Suresh v WD Hunt & Associates

Background

1. On 30 December 1997, Mrs Suresh's husband suffered a fatal accident while operating a lathe at a factory. He was employed by Jacon Industries Pty Ltd.
2. On 5 February 2002, Mrs Suresh commenced proceedings in the District Court against Jacon Industries Pty Ltd for damages for herself, her son and her daughter pursuant to the Compensation to Relatives Act 1897 (NSW). WD Hunt acted for Mrs Suresh in the District Court proceedings.
3. The District Court proceedings were heard by O'Reilly DCJ. His Honour dismissed Mrs Suresh's claim and judgment was entered in favour of WD Hunt.
4. Mrs Suresh appealed the decision of O'Reilly DCJ. She retained new solicitors, Stephen Smart & Associates, to act for her.
5. On 22 June 2005, the Court of Appeal set aside the decision of O'Reilly DCJ and entered judgment in favour of Mrs Suresh. Orders were made that the matter be remitted to the District Court for assessment of damages, and that there be no reduction on account of contributory negligence of the deceased: see Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 ("the first Court of Appeal decision").
6. The assessment of damages was heard by Armitage DCJ, who gave judgment in favour of Mrs Suresh in the sum of $710,018. Mrs Suresh appealed that decision and sought an increase of damages to $808,069.
7. On 30 October 2007, the Court of Appeal dismissed that appeal: see Suresh v Jacon Industries Pty Ltd [2007] NSWCA 317 ("the second Court of Appeal decision").
8. On 17 September 2014, Mrs Suresh filed the statement of claim in these current proceedings. On 2 February 2015, leave was granted to amend the statement of claim. On 2 March 2015, Mrs Suresh filed the ASC. As mentioned earlier, on 17 July 2015, Mrs Suresh filed a FASC. WD Hunt seeks to strike out or dismiss the FASC pursuant to UCPR 13.1 or 14.28.

Summary dismissal

1. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed or if the proceedings are an abuse of the process of the court.
2. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.
3. UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).
4. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application (at [3] in O'Brien): (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).
5. Counsel for WD Hunt also relied upon Shaw v State of New South Wales [2012] NSWCA 102 at [128]-[134] per Barratt JA (with Beazley, McColl, Macfarlan JJA and McLellan CJ at CL agreeing); and Simmons v Protective Commissioner of New South Wales [2012] NSWSC 455 at [56]-[57]. He submitted that in recent times it has been recognised that ss 56 and 58 of the Civil Procedure Act 2005 (NSW) may justify summary dismissal where it is apparent that there are no real prospects of the proceedings being successfully prosecuted, even if the high degree of certainty arising from the test outlined in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (per Barwick CJ at 128-129) is not made out.
6. WD Hunt submitted that firstly, on any view of it, the pleadings are so deficient on their face that they ought to be struck out, and whichever view is taken about the test for summary dismissal the test is satisfied in this case; secondly, that the claims fall within the scope of advocate's immunity; and finally, that these proceedings are statute barred.

The further amended statement of claim

1. The pleading in the FASC is much clearer than the pleading in the earlier statements of claim.
2. The FASC at [1] to [7] relevantly reads: "1 Defendant did not initiate proceedings in the Supreme Court and instead took the matter to the district court. 2 Did not provide coroner's report when requested. Instead Plaintiff had to go to the coroner's office directly to obtain a copy. 3 Defendant didn't provide a copy of Mr Burns report when instructed. Plaintiff had to obtain a copy myself directly by paying $4000.00 I have attached a copy of this. 4 Defendant delayed providing police report. Also a delay in providing work cover's investigation reports. 5 Plaintiff paid defendant sum of $489 to bring subpoenas to court. However defendant didn't return the funds nor bring any subpoenas from her end. Please find enclosed copies of the cheques. 6 Defendant's negligence has caused a significant amount of stress to the plaintiff which has caused health problems. This stress caused has also affected the plaintiff in being able to develop herself and obtain employment. 7 Any further information such as affidavits have been submitted to the court previously."
3. Mrs Suresh claims damages firstly, "for negligence in running of the case regarding death of Suresh Purushotham"; and secondly, "damages and stress caused to Kumuda Suresh as a result of mishandling the case by the defendant." She seeks damages in the sum of $5,000,000 and interest calculated at $150,000.
4. Counsel for WD Hunt relied on further written submissions that responded to the pleading in the FASC. Time was allowed for Mrs Suresh and her son to read those submissions before the hearing commenced.

(1) Deficiency of the pleading

1. The function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: see Banque Commerciale SA, En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-303.
2. Overall, counsel for WD Hunt submitted that although the FASC is now quite concise, it is not so concise as to be clear exactly what the allegations are or, perhaps more importantly, how they are said to relate to a cause of action.
3. I shall briefly set out each of Mrs Suresh's allegations in the FASC, WD Hunt's response and my conclusions, as this reflects the structure of the argument that took place during the hearing.

The FASC

1. I understand that Mrs Suresh's submission was that the delays referred to in paragraphs [1], [2], [3], [4] and [5], caused her stress, as she had to do the running around when her solicitor should have done it. This stress also affected her ability to develop herself and work on a career.

Para [1]

1. Mrs Suresh alleges that WD Hunt initiated proceedings in the District Court instead of the Supreme Court.
2. WD Hunt submitted that the damages, as ultimately assessed, fell within the jurisdictional limit of the District Court and therefore, there can be no damage. No cause of action is asserted and, in any event, this would fall within the immunity.
3. The jurisdictional limit in the District Court at that time was $750,000 and ultimately, Mrs Suresh obtained a verdict of $710,018. The verdict amount fell within the jurisdiction of the District Court. As far as it is alleged that WD Hunt was negligent in commencing proceedings in the District Court, this allegation cannot be sustained.

Para [2]

1. Mrs Suresh alleges that WD Hunt did not provide a copy of the coroner's report to her when she requested it. However, Mrs Suresh says that she did obtain a copy of the report from the coroner's office. WD Hunt submitted that firstly, it is difficult to see how this could found a cause of action and should be struck out; and secondly, it could only be relevant in the context of evidentiary issues in the preparation of the initial hearing, which would fall within the immunity.
2. This allegation does not disclose how the solicitor's failure to provide the coronial report impacted on Mrs Suresh's case to her detriment. Mrs Suresh has not alleged that these documents were not available at trial.

Para [3]

1. The allegation pleaded in paragraph [3] was amended during the hearing in this Court. Mrs Suresh now alleges that WD Hunt did not provide a copy of Mr Burn's report to her, even though she had instructed it to do so and had paid $4,000 for the report. However, Mr Burns did forward Mrs Suresh a copy of the report by post.
2. WD Hunt submitted that it is unclear what this allegation is. It may be that it relates to the transfer of the file from one solicitor to another, and was a failure to release the file without payment of disbursements. WD Hunt submitted that this pleading, as currently framed, would not found a cause of action.
3. It is difficult to see how Mrs Suresh having to obtain a report from the expert himself and not via her solicitor could amount to negligence. The report of Mr HL Burn of HL Burn & Associates, consulting engineers, was tendered at the first trial (see the first Court of Appeal decision at [13]).

Para [4]

1. Mrs Suresh alleges that WD Hunt delayed providing both the police report and the WorkCover investigation report to her. At the hearing in this Court, Mrs Suresh explained that she had to obtain these documents from the coroner's report.
2. WD Hunt submitted that it is not clear how the delay is relevant but presumably, it is related to the evidentiary preparation of the claim. If this is so, it would fall within the immunity. Further, Mrs Suresh does not say that the documents were not provided, but simply that there was a delay in providing them. WD Hunt argued that it is unclear how any loss is said to flow from that.
3. It appears that the WorkCover file was available at the first trial. Mr Terry Forques, senior inspector from the WorkCover Authority, gave evidence (also see the first Court of Appeal decision at [13]). Like before, it is difficult to discern how this delay impacted upon the presentation of her case at trial or would give rise to any cause of action.

Para [5]

1. Mrs Suresh alleges that she paid $489 for subpoenas, which WD Hunt did not bring to court. Mrs Suresh also complains that these funds were not returned. WD Hunt submitted that it is not clear what this means, but again, if it relates to a failure to issue subpoenas or to obtain subpoenaed material, then it relates to the conduct of the proceedings and would fall within the immunity.
2. At the hearing before this Court, Mrs Suresh tendered a list (Ex 1), which apparently refers to the issue of comparable wage records, which I understand were sought by way of subpoenae.
3. In the second Court of Appeal decision, Basten JA at [3] recorded: "[3] The schedule of damages prepared by the Appellant indicates that she seeks an increase in the amount allowed by the trial of $710,018 to an amount of $808,069. The difference in the two amounts, which is a fraction under $100,000, is apparently covered by a reduction in the amount claimed on account of past and future domestic assistance. However, the grounds of appeal allege four errors, which have been identified in the Appellant's written submissions in the following terms: (i) the finding that the deceased would have ceased remunerative work at 65 years of age and not at 70 years of age; (ii) the allowance in the calculation of future economic loss of two-thirds of the allowance available to a leading hand, rather than the full amount; (iii) a calculation of the entitlement of the children based on dependency to the age of 23, rather than 25 years, and (iv) allowance for domestic assistance by 'effectively averaging' the parties' contentions."
4. In relation to appeal ground [ii], Basten JA stated at [7]-[8]: "[7] The second question concerned the likelihood that the deceased would have obtained a position as a leading hand. That was a contingent benefit which his Honour approached on the basis that he should assess the contingency in accordance with the principles established in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. The plaintiff relied upon a statement by the machine shop supervisor to a WorkCover Authority officer investigating the death of the deceased to the effect that he was not under supervision at the time of the accident because the company was 'about to make him into a leading hand of the workshop because he was an intelligent, competent tradesman'. [8] There were obviously contingencies which might have affected the occurrence and the timing of any promotion. On one view, the allowance made recognised that there was a two-thirds chance that the deceased would receive promotion immediately and maintain that position until the end of his working life (no additional promotion being proposed). An alternative understanding is that he would have received the promotion, but only after working for some further years. His Honour's reasons for adopting this approach are set out at pp 33-34 of the judgment. Calculation of contingencies are inherently a matter for evaluative judgment. No error of the kind identified in Warren v Coombes (1979) 142 CLR 531 has been demonstrated, nor were the reasons given inadequate."
5. It is unclear as to whether firstly, these subpoenaed documents for which Mrs Suresh paid $489 related to wage records of leading hands; and secondly, whether they were tendered as evidence in the District Court.
6. At the hearing in this Court, Mrs Suresh also handed up a letter dated 26 April 2006 addressed to Furzer Crestani services (Ex 2), in which she requested Furzer Crestani services to have answers to two questions when she attended a forthcoming meeting with them. The two questions were: "1. Page 4-4.3.3 - the deceased would not be promoted beyond the leading hand - on what basis is this assumption being made? … 2. This salary for future wage loss, Superannuation Purposes (Schedule E) and LSL has been taken at 864.21 gross (667.38 net) which is based on the wage scale as of now (March 2006). Same salary has been applied to future wage loss, Superannuation Purposes and LSL calculations. No provision has been made for increase in award wages due to CPI (leave alone career promotions). We bring to your attention the following points: - Salary for superannuation purposes (schedule C) takes into account increase in award rates and the same needs to be applied to future wage loss (average of 3% increase every 2 years). While no provision is made for increase in wages due to CPI, the use of the discount factor of 5% (to calculate the PV) actually results in double discounting of future wages. The treatment here is not fair."
7. Mrs Suresh also handed up other sundry documents (Ex 3) that gave details of medical certificates, hospital admissions and the costs of medical expenses she has paid for her treatment. The significance of these documents is not readily apparent.
8. It is my view that the allegations pleaded in the FASC, taken individually or cumulatively, do not plead a cause of action in negligence.
9. In case I am wrong, I will address whether the claims fall within the advocate's immunity.

(2) Advocate's immunity

1. The common law immunity afforded to advocates was established in Rondel v Worseley [1969] 1 AC 191; [1967] 3 All ER 993 and is said to extend to "work done out of the court which leads to a decision affecting the conduct of the case in court" (see Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560 per Mason CJ). The protection offered by the immunity is said to exist "only where the particular work is so intimately connected with the conduct of the case in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to hearing": Rees v Sinclair [1974] 1 NZLR 180 at 187 per McCarthy P. Rees v Sinclair was referred to with approval by the High Court in Giannarelli at 560 and the Court of Appeal per Beazley P (with whom Basten, Barrett, Hoeben JJA and Sackville AJA agreed) in Donnellan v Woodland [2012] NSWCA 433 at [169].
2. The High Court revisited the issue in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, holding that the tests outlined above do not differ from each other in a substantial way and that both reflect the current common law position. The joint judgment articulated that "where a legal practitioner… gives advice which leads to a decision… which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account" (at [91]).
3. In Young v Hones [2014] NSWCA 337, Ward JA (with whom Bathurst CJ and Emmett JA agreed) helpfully set out some of the salient features of the advocate's immunity and surveyed the relevant authorities at [188]-[190]: "[188] The advocate's immunity from suit extends to advice, or work, done out of court which leads to a decision affecting the conduct of a case in court (Giannarelli v Wraith at 560; D'Orta at [91]; Donnellan at [172]). In Keefe v Marks at 719-20, Gleeson CJ adopted the language of McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187 that pre-trial work 'so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause (was) to be conducted when it (came) to a hearing'. Both tests were referred to by Giles JA in Symonds v Vass at [14]. [189] In D'Orta, the plurality did not see any significant difference between the test as expressed in Giannarelli and the formulation in Keefe v Marks as to 'work intimately connected with' work in court ([86]). Their Honours emphasised that it is necessary to identify the nature of the complaint made by a disappointed client seeking to sue the advocate ([65]). [190] The kind of matters that, in Keefe v Marks, Gleeson CJ contemplated would fall within the immunity from suit (and that would ordinarily be under active consideration, as required, not only prior to the commencement of the hearing but also throughout the hearing up until the conclusion of the proceedings) were (at 718): ... interviewing the plaintiff and any other potential witnesses, giving advice and making decisions about what witnesses to call and not to call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended."
4. At [216]-[217], Ward JA stated: "[216] The rationale for advocate's immunity was clearly stated in D'Orta. It rests largely, though not solely, in the public interest in the finality of litigation. The present case, where hundreds of thousands of dollars and much time and resources (both of the litigants and of the various courts involved) have been devoted to the attempt by Ms Young to resolve her initial dispute as to the building works and to change the result achieved by way of settlement of proceedings commenced and disposed of a decade ago, is a prime illustration of why such a defence is in the public interest. [217] Here, the core of Ms Young's complaint is that the settlement that she reached was inadequate to achieve the outcome she desired. The fact that it can be cast as a complaint relating to non-joinder of a necessary party or the like does not detract from the fact that in substance she complains that the solution achieved in the settlement was illusory. Her claim against the lawyer respondents necessarily involves re-opening the settlement and determining issues (such as the nature of the unauthorised works and their impact) that were resolved by the settlement of the proceedings. To do so would offend the underlying rationale of the immunity invoked by the lawyer respondents."
5. It has sometimes proved to be difficult to draw the line between work intimately connected with the conduct of a case in court and work which is remote from the conduct of a case in court.
6. The immunity does not apply to every step a solicitor takes before and during legal proceedings. In Giannarelli at 560, Mason CJ said that the grounds "for denying liability for in-court negligence have no application to work done out of court which is unconnected with work done in court": Saif Ali v Sydney Mitchell & Co [1980] AC 198; [1978] 3 All ER 1033.
7. WD Hunt submitted that to the extent that allegations of conduct are made, they are all allegations of the conduct of the proceedings, which would fall within the immunity, such that the proceedings are liable to be dismissed.
8. The allegations, if made out, (and for the purposes of this application, I accept that is so), involve the delay in providing reports that may be used as evidence at the trial and paying for subpoenas. It appears that most of the documents were actually tendered in evidence at the hearing. In my view, these matters are "work so intimately connected with the conduct of the cause in Court that it can fairly be said to [be] a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing". These matters fall within advocate's immunity.
9. In the event I am wrong in relation to pleading deficiencies and advocate's immunity, WD Hunt argued that the claim is statute barred.

(3) Is the claim time barred?

1. WD Hunt argued that since it ceased acting for Mrs Suresh in 2004 and the Court of Appeal dismissed the assessment of quantum in October 2007, any cause of action in relation to failing to prepare the earlier case and not obtaining sufficient quantum must, at the very latest, have crystallised at that point in time.
2. The present proceedings were filed on 17 September 2014, some 6 years and 10 months after the Court of Appeal dismissed the appeal on quantum. WD Hunt says that therefore on the face of the material, any claim against it is statute barred. WD Hunt argued that although it has sought relief by way of striking out the FASC, it would be more appropriate that the claim be dismissed for being time barred.
3. On 30 October 2007, when the final appeal was dismissed, the cause of action against the former solicitor's negligence crystallised. The six year limitation period expired on 30 October 2013.
4. It appears that the claims are statute barred, as over six years had elapsed before the statement of claim was filed.
5. For reasons given earlier, the current FASC is hopeless and is doomed to fail. It should be dismissed.

Discretion to replead

1. Mrs Suresh has had two opportunities to reformulate her pleading. She has availed herself of the opportunity to seek legal advice in relation to the drafting of the latest pleading. In the exercise of my discretion, I cannot see any utility in granting a future opportunity to replead as the deficiencies in the pleading cannot be overcome. The further amended statement of claim filed is struck out. These proceedings are dismissed.
2. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis as agreed or assessed. The Court orders that: (1) The further amended statement of claim filed 15 July 2015 is struck out. (2) These proceedings are dismissed. (3) The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2015