Abriel v Rothman

[2004] NSWCA 40

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Abriel & Ors v Rothman [2004]  NSWCA 40

FILE NUMBER(S):
40173/03

HEARING DATE(S):               17/12/03

JUDGMENT DATE: 18/03/2004

PARTIES:
FIRST APPELLANT
Rudolph Abriel
SECOND APPELLANT
Vera Abriel
THIRD APPELLANT
Premier Knits Pty Ltd
RESPONDENT
Stephen Rothman

JUDGMENT OF:       Mason P Santow JA Cripps AJA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          20636/01

LOWER COURT JUDICIAL OFFICER:     Burchett AJ

COUNSEL:
APPELLANTS - Mr Abriel in person
RESPONDENT - L M Morris QC

SOLICITORS:
APPELLANTS - unrepresented
RESPONDENT - McCabe Terrill

CATCHWORDS:
Negligence alleged against a barister - Duty to the Court - Discretion of barrister as to which argument to advance - Not raised on appeal decided in earlier litigation. (ND)

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40173/03

MASON P
SANTOW JA
CRIPPS AJA

Thursday 18 March 2004

ABRIEL & ORS v ROTHMAN

Judgment

1. MASON P:  I agree with Cripps AJA.

2. SANTOW JA:     I agree with Cripps AJA.

3. CRIPPS AJA:     This is an appeal, pursuant to leave granted, against the decision of Burchett AJ published on 8 November 2002 summarily dismissing the appellants’ action against the respondent.

4. The appellants are Mr Abriel, his wife Vera Abriel and Premier Knits Pty Ltd.  A reference to Mr Abriel is relevantly a reference to the appellants. 

5. The respondent Mr Rothman SC appeared for Mr Abriel in an appeal to the Full Court of the Federal Court against the decision of Dowsett J delivered on 29 August 2000 after a five-day hearing.  The Full Court of the Federal Court dismissed the appeal and the High Court refused an application for special leave to appeal.

6. Mr Abriel has alleged that Mr Rothman was negligent and/or otherwise in dereliction of duty in the presentation of the appellants’ appeal to the Full Court of the Federal Court.

1. In order to understand the case Mr Abriel wishes to bring to trial against Mr Rothman and to determine whether Burchett AJ was correct in his decision to summarily dismiss his claim it is necessary to outline the litigious history preceding the decision by Burchett AJ.

2. In 1993 Mr Abriel sued Australian Guarantee Corporation and Westpac alleging he was entitled to compensation by reason of their fraud.  The litigation was settled by a Deed of Release dated 5 April 1994. 

3. Shortly after entering into the Deed of Release Mr Abriel commenced proceedings seeking to set aside the Deed of Release alleging that the execution of the Deed was procured by undue influence and that Westpac and AGL were guilty of unconscionable behaviour.  The matter went to mediation and Ms Bennett SC (as she then was) acted for Mr Abriel, pro bono, at the mediation.  The action was settled by Mr Abriel entering into a second Deed of Release.

4. Shortly after the execution of the second Deed of Release Mr Abriel commenced a third set of proceedings to set the second…