language. However, from my observations of her over a number of years now, and my review of affidavits and pleadings prepared by her in this proceeding, she does not lack intelligence or forensic skill. Given the manner in which Carus puts their application for summary judgment, it is not necessary for me to determine whether the alternative result proposed by Ms Taseska might or might not be achieved. I proceed on the basis that her contentions are at least arguable. The question is whether it is permissible for Ms Taseska to advance those arguments at a trial.

9 Carus seeks summary judgment against Ms Taseska in respect of the stress claim on the basis that her claim has only a 'fanciful' prospect of success. Carus submits that:

(a) Carus had a contractual and/or equitable right to exercise a lien over the file;

(b) Carus owned no duty of care to Ms Taseska to deliver up the file in the circumstances of this case; and

(c) relying upon the decision of the High Court in D'Orta-Ekanaike v Victoria Legal Aid & Anor ('D'Orta'),[6] to undertake a review of J Forrest J's decision, as Ms Taseska invites the Court to do, would subvert the principle of finality in litigation.

10 In relation to (a) above, Carus relied upon the terms of the conditional fee agreement made between Ms Taseska and Carus on 8 December 2011 ('agreement'). Clause 10 of the agreement stated as follows:

Ending our engagement

You may end our engagement by written notice at any time. We may also decide for good cause to cease acting for you. In either event:

• We will remove our name from the court record in any court proceedings
• You will receive a final account which will include all outstanding legal costs, including any uplift fee
• We will have the right to keep your documents until we are paid.

11 Counsel for Carus noted that in his decision on 26 June 2015, Wood AsJ determined that this costs agreement was valid.[7] Further, Carus submitted that Carus had a lien over the file, their costs having not been paid, until after an agreement was reached between Ms Taseska, Carus, and MSS Security finalising all outstanding costs issues in late 2016, following which Carus provided the file to Ms Taseska.

12 Counsel for Carus submitted that Ms Taseska could have made an application to the Court for the production of the file either prior to or at the trial in February 2016. If such an application had been made, Ms Taseska may have been able to persuade the Court to discharge the lien to enable her to have access to the file. Given that Ms Taseska had alternative avenues open to her to attempt to obtain the file, there could be no duty imposed upon Carus to provide the file to her.

13 Further, in relation to the question of whether Carus owed Ms Taseska a duty to provide her with a copy of the file, counsel for Carus submitted as follows:

The duty of care Carus owed to Ms Taseska arose by virtue of a contractual retainer to act on her behalf in respect of the stress claim. Once the retainer terminated, clause 10 of the conditional costs agreement determined that Carus had a right to retain the file. Carus also had a right in equity to do so.

14 Further, in relation to the operation of the principle of finality, Carus submitted that, if I were to find that the question of whether Carus was entitled to retain the file was a triable issue (which, it was submitted, I ought not find), then at trial, the Court would need to review the decision of J Forrest J in respect of the stress claim in order to determine whether his decision would have been different. This requirement would be contrary to the rationale underpinning the doctrine of advocate's immunity, being the principle of finality of litigation.

15 Carus relied upon the decisions of the High Court in D'Orta,[8] Attwells v Jackson Lalic Lawyers Pty Limited ('Attwells'),[9] and Kendirjian v Lepore ('Kendirjian'),[10] all cases concerning the doctrine of advocates' immunity, in support of their contention that allowing Ms Taseska to relitigate the issues before J Forrest J in relation to the stress claim would amount to an abuse of process. In particular, Carus submitted that these authorities make it clear that the interest that the doctrine of advocates' immunity seeks to protect is the public interest in there being finality of litigation. In D'Orta,[11] the plurality explained the rationale behind the doctrine of advocates' immunity as follows (citations omitted):[12]

The 'unique and essential function' of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be re-litigated. Yet relitigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client.

The question is not, as may be supposed, whether some special status should be accorded to advocates above that presently occupied by members of other professions. Comparisons made with other professions appear sometimes to proceed from an unstated premise that the law of negligence has been applied, or misapplied, too harshly against members of other professions, particularly in relation to factual findings about breach of duty, but that was not a matter argued in this Court and should, in any event, be put to one side. Or does the question depend upon characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function.

Rather, the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.

16 In Attwells,[13] where the High Court decided that the immunity did not extend to negligent advice which leads to the settlement of a claim in civil proceedings, but only to decisions and actions of a lawyer which are 'intimately connected' with the conduct of a case in court, the majority explained the position as follows:

Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the 'intimate connection' between the advocate's work and 'the conduct of the case in court' must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an 'intimate connection' between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case.

17 Counsel for Carus noted that the proposition that the principle underlying the immunity was to prevent challenges to judicial determinations was reinforced by the decision in Kendirjian,[14] where a party had sought to distinguish Attwells,[15] and invited the High Court to reconsider the decision in Attwells.[16] Edelman J, writing for the majority, stated as follows:

With respect, the negligence action by Mr Kendirjian against the respondents does not give rise to the possibility of any challenge to the findings of the District Court concerning Mr Kendirjian's credibility or otherwise. From Mr Kendirjian's perspective, he relies on the decision of the District Court in order to prove his alleged loss. From the perspective of the second respondent, issues concerning the reasonableness of advice given will be assessed at the time the advice was given, not at the time of the District Court judgment. The assessment of reasonableness will not involve any consideration of whether the decision of the District Court, affirmed by the Court of Appeal, was right or wrong whether in relation to credibility or otherwise. It was not suggested that any questions of reasonable foreseeability of loss could conceivably lead to a challenge to the reasoning or decision in the District Court. Indeed, nothing in the second respondent's pleaded defence raises any suggestion of a challenge to the reasoning or decision in the District Court.

18 Accordingly, Carus submitted that the principle of finality of litigation is of such significance, and so well entrenched, such as to make Ms Taseska's attempt to relitigate the stress claim in this proceeding an abuse of process.

19 Ms Taseska's submissions in response to Carus' application for summary judgment were largely contained in her affidavit sworn on 28 May 2018. Understandably, given her status as a self-represented litigant, Ms Taseska did not directly address Carus' submissions concerning the principle of finality of litigation, but rather referred back to her affidavit sworn on 12 February 2018, in which she explained how, had she had possession of the file prior to the trial in February 2016, she would have been successful in her pursuit of the stress claim. Instead, Ms Taseska's affidavit largely focussed upon Carus' conduct prior to the end of the retainer, their refusal to hand over the file, and why Carus was not entitled to claim a lien over the file.

20 In her affidavit sworn on 25 May 2018, Ms Taseska referred to the following clause of the agreement, under the heading 'Our obligation to you':

We must

(a) Always act in the best interest in pursuing your claim for damages and obtaining for you the best possible result subject to our duty to the Court;

(b) Explain the risks and benefits of the legal action proposed or undertaken;

(c) Provide the best information as to the likely costs of your matter(s).

21 Ms Taseska stated that Carus had breached their obligations to her by failing to disclose to her offers made by MSS Security prior to trial, not giving her advice regarding her claims, not making an earlier application to amend the statement of claim, and not making an application for a significant injury certificate allowing her to make a claim for loss of past and future earnings with respect to the final claim.[17]

22 Ms Taseska claimed that in September 2013, Carus wrote to the solicitors for MSS Security stating that all of Carus' legal costs needed to be paid prior to any payment of compensation to her. Ms Taseska submitted that this letter amounted to a guarantee that Carus' costs would be paid. Ms Taseska deposed that in October 2013 she asked Carus to provide her with their bill. When that was provided to her in November 2013, for various reasons she was not satisfied with the amount of fees claimed by Carus. She deposed that on 28 November 2013, 1 December 2013, and 11 March 2014, she wrote to Carus requesting the file, but never received a response.

23 Ms Taseska deposed that on 26 October 2015, Wood AsJ fixed the costs payable by her to Carus at $175,000, but did not consider whether Carus had a lien over the file, or determine who breached the terms of the retainer. Wood AsJ had refused to allow her to subpoena witnesses or documents prior to the hearing before him. The first occasion on which mention was made of there being a lien over the file was in a letter from the current solicitors for Carus on 15 December 2015, a few days prior to the hearing at which Macaulay J ordered that Carus provide to her the critical documents pursuant to s 26 of the Civil Procedure Act 2010 (Vic).[18]

24 Ms Taseska deposed that at the commencement of the trial before J Forrest J, Carus made a successful application for their legal costs to be paid from any compensation payable to her. Notwithstanding their costs were guaranteed to be paid, they still failed to provide the file.[19] She deposed that even if she had only been given the file at that stage, she would still have been in a better position to call witnesses, tender documents into evidence, and crossexamine the witnesses called by MSS Security. Further, despite being assured once again on 20 May 2016 (the date judgment was delivered in the personal injury proceeding) that their costs would be paid, they still did not hand over the file, which hampered her ability to prepare for the appeal. By the time that the file was delivered to her in December 2016, she had explored all avenues of appeal, and she no longer needed the files.

Defendants on a number of occasions were assured that their will receive payment for they legal costs but they just wanted to ruin my cases they were not interested in securing the payments for they legal costs they did not even wonted to negotiate with me or come up with some decision their aim was to destroy my cases and ruin my opportunity to get compensation for my work-related injury.

This case should go to trail to be properly determent how broke the contract and if Henry Carus & Associates had right to keep my file.

I was entitled to discharge Henry Carus & Associates from my cases for breach of contract, misleading information and misconduct that they done in my cases during the representation.

Henry Carus & Associates broke the contract that was signed on the 8 December 2011, buy not giving me advice prior Court, not disclosing Offers given by the defendants (MSS Security), not preparing the cases properly for trial, making late application to amend the statement off claim in the middle off the trial, not making an appropriate application for past and future earning losses for the knee injury.

I owned Henry Carus & Associates money for the work that they done on my case but because their broke the contract that we signed on the 8 December 2011, they had to supplied me the file so I can properly prepare the cases for trial.

(verbatim reproduction)

26 In her affidavit, Ms Taseska referred to the decisions of this Court in Bodycorp Repairers Pty Ltd v Edwards[20] and Cosgriff v Isaac Brott & Co[21] where Hargrave and Byrne JJ respectively summarised the principles governing a dispute over the existence and effect of a lien where a solicitor's discharged retainer concerned ongoing litigation. Essentially, whether the solicitor is entitled to a lien over the client's file pending the payment of legal costs where the client has ended the retainer depends upon whether the client was entitled to discharge the retainer for good cause, subject to the Court's overarching discretion to compel production of the file, say, to 'save the client's litigation from catastrophe'.[22]

27 Ms Taseska submitted that in her case, the file should have been provided to her so that she could get appropriate justice for her work related injury, and to protect her case from the catastrophe that occurred. She deposed as follows:

Summary judgment should not be granted in this case, we should proceed to trial, I have to be given an opportunity to file subpoenas for documents, there is lots off evidence and witnesses to be examine and crossexamine and documents produce as evidence that Henry Carus & Associates breach the contract that we signed on 8 December 2011, Henry Carus & Associates had many different alternatives, on a number of occasions they were assuring that their legal costs would be payed, their should not have kept the file, they should off supplied the files and the Court Books to me so I can properly present the evidence in the trial.

I dismissed Henry Carus & Associates for misconduct, misleading information given to me regarding the cases and breach of contract by them, Due to the misconduct and breach of duty the lien that they had over my files comes to an end.

When all the evidence and witnesses are examined then the Court will be able to properly determent who breach the contract, if the defendant had lien over the files or not and give the appropriate judgment in this case.

(verbatim reproduction)

28 In my view, Carus is entitled to summary judgment insofar as Ms Taseska's claim relates to Carus' failure to provide the file, on the following bases:

(a) first, any dispute between Ms Taseska and Carus as to whether Carus held a lien over the file must be resolved in accordance with the terms of the agreement between them, which entitled Carus to retain the file upon the completion of the retainer until their legal costs were paid sometime in late 2016; and

(b) secondly, even if the question of whether Carus was entitled to a lien remained uncertain, Carus would be entitled to summary judgment on the basis that the proceeding is an abuse of process, as it is clear from the affidavits of Ms Taseska of 12 February 2018 and 25 May 2018 that she effectively proposes to have a re-trial of the stress claim.

29 In my first ruling,[23] I canvassed some of the authorities concerning the circumstances in which a proceeding may be an abuse of process in that it seeks to relitigate matters which were the subject of hearing and determination in an earlier proceeding, notwithstanding that no res judicata or issue estoppel arose, as follows:[24]

In determining whether the maintenance of certain claims by Ms Taseska is an abuse of process in that they seek to impermissibly re-litigate the personal injuries proceeding, the following statements of the High Court in an authority relied upon by the defendants, Tomlinson v Ramsey Food Processing Pty Ltd[25] are relevant:

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[26]

Counsel for the defendants also referred to the decision of the New South Wales Court of Appeal in O'Shane v Harbour Radio[27] ('O'Shane'), a rather unusual case concerning whether, in a claim made by a judicial officer in a defamation proceeding, any attempt by the defendant to rely upon a defence of truth amounted to an abuse of process by virtue of potentially requiring the re-litigation of cases determined by that judicial officer. Beazley P (with whom McColl JA and Tobias AJA agreed), stated as follows:

There are a variety of circumstances in which it has been held that proceedings constitute an abuse of process and, therefore, should be stayed. In so far as is relevant to the present matter, it has been said that proceedings will be stayed as an abuse of process if it is intended to litigate anew a case which has already been disposed of by earlier proceedings. There may be an abuse of process even if the circumstances do not give rise to an estoppel: see Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393; [1993] HCA 77; 112 ALR 289 at 298; [1993] HCA 77 (Walton), citing, inter alia, Reichel v Magrath (1889) 14 App Cas 665 at 668 (Reichel). In Reichel Lord Halsbury said (at 668):

... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... There must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ...

In Walton, the plurality also endorsed the observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536; [1981] UKHL 13; [1981] 3 All ER 727 at 729, that a superior court had inherent power to stay proceedings to prevent a misuse of its procedure which "although not inconsistent with the literal application of its procedural rules, would nevertheless ... bring the administration of justice into disrepute among right-thinking people". The plurality observed that the same approach as to the scope of the power to stay proceedings had been taken by each of Mason CJ, Deane and Gaudron JJ in Jago v District Court (NSW) (1989) 168 CLR 23; 87 ALR 577; [1989] HCA 46 (Jago).

It is apparent from the judgments of Mason CJ, Deane and Gaudron JJ in Jago that central to the question of abuse of process is the "public interest in the due administration of justice" and the public interest "in the maintenance of public confidence in the administration of justice": see Mason J at CLR 30; ALR 581, citing the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 at 481. Gaudron J (at CLR 74; ALR 613) referred to the court's inherent power to control its own processes, noting that the classes of case where the court should do so was not closed and that the court may exercise its inherent powers "as and when the administration of justice demands".[28]

Beazley P also referred to with approval the decision of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse,[29] as follows:

State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077) (Stenhouse) involved an attempted re-litigation of an issue that had already been decided between the plaintiff and a third party in an earlier proceeding. Factors considered, at 64,089, by Giles CJ Comm D in determining whether there was an abuse relevantly included: the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated, the impact of the re-litigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties.[30]

... to the extent that Ms Taseska seeks, in effect, to re-litigate her claims in the personal injuries proceedings, that may well be an abuse of process, notwithstanding that the defendants were not parties to the personal injuries proceeding [sic].

31 However, I was not able to finally determine the matter on that occasion, noting that the authorities provide that the power to stay a proceeding permanently on the ground that it is an abuse of process should be exercised with great caution. I stated:[32]

While it is possible, from the terms of the proposed amended statement of claim and the affidavit in support of her application, to form the impression that Ms Taseska does seek to re-litigate the personal injuries proceeding, there needs to be much greater clarity by Ms Taseska as to how she actually puts her case (albeit recognising the particular burden she suffers as a self-represented litigant). Only then is it possible to identify with the requisite degree of satisfaction that the conduct is so closely connected with the conduct of a concluded trial such as to give rise to, say, a defence of advocate's immunity, or, that by seeking to re-litigate the outcome of a concluded proceeding, that allowing the claim to continue would bring the administration of justice into disrepute, and therefore the claim is an abuse of process.

32 For reasons not particularly relevant to the determination of this application, Ms Taseska did not provide a full and proper articulation of how she put her claim against Carus with respect to her failure to be successful in the stress claim until she filed and served her affidavit on 12 February 2018. This affidavit, as noted above, provided a clear and thorough explanation as to how, if she had access to the file, Ms Taseska would have conducted the stress claim differently, and how the result would have been different. It is that effective articulation of her claim which has led me to conclude that her claims against Carus in this proceeding concerning the stress claim offend the principle of finality in litigation.

33 In reaching this conclusion, I have given some consideration to what would actually occur at the trial of the proceeding should I permit this claim to proceed.

34 I could envisage two possible scenarios should this claim proceed to trial. In the first scenario, Ms Taseska would need to give evidence herself, not just about her allegations concerning Carus' conduct, but also concerning the issues in the stress claim. Second, she would presumably seek to tender into evidence the additional documents referred to in her affidavit of 12 February 2018. Further, she would need to call the additional witnesses referred to in her affidavit, in the hope that this additional evidence would bolster the merits of the stress claim (noting here the key issue in the stress claim was whether MSS Security had breached any duty of care owed to Ms Taseska), along with the witnesses called by MSS Security in the personal injuries proceeding, in the hope of extracting concessions from those witnesses that she was not able to obtain at the trial before J Forrest J. The trial judge would then have to evaluate this evidence and form his or her own view as to whether, first, Ms Taseska would have been successful in the stress claim had the additional evidence been called, and, if so, whether it was Carus' wrongful conduct that made the difference to the result.

35 An alternative way of putting her claim, which would be unlikely to occur in the current case given the expense involved, would be for Ms Taseska to retain a suitably qualified expert, such as an experienced personal injuries barrister, to review the claim, including the additional evidence, and form an opinion as to Ms Taseska's prospects of success in the stress claim.

36 However, how the case is presented at trial does not change the fundamental difficulty with what is proposed: being that the only way in which Ms Taseska could be wholly or partially successful in her claim against Carus with respect to the stress claim would be by in effect reversing or otherwise undermining the decision of J Forrest J that MSS Security was not liable in negligence to Ms Taseska in relation to the stress claim. His Honour's judgment was delivered after a full trial (albeit in circumstances where, owing to the absence of the file, Ms Taseska may have had one hand tied behind her back), and was not disturbed upon appeal. Her inability to produce all relevant evidence by reason of, among other things, Carus' failure to provide the file was one of her grounds of appeal, which was rejected by the Court of Appeal.[33]

37 Accordingly, I agree that allowing Ms Taseska to bring her claim against Carus with respect to the stress claim would so offend the principle of finality such as to permit an abuse of process. I agree that the principle of finality in litigation is fundamental to public confidence in the administration of justice, and that the doctrine of advocates' immunity, while not necessarily directly relevant here, is but one application of that fundamental principle. In determining whether the claim was an abuse of process, I have had regard to the factors referred to by Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd,[34] as follows:

(a) the importance of the issue in and to the earlier proceedings;

(b) the terms and finality of the finding as to the issue sought to be relitigated;

(c) the identity between the relevant issues in the two proceedings;

(d) the extent of oppression and unfairness to the other party if the issue is relitigated;

(e) the impact of the relitigation upon the principle of finality and on the public confidence in the administration of justice; and

(f) the overall balance of justice between the parties.

38 Setting aside for the moment the 'catch all' provision in (f) above, I would make the following observations regarding the applicability of the factors above to the current case:

(a) the importance of the issue in and to the earlier proceeding: while of course there are a number of issues in this proceeding which were not the subject of the trial of the stress claim in the personal injury proceeding, such as the conduct of Carus in refusing to hand over the file, Ms Taseska would not be able to claim any loss arising out of Carus' conduct if she was not able to obtain a finding in her favour in respect of a central issue in the personal injuries proceeding: that is, whether MSS Security was liable to her in respect of the stress claim;

(b) the terms and finality of the finding as to the issue sought to be relitigated: J Forrest J's findings were in absolute terms and final, and undisturbed on appeal;

(c) the identity between the relevant issues in the two proceedings: see my comments in relation to (a) above;

(d) the extent of the oppression and unfairness to the other party if the issue is relitigated: this is not a particularly significant matter. It will be costly and inconvenient for Carus to defend such a claim, but not oppressive or unfair. After all, the Carus parties are in a better position than most to identify the strengths and weaknesses of the stress claim; and

(e) the impact upon the principle of finality of litigation and public confidence in the administration of justice: for the reasons outlined earlier in these reasons, allowing Ms Taseska's claims against Carus to proceed would severely compromise the principle of finality in litigation.

39 For completeness, while the primary basis for granting summary judgment in favour of Carus is that the principle of finality means that Ms Taseska's claim against Mr Carus in relation to the stress claim is an abuse of process, I would add further that the terms of the agreement between Ms Taseska and Carus provide a complete answer to the question of whether Carus was entitled to retain the file. The language of the relevant clause of the agreement is plain. Whether the retainer was terminated for cause or otherwise does not alter the position. Further, while Ms Taseska submitted that, in effect, Carus had a guarantee that the legal costs would be paid, this does not, of itself, amount to payment.

40 Finally, while Carus contended that it owed no duty of care to Ms Taseska after the end of the retainer, and by reason of her having alternative avenues to obtain the file, I would not be prepared to determine the question of the duration and extent of a solicitor's duty of care to a former client on a summary basis.

41 I will hear further from the parties on the form of order (including pre-trial directions) and the question of costs.

[1] Taseska v Carus [2017] VSC 113 (16 March 2017); Taseska v Carus & Anor (No 2) [2017] VSC 707 (24 November 2017).

[2] [2016] VSC 252.

[3] [2016] VSCA 193.

[4] Originally Ms Taseska alleged that Carus' failure to provide her with the file affected her preparation for trial in respect of both the knee claim and the stress claim. However, the effect of the 24 November orders was to give judgment in favour of Carus with respect to the knee claim (subject to the leave granted in my orders of 24 November 2017).

[5] [2016] VSCA 193.

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

[7] Henry Carus & Associates v Silvana Taseska, Unreported S CI 2014 01219, 26 June 2015 [6].

[8] [2005] HCA 12; (2005) 223 CLR 1.

[9] [2016] HCA 16; (2016) 259 CLR 1.

[10] [2017] HCA 13; (2017) 259 CLR 275.

[11] [2005] HCA 12; (2005) 223 CLR 1.

[13] [2016] HCA 16; (2016) 259 CLR 1.

[14] [2017] HCA 13; (2017) 259 CLR 275.

[15] [2016] HCA 16; (2016) 259 CLR 1.

[17] By reason of my ruling on 24 November 2017, Ms Taseska has been permitted to bring a claim in negligence against Carus in respect of this matter.

[18] Contrary to Ms Taseska's submissions, this order did not require Carus to provide the file.

[19] There was no evidence as to whether any request was made at this time.

[20] [2007] VSC 124.

[21] [2008] VSC 515.

[22] Gamun Chemical Co (UK) v Rocham Ltd & Ors [1980] 1 WLR 614.

[23] [2017] VSC 113.

[25] [2015] HCA 28; (2015) 256 CLR 507.

[26] Ibid [25]-[26] (citations omitted).

[27] (2013) 303 ACR 314.

[33] [2016] VSCA 193.

[34] (1997) Aust Torts Rep 81-423 (64,077), at (64,089), approved by the NSW Court of Appeal in O'Shane v Harbour Radio (2013) 303 ACR 314.