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ABC (A Pseudonym) v Reader Lawyers & Mediators

ABC (A Pseudonym) v Reader Lawyers & Mediators

Case [2021] WASCA 202 1 December 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ABC (A PSEUDONYM) -v- READER LAWYERS & MEDIATORS [2021] WASCA 202
CORAM:   MURPHY JA
BEECH JA
TOTTLE J

HEARD:   14 OCTOBER 2021
DELIVERED          :   1 DECEMBER 2021
FILE NO/S:   CACV 26 of 2020
BETWEEN:   ABC (A PSEUDONYM)
Appellant
AND
READER LAWYERS & MEDIATORS
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
File Number            :   CIV 336 of 2017

Catchwords:

Practice and procedure - Respondent's application to strike out substituted statement of claim and for summary dismissal - Summary judgment entered for respondent by primary judge - Whether primary judge erred in failing to grant appellant leave to file a further amended statement of claim - No error of principle established - Turns on own facts

Legislation:

Nil

Result:

Application for an extension of time for commencing the appeal dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M L Bennett
Respondent	:	K R Lendich SC

Solicitors:

Appellant	:	Bennett + Co
Respondent	:	Popperwell & Co

Case(s) referred to in decision(s):

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 258 CLR 1
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994)
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233
Macedonian Orthodox Community Church St Pekta Incorporated v The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Reader Lawyers & Mediators v ABC (a pseudonym) [2020] WADC 14
Smith v McCusker [2005] WASCA 226
Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356
Zaghloul v Bayly [2021] WASCA 125

JUDGMENT OF THE COURT:

Overview

On 7 February 2017 the appellant commenced an action against the respondent, a law firm who had acted on the appellant's behalf in proceedings in the Family Court of Western Australia, for damages for breach of contract alternatively for damages for negligence. On the respondent's application the primary judge struck out the appellant's substituted statement of claim and ordered that the action be dismissed and that the appellant should pay the respondent's costs of the action.[1]
[1] BAB 1.
The appellant seeks to set aside the order for summary judgment and replace it with an order that she have leave to file and serve a further amended statement of claim. At this court's direction the applicant filed a version of the pleading on which she wished to rely if her appeal were to succeed.[2]
[2] This pleading was entitled 'Minute of proposed substituted statement of claim'.
The appellant does not contend that the primary judge erred in striking out the substituted statement of claim. Rather the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABC (A Pseudonym) v Reader Lawyers & Mediators

Details

AGLC: ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202
Case: [2021] WASCA 202
Decision Date

CaseChat Overview and Summary

The appeal in ABC (A Pseudonym) v Reader Lawyers & Mediators was heard by the Court of Appeal of Western Australia, comprising Murphy J, Beech JA, and Tottle J. The appellant, ABC (A Pseudonym), sought to appeal against the decision of the primary judge in the District Court of Western Australia, which struck out the appellant's substituted statement of claim and ordered the dismissal of the action against the respondent, Reader Lawyers & Mediators. The primary judge's decision was based on the application of the principle of advocate's immunity and the notion of abuse of process. The appellant contended that the primary judge should have granted her leave to file a further amended statement of claim.

The central legal issue in this case was whether the primary judge erred in failing to grant the appellant leave to file a further amended statement of claim, allowing her to recast her claim and potentially put forward a viable cause of action. The appellant argued that the primary judge should have afforded her an opportunity to replead her claim, provided any injustice to the respondent could be compensated by the imposition of terms. The respondent, on the other hand, maintained that the primary judge's decision should not be interfered with, as the appellant had not demonstrated any basis for doing so.

The Court of Appeal found that the primary judge did not err in failing to grant the appellant leave to replead her claim for the following reasons: first, the appellant did not apply for leave to replead, and the exercise of the discretion to grant such leave was neither fundamental nor obvious; second, the primary judge was required to determine the application for summary dismissal by reference to the substituted statement of claim, and there was no viable nuance or variant of the cause of action for negligence to be discerned from it; and third, the cause of action upon which the appellant wished to rely, as pleaded in the minute of proposed substituted statement of claim, differed in substance and quality from those pleaded in the substituted statement of claim.

In conclusion, the Court of Appeal dismissed the appeal and the application for an extension of time for commencing the appeal. The court will hear the parties in relation to costs.

Orders