Professional Negligence

Suing Lawyers (Barristers or Solicitors) for Work Performed in Court


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Suing Lawyers (Barristers or Solicitors) for Work Performed in Court

The Facts

The case of Sims v Chong concerned an action by the Appellant against his former legal practitioner. The Appellant retained the Respondent as his legal practitioner in a claim for damages arising from the use of a number of patents, trademarks and strategies.

The Original Claims

The Appellant’s first claim brought in the Supreme Court of Western Australia was struck out by the Registrar after the fifth Statement of Claim based in contract was lodged by the Respondent. This was done on the basis the claim failed to set out a number of requirements; namely any agreement as to consideration or any request on behalf of the company for the work. The Registrar noted that the Appellant had also failed to plead compensation on the basis of quantum meruit, however he noted the failure to do so did not leave him without a remedy. Following this, the Appellant applied to the court with an amended Statement of Claim on this basis; however the Registrar did not allow the proposed amendment. The Appellant then appealed to the Master of the Supreme Court of Western Australia seeking to strike out the Registrar’s decision, this was also dismissed.

The Proceedings in the Federal Court of Australia

The Appellant then commenced proceedings in the Federal Court against the Respondent on the basis of the summary dismissal of the claim in the Western Australian Supreme Court. The Appellant alleged that the Western Australian claim involved aspects of contract, patent law, fraud by appropriation of property rights, unjust enrichment and inventor’s rights. The Appellant claimed that despite this, the Respondent failed to address all causes of action besides the breach of contract.

The Appellant argued that the Respondent failed to tell him that she did not have expertise in litigation concerning intellectual property, following which the Appellant was unsuccessful in what ought to have been a successful claim. The Respondent argued that it was an abuse of process to raise the same argument which had been dismissed in the original claim.

The primary judge characterised the Appellant’s argument as a demonstration of ‘professional incompetence’. The Court ruled that this was effectively an attempt to re-litigate the claim and held on this basis the claim was an abuse of process, emphasising the significance of finality in litigation.

The primary judge then turned to consider the issue of advocate’s immunity which was submitted by the Respondent. The Court ruled that advocates immunity applied to the claim regardless of how the Appellant framed the action and dismissed the Appellant’s claim on this basis.

The Appeal to the Full Court of the Federal Court of Australia

In an appeal, the Appellant argued that his original claim in the Federal Court relied on the finding that the Respondent had mislead him as to the belief she was competent to act in his claim and that she failed to advise him on a number of necessary things. Secondly the Appellant argued the primary judge erred in dismissing his claim on the basis of advocate’s immunity as not all of his claims fell within the immunity. Alternatively he put forth that the existing state of authorities was not clear enough to justify the use of the immunity.

The Decision

The Full Court of the Federal Court allowed the appeal and set aside the decision of the primary judge. The Respondent accepted the Appellant’s claim that the primary judge wrongly dismissed the original claim, thus the Court did not address this point in detail. However, they did mention that it was clear the Federal Court erred in striking out the claim at first instance on the basis that the statement of claim, whilst poorly expressed, extended further than the statement of claim at first instance.

The focus of the appeal was in regards to the second point: the primary judge’s dismissal of the claim on the basis of advocate’s immunity. The Court looked at the leading High Court cases in this area, namely: Giannarelli and D’Orta-Ekenaike. In regards to Giannarelli the Court looked at the case in detail and highlighted an advocate is not able to be sued in negligence for work which is so intimately connected to the conduct in court that it cannot be distinguished. The court noted that the case did not give clarity as to where this line should be drawn, however they emphasised that the immunity should not be relaxed so as to allow clients to blame advocates for all losses in court.

The court then looked at the decision of D’Orta-Ekenaike which considered work done by an advocate outside of court that affected the conduct of the case at the trial. This was considered to fall within the advocate’s immunity; however the decision did not further clarify where the line is to be drawn. Their Honours in the Full Court of the Federal Court emphasised the court’s reference in D’Orta-Ekenaike to the importance of the finality of decisions, noting this as the primary justification for advocate’s immunity.

In conclusion, the court highlighted the position in Giannarelli is to remain. That is, work which is done in or out of court which leads to the court’s decision, is to be considered an advocate’s work for the purpose of the immunity. In application to the appeal on foot the Court noted the premise in numerous cases that the finality principle is given a more strict application where a claim may open avenues for inquiry or produce ‘judicially quelled controversy’. It was subsequently noted the decision of the Registrar to strike out the claim in the Western Australian Court was interlocutory, thus it would not result in ‘judicially quelled controversy’ and did not require a strict application of the finality principle. In allowing the appeal the Court compared the Respondent’s failures with an application made outside the time limit, noting that neither would be covered by advocate’s immunity.

The Effect of the Decision

While the decision does not wholly clarify the position of where to draw the line in respect of the immunity, it highlights the unlikelihood of an advocate’s ability to rely on the immunity in the situation they have misrepresented their skills.

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